TER VERKRIJGING VAN DEN GRAAD VAN DOCTOR IN
DE RECHTSGELEERDHEID AAN DE RIJKSUNIVERSI-
TEIT TE UTRECHT, OP GEZAG VAN DEN RECTOR-
MAGNIFICUS, Dr. L. S. ORNSTEIN, HOOGLEERAAR IN
DE FACULTEIT DER WIS- EN NATUURKUNDE, VOL-
GENS BESLUIT VAN DEN SENAAT DER UNIVERSITEIT
TEGEN DE BEDENKINGEN VAN DE FACULTEIT DER
RECHTSGELEERDHEID TE VERDEDIGEN OP VRIJDAG
27 MEI 1932, DES NAMIDDAGS TE 4 UUR

§ 3. Evolution since the Great Warnbsp;14
1. The Convention relating
to the regulation of aerial

III.nbsp;Bilateral treaties . .

IV.nbsp;National legislation .
CHAPTER II — Regular air services (art. 15 ol the Conven

tlon of 1919).........

§ i. Different interpretations . .

§ 2. The practice.......

CHAPTER III — Suggestions lor further development .

§ i. A parallel drawn with other
means of transport ...

§ 2. Conditions to be made with

regard to an authorisation of
passage ........

§ 3. Redrafting of article 15 .
§ 4. Settlement of disputes . .

§ 5. how to promote freedom of pas
sage in future .....

CONCLUSION..............

ANNEX (Convention relating to the regulation

aerial navigation of october i3tii i919). . . .
BIBLIOGRAPHY.............

The course of evolution of the latest means of communi-
cation is being accomplished with remarkable rapidity. During
the flight made in 1906 by Santos Dumont, a speed of 41 kilo-
metres per hour was reached; 25 years later, in the Schneider
Trophy Competition a speed of about 635 kilometres per hour
was achieved. In 1905 a distance of 38 kilometres was flown
without landing; at present the record long-distance-flight is
from New-York to Stamboul, a distance of 8050 kilometres.

We are now faced with the second period of evolution of
25 years. In this the technique, based upon the experience
obtained thus far, will make tremendous strides in advance, and
will give to air traffic still greater advantage compared with the
means of communication which are bound to the earth. At present
an aircraft already has twice the speed of an express train, and
is at least three times as rapid as one of the great ocean-
liners. Further it has the advantage of an unlimited spliere of
action, and is not bound to definite courses, straits and chan-
nels, nor is it checked by other natural boundaries, such as
mountains and deserts. On the contrary it can move quite
unhampered and with great rapidity throughout the ocean of

Hence air navigation opens up new possibilities for inter-
national trade, and will create a new source of prosperity.

Air trafiic, owing to its speed and freedom of movement, is
of a pre-eminently international character. It has established
itself in all the 5 continents and even now a commencement
has been made with the institution of intercontinental airlines;
a universal airnet will be created within a measurable distance
of time. Tlierefore, upon a further consideration of this means
of trafiic, an international point of view should be adopted.

As a rule the legal regulations follow the circumstances; the
rapid development of air navigation, however, calls for other
requirements. Here, even before it has come to its full achieve-
ment, rather as a necessary condition to arrive at it, a uni-
versal, living and supple legal regulation should be effected,
which must be directed towards guaranteeing free traffic to the
exclusion of unreasonable obstacles, and which by preference
should precede national legislation. ^

The difference with overland traffic makes it desirable that
with respect to air traffic other requirements should be made,
and different rights should be allotted to those existing for
the other means of communication. Any detailed adaptation
of the law of the air to the regulations in force for other
means of transport is less desirable; rather new legal regulat-
ions should be called into being, though in these some basic
principles may be adopted from the laws of traffic already
prevailing. In any case the desire to hamper as little as pos-
sible the natural freedom of movement of this traffic should be
considered of paramount importance.

The international character of air traffic necessitates an inter-
national co-operation and regulation. quot;Civil aviation, when it
shall have reached its full development, will be onfr of the
most important means of bringing the peoples of the world
together; distances will be reduced more and more, so that
civil aviation by enabling the different nations to maintain
ever-closer mutual relations will contribute largely towards the
maintenance of good international relations and the preserv-
ation of the world peacequot;, such was the statement in
1927 of the quot;Committee of Experts on Civil Aviationquot; (Sub-
Commission B of the Preparatory Commission for the Disarm-
ament Conference), Therefore this international co-operation
and regulation should be directed in the first place to as free a
development as possible. It should be borne in mind that
the Continents occupy only J of the surface of the earth, the
area of which, for the rest, is formed by the great oceans, where
a general freedom of traffic prevails. Such a freedom — here,
however, within the limits of sovereignty — should also be
recognised with respect to the ocean of air above the Continents.

Particularly during the years preceding the great war many
jurists occupied themselves with the question concerning what
rights the States have with respect to the air space above
their territories.

There were those who were of opinion that the State has
absolute sovereignty over the air space extending over its
territory; this theory is generally placed on the analogy of the
principle of private law: quot;Qui dominus est soli, dominus est
ccbU et inferommquot;. Consequently the State can close or open
such air space arbitrarily, and, in the latter case, lay down
such conditions and restrictions as it may consider necessary.
It need hardly be said that under such a regime there cannot
be any question of a free development of air navigation while
moreover any uniform regulation of such traffic with its pre-
eminently international character is out of the question.

Diametrically opposite to this is the view that the air sur-
rounding the earth is entirely free and not submitted to any
State-authority; in compliance with this theory the underlying
States have no rights whatsoever regarding the air space above
their territories, so that the air, just as the high seas, by right
is open to all traffic. How entirely different, however, are the
relations between maritime navigation and the riparian States
from those between air navigation and the underlying areas.
Complete freedom, if only from the fact that measures concern-
ing public security and health could not be enforced, would
bring the States into an untenable position. Hence such a point
of view found practically no support, and very soon fell into

the background. Therefore a solution was sought in many-
directions by which the rights of the States would be guar-
anteed sufficiently on the one hand and, on the other, allowance
was made for the interests of air navigation for the proper
safeguarding of which as great a freedom of movement as
possible is a primary requirement.

An apparently obvious compromise is effected when sover-
eignty is recognised, but only up to a certain height, or,
starting from the principle that quot;the air is freequot; (in the sense
of being withheld from the authority of the States below), by
admitting the desirability of a territorial zone being subject to
the authority of the underlying States ; here a parallel is
drawn with the maritime belt. Flights within this territorial
zone can be entirely prohibited (with the exception regarding
taking-off and landing), or can be made subject to restrict-
ive regulations ; here complete sovereignty prevails.

Whereas, however, the territorial waters might be considered
as a protective area^), the law of gravity prevents the aerial
zone from exercising any corresponding function.

The air space above the territorial air column was at first
considered as not being subject to any State-authority. But
just the natural difference between the maritime belt and the
air zone was the reason for that consideration having to give
way to the view that certain rights of preservation (quot;droits de
conservationquot;) should be allotted to the underlying States even
as regards such free air space.

With regard to the territorial zone there arises almost imme-
diately the question, difiicult of solution, to what height should
that zone extend and from where should that height be meas-
ured ?

Taking these objections into consideration the idea of a
territorial air zone is incapable of being put into practical
effect 2).

1) Amedeo Giamiini speaks of quot;une sorte de tamponquot; (La souveraineté des
États sur l'espace aérien).

Nevertheless Peru — although signatory to the Convention — proclaims free-
dom of aerial navigation in the airspace above the height of 3000 metres
(Decree of November 15th 1921).

restricted, however, by a servitude of free and innocent pas-
sage. Besides this there are again others who, adopting the
principle of freedom, would grant such rights to the underlying
State as are required for its defence and security.

Regarding this, Babey observes i): quot;Applying the principle of
sovereignty with concessions or that of free passage with res-
trictions, the results are the samequot;. It is, however, not to be
doubted that the jmridical system of concessions to be granted
to air navigation by the State having authority over the air
column will have a more restrictive effect than the system of
limitations of the principle of freedom, and that consequently
more benefit wUl be derived by air traffic from the latter
system

At present—especially since the Air Navigation Convention of
1919 lays this down emphatically in article i—it is almost
pnerally accepted that the State has complete and exclus-
ive sovereignty over the air space above its territory, the
conflict being thus confined principally to the question in how
far, within the limits of such sovereignty, innocent and unham-
pered traffic, especially as regards international air services, is
to be made possible. With respect to this, two views are dis-
cernible : on the one hand the view prevails that the State
can impose all such restrictions upon air traffic as it thinks
fit (inasmuch these are not prohibited by any treaty); on
the other hand, with an appeal to article 2 of the Paris Con-
vention—by which the High Contracting Parties undertake
to accord freedom of innocent passage above their territory
to each other's aircraft in times of peace, provided that the
conditions laid down in the Convention are observed—it
is considered that the imposition of restrictions and pro-
hibitions is only permissible provided these are justifiable and
reasonable.

Souveraineté aérienne (Revue juridique internationale de la locomotion
aérienne, February 1924).
See also p. 12.

ature to the question of sovereignty i) it is, in my opinion,
superfluous to revert to it again in detail ; therefore a few
brief remarks may suffise.

Those who advocated freedom have adopted—referring to
one of the argrunents put forward by Grotius with regard to
the freedom of the sea—^the thesis that the air, owing to its
nature, is not susceptible to sovereignty ; in this connection
it has been pointed out that it is impossible for a State to
enclose the air column above its territory within clearly defined
limits and to exercise an exclusive right of possession thereof.

Fauchille for example argues : quot;qu'une chose n'est suscep-
tible de propriété, privée ou publique, que si elle se prête à
une certaine appropriation et qu'il ne saurait en être ainsi en
ce qui concerne l'air, qui, par son immensité et sa fluidité,
résiste à toute détentionquot;.

As against this it may be said that a column of air, since
humanity is not living in a plain, is indispensable for a State.
If the right of authority of the State is really to be of effect,
sovereignty over the territory should be linked up with that
over the air space above that area, this being also needed to
enable the State to secure its territory and the inhabitants
thereof in a due and proper manner.

That definite boundaries cannot be fixed and complete
occupation is impossible need not form an obstacle to the pre-
valence of a right of authority. As a matter of fact this is also
allotted as regards the territorial sea and the deserts. The
State only must possess the ability to enforce eventually its
rule in the airspace and this requirement is enforced by artillery
and military or other State-aircraft.

On the other hand, the parallel with the maritime belt
gives rise to the observation that it is the very nature of this
particular object of authority that led to the query whether,

Anzilotti, Baldwin, von Bar, Bielenberg, Bluntschli, Collard, Désouches.
Despagnet, Fauchille, Ferber, Fleischraann, Giannini, Grünwald, Hazeltine,
Henry-Coüannier, von Holtzendorff, d'Hooghe, Julliot, de Lapradelle, von Liszt,
Lycklama à Nyeholt, Mérighnac, Meurer, Meyer, Nys, Perrone, Pittard, Pra-
dier-Fodéré, Ri vier, Rolin, Spaight, Spiropulos, von Ullmann, de Visscher,
Volkmann, Warschauer, Wegerdt, Westlake, Zitelmann.
Domaine aérien et le régime des aérostats, 1901.

as regards the territorial sea, there is any question at all of
sovereignty, and whether it is not rather a number of various
separate riparian rights with which we have to deal here. This
thesis is defended f. i. by de Lapradelle who expressed himself as
follows : quot;L'État souverain, qui n'est pas propriétaire ni souve-
ram de la mer territoriale, a seulement le droit d'imposer au
souverain de la mer: la Société des États, des restrictions
basées sur les nécessités de sa protection personnellequot;

Those favouring the latter view are, on the one hand, of
the opinion that the institute of the maritime belt—considered
as a sea strip subject to the sovereignty of the riparian States
—is an infringement on the principle of the freedom of the
seas but recognise, on the other hand, that the State is to
have a coastal zone at its disposal in the interests of security,
control of traffic and prosperity. Hence this theory does not
recognise a full sovereignty, but will only grant a number of
rights of authority kept within strictly defined limits.

The objection to such an enumeration is that either too few,
or too many rights (unjustifiable under all circumstances) may
be granted. This was felt by the quot;Institut de Droit Interna-
tionalquot; which in 1894 allotted to all riparian States quot;un droit
de souverainetéquot; regarding the maritime belt. That statement,
however, was annulled at Stockholm in 1928: art. i of the
draft regulations regarding the territorial sea in times of peace
lays down that quot;les États ont la souveraineté sur une zone
de la mer qui baigne leurs côtes dans l'étendue et sous les
restrictions déterminées ci-aprèsquot;. Also the Codification Confer-
ence of 1930 followed this line of thought.

With respect to the said column of air, article i of the
Paris Convention recognises that the States have complete and
exclusive sovereignty over the air space above their territories.
A possible conflict concerning the legal character of the
authority of the States over the air, as was evolved regard-
ing the territorial sea, has now been removed from the
beginning. This does not alter the fact that the point from
which that conflict emanated (viz. that the extent of the
actual right of authority is closely connected with the nature

of the object over which it is being exercised and that in this
way sovereignty acquires another nuance according to the
possibility of exercising this authority being greater or smaller)
is of a far greater effect as regards the air space. Sover-
eignty over the air consequently has another, and, speaking
figuratively, more airy character than that over the territo-
rial area.

In another respect too State-authority over the air and the
maritime belt differs from that over the ground territory.

The territorial sea and the air space are no independent
areas of sovereignty, but only conceivable as secondary parts
of the State territory. On the acquisition of new littorals, f.i.
by accretion, or the protrusion of new islands in the coastal
sea, the maritime belt subject to State authority and with
this also the air space of the State become automatically
enlarged; an independent extension or modification of one of the
two is generally not possible nor is a separate transfer of the
sovereignty over the territorial sea or air column to another
State consistent.

Since thus the comprehension of sovereignty when applied to
the air is, so to say, of an inferior order to sovereignty over
the ground territory, it is the more astonishing that as a right
of free entrance to the seaports and a right of free passage
via the international waterways is guaranteed for ships, and
as there also exists a large freedom of transit by land, with
respect to regular international air services the freedom of
transit still has to be fought for.

Also to the air column subject to State-authority finally is
applicable what by the theory of the law of nations is recog-
nised as being the principal basis of the freedom of traffic on
the high seas viz. that the passage of one does not prevent
that of all the others, and that it is an equally indispensable
means of communication for all States.

How the ideas sketched in the foregoing have developed as
regards air navigation may appear from the following historical
review.

An international regulation has only been of effect since 1919.
Before the world war efforts were confined to the laying down
of some general principles. On making a study of these, the
extremely remarkable fact is observed that, contrary to the
history of the evolution of the freedom of the seas, the idea
of freedom prevailed from the very beginning as regards the
air space, and that it was only later that the doctrine of State
sovereignty was defended.

That in the beginning the principle of freedom occupied the
foreground is probably to be attributed to the fact that, equipped
with the experience acquired during the fight conducted with
regard to maritime navigation, it was desired to exempt air
navigation, of which great expectations were entertained, from
such difficulties. Further, in the first years of this century,
aviation had but slight significance, and the possible dangers
which the new means of conveyance might entail for nati-
onal and public security (espionage) had not then become
manifest.

One of the foremost champions of the principle of freedom
was Fauchille ; in 1901 he published : quot;Le domaine aérien et
le régime juridique des aérostatsquot;. In this it is argued, in the
first place, that the air space is only susceptible to ownership
under civil law up to a certain altitude. As a matter of course
it is impossible to take possession of the immeasurable and
unstable air space ; this is only of effect in so far as fixed
constructions can be erected on the ground ; even then, how-
ever, the owner of the ground below is rather the owner of the
object erected than of the column of air occupied by it. The
Eiffel Tower being at that time the highest construction,
Fauchille came to the following conclusions :

2.nbsp;Up to 300 m. such is the case only in so far as actual pos-
session can be acquired.

Fauchille further asks whether the air, though not suscep-
tible to ownership, may nevertheless be subjected to the sover-
eignty of the State lying below. He gives a negative reply,
because no definite standard prevails for the query to what
height such sovereignty must extend; the range of a gun as
well as the field of vision of the eye form but very variable

and unequal means of measurement. Finally the gun and human
vision are only means of maintaining a sovereignty already
acquired but no means of acquiring this sovereignty Fau-
chiUe, however, shrank from adopting absolute freedom;
by appealing to the principle of international law by which a
quot;droit de conservationquot; is granted to the States i) he arrives at
the conclusion that in times of peace a protective zone of
1500 m. (above which height, in 1901, no photographs could
be successfully taken) should be closed to air navigation • air-
craft should only be aUowed to be within that zone for taking-
off and for landing or in cases of emergency; above this zone
full freedom is aUowed, though, even there, the quot;droits de
conservationquot; may be exercised, f.i. by fixing trafiic regulat-
ions. These ideas have been inserted in article 7 of the Code 2)
drawn up by Fauchille in which it says that quot;the air is
free; in times of peace and war the States have only such
rights as are necessary for their preservation; these rights
relate to the prevention of espionage, customs and sanitary
regulations and to the necessities of defencequot;.

In 1906 Fauchille's views were adopted by the quot;Institut de
droit internationalquot; which expressed itself as foUows: quot;L'air
est libre. Les États n'ont sur lui, en temps de paix et en
temps de guerre, que les droits nécessaires à leur conservationquot;.
Hence, but for this restriction, the air is not subject to any
authority.

In judging the ideas formulated by FauchiUe, it should be
borne in mind that at that time aviation had not outgrown
Its incipient stage ; dirigible balloons did not then exist and it
was only later that aeroplanes were developed ; further the
possibilities of photography were much slighter than at present.

quot;Ce principe, base du droit lui-même et dont le fondement gît dans la
raison naturelle aussi bien que dans la pratique des nations, est celui qui
reconnaît aux États en vertu de leur existence propre le droit de se conser-
ver. Ce droit de conservation comprend tous les droits incidents essentiels
pour sauvegarder l'intégralité de l'existence tant physique que morale des
Etatsquot; (p. 427).

This draft was elaborated in detail; article i8 f.i. contained provisions
with regard to the nationality of children born on board aircraft.

change and Fauchille himself was one of the first to adapt
himself to the altered situation. In 1910 an article appeared
from his hand in the quot;Revue juridique internationale de la loco-
motion aériennequot;, entitled : quot;La circulation aérienne et les
droits des États en temps de paixquot; ; in this, after having sub-
mitted the various systems to an investigation, he abides by
his conclusion that the air is free and cannot be the object of
State-authority, except as regards the rights due to a State
for its preservation and defence ; he, however, reduces the
protective zone to 500 m., as at that time any higher limit
would make air navigation impossible ; further the State, as
a measure of protection against espionage, may close certain
zones to air navigation up to an unlimited height (this in
conjunction with the increased possibilities of photography^),
whereas flying over the territory may be entirely forbidden
for foreign military aircraft.

