CHAP. XVI The Similar in character were the servitudes imposed upon Turkey, Greece and Bulgaria by the Convention respecting the Thracian Frontier signed at Lausanne on July 24, 1923, in accordance with which the territories on both sides of the frontiers separating Turkey from Bulgaria and from Greece were to be demilitarized to a depth of about thirty kilometers.1 An unusual form of negative servitude, of a political rather than a legal character, is that imposed by the United States upon the smaller states of the American continent in pursuance of the Monroe Doctrine. The United States considers it dangerous to its peace and safety that any of these states should, even by voluntary act, cede a portion of their territory to a European or Asiatic power or permit such power to obtain political control over it. But the prohibition thus laid down is enforced, not against the states whose territory is involved, but against the non-American state seeking a foothold upon the continent. In 1912 a report that a Japanese firm was about to purchase Magdalena Bay, on the coast of Lower California, as a naval base or for the establishment of a Japanese colony, caused the adoption by the United States Senate of a resolution forbidding, in the language of diplomacy, "the possession of such harbour or other place by any corporation or association which has such relations to another government not American as to give to that government practical power of control for military or naval purposes." This general attitude on the part of the United States has in several instances been confirmed by specific treaty agreement. By the treaty of 1903, recognizing the independence of Cuba, the United States required the new state to pledge itself never to enter into any treaty with any foreign power which would impair its independence or in any manner authorize the foreign power to obtain lodgment in or control over any portion of the island by colonizaupon the territory itself, and created on the part of other states rights in personam rather than rights in rem. For the text of the convention, see Am. Journal, XVIII (1924), Supp., 62. Compare further the provisions of Article 4 of the Straits Convention providing for the demilitarization of the territories adjoining the Straits. 'See above, pp. 147 ff. Senate Resolution, August 2, 1912, Cong. Record, Vol. 48, Part 10, 1004510046. It should be observed that Senator Lodge, in speaking to the resolution, disclaimed its immediate dependence upon the Monroe Doctrine and declared that it rested upon a principle "older than the Monroe Doctrine, namely, the right of self-protection. Ibid. But in so far as the Monroe Doctrine itself is based upon the right of self-protection (see above, p. 147), the Magdalena Bay incident has been generally referred to as among the later manifestations of the Doctrine. XVI tion or for military or naval purposes. The treaty of 1903 with CHAP. Panama gives the United States a monopoly in perpetuity for the construction of a canal across the territory of that state; 2 and by a treaty with Nicaragua in 1914 the United States secured the exclusive proprietary rights necessary for the construction of an interoceanic canal across Nicaraguan territory. 'Malloy, Treaties, I, 362. 'Ibid., II, 1349. 3 39 Stat. at Large, 1661. Am. Journal, X (1916), Supp., 258. a. The formulation of a law of aĕrial space b. Jurisdiction over wireless messages CHAPTER XVII JURISDICTION OVER THE AIR ABOVE NATIONAL TERRITORY At the beginning of the twentieth century states were presented with the problem of regulating the transmission of messages by wireless telegraphy and the navigation of the air spaces above their territory by balloons and aëroplanes. There being no law on the subject, jurists led the way in an attempt to formulate the principles of aërial jurisdiction by resorting to the analogies of the jurisdiction of states over land and territorial waters. But in so doing the widest diversity of view was manifested. Some urged that the air spaces not only over the high seas but over the land territory were free to all, subject, however, to such measures as the individual state might be obliged to take in self-preservation. Such was the view expressed by the Institute of International Law at its meeting at Ghent in 1906, when a series of articles was drawn up for the International Regulation of Wireless Telegraphy. Other jurists argued that the air space over the territory of a state should be regarded as subject to the jurisdiction of the state in the same way as the marginal sea along its coast, giving to the state a primary right of control, but_allowing innocent passage for the messages and aircraft of other states. In addition to these opposing, but moderate, views were others asserting on the one hand complete freedom of the air and on the other hand complete sovereignty without any restriction. To this problem of jurisdiction over the air was added the less difficult task of providing administrative regulations for the transmission of wireless messages at sea from the vessels of one nation to those of another, and from vessels at sea to stations on the shore; as well as regulations for the navigation of the air spaces both over the high seas and over the land, in the interest of the navigators themselves and of the population beneath them. In respect to the transmission of wireless messages to or from points without the state, the question of the jurisdiction of the Resolutions, 164. See also articles adopted in 1910, ibid., 171. For a summary of the opposing views of publicists, see Hazletine, Law of the Air, Lect. I. XVII