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International Aerial Navigation and the Peace Conference

Published online by Cambridge University Press:  04 May 2017

Arthur K. Kuhn
Arthur K. Kuhn*
Affiliation:
Counsel to the Peace Conference Committee of the League to Enforce Peace
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Extract

Aërial navigation, owing to the unusual impetus given to it by the Great War, now promises to result in one of the most profound influences affecting the conditions of modern civilization. It is difficult to realize that only twenty years have elapsed since the program of the First Hague Conference proposed “to prohibit the throwing of projectiles or explosives of any kind from balloons, or by any similar means”; and that one of the express causes inducing the nations of the world to agree to the proposal was the undeveloped character of the art of aviation. Although the treaty was short-lived and expired in 1905, the art had so greatly advanced that a complete change of the attitude of many governments had taken place and the renewal of the treaty was out of the question.

The opening of the war inaugurated a feverish competition to perfect every possible type of aircraft for use in attack as well as for reconnaissance. The stern demands of military tactics introduced an entirely new phase in the development of aerial navigation.

Type
Research Article
Information
American Journal of International Law , Volume 14 , Issue 3 , July 1920 , pp. 369 - 381
Copyright
Copyright © American Society of International Law 1920

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References

1 Report of Captain Crozier to the United States Commission of the First Hague Conference. Holls, The Peace Conference at the Hague, p. 95. The reasoning of the subcommittee correctly anticipated by almost two decades some of the occurrences of the war. Captain Crozier reported that the action taken for humanitarian reasons was founded upon the opinion that balloons and other aircraft, as they then existed, constituted such inaccurate means of injury that their use would be dangerous to noncombatants; that “the persons or objects injured by throwing explosives may be entirely disconnected from the conflict, and such that their injury or destruction would be of no practical advantage to the party making use of the machines.”

2 “Ten times as many years would not have produced the same advance if the years had been devoted to peaceful pursuits and commercial uses of airplanes had been the only incentive to inventors and producers.” Secretary of War Baker in the Introduction to Captain Arthur Sweetser’s The American Air Service.

3 Pesce in Journal de droit international privé, 1911, p. 115; Catellani, Le droit aérien, pp. 33-44 (translated by Bouteloup from the Italian).

4 Journal de droit international privé, 1911, p. 986.

5 Valles, De in Revue juridique Internationale de la locomotion aërienne, 1910, p. 175.Google Scholar

6 U. S. Senate Document No. 91, 66th Congress, 1st Session (French and English texts).

7 See the London Times, October 16, 1919.

8 Convention, Art. 39.

9 Convention, Art. 1.

10 Idid., Art. 2.

11 See Annuaire de l’Institut du droit international, 1906, p. 305.

12 The legal status thus created may be compared to the right of vessels of one state freely to navigate an international river flowing from or through its own territory into a foreign state. Jefferson, while Secretary of State, relied upon this right in his negotiations with France, basing it upon “the law of nature and nations.” Moore, Digest of International Law, Vol. 1, p. 624. The present writer suggested it as an analogy for international rights in the airspace, as early as 1908. Proceedings, American Political Science Association, 1908, p. 87; this Journal, 1910, p. 114, “The Beginnings of an Aërial Law.”

13 Convention, Arts. 6-7. This was not the rule in the draft proposed by Paul Fauchille at the Paris Conference of 1910. Ownership was to control nationality, but aircraft might be registered in the country in which the owner resided. Fauchille’s Draft, Art. 3, Journal de droit international privé, 1911, p: 990.

14 Convention, Art. 5.

15 Ibid., Arts. 11-13; Annexes B and E.

16 Connecticut Laws of 1911, Chap. 861; Revision of 1918, sec. 3115.

17 See his able article in this Journal, 1910, p. 95.

18 Convention, Art. 15 and Annex D.

19 Ibid., Art. 19 and Annexes A, B, C, and E.

20 Ibid., Arts. 16-17.

21 Convention, Art. 18.

22 Convention, Arts. 24-25.

23 See, for example, Rocca v. Thompson (1911), 223 U. S. 317, in which a treaty according the right to certain foreign consuls “to intervene in the possession, administration and judicial liquidation of the estate of the deceased, conformably with the laws of the country, for the benefit of the creditors and legal heirs,” was interpreted as not giving such consuls the right to be appointed administrators of the estates of the deceased. The constitutional question is involved in the treaty with Great Britain relative to migratory birds and in this connection the subject has been reviewed and discussed in a recent decision of the United States District Court in Arkansas. United States v. Thompson, 258 Fed. Rep. 257, Advance Sheets, September 25, 1919.

24 Convention, Art. 35.

25 Convention, Annex H.

26 Ibid., Art. 38.

27 Convention, Arts. 43-45.

28 Treaty of Versailles, Arts. 315-320.

29 United States v. Rio Grande D. & I. Co. (1899), 174 U. S. 690; Lake Shore & M. S. Ry. Co. v. Ohio (1899), 173 U. S. 285; Louisville & N. E. E. v. Eubank (1902), 184 U. S. 27; Houston & E. & W. T. R. R. v. United States (1914), 234 U. S. 342.

30 Public Statutes, 1 & 2 Geo. V, chap. 4.

31 London Gazette, April 30, 1919; reprinted in Flying, July, 1919, p. 525.