Fauchille explained his views anew in a report submitted to
the meeting of the Institute of International Law which took
place in Madrid in igii ; thereupon that Institute made the
following statement : quot;La circulation aérienne internationale est
libre, sauf le droit pour les États sous-jacents de prendre cer-
taines mesures à examiner en vue de leur propre sécurité et de
celle des personnes et des biens de leurs habitantsquot;

This statement differs from that of 1906 upon a point of
principle ; reference is no longer made to a free air space
(quot;l'air est librequot;) but to free navigation ; the latter, however (a
free use of the air space) is also possible under the principle
of sovereignty and thus forms a sort of compromise. At that

') These possibilities arc still constantly increasing. At the moment very
clear photographs can be taken from an altitude of lo.ooo metres ; the record
of photography of distant objectives has been raised to 267 miles, flying at
a height of 6000 metres.

That statement was substituted, in 1927, during the Lausanne session, by
the following : quot;II appartient à chaque État de régler l'usage de l'air au-
dessus de son territoire, en tenant compte, d'une part, des nécessités de la
circulation aérienne internationale (atterrissage compris) et d'autre part des
nécessités de la sécurité nationale tant au point de vue militaire, douanier,
sanitaire qu'au point de vue de la protection des personnes et des biens de
ses habitants. Les règles établies à cet égard seront appliquées sans distinction
de nationalitéquot;.

time the term was made use of to satisfy not only the sun-
porters of the free air but also those of sovereigntynbsp;^

Meanwhile in other quarters, further reaching consequences
Ttle mT. from the rapid evolution of aviation (partLla ty

The complete and exclusive sovereignty was defended in a
talented manner in the same year by Lycklama à Nyeholt i)
ihe result of her considerations is that the ground-State's
rights and interests both plead for fuU sovereignty, and that
this sovereignty has to be recognised on legal as well as on
physical grounds.

Gradually a sharp antithesis arose between the supporters of
the doctrine of sovereignty, and those who did not desire to
see the air subjected to any State-authority. The parties were
opposed to each other in such an unreconcilable manner that
when, at the invitation of the French Government, an Inter-
national Air Navigation Conference met in Paris in May 1910
having for its purpose the drafting of an international avia-
ùon treaty, the organisers thereof endeavoured by all means
in their power to prevent the question of sovereignty being
brought forward; nevertheless this antithesis manifested itself
pnncp^y during the debate on the proposed article 21
( L établissement de lignes internationales de communications
aériennes dépendra de l'assentiment des États intéressésquot;) in
such a manner that the Conference, although it met again in
November after having been adjourned on June 21st, did not
come to any definite conclusion. 2)

De luchtvaart in het Volkenrecht and Air Sovereignty.
) This certainly is a proof that the point of

It was especially the English delegation that was opposed to
the doctrine of freedom, not only at the Paris Conference
(where one of the delegates advocated the view that a right to
close their aerial frontiers, whenever they considered this neces-
sary, should be left to the States) but also on the occasion of the
Congress of the Comité Juridique International de l'Aviation
(which met in Paris in 1911), when that delegation proposed
the following text : quot;The States shall be entitled to absolute
sovereignty over the air space above their territorial areas
and territorial waters. Each State shall have the right to estab-
lish, at its own discretion, police, fiscal and other regulations
regarding aerial navigation.quot; The Congress nevertheless was not
in accord and confirmed the statement of the Institute of
International Law omitting, however, the word quot;internationalequot;.
Within its own country, however, England embodied its views
in the Aerial Navigation Act of 1911 (quot;to provide for the
protection of the public against the dangers arising from the
navigation of aircraftquot;) which opened up the possibility of a
complete prohibition of flying over certain areas ; in 1913 that
provision was extended, and applied to a much greater extent i).
On reviewing that regulation Henry-Coiiannier observes that it
would have been more explicit to state that the flight of
foreign aircraft over English territory was completely forbidden.

As the significance of air navigation became greater, other
States followed England's example (f.i. Austria and Germany).
France even followed suit : article 3 of the Decree of Octo-
ber 24th 1913 laid down that the passage of aircraft might be
prohibited throughout the entire territory. Sovereignty was also
accepted in 1913 by the International Law Association ; in
addition, however, a right of free passage was allowed.

Though the Comité Juridique International de l'Aviation
which met in Frankfort-on-Main in 1913 embodied in the
draft international air code its statement of 19112), it may
be observed that on the eve of the great war the prin-

After 1919 England revised its attitude ; the Air Navigation Order of
1923 does not even make the acquiring of an authorisation for the institution
and working of an international airline a necessity.

At that time, however, no intention prevailed in favour of the principle
of freedom; see p. ii.

dom on the seas became an illusion, both the belligerents and
the neutral nations fully asserted their rights of Lereig^y
and the air space was closed to aU foreign air traffic M

As a matter of course the policy then followed affected the
discuyions with respect to the regulations to be adoptS
regarding air navigation which took place after the war On
the other hand, however, the technique of air navigation made
extremely great progress during the war; not only had the
reliability and the rapidity of aircraft increased, but had the
loading capacity steadily become greater; the institution of a
wide-spread civil air traffic might thus be looked forward to
within a comparatively short time; this new international
means of communication opened up unlimited possibilities
p^rovided the necessary freedom of movement was accorded The
English Government especially saw in this a powerful means of
drawing the various sections of the British Empire more closelv
together. From practical consideration and imbued with the desire
^^^quot;Py ^ heading position in aviation it became converted

For completeness' sake, the remarkable attitude adopted by the Enrfish
^vernment in its reply to the Swiss protest regarding flight m Nove^^-
Der 1914, of Bntish aircraft over Swiss territory should be mentioned - after
haying expressed its regret and having stated that the pilots had been'given
instructions to avoid neutral territory, the English Government addedTat
these expressions of regret and these instructions were not to be internreted

air In a 1 probability that reply arose from the opinion that the GovLment
could not recognise a right which, although it was adopted for its own coun
try. was not recognised by international law. Notwithstanding this the Govern
iT/.fr'' a paradoxical attitude; in its reply the Swiss Government
stated that, as international law does not recognise any limitation of sover-
eignty of the air. the Federal Council must claim this to its full extent.

from an ardent advocate of its unlimited rights of sovereignty
to a champion of the idea of freedom, though within the
hmits of sovereignty.

The quot;Convention relating to the regulation of aerial naviga-
tionquot; of 1919 arose from these two lines of thought.

Upon the initiative of the French Government an quot;Inter-
allied Aviation Committeequot; was established in 1917 which,
after the commencement of the Peace Conference, was changed
into the quot;Aeronautic Commission of the Peace Conferencequot; ; it

As early as at one of the first sessions (March 17th 1919)
some questions of principle were brought forward; on the pro-
posal of the American delegation the principle of sovereignty
Was adopted, whilst, besides this, upon the initiative of the
English representatives, the necessity of allowing international
^ir trafiic the utmost possible freedom was acknowledged, in
so far as this would be compatible with public security, the
application of requirements regulating the admittance of the
aircraft of the High Contracting Parties and the internal legis-
lation. It was also recognised that the regulations concerning
the admission of aircraft, once the utmost possible freedom was
granted, should not embody any excessive impediments.

Two draft conventions were submitted, one by the English
^nd the other by the French Government. With respect to
international air communications, the French draft did not lay
down any explicit requirements; the English one, in its artic-
les I and 2, allowed the utmost possible freedom that could
he restricted only in the interests of security and in connec-
tion with the application of national legislation (this however,
Would have to be the same for national and foreign aircraft) 2),

America, the British Empire. France, Italy, Japan, Belgium, Brazil.
Cuba, Greece, Portugal, Rumania and the United Kingdom of the Serbs,
Croats and Slovenes were represented upon it.

) Sovereignty was recognised in art. i and free traffic was also allowed,
provided that the requirements to be made by the State to be flown over
■Were complied with. quot;Such regulations will permit the free navigation of

Upon the grounds of these two proposals a draft conven-
tion was drawn up, and was placed before the Peace Confer-
ence on July 3rd 1919; after some amendments had been
introduced, it was submitted for signature on October 13th
1919 as quot;Convention relating to the regulation of aerial navi-
gationquot; concluded between the 32 AUied and Associated Powers.

What then was the tendency of that Convention which,
owing to its provisions having been adopted in most of the
büateral treaties and national legislation, impressed its stamp upon
the regulations for national and international air navigation ?

As has already been said, two courses of thought dominated
the completion of the Convention, and are given expression to
in its contents. The principle of sovereignty which had become
customary law during the war years was embodied in article i ;
by this the High Contracting Parties recognise that every
Power has complete and exclusive sovereignty over the air
space above its territory. Moreover (art. 2), each State under-
takes in time of peace to accord freedom of innocent pas-
sage above its territory to the aircraft of the other con-
tracting States provided that the conditions laid down in
the Convention are observed i). An important compromise was

foreign aircraft except in so far as restrictions appear to the State to be
necessary in order to guarantee its own security or that of the lives and
property of its inhabitants and to exercise such jurisdiction and supervision
as will secure observance of its municipal legislation. These regulations shall
be imposed without discrimination of nationalityquot;. — Art. 2 stipulates that
restrictions by way of reservation or otherwise with respect to public con-
veyance of persons and goods may not be imposed on a foreign aircraft
where such aircraft is proceeding from one point to another within the terri-
tory of the contracting State either for the purpose of:

a.nbsp;landing the whole or part of its passengers or goods brought from abroad •

b.nbsp;taking on board the whole or part of its passengers or goods for a foreign
destination ;

c.nbsp;carrying between the two points passengers holding through-tickets or
goods consigned for through traffic to or from some place outside the ter-
ritory of the contracting State.

The expression quot;in time of peacequot; is somewhat large and defeats the
object to be attained, for it makes it possible to put an end to all air traffic
not only when one of the States concerned is engaged in war, but also when
such is the case with some third party; up till now, however, an abuse
of this provision has not occurred.

thus effected here : recognition of sovereignty, but, besides
that, free air traffic in times of peace, within the limits of
sovereignty.

It cannot be denied, that the first mentioned principle stands
out much more strongly in and outside the Convention than
the principle of freedom. Sovereignty is recognised in the Con-
vention as an ascertained basis whereas the parties undertake,
by accepting a voluntary restriction with regard to the
group of the other contracting parties, to allow innocent pas-
sage ; further the principle of sovereignty is generally applied
in international law.

On the other hand, however, it may be taken that those
who drafted the Convention had the intention of allowing,
within the limits of sovereignty, the utmost possible freedom
of movement to international air traffic (at all events to that
between the High Contracting Parties). This is repeatedly
expressed in the minutes of the Juridical Sub-Commission that
drew up the articles i and 2 out of the points of principle
adopted by the Aeronautic Commission, and is confirmed later
on by several statements made during the sessions of the
C.I.N.A. Thus at the 14th session held in Geneva in June 1928,
Flandin, head of the French delegation, who in 1919 was a
member of the Aeronautic Commission, said that quot;a reading of
the discussions in the course of which the Convention was
evolved, clearly indicates that a hearty collaboration and the
opening up of the air, without reservations and limits, was the
line of thought of the draftsmen of the Conventionquot;. The
preamble (quot;Desiring to encourage the peaceful intercourse of
nations by means of aerial communicationquot;) and also some
articles of the Convention indicate this. Thus art. 24 stipulates
that every aerodrome in a contracting State which is open to
public use by its national aircraft, shall likewise be open to the
aircraft of all the other contracting States; although article 3
stipulates that every State shall be entitled, for military reas-
ons or in the interest of public safety, to close certain areas
to aerial navigation, on the other side (subject to a single
exception) no distinction may be made between national and
foreign aircraft. Finally art. 16 provides that every State may
establish reservations and restrictions in favour of its national

aircraft in connection with the carriage of passensers and
between two points in its own territory ; arS to the'c»

What IS laid down m art. 2 gives, without requiring any pre-
vious general or special permission, any aircraft of the Hil
Contracting Parties the right to cross the air space of anotSr
State without landing (provided it foUows the route which the
underlymg State may possibly determine, and lands, should-
for reasons of general security-a signal be given to do 1)
paragryh 3 says : quot;The establishment of internationi 2'
wap shaU be subject to the consent of the States flown over''î quot;
This wording lacks any indication concerning the important
question as to why any such permission may be withheld and
m how far, upon the granting of permission, restrictive pro-
visions may be attached. The consequences hereof did not M
oti; this provision can be interpreted as well in a restrictive
way (by an appeal to article i) as in a more liberal senle
(by adopting the principle laid down in article 2) Further
there is the fact that, previous to the effecting of the amen^d
ing protocol of June 1929 (concerning which more will be'
said later), the text in itself gave rise to confusion

reaa. Ihe establishment of international airlines shall be
subject to the consent of the States flown overquot;. 2)

The British delegation presumed that under quot;linesquot; rertnin
defined airlines, kept within narrow limits, (in the sense Tf
routes) must be understood, and was of opinion tha^ th^s
paragraph should be deleted; considering that, as a matter of
fact paragraph i of the same article gave an aeroplane the
nghMo% over a State without landing, such aeroplane should

p quot;L'établissement des lignes internationales de communications aérienne,
est subordonné à l'assentiment des États survolés.quot;

also be entitled to select the shortest or best route, either
in the geographical sense or in connection with the pre-
vailing weather conditions; if, however, to the term quot;linesquot;
should be given the significance of wide zones that would
enable aircraft to select as favourable a route as possible,
the difficulty would be solved. Upon the proposal of the
French delegation the word quot;linesquot; was then substituted by

widening quot;linesquot; to quot;waysquot; ; it did not, however, re-
move the misunderstanding, as paragraph 3 certainly had in
view the institution of airlines in the sense of airservices i).
This proves a contrario from the explanation of the Juridical
Sub-Commission on par. i of art. 15, pursuant to which an
aeroplane is entitled to cross the airspace of another State
without landing ; nevertheless it is bound to follow the route
determined by the State flown over. Here the Juridical Sub-
Commission observed that this was of effect for casual flights
as well as for regular air services ; the explanation reads :
quot;Qu'il s'agisse de voyages isolés ou de lignes régulières, le
trajet peut être compris de telle manière que l'aéronef étranger
se propose de franchir sans arrêt le territoire d'un État
contractantquot; .... quot;Le désir d'encourager le développement de la
navigation aérienne internationale conseillait à la Sous-Com-
niission de reconnaître à l'aéronef étranger, desservant une ligne
i'^ternationale régulière, la faculté de survol, sans atterrissage
forcé, de frontière à frontièrequot;.

From this and from the requirement of par. 2 (the obliga-
tion to land at certain aerodromes indicated for that purpose)
it follows that already in the first two paragraphs of art. 15
the competence of the underlying State to determine cer-
tain air routes also with regard to the aircraft of regular inter-
national services has been laid down. Hence par. 3 cannot have
reference to quot;routesquot;, but must refer to quot;servicesquot;.

Another, very important conclusion to be drawn from these
minutes is, that the first paragraph of art. 15 was not, as has

See also Roper (La Convention internationale du 13 octobre 1919) : quot;11
est visible que l'accord résultait d'un malentendu et que la difficulté subsis-
tait toute entièrequot;.

been supposed up to the present, solely of force for casual
flights, but also for the aircraft of regular air lines. Hence it
was the initial intention of the draftsmen of the Convention
not to make it a requirement for international air lines that
they should have previous permission for flights over a State
in case no intermediary landing on the territory of that State
was effected 1). Regarding this it should be mentioned that a
sunilar statement had already been made at the first North-
ern Air Traffic Conference, held on April 26th 1918 at which
Sweden, Norway and Finland were represented. Here sover-
eignty was recognised; at the same time, however, it was
stated that—unless military reasons or public security require
such—no State has the right to prohibit innocent passage of
aircraft, provided no intermediary landing should be made. As
regards the Convention, since June 1929 previous permission
IS also expressly required for flights over a territory in the
course of which no intermediary landing is made. 2)

In the draft submitted to the Peace Conference the Ameri-
can representatives drew attention to the indistinctness of the
text, in the meantime stating that, although they were in
accord with the principle laid down in par. 3, they considered
that paragraph as being superfluous (it being a consequence
resulting from the principle of sovereignty).

Nevertheless the text was maintained; it is true that in
1922 the interpretation thereof was again discussed; nobody,
however, dared to draw up a more distinct wording; so it was
decided to leave the matter open, in anticipation of its appli-
cation in practice. It was not until 1929 that the question was
again taken in hand; before going more deeply into this, it is
necessary to explain, very briefly, the history of the evolution
of the Convention.

1) See also the basic principle of the Aeronautic Commission of the Peace
Conference : quot;Reconnaissance du droit de transit sans atterrissage pour le trafic
international entre deux points placés en dehors du territoire d'un État
contractant, sous réserve du droit de l'État traversé de pouvoir se réserver son
propre trafic commercial aérien et de pouvoir obliger à atterrir, à l'aide de
signaux convenus, tout aéronef le survolantquot;, in which no special exception
with regard to regular international air services is made.
See also p. 80.

The Convention was first signed by 26 of the 32 AUied and
Associated Powers. Afterwards the number was amplified by 3.

Pursuant to article 41, the countries that had remained neut-
ral were invited to accede, while the States which had taken
part in the war, but had not signed the Convention, might
only become parties, provided they were members of the League
of Nations or if adhesion took place with the approval of the
original signatories.

It was very soon proved that the inclination to proceed to
ratification was not great among the signatories ; besides this
none of the neutral States responded to the invitation to
become parties to the Convention.

Especially among these latter great objections prevailed
regarding the articles 5 and 34. i) The first mentioned article
prohibited the contracting Parties from allowing any passage
over their territory of aircraft lacking the nationality of any
one of the contracting States unless this was effected by vir-
tue of a special authority of a temporary nature. That article
was aimed directly against the vanquished countries ; needless
to say that the neutral States which desired to maintain air
communications with the Central Powers could not agree to
such a stipulation. For the rest, by acceding to the Convention,
they would be at a disadvantage as regards the Allied and
Associated Powers who by the Versailles Treaty {inter alia
art. 313) and the other peace-treaties had reserved to themselves
the right of free passage for their civil aircraft above
the territory of their late enemies in addition to the use
of the public aerodromes ; this was of effect till January
1st 1923.

Article 34 instituted a central air navigation organisation,
the quot;International Commission for Air Navigationquot; (C.I.N.A.),
placed under the direction of the League of Nations and
charged with the carrying out of the duties allotted to it by
the Convention, viz. the giving of advice on questions which the

Moreover other objections were adduced, though less of a nature of prin-
i.a. against the lack of any worked out regulation of air traffic in war-
time and of a regulation for flying at night.

ail kmds regarding international air navigation or regarding
wireless telegraphy and meteorology, etc. This article now
contained such a distribution of voting power in the C.I.N A
that the 5 great Powers (the British Empire, the U.S.A.!
prance, Italy and Japan) would always have a majority of

same rights as those countries, where such trafiBc had devel-
oped very greatly.