state has been subordinate to the question of administrative regu- CHAP. lation. Whatever claim of jurisdiction might be advanced by the state, it has been clear that no actual control could be exercised by the individual state over such messages except in so far as they might be received at stations on the shore or inland, and here the control was based upon territorial sovereignty and could be exercised without question. While, therefore, the respective claims of jurisdiction of the several states continue at variance, the more practical issue of the administrative regulation of foreign wireless messages has been largely met by the adoption of two general international conventions, to each of which the United States has been a party. In 1906 an International Wireless Telegraph Convention1 was Administra signed at Berlin, in which the signatory powers made provision tion of tive regula. for the reciprocal exchange of wireless telegrams by their coastal messages stations and stations on shipboard without distinction of the particular wireless system adopted by such stations. Coast stations were obligated to give absolute priority to calls of distress from ships, and to answer such calls with similar priority, and to take such other action as might be required. Provision was made for the connection of the coastal stations with the telegraph system by special wires, so as to facilitate the forwarding of messages. A supplementary agreement made provision for a similar reciprocal exchange between ships at sea which possessed wireless installations. The convention of 1906 was superseded by the International Wireless Convention signed in London, July 5, 1912, by the representatives of forty-three governments, to which was annexed a series of "service regulations" dealing with the organization of radio stations, and the conditions and methods of transmitting messages. A significant feature of this convention is the fact that it was signed not merely by the states parties to it, but separately by their colonies and protectorates; and that in the conferences for which provision was made these "contracting countries" were to be represented by separate delegates each entitled to one vote.* aërial As in the case of wireless telegraphy, the question of the right c. Law of a state to regulate the passage of aircraft through the air space navigation over its territories did not become sufficiently acute before 1914 to lead to the formulation of definite rules. Resolutions embodying a constructive program of legislation, submitted by its committee 'Charles, Treaties, 151. 'Ibid., 158. Ibid., 183. See Art. XII. No one state, however, was to have more than six votes. CHAP. XVII The Aerial on aviation, were adopted by the International Law Association at its meeting in Madrid in 1913, but no action was taken by national governments. Upon the outbreak of the war belligerent states immediately asserted full jurisdiction over the air above their territory as a measure of national defense. At the same time, neutral states, solicitous not to be wanting in fulfilment of the obligations of neutrality, refused to belligerent airships a right of passage across their territories, thus making the use of the air space conform to that of the land itself rather than to that of the marginal sea or international straits.2 The Dutch and Swiss Governments were particularly alert to prevent the passage of Allied and German planes across their territories. By the close of the war the jurisdiction of a state over the air space above its territory appeared to be settled, but the question of a right of innocent passage for the ships of other states still awaited agreement. On October 13, 1919, an Aërial Navigation or International Flying Convention was signed at Paris bringing the whole subject under international statutory law.3 The convention, however, deals only with times of peace, and does not restrict in any way the right of belligerents or of neutrals to assume full control over their air spaces for purposes of national defense in time of war. The primary question of jurisdiction is settled by the recognition that "every Power has complete and exclusive sovereignty over the air space above its territory," including adjacent territorial waters. But at the same time each state undertakes in time of peace to accord freedom of innocent passage above its territory and territorial waters to the aircraft of the contracting states without distinction of nationality, provided the conditions established in the convention are observed.5 Special provisions are laid down with respect to the courses to be followed when such freedom of passage is resorted to. The nationality of aircraft is to be determined according to their ownership and registration, registration being 4 1 Proceedings, Twenty-eighth Conference, 222-245. A suggestive contrast is presented between the use of the Panama Canal by belligerent men-of-war and the denial of the use of the air spaces over the canal to belligerent airships. The proclamation of the President relative to the neutrality of the Canal Zone, November 13, 1914, Rule 15, prescribed that "Air craft of a belligerent Power, public or private, are forbidden to descend or arise within the jurisdiction of the United States at the Canal Zone, or to pass through the air spaces above the lands and waters within said jurisdiction." Am. White Book, Europ. War, II, 18. 3 The convention was signed by twenty-seven states, including the United States, Great Britain, France, Italy and Japan. For the text see Am. Journal, XVII (1923), Supp., 195. 5 Art. 1. Art. 2. Art. 3, 4, 15. |