I may perhaps add, with reference to what was said by one of yesterday's speakers, that any provision on the topic under discussion would be quite out of place in the Geneva Convention, which deals, not with permissible means of inflicting injury, but exclusively with the treatment of those who are suffering from injuries inflicted.
I am, Sir, your obedient servant,
T. E. HOLLAND
Oxford, August 3 (1909).
THE AERIAL NAVIGATION ACT
PRACTICAL DIFFICULTIES
Sir,—The haste with which Colonel Seely's Bill, authorising resort to extreme measures for the prevention of aerial trespass under suspicious circumstances, has been passed through all its stages, was amply justified by the urgent need for such legislation, which Russia seems to have been the first to recognise. The task of those responsible for framing regulations for the working of the new Act will be no easy one. They will be brought face to face with practical difficulties, such as led to the adjournment of the Paris Conference of 1910.
In the meantime, it may interest your readers to have some clue to what has taken place, with reference to the more theoretical aspects of the questions involved, in so competent and representative a body as the Institut de Droit International. The Institut has had the topic under consideration ever since 1900, more especially at [064]its sessions for the years 1902, 1906, 1910, and 1911. In the volumes of its "Annuaire" for those years will be found not only the text of the resolutions adopted on each occasion, together with a summary account of the debates which preceded their adoption, but also, fully set out, the material which had been previously circulated for the information of members, in the shape of reports and counter-reports from inter-sessional committees, draft resolutions, and such critical observations upon these documents as had been received by the secretary. The special committee upon the subject, of which M. Fauchille is Rapporteur, is still sitting, and the topic will doubtless be further debated at the session of the Institut, which will this year be held at Oxford. No success has attended efforts to pass resolutions in favour of any interference with the employment of aéronefs in time of war, such as was proposed by The (now discredited) Hague Declaration, prohibiting the throwing of projectiles and explosives from airships. With reference to the use of these machines in time of peace, the debates have all along revealed a fundamental divergence of opinion between the majority of the Institut and a minority, comprising those English members who have made known their views. Both parties are agreed that aerial navigation must submit to some restrictions, but the majority, starting from the Roman law dictum, "Naturali iure omnium communia sunt aer, aqua profluens, et mare," would always presume in favour of freedom of passage. The minority, on the other hand, citing sometimes the old English saying, "Cuius est solum eius est usque ad coelum," hold that the presumption must be in favour of sovereignty and ownership as applicable to superimposed air space.
It is hardly necessary to observe that neither of the maxims just mentioned was formulated with reference to problems which have only presented themselves within the last few years. The Romans, in the passage quoted, were thinking not of aerial space, but of the element which [065]fills it. The old English lawyers were preoccupied with questions as to projecting roofs and overhanging boughs of trees. The problems now raised are admittedly incapable of solution a priori, but the difference between the two schools of thinkers is instructive, as bearing upon the extent to which those who belong to one or the other school would incline towards measures of precaution against abuses of the novel art. This difference was well summed up at one of our meetings by Professor Westlake as follows: "Conservation et passage, comment combiner ces deux droits? Lequel des deux est la règle? Lequel l'exception? Pour le Rapporteur (M. Fauchille) c'est le droit de passage qui prime. Pour moi c'est le droit de conservation."
I am, Sir, your obedient servant,
T. E. HOLLAND