^^ necessary and were intro-
duced by the protocols of May ist 1920, October 27th 1922
and June 30th 1923. As a consequence of this, the admittance
of aircraft of States, non-parties to the Convention, was pos-
sible provided an agreement had been entered into with such
i^tates the provisions of which were to be conform to the rules
laid down by the Convention and its annexes i) Further a
more reasonable distribution of votes would be effected in the
though the five great Powers remained notwithstanding
this in a privileged position. This privilege too, however
has been removed by the amendment adopted by the Proto-
col of June 15th 1929; finally it should be stated that the
text of art. 34 again was revised by the Protocol of December
iith 1929, as a result of which the Dominions and India
obtain besides a representative of their own (whom thev
already had) the right of voting.nbsp;^

Meanwhile the Convention came into effect on July nth
1922; 14 States had then deposited their instruments of rati-
hcatwn, reserving, however, the right to deviate from the
application of the provisions of art. 5, with respect as well to
the States that had signed but not yet proceeded to ratifi-
cation as to the ex-neutral powers.

ol which the special conventions, concluded with non-contracting States
Shall not-in so far as may be consistent with their objects-be contradict-
ory to the general principles of the Convention.

that, in connection with the original article 51), they would
have had to close their air space to the aircraft of the States
mentioned in the reservation which, as a matter of fact, could
not be considered as contracting Parties. This also explains
why it was some years before the depositing of instruments of
ratification was proceeded to. For should this have happened
immediately by the very few countries that were prepared to
do so, and such without the reservation mentioned above, traf-
fic between these countries and the States that had not yet
adhered would have had to cease. Hence the depositing of
ratification-instruments had to be delayed till a proper number
of ratifications might be relied upon, whereas for the rest the
reservation removed the prevailing difficulties 2).

When the Protocols of 1922 and 1923 came into force on
December 14th 1926, many other signatories besides part of
the ex-neutrals®) soon followed, Holland deposited its instru-
ment of ratification on August 22nd 1928.

Several countries, however, assumed a reserved attitude (such
as Germany, Austria, Hungary, Norway and Switzerland), or
became united in other groups, formed by the Ibero-American
and Pan-American Air Navigation Conventions. Hence there
was a great danger that the purpose of the Convention of 1919
VIZ. the creation of a widely applied international regulation
should not be effected. Gradually voices were now heard to clamour
for a revision of the Convention that would meet the objec-
tions of the States that had not yet acceded, f.i. at the Air
Navigation Congress which met in Rome in 1927 and in the
General Conference of Communications and Transit which took
place in the same year.

quot;No contracting State shall, except by a special and temporary author-
isation, permit the flight above its territory of an aircraft which does not
possess the nationality of a contracting Statequot;.

At present, Australia, Belgium, Bulgaria, Canada, Chili, Czechoslowakia,
Denmark, Finland, France, Gt. Britain and Northern Ireland, Greece, India,
Iraq, Irish Free State, Italy, Japan, Netherlands, New Zealand, Norway,
Persia, Poland, Portugal, Rumania, Saar-territory, Siam, Sweden, Union of
South Africa, Uruguay and Yugoslavia have adhered.

Very interesting in this connection is the article published
in October 1928 by Dr. Alfred Wegerdt (a high official of the
German Ministry of Communications) entitled quot;Germany and
the Air Navigation Convention of Paris of October 13th 1919quot;
m which a series of proposals was made for revising the Con-
vention, in order to remove the objections that had arisen for
the German Government; those considerations made all the
peater impression when the Government semi-officiaUy declared
itself in accord with the tendency thereof. It would be going
too far to look into this interesting publication in detail; it
should only be mentioned that Dr. Wegerdt agreed to the
principle embodied in the third paragraph of article 15, but
desired some elucidation of the text in the spirit adopted by
the quot;Comité Juridique International de l'Aviationquot; at its ses-
sion in May 1928 in Madrid i).

Dr. Wegerdt's observations were the direct cause for the
convening of an extraordinary session of the C.I.N.A. to which
were invited not only the contracting Parties but also those
States which had not yet acceded ; 43 countries (among which
17 non-parties) were represented in Paris from June loth to
June 15th 192g.

The nucleus of interest was the provision of art. 15, par. 3.
It was agreed that a more distinct text was desirable; this
immediately called forth the old antithesis of those ' who
desired for air traffic the utmost possible freedom within the
limits of sovereignty and those who would not allow the—owing
to the incomplete text—powerful weapon of the previous
permission being required in all cases, to go out of their hands.

In the first place it was put to the vote whether freedom
or a previous permission, to be granted by the underlying
States, was desired 2). This point was decided to the disadvan-
tage of freedom by 27 votes to 4. Those against were America,
the British Empire. Holland and Sweden.

quot;L'installation et l'exploitation de lignes régulières de navigation aérienne
du territoire d'un État contractant dans le territoire d'un autre État contrac-
tant ou au-dessus de celui-ci, avec ou sans atterrissage intermédiaire, doivent
faire l'objet d'un accord spécial entre les États contractants intéressésquot;.

The delegations were asked to vote to indicate their tendencies by pro-
nouncing either the word quot;freedomquot; or the word quot;authorisationquot;.

After that vote the said four opposing delegations declared
themselves ready to co-operate towards the drafting of a text
which would take the attitude assumed by the majority into
account, but which would not, in the future, form any obstacle
for the application of the principle of freedom.

Upon this a new text was unanimously adopted in substitution
for the third paragraph ; by the insertion of a new provision
in article 15, this text now forms the fourth paragraph and
reads: quot;Every contracting State may make conditional on its
prior authorisation the establishment of international airways
and the creation and operation of regular international air
navigation lines, with or without landing, on its territoryquot;.
This text was inserted into the Protocol of June 15th 1929.

In the first place the necessity of previous permission is not
explicitly required ; the underlying State may require this ; on
the other hand it is free to assume a more generous attitude,
by admitting the air traffic above its territory without restrict-
ions. Such freedom which may be taken as having prevailed
also under the earlier text has now been inserted in so many
words in par. 4.

Further an end was put to the controversial point as to
what exactly is to be understood by quot;international airwaysquot; ;
the new text presents the opportunity to make the establish-
nient of airways as well as the creation of air services dependent
upon previous authorisation. As has already been explained
at p. 19, the mention of airways is not necessary in every
respect, since the first two paragraphs of art. 15 place
the determination of routes in the power of the underlying
State ; hence if it be desired to institute a new route, gener-
ally (for the underlying State may leave such institution
free) the consent of that State will have to be obtained in
advance. That the institution of airways has nevertheless been
inserted in the new 4th paragraph finds its explanation in the
fact that it was desired to remove, once and for all, the indis-
tinct nature of the old text and for this reason both inter-
pretations were placed side by side.

Pquot;- ^^ quot;Thfe authorisation can
only be refused on reasonable motivesquot;

Nevertheless among the opponents of this proposal there
also prevailed a tendency for greater freedom whicli is proved
Dy tue unanimous adoption—immediately after the decision
on art. 15—of the foUowing recommendation:

quot;The Commission decides to draw the attention of the
Governments of the contracting Parties to the spirit in whidi
the Conference drew up the new text of the fourth paragraph
of article 15 and to recommend .these Governments not to refuse
the authorisation referred to in that paragraph otherwise than
upon reasonable groundsquot;.

Probably because there was not much enthusiasm for leaving
the answer to the question, whether an eventual refusal were
reasonable or not, to the interpretation of the International
Court (pursuant to article 37 of the Convention), that provision
was not mserted in article 15 itself. For the rest the fact that
the recommendation was adopted unanimously forms a worthv
opposition to any unreasonable refusal or restriction of the
authorisation. In addition to this there is the fact that a
similar current made itself felt in the quot;Commission Consulta-
tive des Communications et du Transitquot; of the League of
Nahons, at which, on the proposal of the quot;Comité de Coopé-
ration entre Aéronautiques Civilesquot;, and principally at the insti

gation of the Dutch delegation, a wish was expressed that
the Governments might find means to give more freedom
to international air communications, and that they should
examine with the utmost benevolence the applications for the
establishment of such communications.

In the light of the foregoing the recommendation cannot be
considered as entirely without value.

Concerning this. Prof. Dr. J. A. van Hamel, in his paper
read to the Dutch section of the International Law Associa-
tion (quot;Freedom of air traffic and regular international air serv-
icesquot;, n° i8 of May 1931) observes as follows: quot;What has
thus been achieved is a text juridically not binding, but of
moral significance. What is exactly the value to be attached
to this ? This is a question not immediately answerable. Any
definite procedure cannot be conducted regarding this; any
particular appeal to a legal instance is out of the question. It
must, however, again be observed, that matters go otherwise
with civil contracts than with international regulations. Some-
times in the law of nations formulas which juridically have no
binding force may still be used very adequately by effective
policy or ingenious negotiatory tactics. This is a question of
practice and its many possibilities.

These assertions do not mean to say, that with the foregoing
bare recommendation little or nothing has been achieved.
The only question is how it will be used eventually by the
Governments concerned. It lies within the range of possi-
bility that occasionally, when it comes to protecting the
freedom of international air traffic from obstructions by
another Government which are considered unreasonable, the
recommendation may turn out to be a strong and useful
argument.

There is a permanent contact between the representatives of
the several Governments and in consequence such statements
frequently afford a strong argument of which those practised
in the art of negotiation can avail themselves.quot;

It is possible that some should be doubtful concerning
the spirit intended by those responsible for the Convention;
but by the text of the recommendation it has now been
determined that the present wording of art. 15, par. 4 is

meant to be based upon the intention of according freedom of
air traffic within reasonable limits. This, however, does not
remove the objection to the new wording of the fourth para-
graph, viz. that arbitrariness is not by any means excluded

According to the Explanatory Memorandum on the draft-
Bill for ratification of the Amending Protocol, the Dutch
Government considered the requirement as not being very
satisfactory and would have given preference to a stipulation
which granted air traffic companies a greater freedom i)

In the Preliminary Report 2) the new text met with serious
opposition: quot;A step in the wrong direction was seen in the
fact that there was a further limitation of the freedom of the
air space and the new 4th paragraph was considered very
objectionable in its tendency; this provision was looked on as
being contrary to the principle of freedom of passage laid
down in art. 2quot;.

Thereupon the advice was obtained from the Advisory Com-
mission for questions relating to the Law of Nations inter
alia on the question as to whether reasons existed for the
withholding of the ratification ; for, pursuant to article 34, any
modification of the articles of the Convention must be form-
ally adopted by the contracting States before they become
effective. The Commission thereupon recommended the rati-
fication, because from any other line of conduct, in its opinion
success could hardly be expected.

Meanwhile the national air traffic company which strongly
advocated as great a freedom as possible, had not been idle
and Prof. Dr. J. H. W. Verzijl had been invited to give his
opinion ; this was brought to the knowledge of the Government
and tended to the non-ratification of the Protocol containing
quot;a possibility of an unreasonable influence upon the whole-
some freedom of air trafficquot;.

This caused the Government to appeal again, while sub-
mitting Prof. Verzijl's advice, to the Advisory Commission for
questions relating to the Law of Nations.

2)nbsp;Proceedings of the Second Chamber i929/'3o, N° 284,4.
Commissie van Advies voor Volkenreclitelijke Vraagstukken.

A short time before this (in September 1930) the matter
^as put forward in the fifth Air Navigation Congress held at
The Hague, More particularly with reference to a very inter-
esting report of Amedeo Giannini, an ample discussion took
place. Giannini finally made the following proposals :

quot;Le Congrès confirmant le principe de la souveraineté des
États sur l'espace aérien, émet le vœu :

I- que la liberté de passage inoffensif par air en temps de
paix soit adoptée comme une déclaration des États ;

2. que soit consacré l'article 15 de la Convention de Paris
dans la rédaction a!doptée dans le protocole du 15 juin
1929quot;.

Against this a proposal was made by me in which a new
wording for paragraph 4 of art. 15, taken from Prof. Verzijl's
report, was suggested, viz. to amplify the prevailing text

quot;Cette autorisation ne pourra être refusée que pour des rai-
sons de sécurité ou d'ordre publics. Si l'État survolé croit
devoir subordonner son autorisation à des conditions, celles-ci
pourront regarder que les intérêts de la sécurité, de
l'hygiène ou de l'ordre publics, ou la police générale ou douanièrequot;.

The first section of Giannini's proposai was adopted unanim-
ously ; the second part (to maintain the present wording of
15) by II versus 7 votes.

In this connection it should also be mentioned that on
December 3rd 1930 the Sub-Commission on Air Law of the
International Chamber of Commerce adopted the following
resolution :

quot;The International Chamber of Commerce, whereas it would
result in placing air navigation enterprises in a position of
legal insecurity to leave the refusal or withdrawal of the requis-
ite authorisation to the discretion of the administrative author-
ities, urges the Governments to lay down definitely by law the
reasons for which the authorisation to operate an air trans-
port service may be refused or withdrawnquot;.

On December 30th 1930 the second advice of the Commis-
sion for questions relating to the Law of Nations came out ;
this too embodied the conclusion that ratification might not

be refused, though, on the other hand, the value of the argu-
ments adduced by Prof. Verzijl was by no means denied. The
Commission, however, considered that since June 1929 the
atmosphere had not become more favourable for any greater
freedom ; for that reason it was thought useless to endeavour
to obtain a modification of article 15 before ratification should
take place 1).

In the Answering Memorandum the Government agreed to
the point of view adopted by the Commission, and moreover
drew attention to the fact that, by a refusal to ratify, the
other advantages contained in the Protocol, i.a. the absolute
equality of the States as regards the right to vote, would fail
to come into force whilst, besides this, the purpose of the
amendments, viz. to promote, by the removal of some object-
ions, the adhesion of new States, would be foregone ; the
Government, however, also stated that, in its opinion, Holland
could, in the end, not be satisfied with the situation thus
created and would be obliged to continue making all possible
efforts—at the proper place and time (first of all in the C.I.N.A.
itself)—to promote a more liberal conception of regular air
traffic 2).

Though the Preliminary Report gave every reason to antici-
pate on a debate of principle at the public discussion, no such
debate took place. The Act of July 9th 1931 (State Journal
n° 298) authorised the Crown to the ratification.

It was already pointed out that a short time before the dis-
cussion in the Second Chamber, viz. in June 1931, the subject
quot;Freedom of air navigation and regular international air serv-
icesquot; was brought forward in the Dutch Section of the
International Law Association, with reference to a paper by
Prof. Dr. J. A. van Hamel. On the grounds of this the follow-
ing resolution was adopted :

quot;The Association expresses a desire that in the interna-
tional legal regulations for international air services, the prin-
ciple of freedom will be brought to the fore, so that the

The advices of the Commission have not been published ; the tendency
of these has been inserted in the Answering Memorandum. (Proceedings of
the Second Chamber, Session 1930-1931, N° 36, p. i).

several Governments will make the authorisations to be granted
dependent on motives based solely upon the interest of air
traffic itself, and will limit to a minimum eventual impediments,
With a reservation for what is inevitably required in the inter-
ests of public securityquot;.

The Protocol has now been ratified by 22 nations; the num-
ber of those who became signatories to it was 24.

In the foregoing it has already been pointed out that besides
the Convention of 1919 some other groups had been formed;
the members of those various groups had, moreover, concluded
separate treaties among themselves. Before proceeding to the
practical adaptation of the principles determined in the Con-
tention and elsewhere, it is advisable to give a review of what
has been achieved apart from the Convention.

In the first place should be mentioned the quot;Convenio Ibero-
Americano de Navigaci6n Aereaquot;, concluded in 1926 during a
Congress convened by Spain to which Portugal and aU South
American States were invited i). This is, first of all, a conse-
quence of the objections existing against the Paris Convention,
^specially against the arts. 5 and 34. Moreover, at that time,
Spain had just withdrawn from the League of Nations; in
conclusion it desired to give evidence of the ties that existed
between the Iberian Peninsular and the Latin American States.

The Iberian Treaty follows, almost literally, the text of the
Convention of 1919; only no relations with the League of
Nations have been created. It is laid down in art. 5 that the
contracting Parties shall be perfectly free to admit or not the
traffic of aircraft belonging to non-affiliated States, while,
finally, besides some other modifications of minor importance,
absolute equality regarding the right of voting is granted by

21 States participated in that Congress, i.e. Spain, Portugal, Argentina,
Bolivia, Brazil, Chili, Columbia, Costa Rica, Cuba, the Dominican Republic,
Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru,
Salvador, Uruguay and Venezuela.

art. 34. The text of par. 3 of art. 15 as it read before June
192g has been adopted without alteration.

Up to the present time the Iberian Treaty has only been
ratified by 5 States i) ; hence it appears that but little influence
will emanate from this side. For the rest, uniformity with res-
pect to air traffic regulations will not be endangered by this
Convention ; in addition art. 43 lays down that signature is
not by any means identical with the abrogation of earlier
agreements concerning the same subject.

In the second place the Pan-American Convention relating
to commercial aviation, prepared in Washington and signed in
Havana on February 20th 1928, should be recorded. This treaty
was signed by the greater part of the Latin American States
that had also become parties to the Iberian Convention as
well as by the United States of America. Some of these had
also acceded to the Paris Convention or had signed same 2),
The initiative to this was taken by the American Govern-
ment for the purpose of effecting a regulation for air traffic
between North and South America.

The contents of the Convention deviate in many respects
from those of the Convention of 1919, though the latter had
formed the basis for the preparations. It may perhaps be suffi-
cient to say that, on the one hand, the contents of arts, i and
2 of the Paris Treaty have been adopted, but that, on the
other, a provision such as that contained in par. 3 of art. 15
of the latter Convention is lacking ; in exchange, art. 21 gives
full freedom to commercial air navigation between the con-
tracting Parties, provided such be not contrary to any legal
regulations ; these must be the same for national and foreign
aircraft.

Roper 3), however, is of opinion that quot;les divergences ne sont
pas d'une importance telle que l'on puisse considérer comme
compromise l'unité du droit aérienquot;.

2) The signatories were : United States of America, Argentina, Bolivia, Bra-
zil, Chili, Columbia, Costa Rica, Cuba, Dominican Republic, Ecuador, Guate-
mala, Haiti, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Salva-
dor, Uruguay and Venezuela.

The Pan-American Air Navigation Convention too has so far
only been ratified by a few States i).

Owing to the difficulty that might arise from the circum-
stance that a State is also party to the Convention of 1919
or the Iberian Treaty, or to both, art. 30 stipulates in par. 2
that quot;no provision of the present Convention shall affect the
rights and obligations estabhshed by treaties in force.quot;

Moreover a great number of bilateral treaties were concluded
after 1919. This is to be attributed, in the first place, to the
fact that the Paris Convention, though dating from October 13th
1919. only came into effect on July nth 1922, whereas the
need of a regulation had been felt by several States long
before that time.

