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The Green Bag
and the United States upheld the French point of view. Germany, Austria and Denmark rallied to the German prop osition. Mr. Perowne, the English delegate, alone stood for his own pro position. After the voting showed which pro ject was the choice of the International Committee, the selected text was sub mitted to the acid test of revision, and it finally emerged from the ordeal in this form:10 Art. 1. — Aerial circulation is free. States have over the space situated above their territory, and including the territorial seas, only the rights necessary for the guaranty of national security and the exercise of private rights. The International Committee held its first congress at Paris, May 31-June 1, 1911, and in the third session the wording was simplified to the following, which remains the final pronounce ment of this body on the subject.11 Art. 1. — Aerial circulation is free, except for the right of subjacent states to take certain measures, to be determined, with a view to their own security and that of the persons and goods of their inhabitants. The Institute of International Law in 1911 adopted an article u almost identic in wording and wholly so in meaning.
It may be said that it is a safe and workable text, so far as practicability goes. The objection to it, from the point of view of the sovereign theory, is that it is pusillanimous, weakly try ing to set up an air-freedom that can not exist. It asserts that aerial cir culation — not the air-space itself — is free, and then immediately tones that statement down by giving the ground-state in general terms rights of control, which it admits are necessary, over circulation. Existence on the ground is, and will 10 1 ibid., 144. 11 2 ibid., 201; stenographic report of discussion, 3 ibid., 133-145. 18 2 ibid., 207, and Annuaire del' Ins titut, etc., 1911, 107, with comment at 43-44.
continue to be, the norm. Why not, then, treat the question frankly from that point of view? The attitude of the jurists evidently has been that every state is going to treat aviation under the principles of criminal law, where the defendant must have his proper rights guaranteed to him so as to pre vent his getting the worst of it. With out reviewing history, it is safe to say that at no time has any new develop ment in civilization come within the purview of the law and been given such paramount privileges, as the jur ists have decided to be necessary for the aeronaut. Even with machines that can exist in the air for weeks at a time, which many of us who have followed the pro gress of aviation believe will be things of the future, man will still spend a very small portion of his life in the air. He does not need a domain free from all earthly trammels, with the groundstate able to exert only a minimum of control over him. I do not believe he wants it. Certainly those airmen with whom I have talked do not want any special privileges. Free aerial circu lation puts the airman into the posi tion of having to give up privileges at every effort to legislate in his behalf or in behalf of the ground-state. No nation in the known world is so blind to progress as to make such a procedure necessary or desirable. Moreover, there will in time be sufficient legislation to regulate aerial traffic to render free circulation illusory in fact. It will not be prohibitive legislation, only regu latory, but every word of it will cast a servitude upon free aerial circula tion, until that term will be a myth. It is notable that the Institute of International Law at its Madrid meet ing in April, 1911, disregarded this cir cumstance, which, to the writer at