This led to the conclusion, by various signatories, of mutual
treaties in anticipation of final ratification of the Convention ;
these as a matter of course expired after the parties had defin-
itely acceded {e.g. Belgium with England and France).

Besides bilateral treaties were brought about between those
States which had not taken part in the establishing of the
Paris Convention and which, for the reasons already mentioned,
■were not desirous to adhere either; these concluded treaties
either mutually {e.g. Denmark with Norway; Sweden with
Norway) or with the States that were parties to the Conven-
tion or at least had signed same {e.g. Holland with Belgium,
England and France).

A third group was formed by treaties between countries
that did not wish to accede to the Convention and the ex-
Central Powers that could only become parties under certain
conditions 2) {e.g. Holland-Germany), or between these latter
themselves {e.g. Germany-Austria).

The agreements concluded between members and non-mem-
bers of the Convention were, pursuant to art. 5 (that was also

Viz. upon becoming members of the League of Nations, or, till Janu-
ary 1st 1923, with permission of all the Allied and Associated Powers that
had signed; after that date a J majority was required.

part these have aU been renounced in the course of yefrs as
a consequence of the fact of the countries concerned having
acceded to the Paris Treaty. But also the treaties conlZ
among themselves by non-signatories differed from the same
only on points of minor importance.

The Dutch Air Navigation Act i) in art. n requires-in so
lar as it shaU not have been agreed otherwise by treaty 2)—
for companies occupying themselves solely or partly with the
transportation of passengers and goods by aircraft, either
between two or more points within the Kingdom or to a point
within the Kingdom as point of departure, terminal or inter
mediary station, an authorisation from the Minister of Public
Works, should the seat of the Board of the company be out-
side the Kingdom; conditions may be attached to such author-
isation. Should the seat of the Board be within the Kingdom
a concession wiU be required. quot;It looks very much as ifquot; (it says
m the Answering Memorandum) quot;air trafiic when it comes to be
fuUy developed will occupy such an important place as com-
pared with the railways, the telegraph and the telephone for
which, in so far as they are not already being operated by
the State, a concession is also required, that a concession for

) All treaties concluded up to now between Holland and other countries
(many of which in the meantime have been renounced after the ratification
of the Pans Convention by Holland) accord to the aircraft of the other con-
tracting Party freedom of innocent passage, provided that the stipulations of
the agreement are observed; the greater part also contain the provision that

In practice before the beginning of new (winter- or summer) services
authorisation is required by the concerned air traffic company via the official
admimstration of i^ts country for the line(s) to be run, against presentation of
the time tables, the tariffs, a schedule of the aeroplanes, etc.

air traffic cannot be dispensed with. In the event of a foreign
air navigation company running a service to this country,
without establishing its seat here, the requiring of a conces-
sion has but little significancequot;!).

th ^^tch Government here adopted the attitude that with
he maintenance of the principle of sovereignty the free
evelopment of international air traffic ought to be promoted
as much as possible, but that, besides this, the interests of the
ground-State must not be affected. The refusal of a permission
the attaching of restrictive conditions thereto may only be
proceeded to in so far as the aerial safety or public order
yequire such. This attitude stands out distinctly in the Answer-
ing Memorandum!), in which, in respect to art. 5 of the
'-onvention, it is said:

Moreover that requirement is incompatible with the fun-
damental principle which is, it is true, not expressed in the
^a t in so many words, but is nevertheless openly admitted
erein. What is meant is the principle that air navigation,
JJ ject to the legal restrictions thereof in the public interest,
fhall be free; a principle that, without detracting from thé
idea also underlying the stipulations of this Bill, viz. the idea
° an absolute domination of the Dutch State over the air-
space above its territory, cherishes the traditional freedom of
raffic and does justice to the requirements of the interna-
quot;onal communityquot;.
And in another place:
In the event of a foreign air traffic company running a
service to our country without establishing its seat here, the
requirement of a concession is of minor importance. However,
IS then necessary in the interest of general security, that
supervision shall prevail also concerning the running of that
service to our countryquot;.

It would be going too far to go into details concerning the
Rational legislations in other countries. Many of those laws lay
own regulations without formulating expressly the principle
° sovereignty which in actual fact is adopted; nor has the
stipulation of art. 2 of the Convention been laid down; this

IS for example the case in Denmark (Act of May ist 1923)
Fmland (Act of May 25th 1923), Sweden (Act of February 24th
1922). Portugal (Act of April 27th 1927) and the Soviet
Republic (Decree of January 17th 1921).

Others again explicitly mention the principle of sovereignty
United States of America (Act of May 20th 1926), England
^ct of December 26th 1923), Italy (Act of August 20th 1923)
Hungary (Act of February 22nd 1924) and Czecho-Slovakia
(Act of July 8th 1925).

In conclusion some legislations contain, within the limits of
sovereignty, the principle of freedom of traffic, e.g. Germany
(Act of August 1st 1922), Austria (Act of December loth
1919), France (Act of May 31st 1924). Bulgaria (Act of July
23rd 1923), Yugo-Slavia (Act of June 15th 1926) and Switz-
erland (Act of January 27th 1920); in ahnost all of these
acts restrictions are made, while, more especially for interna-
tional communications, a previous permit is required. Thus
the French Act requires in art. 19: quot;Les aéronefs peuvent
circuler librement au-dessus du territoire français, sous réserve
des dispositions de l'article 8quot;. Article 8 lays down that
foreign aeroplanes may only fly above French territory pro-
vided that right has been determined in a treaty or is based
upon a special and temporary authorisation; in this no dis-
tinction is made between regular international services and
occasional flights.

Even though in the various legislations the formula differs
slightly, the principle of sovereignty is always, though not in
all cases in so many words, adopted and, generaUy speaking,
a previous authorisation is required for the establishment of
an international regular air service.

The line of conduct followed by the various States regarding
the granting or not of such authorisation and the conditions
attached to it will be dealt with in the second chapter.

As has already been stated, it is greatly to be regretted
that the requirement of article 15, paragraph 4 — which has
also been inserted in the greater part of the bilateral treaties
and national regulations^) — says nothing whatsoever concern-
ing the question what considerations must prevail when
granting or withholding a permission and attaching conditions
thereto. Consequently a further interpretation of that paragraph
IS necessary.

During the discussions of the Aeronautic Commission of
the Peace Conference frequently an inclination prevailed to
allow air navigation as much freedom as possible. Hence that
Commission, after recognising the principle of sovereignty,
adopted the two following principles:

mI. Under reservation of the principle of sovereignty, recogni-
tion of the necessity of according to international air
navigation the utmost possible freedom compatible with the
security of the State, the application of the regulations concern-
ing the admission of the aircraft of the contracting Parties
(which regulations consequently should not be excessive)
and the internal legislation of the country.

2. With respect to internal regulations concerning the admis-
sion and treatment of the aircraft of the contracting
Parties, recognition of the principle of the total absence of
discrimination based upon nationality.quot;

In Europe this is the case with the aviation regulations of Austria,
Belgium, Czecho-Slovakia, Denmark, France, Germany, Holland, Hungary,
Italy, Norway, Poland, Rumania, Spain, Sweden, Switzerland and Yugoslavia.
See also p. 17.

The second principle adopted by the Commission has also
been worked out in various clauses; art. 2, par. 2, for example,

as to the admission over its territory of the aircraft belonging
to the other contracting Parties shall be of application without

The principle, also adopted by the Commission, to accord
tne utmost possible freedom, compatible with the security of
the State is found in art. 3. giving the right to set up prohib-
ited zones for mUitary reasons, or in the interest of public
safety; m art. 15, par. i, containing the obligation to land
tor reasons of general security, and in art. 28 by which for
reasons of public safety, the carriage of goods mav be subjected
to restrictive provisions.

In the third (now the fourth) paragraph of article 15 that
prmciple has not been worked out ; hence it soon proved that
the wording, vague as it is, is susceptible to interpretations
diametrically opposite to each other. This is all the easier
because no legal interpretation by the Permanent Court of
International Justice, as provided for in art. 37, has so far
been given.

Up to June 1929, three tendencies could be distinguished •
by the Protocol of June 15th 1929 an end was put to one
of these, viz. the English interpretation.

Many nations did not consider themselves bound regarding
the granting of permission, in any way whatsoever; in this
they have based their attitude upon the provision of art. i and

npon the literal text of art. 15, being of opinion that they
are at liberty to exercise the rights of sovereignty allotted to
them. Here the requirement of art. 15 is made use of for the
submitting of the creation and operation of foreign airlines to
all kinds of hampering restrictions, going much further than
Would be necessary with a view to public order and security;
It has even occurred that the establishment of an airline was
refused without any reason being given.

In most cases it may be explained by the desire to protect
national aviation which, in nearly all countries, receives
subsidies from the Government, the consequence of which is
that air navigation often becomes a question of national
prestige. Rivalry may lead to the air traffic of a foreign
country becoming too important and superseding that of the
national company, which, as a matter of course, will result
in more substantial State-aid. Hence governments that look
npon such free competition as a danger, frequently avail
themselves of art. 15 to put obstacles in the way of the creation
of any international airline.

Further the condition that a permission has to be applied
for beforehand, often leads to the setting aside of the applic-
ant's wishes for the furthering of interests of their own.
Thus a certain route may be insisted upon — in order to
include important places in the air net — or for the purpose
of demanding a share in the working thereof, by requiring
fhat the service to be instituted shall be run by the applic-
ant and the national company jointly; in addition it occurs
that a share in the revenue is required; then the condition
is made that Government officials or a certain quantity of mail
shall be carried gratis. It has also been required that the
foreign company shall itself and at its own expense erect
aerodromes; here military, rather than traffic requirements
Were taken into account. Military considerations (fear of espion-
age) moreover are frequently the cause of unfavourable routes
heing fixed for the traffic by air and landing at certain aero-
dromes being prohibited, owing to which the safety may be
in jeopardy.

This summary of the motives for restricting freedom is
not by any means complete; in this respect there exists a
great diversity.

Also national envy, fear of pacific penetration and the
desire to proceed to reprisals, has in some instances affected
the attitude of a government ; further the necessity of previous
permission is resorted to for compelling the foreign aviation
company to grant certain advantages to the national company
on an entirely different route, and even to exercise pressure
upon matters bearing in no way upon aviation.

In Chapter I it was already argued that such an application
of the fourth paragraph of article 15 does not correspond with
the initial intention of the Convention, all the more since in
June 1929 the C.I.N.A. unanimously recommended the Govern-
ments not to refuse the authorisation asked for except on
reasonable grounds. Thus it might be said that the govern-
ment which makes use of the provision of art. 15 in one of
the ways mentioned above and consequently acts contrary to
the Recommendation may render itself guilty of quot;détournement
de pouvoirquot;. For here a given power is used in order to
further another end than has been laid down in the pres-
cription, and an act is performed which is seemingly lawful
but in reality is based upon condemnable motives. Politis i)
has pointed out that States will always remain part of the
international community. quot;A ce titre ils sont tenus de certains
devoirs. Ils doivent, avant tout, obéir aux exigences du droit
international, qui ne leur permet d'user de leur liberté qu'en
conformité du but social dans lequel il la leur a reconnue.quot;
That, for the rest, the conception of quot;détournement de pou-
voirquot; is possible in the international relations appears from
the fact that the committee charged with the drafting of the
Statute of the International Court mentioned this conception
as an example when giving a definition of the principles of
international law which together with the conventional and
customary regulations should guide the jurisdiction of the
Court.

Le problème des limitations de la souveraineté et la théorie de l'abus
des droits dans les rapports internationaux (Académie de droit international

Other nations, on the contrary, give a more generous inter-
pretation to art. 15, either because they aim at as great an
evolution of national air traffic as possible or because they
aim at instituting communications by air with the colonies
and dominions, passing over many countries, and do not
wish these purposes to be hampered by way of reprisal;
the greatest possible freedom is considered to be of such
importance, that any possible disadvantages attaching to
the principle of reciprocity, necessarily connected with this
system, are readily accepted. Economic reasons may also be
at the bottom of such a point of view ; as a matter of fact
the advantages of air traffic increase according to the distances
covered; the more widely starting point and destination are
removed from each other, the more obvious is the advantage
over the means of communication by land and water and the
more attractive the use of the connection by air will be for
such as have an interest in quick transport.

Among those who give such an interpretation to art. 15,
England took an exceptional position. It has been seen (p. 19)
that in 1919 in the original wording of paragraph 3 the words
quot;international airwaysquot; were substituted for quot;international
airlinesquot; upon the proposal of the English delegation.

The English interpretation was that each nation is entitled
to fix certain routes for aircraft, and may submit the determ-
ining of new routes to previous permission ; hence the word
quot;airwayquot; has a purely geographical significance, viz. a route
with the aerodromes annex. When such a route has been
established, any aircraft is free to make use of it, no matter
whether it belongs to a regular international air service
or not; without the permission of the country concerned,
however, no new routes and aerodromes may be instituted.

With this an appeal is made in the first instance to the
amendment of the text made by the Aeronautic Commission.
It is further adduced that the word quot;linesquot; is not used in
any single article of the Convention, nor is any special refer-
ence made regarding regular commercial air services. It is
solely in art. 16 that mention is made of the carrying of
passengers and merchandise as a commercial undertaking
within the territory of a country. Hence it is said there was no

intention of malcing any difference between the various kinds
of private aircraft, with the exception of what is laid down
in art. i6; all such planes would have to receive equal treat-
ment and thus be entitled without discrimination to the
freedom of innocent passage granted by article 2.

1.nbsp;All privately owned aircraft of the contracting Parties shall
be entitled, without discrimination, to fly over the territory
of the other contracting Parties without landing there, pro-
vided they follow any route that shall have been fixed.

2.nbsp;All privately owned aircraft of the contracting Parties,
without distinction, shall be entitled to proceed from one
country to another, provided, should the regulations require
such, they land at a specified aerodrome.

3.nbsp;No route shall be instituted or followed without the previous
consent of the State to be flown over.

4.nbsp;Upon the grounds of arts. 2 and 15, pars, i and 2, any
State which should be unable to grant its approval to flights
via a certain route requested by a foreign company, shall
have to indicate another route at its own discretion; to such
indication an obligation to land at a definite aerodrome may
be attached, whereas — except so far as concerns commercial
air traffic between two points in one State — no distinction
can be made between the private aircraft, either commercial
or not 1).

An argument against this attitude are the proceedings,
already mentioned, when drafting the text of the third para-
graph ; the Italian text too (quot;L'impianto delle linee aeree
intemazionaliquot;) is hardly compatible. The English interpretation
was fully discussed at the r4th session of the C.I.N.A. which
took place in Geneva, June 1928. It was generally held that
the words quot;waysquot; and quot;linesquot; were synonymous; as a matter
of course, so it was argued, the institution of a route with
the aerodromes belonging to it requires the permission of the
country concerned; this need not be determined separately;

1) Concerning the English point of view see : K. M. Beaumont, Freedom
of the Air and the Paris Convention of 1919.

consequently par. 3 of art. 15 would have no significance,
snould it bear on geographical routes solely. A member of the
talian delegation expressed himself particularly strongly by
saymg that if on amendment they had to adopt the English
attitude regarding art. 15, such an amendment would not be
^ modification, it would be a revolution. The deliberations
then carried on yielded no result. The C.I.N.A. stated that an
interpretation of art. 15 was not within its province ; for the
rest it was considered that as yet the time had not come for
such interpretation.

Though England advocated a more generous view in the
C.I.N.A., it was not always put into practice. In justification
of this an appeal was made to the temporary prevalence of
exceptional circumstances arising from military considerations,
m connection with the maintenance of public order.

Anyhow, the matter was definitely cancelled by the new
text adopted in June 1929, by which the establishment of
international airways as well as the creation and operation of
I'egular air services may be made subject to previously obtained

^or a more generous interpretation an appeal is made
preferably to the provision of art. 2 by which the freedom of
mnocent passage is guaranteed in times of peace, and art. 24
which makes the aerodromes, open to public use by the
national aircraft, also accessible, under the same conditions,
for aircraft belonging to the other contracting Parties. Besides,
iquot;eference is made to what has been quoted in the foregoing
the initial attitude of the Aeronautic Commission, viz. :
to grant the utmost possible freedom compatible with the
security of the Statequot; and finally to the Recommendation
^dopted by the C.I.N.A. in June 1929. For these reasons, in
ludging the question whether a request for permission shall
^e granted or not (and if so, under what conditions) a State
should take into consideration only reasonable motives, in
themselves justifiable, and having reference solely to the air
^ine to be instituted. In this connection no other motives
should be considered as justifiable but those concerning the

interests of public health and security, or being within the
sphere of customs and police.

Though, in my opinion, this interpretation, particularly in
conjunction with art. 2, is the correct one, in practice
the opmion prevails that art. 15 of the Convention or the
corresponding provisions in national legislation or in other
treaties can be interpreted as a requirement that does not
m any way impose any restriction on a country as regards
the treatment of foreign air services conducted over its
territory.

To what extent a free and favourable evolution of air
traffic is impeded consequently and the way paved for the
imposition of unreasonable conditions may be seen from the
following examples.

In 1929 the English Aviation Company, Imperial Airways,
instituted the Cairo airconnection ; shortly afterwards this was
extended as far as India; the projected route was via Genoa-
Naples—Corfu—Tobruk—Alexandria. About 7 years previous to
this, an Italian air traffic company conceived the plan of
running the line Italy—Egypt with hydroplanes; for three
years, however, England refused to grant a licence for flying
over Egyptian territory.

WTien the British Government later requested the permission
of the Itahan authorities to fly over Italy, such permission
was granted upon condition that half of the proposed flights
between Genoa and Alexandria should be carried out by an
Italian concern; further an intermediary descent was to be
made in Tobruk which meant a delay of half a day. This was
agreed to; but it soon proved that the traffic became concen-
trated on the Enghsh aeroplanes; the condition was then
made that either half the passengers should be carried by Italian
planes or half the proceeds accruing from the stretch Genoa-
Alexandria should be handed over to the Italian company.
This demand was declared non-acceptable; consequently
the route was led via Central Europe which was highly
detrimental to the regularity of the service, owing to the

England had to overcome difficulties on the further route
to India as well. Thus it had to wait for more than a year
before permission was granted to fly over the Persian coast.
This permission was granted for a period of three years only
and there is a possibility that in future it will be required
for the route to be diverted via Teheran ; if only from an
operational point of view this is impossible of acceptance,
because in that case the flights would have to be laid over
the inaccessible and scarcely known Persian highlands which
offer but little opportunity for landing.

Finally Imperial Airways, for political reasons, were unable
to run the service in India under their own name, the planes
being chartered from the British company by the quot;Indian State
Airwayquot;.

Another instance — apart from the Convention, however, —
by which a concern was compelled to change its route, was
the following:

Articles 313—319 of the Versailles Treaty granted the
utmost possible freedom to the privately owned aircraft of the
Allied and Associated Powers for flying over and landing on
German territory. Pursuant to article 320 those privileges
Were to be maintained till January ist 1923 ; immediately
after the lapse of that date, by a decree of January 8th
^923, a special licence was required for such civil airplanes, if
they wanted to fly over German territory.

When shortly afterwards the Ruhr province was occupied,
that requirement was made more stringent, in such a manner
that the German Government informed the French authorities
that aircraft owned by civil aviation companies were prohibited
to land in Germany, whereas no weather-forecasts would be
given to them.

At that time the Compagnie Franco-Roumaine was operating
the Paris—Prague and Paris—Budapest lines via Germany.

At present another agreement with Italy has been concluded and the
route via that country is being used.

After that prohibition the company continued its services and
consequently had to fly a distance of 600 kilometres without
any intermediary landing, which, at that time, was a perform-
ance of outstanding merit. After this had been accomplished
no fewer than 84 times without any mishap, an emergency
landing had to be made near Nuremberg, upon which the
pilot was arrested and the plane seized. The same thing took
place several times; the pilot was led across the frontier;
the seizure, however, was not rescinded.

The French company was therefore compelled to change the
route and to fly via Basle—Constanz—Linz—Vienna which is a
considerable roundabout way. It was only in May 1926 that
aviation relations were restored between Germany and the
Allied and Associated Powers and it was possible for the
Compagnie Franco-Roumaine — which had, in the meantime,
been converted into the quot;Compagnie Internationale de Navi-
gation Aériennequot; (C.I.D.N.A.) — to follow again the route via
Germany i).

Dutch aviation too has repeatedly met with difficulties
owing to the fact that a great many nations still take up
such an ungenerous attitude towards aerial trafiic over their
territories. More particularly on the route to the Dutch East
Indies hampering conditions have frequently been made, or
at all events taken into consideration, by the countries to be
flown over. Some of these countries were parties to the Con-
vention of 1919 ; such as had not become parties thereto, for
the greater part adopted the requirement of art. 15 in their
national legislation.

Some examples of the conditions made on granting a licence
for flying over a coxmtry are given below.

One of the European nations which had granted a provisional
permission, inserted, inter alia, the foUowing requirements in a
draft concession :

For a comprehensive description of these occurrences see Henry-Coiian-
nier, Eléments créateurs du droit aérien, pp. 29—39.

The Company was obliged
a. to land at the aerodrome in the capital of that country ;
b- to carry mail tendered there ;

The principal purpose of the Amsterdam—Batavia service is
to carry the cargo taken in at the point of departure as quickly
as possible to the terminus. As a matter of fact a definite
course of flight which has already been instituted wiU be
observed as far as possible, but on the European route espec-
ially, with its varying weather conditions, compulsory landings
Would seriously disturb the regularity of the service ; in
connection with those weather conditions, it must be possible
to effect a change of route. Therefore during the past winter
season, on the day before departing for the Indies a decision
Was taken whether the flight should be made via Marseille—
Rome—Brindisi, or via Budapest—Athens, all according to the
available weather-forecasts. Any compulsory landing might very
Well hamper this scheme, and also create a dangerous precedent.

The latter is also of effect for the carrying of passengers
and mails. As a matter of course an endeavour is made
to obtain as much cargo as possible, and consequently the
carrying of foreign mails is furthered ; however, account has
to be taken of the available loading capacity which at present,
amounts from 500 to 900 kilogrammes for the various types of
aircraft This loading capacity is entirely at the disposal of
the Dutch postal authorities, who in their turn give an opportu-
nity to foreign postal authorities for their mails to be carried.

Up till now, however, no obligation could theoretically 3) be
entertained to carry the foreign mail, as the loading capacity
did not always allow of this, while this condition would, moreover,
entail compulsory landings at certain aerodromes fixed for
this purpose. A requirement such as has been made by another

In practice it has nearly always proved possible to accept all the cargo
(at any rate all the mail) offered at the various points ; further especially
in Asia, most towns are always done on every flight.

country for conveyance free of charge of a certain quantity
of mail is absolutely wrong in principle. The requirement
to allow a number of free passages to Government-officials
also falls outside the sphere of reasonable conditions. This
signifies a direct and considerable loss of revenues for the
aviation company which is authorised to avail itself of the
loading space, not occupied by the postal authorities, for the
carrying of passengers and goods. Officials desirous of making
use of this right will only do so, as a rule, for short flights —
mostly within the boundaries of their own country — owing
to which they will occupy the passengers accommodation which
is desired by passengers who wish to go from Amsterdam to
the Indies and who would have to pay the full fare; free-
tickets for Government-officials over distances of any importance
would certainly be an unreasonable requirement.

there is the fact that so long an airline as that to the
Indies, crosses dozens of countries, a condition which for
practical considerations might in itself be acceptable, and
consequently accepted in favour of one nation, might lead, as
regards the other nations, to consequences which would render
the working of an international airline, leading over many
territories, impossible both from a commercial and a technical
point of view.

Success was attained, by negotiations to get the Govern-
ment in question to withdraw these three requirements; this
does not alter the fact that in the second draft concession
inter alia the following conditions were made :
a. Time tables, fares and freight conditions shall be subject

Now this is purely a matter to be left to the decision of
the aviation company concerned, and, in consequence of the
subsidy-agreement, of its own government. Such prescription,
in principle wrong, would in practice lead to non-acceptable
consequences, should other countries make the same stipul-
ations ; furthermore the transit character of the air connection
concerned is entirely lost sight of.

From what has already been observed regarding compulsory
landing, it appears that this requirement may also produce
difficulties; for the successful operation of the air line it is
imperative that, as has already been done in some instan-
ces, it should be permissible to cross the frontiers at any
point; further there is still the possibility — e.g. upon the
strength of art. 3 of the Convention — of closing certain
areas for military reasons; there is no objection to this latter
regulation, provided it be reasonably applied.

c.nbsp;The obligation for the establishment of a branch, of which
the manager, as well as 60 % of the staff, must be nationals
of the country to be flown over, notice of any change of the
staff to be given to the authorities and for the engagement
of new officials permission to be required

This intervenes directly in the organisation of the company
concerned. The Royal Dutch Air Lines (K.L.M.) have, as a
matter of course, appointed agents in those places that are
regularly called at; where it is as a rule only twice a week
a plane passes through, the agent works not only for the
Royal Dutch Air Lines, but has other activities as well. In
some places the K.L.M. is represented by the local aviation
companies; other agents are connected with commercial
concerns, desirous of interesting themselves in aviation. The
necessity of sending out members of its own staff has so far
not been felt, more particularly as the entire route is navigated
by the same crew and plane. When in some places crews and
planes are changed, as on the routes flown by the English'
Company, Imperial Airways (England—India and England—
South Africa), the Company must be represented by a staff
of their own. The aviation company concerned is its own
judge in this case; any obligation imposed by a foreign
Government to set up an expensive organisation of their own,
subject to certain regulations, would be going too far, especially
in this instance in which, as in the greater part of the Euro-
pean countries, the agency is in the hands of the national
aviation company, closely connected with the authorities.
For completeness' sake it should be added that in more than

. one country the aviation company is to be registered. Although in
consequence a number of formalities are to be gone through which
takes a considerable time, yet, where national legislation requires
it, no objection can, reasonably, be raised to such registration
provided both formalities and expenses are not excessive.

All of the abovementioned objections have been submitted
to the Government concerned; in anticipation of the effecting
of any definite agreement, permission has to be previously
requested for every individual flight, stating the names of the
crew, the registration marks of the planes, etc. Though per-
mission has been granted thus far, it goes without saying that
such requirements, especially when demanded by a number of
countries, place the working of an international air service
upon an unstable basis.

Obligatory carriage, in a more stringent form, was, as has
been referred to, also made a requirement elsewhere, inter
alia in the form of gratis conveyance of official mail, up to a
maximum of 15 English pounds (this weight could originally
be raised to 25 pounds, if, in the opinion of the Government,
the development of the air communication should warrant
such an addition) ; besides this the granting of a reduction of
10 % of the fares on behalf of officials on official journeys was
desired. Another country made the condition of the gratis car-
riage of I K.G. of official mail and demanded 2 free tickets
per annum for controlling officials on service trips (besides
these gratis flights, a place had to be reserved in every plane
for an official who would pay the full fare, provided 48 hours'
notice was given). The arguments brought forward in the fore-
going are still more strongly of effect for these conditions
which are made by way of compensation.

Worthy of mention is also the condition on which the
cargo (passengers, goods and mail or mail only), bound for
the territory to be flown over, must be delivered at the
aerodrome nearest to the frontiers for further conveyance by
the national aviation company which evidently comes to a
purely protectionist attitude. In one country an exception

quot;Was made, provided an agreement was concluded with the
national company, that had yet to be established; the subse-
quent arrangement further required the Government's approval.
This also had the effect of securing advantages for the national
company in question, though in this instance postal interests
nin no risks to be pushed into the background. That this
occurs occasionally is obvious when it is said that the afore-
said requirement is also appUcable to cargo bound for places
not connected by an air line nor even by rail with the
aerodrome nearest to the frontiers.

An extremely exceptional requirement, only proposed on one
occasion and not accepted, was that the national aviation
company should be entitled, if it should wish to make use of
the prerogative, to purchase K.L.M.-shares to a maximum of
10 % securing the right to vote, whilst the latter company
was to be granted a similar option. The attitude adopted here
is, that flights over its own territory are a national concern's
due ; if a foreign company should be allowed to do so, the
Government must have a certain degree of participation in
the management of such company. Considering that acceding
to such conditions would create a precedent, they could
hardly be accepted.

Another Government (a party to the Convention) gave such
an interpretation of art. 15, that a separate agreement, worked
out in detail, should be concluded with the company in quest-
ion for each and every international airline.

In the draft-concession under consideration it was stipulated
that in some of the instances mentioned therein Government
officials would have to be carried gratis; further that the
flying personnel were to be Dutch nationals, or subjects of
the country concerned; in the event of mobilisation the
foreign Government reserved the right to itself to requisition
the material that might then be within its territory; any
cargo either coming from or consigned to any of the neigh-
bour countries was forbidden. Originally the stipulation was

likewise made that from the time when an aviation company
should be established in the country itself, the Royal Dutch
Air Lines should have to hand over their mail to such company
which should deal with it within its territory so far it could
do so by its regular air net; the Royal Dutch Air Lines, how-
ever, should be entitled to carry the mails, provided they
compensated the national concern at a figure based upon the
international postal rates and calculated according to the
distance covered within the country's frontiers. However,
negotiations to get these extremely unreasonable demands
cancelled were crowned with success.

Something similar is met with in a requirement prevailing
elsewhere in the national legislation and entered into the
concession, to the effect that a transit-due of i % of the
actual value of the goods, increased by the insurance premium
and freight, had to be paid, the proceeds of which would come
to the benefit of the State.

Considering that it is mainly expensive articles that are
forwarded by air and that the freight-charges are generally
higher than those of other means of conveyance, it becomes
perfectly clear that such a requirement cannot but have a
detrimental effect upon the development of freight traffic;
this would make itself felt all the more severely should other
nations follow a similar course.

It is evident — the aviation companies have never protested
against it — that charges should be made for making use of
aerodromes and hangars, as is the case, in the way of dock
dues, with shipping ; but just as with the latter, aviation must
not, over and above, have all kinds of burdens imposed upon
it which have nothing whatsoever to do with the airline proper.

A point of view, decidedly contrary to the text of the
Convention, was that of an affiliated country when it stated
that it could not allow military aerodromes to be used by
foreign companies for commercial services. Since use of a cer-
tain military aerodrome was a conditio sine qua non for the

Royal Dutch Air Lines, flights had to cease for a considerable
time. This attitude, on the other hand, presupposes the fact
that national companies may avail themselves of military
aerodromes. Article 24, however, lays down that the airports
open to national aeroplanes shall also be accessible, under the
same conditions, to the planes of the other contracting Parties

The consequence of the abovementioned attitude would be
that every foreign aviation service might be shut out if only
few airports (or even one), indispensable for conducting that
service, should be viewed as military aerodromes which would,
in any case, be contrary to the intention of the Paris Con-
vention.

In most concessions the provision of art. 16 of the Conven-
tion has been inserted, enabling a State, if desired, to retain
internal traffic for the national aircraft. Frequently it is a
matter of considerable trouble to obtain permission to carry
cargo (passengers and goods) destined for or coming from
abroad, even if such cargo is in transit. Thus there is one
country that at first refused to admit any through traffic of
passengers and goods, but allowed mail-transport only. After-
wards the prohibition was withdrawn, provided that upon
every flight with passengers and goods in through traffic a
separate permission was applied for in advance

Not only the Royal Dutch Air Lines, but other companies
also experienced great difficulty in extending their air nets
towards the East. Frequently hampering conditions had to be
accepted into details of which it is unnecessary to go deeply ;

Further art. 3 grants tlic right, for military reasons, or in the interest
of public security, to close certain areas under the reservation that in such
cases no distinction shall be made between the State's own private aircraft
and that of the other contracting Parties.

Since the Protocol of June 1929 — which did not prevail at the time, nor
is it in force yet — a State may nevertheless, under certain conditions,
■withdraw that prohibition as regards its national aircraft.

a considerable number of the requirements made have already
been summarised in the foregoing. It may be sufficient to
state briefly that with one country agreements had to be
entered into in which foreign concerns were compelled to
build hangars, workshops, test-benches and slipways, which
after the lapse of twenty years were to be the property of
the country to be flown over; in war time these fixtures
would be taken possession of, whilst intermediary appropriations
might be effected at 80 % of their value; further spare planes
and engines were to be available together with a quantity of
spare parts sufficient for two years; a spare plane might never
be taken into service if not replaced by another ; in con-
clusion, foreign companies were to bear the expense of train-
ing subjects of the country flown over as airpilots and after-
wards to take them into their service.

In Europe the K.L.M. also met with difficulties to which it
is necessary to refer.

For some years, during the summer months, a service was
run by a plane chartered by a foreigner especially for this pur-
pose ; that service had neither its starting point nor its
terminus on Dutch territory but abroad; nor was the route
flown over that territory. When for a succeeding year applic-
ation was made for a permit, it was refused, unless either
starting point or terminus was laid in Holland. It was at
first argued that the national company was itself able to carry
out the commission ; later on it appeared that the authorities
were still inclined to grant a permission, provided the K.L.M.
should be prepared to come to an agreement with the national
company in a matter which was — to all appearances — in
no way whatever connected with the prospective service.

Apart altogether from the query whether the line referred
to would fall under the provision of art. 15 — a point that
is extremely doubtful, as this was only a matter of certain
goods being carried at irregular times by a plane chartered by

This was not even allowed when a spare plane had to assist a plane that
had liad to make an emergency descent on the high seas.

a foreigner, in consequence of which any pubhc, regular ser-
vice was out of the question — apart from that query, the
requirement to come to a previous agreement on an entirely
different matter is unacceptable. The granting or refusal of
such permission would no longer be dependent upon the views
of the Government concerned, but would be subject to the
affability of the national Jcompany; hence the working of a
line would become extremely unsettled.

More in the nature of principle was what was experienced
by the K.L.M. when intending to establish a regular public
and international airline by which, as in the foregoing instance,
neither the point of departure nor the terminus were upon
Dutch territory, no more was the route over that territory.
Permission was refused by one of the Governments concerned
npon the ground that two companies were already working the
line and that there was no room for a third enterprise; it
Was feared that owing to the inevitable competition the losses
Would increase considerably which would in the end affect the
subsidies granted by the Government concerned; the desir-
ability of greater frequency was not denied; preference, how-
ever, was given to this service provided for by the two
companies then operating which would in this way have an
opportunity of improving their financial results to the benefit
of the national exchequer.

The question whether the arguments brought forward in the fore-
going are justified will be fully dealt with in Chapter III.

A very remarkable instance occurred in] Portugal. Towards
the end of 1919 the monopoly was granted to a Portuguese
(actually a foreign) concern, regarding the running of certain
airconnections, inter alia that with the Azores, Madeira and
the Cape Verde-islands. In the concession, the Government
bound itself in anticipation to refuse all further requests to be
allowed to work those lines, no matter whether this might
be for internal or through traffic. Only if the holder of the
concession as well as the Government might be of opinion
that it should be more advantageous or necessary for the bet-
ter development of the concern that such a licence were granted,

the company would be in a position to enter into negotiations
and make its conditions. The Government, however, reserved
to itself the right to take steps regarding international aviation
apart from the concession; it is, however, doubtful whether
the purport of the contract concluded can be nullified by such
steps.

Though no objections prevail concerning the reservation of
internal traffic by air, this is entirely otherwise as regards
through-traffic ; in the instance under consideration this is all
the more obvious since the Azores are an indispensable base
for any future Atlantic aviation service. By creating a mono-
poly for one nation the establishment of universal air lines
would be hampered extremely

The granting of most-favoured-nation-treatment (regarding
all matters affecting aircraft and upon condition of reciprocity)
as has sometimes been proposed or done with regard to
certain concessions, should also be averted. It is also an obstacle
to as free an air navigation as possible. Further obligations
are then accepted for the future, the purport of which is
not known by the parties concerned at the moment the con-
tract is entered into ; hence the impossibility of forming a
correct idea of such a clause. In conclusion it should also be
observed that, according to art. 2, par. 2 of the Convention,

») Holland, Spain and the U.S.A. had protests lodged against this with the
Portuguese Government (see Het Vaderland, evening edition, November 19th
1930, p. I B).

Portugal is not the only country where a tendency to the creation of
monopolies prevails. Article 3 of the Belgian decree of May nth 1931
stipulates that the organisation and the exploitation of international air
transport can be made a monopoly. This monopoly will be granted for a
limited space of time and can be made subject to special conditions. Further
the French Government, in the explanatory memorandum on the treaty
concluded on June 25th 1930 between France and Czechoslovakia and relating
to aerial navigation, in particular to the airlines Paris—Prague, Prague-
Constantinople and Prague—Moscow, said that ratification should be the more
desirable as the treaty assured to the French company a privileged commercial
situation by constituting a real and very enviable monopoly. Finally it is
reported that the Government of Iceland intends to grant a concession to an
American air navigation company by which to this company the exclusive right
to fly over Iceland, as far as flights to the United States are concerned, is
accorded for a period of 15 years.

such a clause is invalid, as this paragraph requires that the
regulations regarding the admission of the aircraft of the
contracting Parties shall be applied without distinction of nation-
ality ; this requirement, amended by the Protocol of June
^929, is also of effect regarding contracts concluded by parties
to the Convention with nations that are not parties thereto.

Now some other conditions should be mentioned that
are entered into the greater part of the authorisations and
which, provided they are kept within reasonable bounds, are
acceptable.

Thus, generally speaking, the carriage of arms and muni-
tions is forbidden, which is self-evident i). On the other hand,
the crew should be armed with a view to possible landings
in places far removed from the civilized world. Permission of
the Government concerned is always granted in this case.

A prohibition also prevails for the carrying of photographic
or cinematographic apparatus and the taking of photographs
without previous permission. For military reasons too, it is
often forbidden to fly above certain areas; in this, however,
generally no distinction may be made between national and
foreign planes. Such a prohibition can be a great obstacle for
air navigation ; sometimes the shortest route is cut off and a
route which is unfavourable owing to meteorological conditions
has to be followed ; a prohibition to land on military aero-
dromes may, in some instances, have a hampering effect.
Not much, however, can be said against these restrictions,
provided they are applied in a reasonable way.

In the interests of public health, certificates of health are
sometimes required to which proofs must be attached that
crew and passengers have been made immune from various
diseases. In this respect too the limits of what is reasonable
should be observed, nor must it occur, as happened on one

') For the parties to the Convention this prohibition already prevails by
Virtue of the articles 26 and 27.

occasion to a foreign aeroplane, that passengers and crew were
put mto quarantine, because it did not appear from the certif-
icate of health that the cotton waste had been disinfected.

Some countries lay down the condition that aviation com-
panies shall be insured as regards all damage accruing from the
carrying out of air services to persons and property not being
carried by such aircraft; to this the requirement is sometimes
added of a passenger-insurance against accidents at definitely
indicated amounts.

The first requirement may be considered acceptable; the
second, however, affects too greatly.the company's independ-
ence. In most cases, however, such a risk has already been
covered; the air transporter's liability as regards passengers
(and consignors of merchandise) has now been regulated inter-
. nationaUy by the Warsaw treaty of 1929. the provisions of
which will be inserted within a short time in all carrying conditions;
this will eliminate the latter requirement probably in the future!

Mostly the provision of art. 16 of the Convention, granting
to each contracting State the right to make reservations and
restrictions in favour of its national aircraft with respect to
the carrying of passengers and goods for hire between two
points within its territory, is also worked out in such manner
that this traffic can be entirely reserved for these aircraft, or
is actually so reserved. In the latter case, however, it fre-
quently occurs that the possibility of dispensation is left open.

But little objection can be raised against this latter limit-
ation, also prevailing in the maritime navigation, particularly
as long as the limits of rentability have not yet been reached,
provided only the expression quot;between two points on its
territoryquot; be given the sole meaning of inland traffic, so that
for example transport between the motheriand and colonies
is exempted from it as well as a through-connection between
two points on a territory.

The question of how the term quot;territoryquot; should be inter-
preted was brought forward in 1931 in the Juridical Commis-
sion of the C.I.N.A.; upon an appeal to articles i and 40
of the Convention the opinion prevailed that the requirement
of art. 16 really bore upon transport between motherland and
colonies, or between the colonies mutually.

Here again, by this interpretation, maritime navigation has
an advantage over air navigation ; in its report the Commis-
sion itself observes that the idea quot;cabotage aérienquot; had a
considerably vi^ider meaning than the coastal trading in
shipping. Recently the Commission, upon a decision of the
C.I.N.A., looked into this matter a second time and came to
the conclusion that it was recommendable to restrict the idea
of quot;cabotage aérienquot; ; some suggestions were made, inter alia
to have the requirement of art. i6 bearing only upon a
quot;closedquot; territory or to allow reservations and restrictions only
if an intermediary landing on foreign territory is not made.

The reservations and restrictions of article i6 may be estab-
lished in favour of the national aircraft ; the possibility that
the national enterprise runs a line within the territory with
the aid of foreign chartered planes is not taken into account.
As on the other hand it certainly was the intention to
authorise the States to reserve, if desired, all traffic within their
territory, and it has sometimes happened that foreign aircraft
Were chartered it is recommendable to complete — as well
in the Convention as in national regulations — the words
quot;national aircraftquot; with quot;national air traffic companiesquot;

From the examples referred to in this chapter it appears
very distinctly that generally there exists in practice but
little freedom of navigation for international aviation and that,
on the contrary, in many instances the rights of sovereignty
allotted to the State have been abused.

Though the redrafting of art. 15, introduced in the Protocol
of June 1929, of itself does not signify any progress for those who
desire the utmost possible freedom of traffic, it has on the other
hand the advantage of making a more liberal application possible :

The Danish company f.i. chartered, during a period of severe frost, when
all traffic by water had come to a standstill, planes of the K.L.M. for the
carriage of mail and victuals.

See also the Resolution of December 3rd 1930 of the International
Chamber of Commerce : quot;Recommande aux Gouvernements, dans la mesure où
leurs législations respectives réservent le cabotage à la navigation aérienne
nationale, de faire porter cette réserve sur les entreprises aéronautiques et
non sur les aéronefsquot;.

The only question, however, is whether the opportunitv opened
up by the new text wiU be taken advantage of.

A very interesting reply to this is given by Albert Roper i)
who has been Secretary General to the C.I.N.A. since its
inception. Mr. Roper says that in 1929 only 4 nations adopted
the view that for international air navigation freedom of
trafiac must be possible; that number will gradually grow
until, in the end, of necessity, a majority has been reached,
as air navigation is pre-eminently an international matter;
hence without freedom of movement it cannot develop. Forcing
this, however, is an impossibility; of themselves the Govern-
ments wm adopt a policy of quot;laissez-passerquot;, when once the
regularity and activities of air navigation warrant this. Here
too, just as in other matters, time will act a leading part.
Finally Mr. Roper expresses himself thus : quot;This crisis cannot
be but transient; as soon as air lines will be regularly travers-
mg the airspace above the continents and especially that
above the high seas, operating with security, by day and
night; as soon as the first great international companies shall
have made their appearance ; as soon as it shall appear that
government-subsidies shall be required no longer, the situation
will certainly change. The nations favouring the cause of
freedom, conscious of their number, will be in a position to
grant the facilities they now must refuse, under pain of being
duped; the others will then have to hasten to follow their
lead for fear of being left behind. Without doubt rival nations
will then endeavour to get the great international air lines
to change their courses via their territories.quot;

The process of development advocated by Roper will be
undoubtedly realised; as it says, however, in the Introduction,
air navigation has its own claims and these should be acknowl-
edged, even before the full and complete accomplishment of
them, in a universal and supple regulation, according as great
a freedom as possible.

In the succeeding chapter the way in which this freedom
of traffic should be regulated within the limits of sovereignty,
will be dealt with.

For the development of air navigation with its international
character and its many possibilities, it would be extremely
favourable naturally, if the air were freely accessible. When
taking into consideration that principally with regard to long
distance traffic, where the advantages of air traffic are pre-
eminently shown, a great evolution is possible, even a further
reaching conclusion may be drawn, and it may be said that
for this a complete freedom, eventually tempered by prefer-
ably uniform conditions for security, is a necessity.

But we have seen that, however much this principle may
have been advocated in the beginning, the Paris Convention
broke away from it by admitting in art. i the complete and
exclusive sovereignty of the States regarding the airspace above
their territory. This has been entered into practically all
national legislations and mutual treaties ; nowhere any restrict-
ion whatsoever in the way of territorial zones or limits of
height has been attached to it

That the principle of sovereignty has now been accepted in
international law generally, is quite understandable. It is
obvious that traffic by air yields much greater dangers for
the underlying States than that upon the open seas for the
riparian countries and that therefore a legal ground must
exist for protection against these dangers 2). These occurred in

See Fernand do Visscher : quot;Du seul fait que le passage d'adronefs étran-
gers peut mettre en danger sa sécurité, celle de ses habitants et de leur»
biens, gêner sa circulation interne, etc., on peut conclure que tout État doit
posséder dans la zone atmosphérique, qui domine son territoire, des droits
remarquablement larges. Pour marquer l'indépendance avec laquelle l'État les
exerce vis-à-vis des autres États on peut qualifier ces droits de souverainsquot;
(quot;Le droit international de la navigation en temps de paixquot;, Revue de droit
'nternational et de législation comparée, t. 8, 3e série 1927, p. 182).

their most acute form during the Great War, when technique
developed very rapidly ; a logical consequence of it was that
in 1919 the difficulty was solved and the bone of contention
quot;freedom or sovereigntyquot; was decided in favour of the last
mentioned principle. All this, however, does not go to prove
that the rights of sovereignty would render free traffic impos-
sible ; on the contrary, the contracting Parties adopted in
art. 2 of the Convention itself the obligation of according
freedom of innocent passage in times of peace.

This basic right granted to air navigation is, however,
insufficiently guaranteed as regards the international lines and
requires further regulation urgently.

In this chapter the question, how, more particularly with a
view to regular international air services, this freedom of
traffic can be regulated within the limits of sovereignty, will
be dealt with. Then the way in which this matter has been
solved as regards other means of communication will have
to be looked into first of all.

As has been stated before, even if only for reasons of a
practical nature, a parallel with the freedom of the high seas
is out of the question ; a solution will moreover have to be
found while admitting the principle of sovereignty. This is
why first of all attention should be given to the passage
through territorial v/aters, the traffic via waterways and rail-
ways, and the touching at seaports. It can then be made
sure that here much greater freedom is enjoyed than aviation
does.

As early as at the Congress of Vienna of 1815, freedom of
traffic via the international rivers as well as equality of treat-
ment was established; later on, this was further worked out
in various treaties. Since here, however, a comparison will be
made with air navigation, it is preferable to study exclusively
the history of evolution after the war, however interesting the
history previous to this may be.

Article 23e of the League of Nations' Covenant imposes
upon the League the task of making provisions to secure and

niaintain freedom of communications and of transit and equit-
able treatment for the commerce of all members of the League.

This principle has been further worked out, more particularly
^ the Statute of Barcelona on freedom of transit (April 20th
1921). Worth mentioning is the preamble of the accompanying
convention; in this the High Contracting Parties recognise
that it is well to proclaim the right of free transit and to
raake regulations thereon as being one of the best means of
developing co-operation between States, without prejudice to
their rights of sovereignty or authority over routes available
for transitquot;. Pursuant to art. 2 of the Statute the States
shall facilitate free transit, both by rail- and waterway,
regardless of nationality; through traffic via the territorial
Waters shall be allowed, in accordance with the customary
conditions and reserves The restrictions that may be imposed
liave been inserted in the Statute, principally in arts. 5 and
7- The article first referred to lays down that no contracting
State shall be bound by the Statute quot;to afford transit for
passengers, whose admission into its territories is forbidden, or
for goods of a kind of which the importation is prohibited,
either on grounds of public health or security, or as a precaution
against diseases of animals or plantsquot;, and further entitles each
of the contracting States quot;to take reasonable precautions to
prevent the safety of the routes and means of communication
^ing endangeredquot;. In addition article 7 stipulates that the
Measures quot;which a State is obliged to take in case of an
emergency affecting the safety of the State or the vital inter-
^ts of the country may in exceptional cases, and for as
short a period as possible, involve a deviation from the pro-
visions of the articles of the Statute; it being understood that

quot;Subject to the other provisions of this Statute, the measures taken by
'Contracting States for regulating and forwarding traffic across the territory
•nder their sovereignty or authority shall facilitate free transit by rail- or
■Waterway on routes in use convenient for international transit. No distinction
shall be made which is based on the nationality of persons, the flag of vessels,
^hc place of origin, departure, entry, exit, or destination, or on any circum-
stances relating to the ownership of goods or vessels, coaching or goods
''tock or other means of transport. In order to ensure the application of the
provisions of this article, the contracting States will allow transit in accordance
^'th the customary conditions anlt;i reserves across their territorial watersquot;.

the -principle of freedom of transit must be observed to the utmost
possible extentquot;. In conclusion it should be mentioned that
article 3 stipulates that quot;traffic in transit shall not be
subject to any special dues in respect of transit (including
entry and exit). Nevertheless, on such traffic in transit there
may be levied dues intended solely to defray expenses of
supervision and administration entailed by such transit. The
rate of any such dues must correspond as nearly as possible
with the expenses which they are intended to cover, and the
dues must be imposed under the conditions of equality.quot;

The Convention and Statute on the regime of navigable
waterways of international concern, established at Barcelona
on the 20th, respectively the 19th of April 1921 point the
same way. The preamble of the Convention reiterates, though
in a somewhat different wording^), that of the Transit-
Convention. In the Statute it is laid down that each State
shall accord free exercise of navigation to the vessels flying the
flag of any one of the other contracting States on those
parts of navigable waterways as are specified in the Statute
(art. 3). In the exercise of navigation, the nationals, property
and flags of all contracting States shall be treated in all
respects on a footing of perfect equality ; no exclusive right of
navigation shall be accorded to any companies or private
persons (article 4). Besides the possibility of a reservation,
principally in accordance with that of article 16 of the Air
Navigation Convention 1919 (carriage between two points of
one and the same territory, art. 5), each State maintains its
right to enact the stipulations and to take the measures
necessary for policing the territory and for applying the laws
and regulations relating to customs, public health, precautions
against the diseases of animals and plants, emigration or im-
migration, and to the import or export of prohibited goods;
it being understood that such stipulations and measures
mtist be reasonable, must be applied on a footing of absolute

quot;Recognising in particular that a fresh confirmation of the principle of
freedom of navigation in a Statute, elaborated by forty-one States belonging
to the different portions of the world constitutes a new and significant stage
towards the establishment of co-operation among States without in any way
prejudicing their rights of sovereignty or authorityquot;.

equality between the nationals, property and flags of any
one of the contracting States (including the State which is
their author) and must not without good reason impede the
freedom of navigationquot; (art. 6). Article 7 is similar to article 3
of the Transit Statute, article 7 of which is repeated in article
19 of the Waterways Statute. According to article 10 quot;each
riparian State is bound on the one hand to refrain from all
measures likely to prejudice the navigability of the waterway,
or to reduce the facilities for navigation, and on the other hand,
to take as rapidly as possible all necessary steps for removing
any obstacles and dangers which may occur to navigation.
If such navigation necessitates regular upkeep of the waterway,
each of the riparian States is bound to take such steps and to
execute such works on its territory as are necessary for the
purpose as quickly as possible . . . .quot;

The Additional Protocol opens up the prospect of applying
the principles of freedom and equality laid down in the
Convention also to all navigable waterways which are not
considered as of international concern, and which are accessible
to ordinary commercial navigation to and from the sea
(eventually with the reserve that these must be naturally
navigable), and also in all the ports situated on these water-
ways on condition of reciprocity.

Several more recommendations were drawn up in Barcelona;
relative the international regime of railways it was recommended,
inter alia, that the various States should adopt all possible
measures which will facilitate the international transport of
passengers, baggage, and goods over the railways under their
sovereignty or authority

With respect to the seaports placed under an international
regime some general provisions were recommended, inter alia,
that the nationals, property and flags of all nations shall enjoy
complete freedom in the use of the port, and shall be treated
upon a footing of absolute equality ; that there shall be no
restrictions on the free use of the port, other than those arising
from stipulations concerning customs, police, public health,

emigration or immigration, or the import and export of pro-
hibited goods. Such regulations must be reasonable and uniform,
and must not, without good reason, impede trafiic i).

Equality of treatment concerning free access to seaports is
laid down in article 2 of the Seaport Statute of Geneva
(1923). Pursuant to art. 17 some restrictions may be made ;
these amount 'to about the same as those provided for by
article 5 of the Transit Statute; the provision of article 7
of the latter Statute is embodied in article 16.

In conclusion article 4 of the Statute on the international
regime of railways, drawn up in the same year in Geneva,
reads: quot;Recognising the necessity of granting sufficient
elasticity in the operation of railways to allow the complex
needs of trafiic to be met, it is the intention of the contract-
ing States to maintain unimpaired full freedom of operation
while ensuring that such freedom is exercised without detriment
to international trafficquot;. For the rest in articles 29 and 30
similar restrictions are inserted that have already been described
above.

The foregoing regulations have been somewhat fully dealt
with, as two important conclusions are to be deduced from
them. It appears, in the first place, that, even though the
principle of sovereignty be adopted, free traffic is very well
possible. Further it has to be stated that, while with respect to
through traffic via the maritime belt, along the rivers and
with regard to the touching at seaports as great a freedom as
possible prevails on which only reasonable and definite res-
trictions can be imposed, with respect to international air
communications yet many States do not hesitate to make all
kinds of unreasonable conditions, although for this very
traffic freedom of movement is a primary vital condition.

In justification of this difference it might be argued that
an international air line bears another character than, for

Article i of the General Provisions ; Recommendations relative to ports
placed under an international regime.

instance, an international shipping line. The dangers, more
particularly in the military sphere, attaching to an air line,
are considerably greater; the control of the police authorities
and customs' officials cannot be exercised to so high a degree;
for example, we can just fancy how easy it is to drop contraband
npon a distantly situated spot. Further it is argued that,
generally speaking, measures will have to be taken by the
State to be flown over which will be much more far-reaching
than those required for shipping lines; for example, fully
equipped aerodromes as well as a series of emergency landing
grounds will have to be made ; a wireless service will have
to be instituted, and a night light installation should be erected.

As against this latter it may be observed that the construct-
ion and maintenance of seaports are also accompanied by
great expenses, and that this moreover applies to coast-
hghts and light-ships; that shipping requires wireless services
as well which, in addition, may hkewise be used on behalf of
air traffic ; and finally that, contrary to any means of com-
munication by land and railways, the creation of the airway
Itself does not entail any expense whatsoever.

There remain the objections in the sphere of customs and
pohce, as well as those affecting public health and security.
With regard to the latter, it should be pointed out that each
State has reserved to itself the right to prohibit at any
time, for military reasons or in the interests of public security,
any flying above certain areas of its territory. Though it is
admitted that by this control the danger of espionage cannot
he altogether eliminated, it is nevertheless very well possible
to make important strategical points invisible from the air;
moreover, it is generally forbidden to carry cameras or to
take pictures with these without permission. Finally these
objections equally apply to all aircraft, whether belonging to a
regular air service or making incidental flights ; nevertheless the
Convention requires a previous authorisation for the operation
of regular air lines only.

Hence it is open to doubt, whether air navigation is indeed
in such an exceptional position that the requirement of a previous
permission for the institution and operation of an international
air line is justifiable.

Since there is no denying that a State should be empowered
to take the required measures for its safety — which will be
all the more reasonable when air navigation shall have arrived
at its full development — the requirement of previous per-
mission for international air lines may be put up with for the
present For the rest this system has already struck root
so deep in practice that there is little chance of proposing
successfully any modification in favour of air navigation in the
near future. So far, the possibility opened up by the new
text of art. 15, viz. to renounce the requiring of a previous
consent, has not been taken advantage of.

It must be expressly laid down, however, that on the
granting of a permission and the attaching of conditions, only
justifiable and reasonable considerations bearing solely upon the
connection proper, can point the way.

The possibility of making conditions which have for their
object, inter alia, the requiring of part of the traffic, or part
of the revenue accruing from it; the following of a certain
route, conformably to national interests; the acquiring of
material advantages; the extorting of promises in a different
sphere, etc. should be eliminated.

However, it is permissible that restrictions should be made
for miUtary reasons, in the interests of safety and health,
or as regards customs and police, provided that what is
required shall be reasonable and shall be applied without dis-
tinction of nationality, whereas the transit character of an
international air line should not be lost sight of.

It has been stated before that the Convention, and in
consequence many other treaties and national laws, know of
such restrictions.

The second paragraph of article 2, for example, lays down
that the regulations made by a contracting State as to the
admission over its territory of aircraft belonging to the other
contracting States shall be applied without distinction of
nationality.

In the distant future, however, these measures of safety will be embodied
in general regulations, so that, with regard to this, previous permission will
no longer be necessary (see page 88).

Pursuant to article 3, par. i, each State is entitled to issue
a prohibition regarding flying over certain areas, but solely for
^nilitary reasons and in the interest of public safety, whilst with
this, unless as a great exception and then in the interest of
public safety, no distinction may be made between its private
aircraft and that of the other contracting States. Further,
pursuant to par. i of art. 15, for reasons of general security,
an airplane may be compelled to land. The transport of explo-
sives and of arms and munitions of war is forbidden ; each
State may prohibit or regulate the carriage or use of photo-
graphic apparatus (arts. 26 and 27). Finally, for reasons of
public security, the carrying of other objects but those referred
to in arts. 26 and 27 may be subjected to restrictive reg-
ulations (art. 28).

As regards public health, with a view to epidemics, for
example, landing at certain aerodromes may be prohibited
(art. 3 and art. 15, new par. 3). The chances of unreasonable
restrictions being made in this respect will lessen considerably
when the draft treaty, made on May 14th 1931 by the Office
International d'Hygiène Publique, quot;pour la réglementation
sanitaire de la navigation aériennequot; will have come into force.
An international, uniform regulation will then be in force with
which the various States will be bound to comply, and which
will on the whole take the interests of air navigation sufficiently
into account.

In the restrictions and conditions to be imposed with a
view to customs and police, however, difficulties are likely to
he encountered. It is true that a certain uniformity does
iilready exist, owing to some customs' regulations having been
inserted in annex H of the Convention, while in Western
Europe, on the working out of these, the suppleness required
for air navigation has been aimed at. On the other hand some
customs' regulations, principally in Eastern countries, have an
extremely hampering effect. The number of copy-manifests
that every individual plane that leaves Holland for the Indies,
has to carry for the satisfaction of the customs' authorities
of the several countries, runs into tens ; this too holds good
for the visas to be obtained for such flights ; add to this the
short period the validity of a visa often covers. The regulations

laid down by the customs' authorities with respect to fuel
frequently cause a great deal of trouble and expense. Partic-
ularly in this respect the transit character of an international
air service is not seldom lost sight of. Nevertheless it stands
to reason that restrictions re customs and police — provided
they are made and applied within reasonable bounds — should
be respected.

The question now arises whether refusal or restriction of an
authorisation for protectionist reasons, may be considered
justifiable and plausible.

It is not to be denied that there are good grounds upon
which a State may apply the requirement of previous permis-
sion to prevent, or at all events to restrict, foreign concerns
from flying over its territory, such in favour of the national
company.

Generally speaking, the air navigation business for the present
is not profitable in a financial way and frequently great losses
have to be neutralised by means of Government subsidies.
Consequently competition of two or more national companies
will certainly not be tolerated in any country, as it may lead
to greatly increased debit balances. Hence it will be seen that
in most countries air navigation is placed in the hands of one
company which, pursuant to the subsidy contract, is dependent
upon the Government in many respects ; sometimes air navig-
ation is even being run by the . State concerned directly. If
more companies are established in one country, the authorities
see to a fair distribution of activities, which eliminates mutual
competition.

Since competition by foreigners may also occasion an increase
of losses and in consequence a higher Government subsidy,
it is not altogether inconceivable that some States (in partic-
ular the States whose national company is either insufficiently
organised or has but slight possibilities of extension) should
decline any such competition, considering that by the existing
air navigation services the necessities of the situation are
fully met.

Yet there are a number of factors which advocate free
traffic under these circumstances, and consequently plead against

refusals or restrictions concerning international air lines on
protectionist considerations.

In the first place most companies do not confine their
activities to an internal net ; the character of air navigation is
such that as great an expansion as possible to foreign countries
is being sought. Now it cannot be denied that the longer an
air line is, the sooner the limit of rentability will be reached.
In the very first place, as the distance to be covered becomes
greater, the advantages offered by air transport increase, a
factor that will thus be reflected in the revenue arising from
the carriage of passengers, goods and mail. Further, the adapt-
ation of employees and material can be effected in a more
economic way ; actually, on the one hand, frequency upon
short routes cannot be increased to an unlimited degree in
the present circumstances ; on the other hand, a certain
minimum of employees and material has to be available which
may be in excess of the needs of the traffic ; by a longer
communication, however, an effective distribution will be pos-
sible, by which short and long traffic will supplement each
other in a well balanced manner. This is especially the case
in the European countries, where, as a consequence of weather
conditions, air navigation is practically a seasonal industry for
the present ; an intercontinental air service, on the contrary,
runs through sub-tropical and tropical climates, owing to
which an exploitation throughout the year has become pos-
sible. Hence it may be seen that while traffic between Holland
and the surrounding countries is at present limited to some
few lines during the winter-period and only fully develops
from spring to autumn, the East-Indies service is run through-
out the year. That this affects the cost-price per unit of
transport favourably, is self-evident.

Since then the chances of rentability increase with the
length of an air line and the claims on public funds decrease,
freedom of movement is desirable for through traffic precisely
for economic reasons and the States, with a view to the prin-
ciple of reciprocity, should grant that freedom in their own
interest.

On the other hand, it cannot but be considered fair that —
at least till the rentabihty of air traffic has been reached

— another point of view is adopted with regard to internal
routes. The possibiUty of acting conformably to this point of
view is founded on article i6 of the Convention, pursuant to
which a State is entitled to make reservations and restrictions
in favour of the national aircraft as regards transport between
two points on its territory. This provision has been embodied
in practically all other air navigation regulations.

Though mentioned in Chapter I, it may be repeated here
that with respect to internal traffic only the Convention
recognises and allows restrictions of such a nature ; arguing a
contrario it may be said that the requirement of art. 15 was
not intended to be taken advantage of in that sense with
respect to international airways.

More reasons, however, are to be advanced for the point
of view that with the granting of an authorisation no protect-
ionist considerations ought to prevail.

Though at first the air navigation concerns competed keenly
with each other on the various routes, gradually a consolidation
effected mostly by the parties themselves, is noticeable. This
was brought about by a pooling of interests by which the
revenue is distributed in proportion to the number of kilo-
metres covered and the loading capacity available; time tables
and tariffs are also fixed with mutual agreement.

There was no escaping such a collaboration seeing that the
establishment of a private commercial and technical organ-
isation in all landing places is too costly for a company; the
consequence of this is that such an organisation is made
dependent on the foreign concern established there which now
regulates the booking of passengers and freight for any
company touching at such ports and even for those which were
rivals on the same lines. The latter parallel of interests induced
in some instance one or other of the rival exploitants to enter
into a contract with the local representative, which resulted
n partial bookings highly detrimental to the interests of the
other. Collaboration solved the difficulty, here too, in due course.
Where competition stood its ground the time tables were not
seldom found to be alike ; this often resulted in two planes,
each with half the loading capacity occupied, leaving at about
the same time, because a certain connection had to be made,

or because that hour of departure was most suitable for pas-
sengers or consignors. A collaboration now makes it possible
to distribute the hours of departure and arrival over the whole
day, to the convenience of the public and to the advantage
of the exploitation. Owing to this the general organisation can
be effected much more simply and cheaply. Thus competition
is mostly confined to routes that are run by some pool
concerns.

Such combinations are found in Holland on the lines to
Paris, London, Copenhagen, Malmo and Cologne—Basle—Geneva.
In other countries too this system is getting more and more
the usual style of working (Paris—London, Paris—Cologne—
Berlin). Concerning the intercontinental lines a wish to collab-
orate in such a way is not distinctly noticeable yet, and it is
still uncertain whether the system will be followed here in
the near future as readily as has been done on the shorter
lines, since at present the principal purpose is evidently
transport from point of departure to terminus. However, the
reciprocal performing of the technical organisation, the exchange
of agencies, etc. point, here too, in the direction of co-operation.

However desirable the abovementioned evolution may be,
a compulsion on the part of the Government to come to
any agreements of this nature must be declined at all events.
This also applies to the tendency that has recently manifested
itself, viz. to distribute through the intermediary of the
Governments concerned the air routes — especially those of
Western and Central Europe — over the various companies.
Concerning night mail services the arrangement cannot be
objected to, but at the Colonial Congress, held in Paris in
October 1931, and at the session of the Sub-Committee quot;pour
l'étude d'un réseau principal de routes aériennes permanentesquot;
(Comité de coopération entre aéronautiques civiles de la Société
des Nations), held in November 1931, and finally from the
proposals of the French delegation to the Disarmament Confer-
ence (February 1932) it appeared that the wish to go further
into this matter prevailed. This policy may be comprehens-
ible from the standpoint of the subsidising Governments and
with regard to a satisfactory limitation of air armament, but
it cannot but work retardingly upon the development of air

navigation. By such a distribution, as a matter of course.
It is not pure and simple the air navigation interests that
wiU act a decisive part ; the political element cannot be elimin-
ated either. Great areas developed in the course of years with
difficulty and considerable expense, wiU have to be renounced ;
the advantage of having been the pioneer and having obtained
a great experience upon a certain route will suddenly be
brushed aside. Moreover the possibihties of extending the air
net and thus developing new and perhaps profitable fields of
action no longer exist, whereas local interests which can be
judged only by the country concerned, will not properly
be taken into account. Such a method checks the natural
progress of air navigation and creates precedents, which are
sure to entail injurious consequences, when one day air navi-
gation shall have become a paying affair in spite of it i).

The pursuance of such a policy will be all the more injusti-
fiable now that the companies themselves are taking steps to
arrive at a condition of equilibrium of their own accord. Such
stability is not found solely in the effecting of pooling con-
tracts, but also by laying down rules for the distribution of
trafiic and revenue. Supposing a Dutch-German combination
should run the route Amsterdam—Nuremberg—Budapest, each
company making a fiight to and fro daily, an agreement might
be drawn up on the strength of which passengers and goods
hailing from Budapest and destined for Amsterdam and further
should be carried by the Dutch line, and those bound for
Nuremberg or other German towns, connected with Nurem-
berg by air line, with the German service.

Besides, there are circumstances that may render it profitable
both for a State and its national air navigation company, to
propagate air traffic as much as possible.

The motto quot;traffic brings prosperityquot; need not be emphasised
here ; attention, however, should be drawn to the great advant-
age of the considerable number of rapid postal communications.

Postal interests may even be injured by a quot;luftverkehrs-
feindlichequot; policy. If, for example, permission for a foreign
night mail service should be refused, with a view to reserve'

this line for the national company though the latter is at the
moment in no way capable to apply for same, the route may
possibly be shifted on to a neighbouring country ; though in
this case the shortest route cannot be followed, it need not
signify an irretrievable loss of time to the quickest means of
traffic. The danger may arise that the routine, thus acquired
m despatching mail, may result in the day mail being sent
along the same route.

Intensive traffic further enhances the revenues of the air-
ports, the exploitation of which is mostly in the hands of the
authorities. The hangar- and landing-fees constitute one of the
principal sources of income; a great rise of these will consider-
ably help to cover the cost of running. Extensive traffic
IS advantageous to the national company, for, as has been
stated before, the commercial and ground organisation is
mostly in its hands. Consequently its revenues accrue from the
agency commission, from commission on the supply of fuel and
other services rendered, whilst the organisation can be conducted
upon a more economic basis, for example by combining motor-
hus services from and to the aerodrome. Even though this
should require a larger staff, a better and more effective divis-
ion can then be effected, apart from the fact that reciprocal
representation means curtailing the really considerable expenses
of an organisation abroad.

Considering the above, in my opinion the conclusion may
be drawn that (whereas all sorts of restrictions may be made
concerning the inland traffic), it is not desirable to allow
considerations of a protectionist nature to have much influence,
when an application is handed in for the establishment of an
international air line, as the free admission of such connecti-
ons will be advantageous both for the State to be flown over
and its national air navigation company.

If we now return to our point of issue viz. that it must be
expressly stated that the granting or not of an authorisation
and the conditions subjoined must be based solely upon
justifiable and reasonable grounds regarding only the air line

to be instituted, the question has now to be considered how
such a requirement is to be estabhshed.

Regarding this we may confine ourselves to the drafting of
a new text for the 4th paragraph of art. 15 of the Convention
of 1919. This treaty must by all means be considered as the
kernel of public air navigation law, its provisions having in
general been introduced into other similar regulations. Pursuant
to article 5 — as has been pointed out before — it has been
made obligatory for agreements to be entered into by a State
affihated to the Convention and another State, that is not a
party, to conform to the rules laid down by the Convention
and its Annexes

The fourth paragraph of art. 15 stipulates — at the coming
into force of the Protocol of June 1929 — that any State
may make conditional on its prior authorisation the establish-
ment of international airways and the creation and operation
of regular international air navigation lines, with or without
landing, on its territory.

For the redrafting of this paragraph in the sense indicated
above, there is the alternative of a more general circumscription
or a summary of the reasons for which such authorisation may
be refused or restricted.

A general circumscription is found in the supplement, pro-
posed by the English delegation during the C.I.N.A.-meeting
of June 1929, by which permission can only be refused upon
reasonable grounds ; that amendment was rejected by 19 votes

In his paper read to the Dutch Section of the International
Law Association 2), van Hamel considered that such a text
has its advantages over a summary of the reasons for refusal
and restrictions, which he words as follows: quot;Perhaps the
general formulation itself may, in some respect, be somewhat
more successful than the special summary, such as quot;demands
of public security, fear of infectious diseasesquot;, etc. Anyone
who remembers for example, how frequently in commercial

») Pursuant to the Protocol of June 1929 such special conventions in so
far as may be consistent with their objects shall not be contradictory to the
general principles of the Convention.
*) Op. cit. pp. 12 and 13.

policy between various countries quot;fear for the transfer of
diseases of animals or plantsquot; has served as a pretext for
what in reality meant measures for the prohibition of trade,
cannot accept terms by virtue of which foreign air services
^ay be encumbered with all kinds of restrictions causing
injury to the commerce of others, or which are advantageous
solely to the country which imposes them, or put pressure in
auy shape whatever on foreign companies.

Hence the rule that the refusal must be based upon quot;reason-
able motivesquot; is self-evident. True, quot;reasonablequot; is certainly
somewhat vague, and is open to various interpretations; in
Its generality, however, the expression very sharply accent-
uates how matters stand. It sets aside an ingenious
evasion and makes a really acceptable motive obligatory in
each case.quot;

The introduction of an element of reasonableness tells in
its favour. On the other hand the vagueness of the expres-
sion has to be admitted. It is true that the English delegation
argued that the term quot;reasonablequot; represents, in English law,
a well defined idea ; however, in other countries such is not
the case and this was very strongly felt at the C.I.N.A.-
session of June 1929. Though this term may make ingenious
evasion somewhat difficult, abuse cannot be averted since
the views regarding the question of what is reasonable or
liot, are apt to deviate occasionally. Besides such a vague
expression may keep the parties concerned from an appeal to

A special summing up has been inserted in the treaties
concluded in Barcelona, in the first place in arts. 5 and 7 of
the Transit Statute. As reasons of restriction it mentions:
public health or security and precautions against diseases of
plants or animals. Reasonable precautions may also be taken
to ensure that persons, baggage and goods, particularly goods
^hich are subject of a monopoly, and also vessels, coaching
and good stock and other means of transport, are really in
transit, as well as to ensure that passengers in transit are
iu a position to complete their journey, and to prevent the
safety of the routes and means of communication being
endangered.quot; Furthermore measures may be taken quot;in pursuance

of general international Conventions, particularly Conventions
concluded under the auspices of the League of Nations,
relating to the transit, export or import of particular kinds
of articles, such as opium or other dangerous drugs, arms or
^e produce of fisheries, or in pursuance of general Conventions
intended to prevent any infringement of industrial, literary or
artistic property, or relating to false marks, false indications
of origin or other methods of unfair competitionquot;. Deviations
from these provisions are only allowed quot;in case of an emerg-
ency affecting the safety of the State or the vital interests
of the country, it being understood that the principle of
freedom of transit must be observed to the utmost possible
extentquot;.

Article 6 of the Waterways Statute allows the enacting of
stipulations and the taking of measures quot;necessary for policing
the territory and for applying the laws and regulations
relating to customs, public health, precautions against the
diseases of animals and plants, emigration or immigration,
and to the import or export of prohibited goods, it being
understood that such stipulations and measures must be reasonable,
must be applied on a footing of absolute equality between the
nationals, property and flags of any one of the contracting
States, including the State which is their author, and must not
without good reason impede the freedom of navigation.quot;

With respect to the Air Navigation Convention, as regards
article 15, a supplementary text of enumeration was proposed
by Prof. Verzijl, reading as follows: quot;Cette autorisation ne
pourra être refusée que pour des raisons de sécurité ou d'ordre
publics. Si l'État survolé croit devoir subordonner son autori-
sation à des conditions, celles-ci ne pourront regarder que
les intérêts de la sécurité, de l'hygiène ou de l'ordre publics,
ou la police générale ou douanière.quot;

It cannot be denied that a summing up may be incomplete
and thus does not ensure the exercising of the powers due
to a State, whereas, on the other hand, it may be too detailed
and thus defeat its own object; further the chances of abuse
are not eliminated; with an appeal to security, for example
upon the ground of the allegation that the aerodromes are not
fit to be used, an undesired service can easily be checked.

It is satisfactory, however, to state that several of the
abovementioned ideas are taking a more defined form. We
ba.ve already referred to the draft convention concerning
^nitary control of air navigation, to the customs' regulations
in Annex H of the Convention of 1919, while in Annex D the
general traffic regulations are inserted. Further a summing up
IS certainly less vague than just the notion of reasonableness.
In conclusion, expressions such as public order and public security
are already come across in several articles of the Convention.

Upon these grounds, in my opinion, a special summary is
preferable, provided the conception of reasonableness pervades
It gt; such a combination is found, for instance, in article 6 of
the Waterways Statute. In this way the application of
restrictions in the sphere of public health and safety, as well
in that of customs and police, is again kept within the
limits of reasonableness; the advantages of both systems are
combined and the chances of abuse are considerably reduced.

The contents of article 6 of the Waterways Statute need
not, however, be adopted to their full extent in the fourth
paragraph of article 15.

The principle quot;treatment upon the basis of equalityquot; has
already been laid down in the second paragraph of art. 2
of the Convention (admission to the territory of aircraft
belonging to the other States) ; art. 3 (prohibition of flying
over certain areas) ; art. 24 (landing on public aerodromes and
Application of tariffs) and art. 29 (application of restrictions
With regard to the carriage of goods), whereas, pursuant to
36, quot;special regulations as between State and State in
respect of Customs, police, posts and other matters of com-
mon interest in connection with air navigationquot; must be
brought into line with the principles of the Convention. The
provision that the measures to be taken quot;must not, without
good reason, impede the freedom of navigationquot; is already
met by the obligation — entered into in article 2, par. i of
the Convention — to accord freedom of innocent passage, and
further by the introduction of the term quot;reasonablequot;. Finally the
various measures to be taken may be combined; hence no further
Working out of some ideas need be proceeded to.

here it is desirable to introduce a limitation and just to
mention safety and health ; since further articles 3 (prohibited
zones), 15, par. i (obligation to land if ordered to do so) and
28 of the Convention (possibility of submission to restrictions
of the transport of goods), and besides these many national
laws and regulations, give ample opportunity for taking meas-
ures for the protection of public safety, satisfaction may be
felt here with the expression quot;aerial safetyquot;, verifying at the
same time the intention that only measures regarding the
air connection itself are being considered.

Military interests are also sufficiently protected by arts. 3
(prohibited zones), 26 (no transport of explosives, arms or
munitions) and 27 (no carriage or use of photographic appa-
ratus without permission.)

It may be expedient here to deal with the provision, inserted
in the new fourth paragraph of art. 15, viz. that authori-
sation may be required for the creation and operation of
air lines with or without landing. A route that runs over a
certain country without making an intermediary landing cer-
tainly yields but little ground for any restriction or condition.
Measures in the realm of customs and police are practically
unnecessary and the same holds good for public health.
Article 15, par. i, recognises this more or less by laying down
that the aircraft of one of the contracting States has the right
to cross the airspace of another State without landing. The
more so as the same paragraph prescribes that the plane is
bound to follow the route which may possibly have been
fixed by the State over whose territory it flies and where
moreover for reasons of general security it may be compelled
to land, it seems to me reasonable and justifiable that the
provision of the fourth paragraph shall not be applied in the
event of no landing being made and on this account to
cancel the words quot;or withoutquot;.

In that sense a member of the Dutch delegation tendered
his opinion at the meeting of the C.I.N.A. in June 1929,
pointing out emphatically that in the absence of any inter-
mediary landing quot;creation and operation on the territoryquot;
can hardly be spoken of.

Finally, it was indeed the primary purpose of the Convention
that for the aircraft of regular international airhnes no pre-
vious permission should be required to fly over a country
without landing there ; par. i of art. 15 has reference not only
fo casual flights but also to that category of aircraft ; this
appears from the minutes of the Juridical Sub-Commission
referred to in Chapter I, p. 19 ; hence the actual text is not
in keeping with said purpose.

On working out the foregoing, there results the following
new text of the fourth paragraph of article 15 :

quot;Every contracting State may make conditional on its
prior authorisation the establishment of international airways
and the creation and operation of regular international air
navigation lines with landing on its territory. Such author-
isation shall only be refused or withdrawn on reasonable
grounds based upon public health or aerial safety. In the
event of a contracting State desirous to make conditions and
restrictions in respect to said authorisation, these shall refer
exclusively to public health or aerial safety and the laws and
regulations relating to customs and general police, it being
Understood that such conditions and restrictions must be
reasonable.quot;

The question now arises what must be understood by a
quot;regular international air navigation linequot;.

As early as in the first session of the C.I.N.A. an opinion
was given concerning this. Upon the request of the Belgian
delegation an investigation was set on foot by the sub-com-
niission of exploitation concerning tlie interpretation of par. 3
of art. 15. Without binding itself to any definite interpretation,
fbe sub-commission submitted its view regarding the ques-
tion what must be understood by quot;mise en exploitation
dune ligne aériennequot;, viz. quot;l'ouverture d'un service régulier
de transports publics avec fixation des horaires et des tarifs.quot;
That view was adopted by the C.I.N.A.

To be reasonable it must be admitted that this expression
is somewhat narrow. By not proceeding, for example, to the
fixing of tariffs and time tables, the provision of article 15

can be evaded. Now it is nothing exceptional that time tables
are not fixed. A striking example of this is certainly the
line Amsterdam—Batavia. Only day and hour of departure
from these two cities have been fixed; further a travel scheme
has been outhned, that is adhered to, subject to it being
practicable; many circumstances, however, may occur necessit-
ating a deviation. This is proved by practice ; the average
duration of the trips made from January ist 1931 till Decem-
ber 31st 1931 was 10 to II days ; among these figures a flight
of 7 days, one of 8 days and one of 16 days. The transit
character of such communications is, at present, strongly
pronounced, but in the near future, when more transport on
the intermediary stretches shall be effected and the speed of
the aircraft increased, a fixed time table will undeniably be
established and kept up. In fact, matters are already tending
in this direction ; while the pilots were at first only bound
to a total duration of the journey Amsterdam—Batavia or
back, now definite day-routes (except in Europe) have been
fixed from which, however, in special circumstances, devia-
tions may be made.

Do trial flights fall under the above mentioned category ?
Certainly not to the letter. On the other hand it does occur
that a trial service acquires a very regular character. Since
here, however, every instance will have to be considered indiv-
idually, it is hardly possible to lay down any general rule ;
that matter is rather a subject left to the view of the applic-
ant and in the end of the State concerned. Guidance will
have to be sought principally in the question of what is
being aimed at by the trial flight(s) ; if the object is to set
up a regular service gradually, it will be wise to be assured
of permission prior to it.

Now a few words may be said concerning the term quot;author-
isationquot;. This may assume the meaning of quot;concessionquot;
and thus may entail State control being instituted over the
route, the time tables, the tariffs, in short, the entire exploit-
ation. The term, however, may also be understood to be a
permission granted once and for all, thus not implying any
posterior intervention. In the 14th session of the C.I.N.A.

(Geneva, June 1928) a lively debate took place concerning
the question. The view prevailed that the interpretation
first described was antagonistic to the spirit of the Con-
vention ; that a decision concerning this, however, was not
within the competence of the C.I.N.A., but, pursuant to
art. 37, within that of the Permanent Court of International
Justice.

Permission has to be granted by the Government of the
State to be flown over. Should the application be made by
the Government of the country where the air navigation com-
pany is established, or by the latter itself?

It is preferable that in general the matter should be dealt
with by the Government concerned, i.e. that the Government
should apply for the required authorisation and not, as is
sometimes the case thus far, that the application, drawn up
hy the company, is forwarded by the Government.

It may naturally be expected that more attention shall
he paid to a request coming from a foreign Government than
to that from a private company. Moreover in the first instance,
the diplomatic organisation may eventually come into action,
whereas in case the application is made by the company
contact will be obtained, at best, with Jthe Air Department,
hut mostly with a Department that has been charged with
the management of air navigation affairs as a subsidiary
matter, e.g. the Ministry of Public Works, of Trafhc, or of
Post and Telegraphs; the looking after the interests of
the running concern — eventually by exercising a certain
pressure — by the diplomatic representatives of the foreign
Government will then take place in a roundabout way only
and book a less favourable result in consequence.

On the other hand the private character of an air naviga-
tion company guarantees, fm most] instances, a greater pli-
ancy as to the preparations of the negotiations concerning
the permission to be granted.

Hence it is not desirable (to lay down imperatively that
it is only the Governments that are competent in this
respect.

the inchnation prevailed to prescribe emphatically that the
permission should be granted to the State that had applied
for it. Something similar had been inserted in the very text
drafted by the quot;Comité Juridique International de l'Aviationquot;
(session of May 1928, Madrid) ; in this a special agreement
between the States interested was required. Though but little
enthusiasm was felt in the bosom of the C.I.N.A. for such a
provision seeing that, according to national legislations, ratification
is frequently required for similar agreements (a factor that
might cause considerable delay), some delegates thought it
desirable to make the application and the grant of the per-
mission a matter for the authorities, so that it would never
be doubtful but the plan of the company concerned was
sanctioned by its Government. An argument against it was
that authorisation would only be granted by a State, provided
it is cognizant of the application being approved of by the
Goverment of the company concerned ; on this point certainty
can always be required. Consequently it was considered that
making the intervention on the part of the authorities, as
described in the foregoing, obligatory, was not necessary.
This point of view was in due course adopted by the C.I.N.A.

Now the question of who is to judge of the application
of art. 15 has to be dealt with.

Art. 37, par. i lays down that quot;in the case of a disagree-
ment between two or more States relating to the interpret-
ation of the Convention, the question in dispute shall be
determined by the Permanent Court of International Justice
to be established by the League of Nations, and until its
establishment, by arbitration.quot;

Seeing the Court had meanwhile been established this para-
graph was redrafted in the Protocol of June 1929 and now
reads : quot;In the case of disagreement between two or more
States relating to the interpretation of the present Convention,
the question in dispute shall be determined by the Permanent
Court of International Justice. Provided that, if one of the
States concerned has not accepted the Protocols relating to

the Court, the question in dispute shall, on the demand of
such State, be settled by arbitration.quot;

Still the Convention prescribes in one case decision by
arbitration: whereas (pursuant to par. 4 of art. 37) quot;disagree-
ments relating to the technical regulations annexed to the
present Convention, shall be settled by the decision of the
International Commission for Air Navigation by a majority
of votesquot;, par. 5 of the same article stipulates that quot;in the
case the difference involves the question whether the inter-
pretation of the Convention or that of a regulation is con-
cerned, final decision shall be made by arbitration as provided
for in the first paragraph of this article.quot; As the text of the
fifth paragraph has not been modified together with that of
the first paragraph in the Protocol of June 1929, in this
instance we have to do with an obligatory arbitration.

For completeness' sake it should be further stated that up
fo the present no single dispute has been submitted to the Court.

In connection with the heavy procedure before the full
Court, another solution for adjudication of differences has been
sought and in some quarters the system of arbitration has
been advocated. A quicker procedure was expected of this,
a factor that is eminently desirable in many cases. As a mat-
ter of fact slow procedure may cause considerable damage.
It might be imagined, for example, that an air navigation
company running a line traversing many countries and which
has obtained the necessary pennits, finds itself suddenly faced
with the fact that one of those States, forming a necessary link
in the connection, suddenly withdraws or does not extend the
permission for motives which, in the company's opinion, are
Unreasonable. The company in question, as a matter of
course, has the greatest interest to obtain a decision as promptly
^s possible and in a case like this the procedure before
the full Court is not so recommendablc. Beside this, it was
pointed out that, as regards air navigation, but little stability
exists; the number of fixed legal rules and customs is still
small; for these reasons too, so it was argued, arbitration
is preferable. Finally the Court was not considered suitable
for the settlement of disputes of a nature in which the parties
desire to effect a compromise.

Nevertheless I am of opinion that here the system of arbit-
ration is not reconmiendable. In the first place proceedings
before the Court are, in principle, provided for by the Con-
vention ; a similar principle has been inserted in article 22
of the Waterways Statute and Article 13 of the Transit
Statute of Barcelona Further a more prompt handling is
not by any means guaranteed by arbitration. In practice the
weakest side of that institute has been very distinctly brought
to the front, viz. the formulating of the protocol of arbitration
which frequently takes much time. After this the arbiters
and the umpire have to be chosen, a circumstance that has
caused difficulties on many occasions. Finally the course of
procedure to be followed has to be regulated. Discussing these
preparatory activities, Loder observes : quot;Que de soucis,
que de précautions, que de mesures ! La bonne Thémis est
figurée les yeux bandés ; mais la déesse anonyme de l'arbitrage
les a grandement ouvertsquot;.

On the other hand the Statute of the Permanent Court
contains many provisions which weaken the force of the argum-
ents in favour of arbitration. A unilateral writ is possible
under certain conditions ; no choosing of judges is any longer
necessary and the course of procedure has already been determ-
ined. With regard to the {objection that but few conventional
and customary rules exist in the air navigation sphere, article 38
of the Statute lays down in its last paragraph that the Court shall
not only apply the international conventions, the customary
law and the general principles of law, but may also decide
a case ex aequo et bono, if the parties agree thereto. Moreover,
pursuant to article 27, cases relating to transit and commu-
nications shall be heard and determined by a special chamber
of 5 judges, if the parties so demand. In this case the judges
may be assisted by technical assessors, when desired by the
parties or decided by the Court, while the Court may sit
elsewhere than at The Hague (art. 28). In this way special

1) That decision by arbitration has been inserted in the Ibero-Americati
and Pan-American Air Navigation Treaties, is explained by the fact that it
was desired to drop all contact with the League of Nations.

La différence entre l'Arbitrage international et la Justice internationale,
p. 16.

treatment is made possible. Finally the Statute provides as
Well for the obtaining of as prompt a decision as possible:
article 29 stipulates that with a view to the speedy despatch
of business, the Court shall annually form a chamber composed
of three (later on: of five) judges, who, at the request of the
contesting parties, may hear and determine cases by summary
procedure. In this manner speedy adjudication will be possible
an instance of which is the question re the interpretation of
the Treaty of Neuilly (Bulgaria—Greece; 1924), the first instance
of a recourse to the summary procedure. Parties filed with
the Registrar on July 31st 1924; judgment was given as
early as September 12th 1924. This procedure which can
therefore take place when parties request it, appears to me to
be very suitable for disputes arising from the interpretation
of article 15.

If the modification described in the foregoing should be
introduced into article 15 of the Convention freedom of traffic
for international air services would be guaranteed more satis-
factorily than is the case at present; besides, the possibilities
of the development of air navigation would be greater; never-
theless, the States would be able to exercise the rights due
to them and quit the obligations imposed upon them and
even where these two interests might clash, article 37 opens
the possibility of a prompt decision.

Such a regulation, however, would only have to be considered
as a first step in the right direction. For even then there are
three more factors that may impede freedom of air traffic.
In the first place the States reserve the right to make con-
ditional on their prior authorisation the creation and operation
of regular international air lines; secondly, the provision em-
bodied in article 2 is of a conventional nature and not declar-
ative ; finally the new regulation would be confined to the
working sphere of the Convention of 1919.

As pointed out before (p. 68) the institution of previous
permission has become deeply rooted. Some countries even go

the length of not only asking for a previous permission for
regular air lines, but, though not obliged to it, for single
flights as well. For the time being, however, no success will
be booked by efforts of putting an end to it. If, however,
the new text, proposed here for article 15, should come into
effect, the question whether the permission applied for shall
be granted or not and if so, upon what conditions, will be
restricted to the sphere of public health and safety, police
and customs. But more especially in connection with the
steadily increasing air traffic the expectation is justified that
gradually the various stipulations, attached at present to
every individual permission, will make way for more general
regulations equally effective for all traffic, containing, if need
be, conditions especially bearing upon international lines. Then
there would be little or no point in requiring a previous
permission and the States may chance — on realising it —
to refrain fron^ imposing such requirement. This is all the
more desirable as, though the text may be limited in itself,
the chance of an argument in the sphere of public health or
safety being used as a pretext for the endeavour to eliminate
an undesired air service is not totally excluded, even though
that possibility, owing to the element of reasonableness, has
been largely rendered inoperative.

As regards the second point, it has already been indicated
that the right of sovereignty is recognised in article i of the
Convention while in article 2 the States undertake to allow
freedom of innocent passage in favour of the contracting
Parties. Hence article i is declarative whereas article 2 only
contains a conventional provision, in other words a privilege
in favour of the co-signatories.

This provision then is a considerable retrogression with
respect to the statements of the Institut de Droit International
of 1906 and 1911 : quot;L'air est librequot; and quot;La circulation
aérienne internationale est librequot; which contain a general
declaration of freedom of the air and of free use of the air-
space respectively.

Attention is especially drawn to this by Fernand de Visscher
who. arguing that the States have joint interests and that,
in the end, an equilibrium is bound to come into being between
those joint interests and the special rights and interests of
each of them, comes, discussing article 2, to the conclusion
that : quot;Cette forme conventionnelle d'ailleurs répond mal à
i'universahté et à l'importance devenue vitale du droit de
circulation aérienne. Elle y contredit même par ce que toute
convention a d'exclusif à l'égard de non-contractants. A la
forme conventionnelle nous opposons celle de la déclaration,
reconnaissance pure et simple d'une règle objective de droit
international, s'imposant à tous les États sans distinction
aucunequot;.

De Visscher has embodied his views in a draft regulation
from which we take the two following points :

I- La circulation aérienne internationale est libre. Il appar-
tient aux Etats sous-jacents d'en régler l'usage dans la mesure
nécessaire à leur sécurité, à celle des personnes et des biens
de leurs habitants et à l'observation de leur législation
douanière. Les règles établies à cet égard seront appliquées
sans distinction de nationalité.

La liberté de la circulation aérienne internationale comporte
le droit d'atterrissage.
2. Tous aéronefs affectés au transport de personnes et de biens
bénéficient du régime de libre circulation internationale.
Chaque Etat peut néanmoins soumettre à son consentement
préalable l'organisation d'un service public et régulier de
communication internationale avec un point quelconque de
son territoire.

It is indeed highly recommendable that the right of free
traffic should be put in a declarative form, instead of its
being considered as a kind of concession of the principle of
sovereignty.

This freedom should be recognised by as many States as
possible and in this connection we come to the third point

Le droit international de la navigation aérienne en temps dc paix
(Revue de Droit International et de législation comparée, 1927, N° 3).

viz. the effective sphere of the Convention. This has now been
ratified by 22 States ; hence a general international regulation
does not yet exist.

On the other hand we have seen that the Ibero-American treaty
in a general way follows the Convention of 1919, the contents
of which having been adopted m nearly all national regulations
and bilateral treaties. Finally, for the purpose of promoting
the accession of new members, an extraordinary meeting of
the C.I.N.A. was convened in June 1929 at which 17 non-
parties assisted. In the Protocol drawn up there, which will
shortly come mto effect, several amendments have been
introduced, by which the objections prevailing for those States
have been made provision for.

Hence the expectation is justified that within a reasonably
short time the number of members will greatly increase.

In the preceding pages the attention has repeatedly been
directed towards the inadequate wording of article 15 of the
Paris Convention ; it was not the intention to criticise the
other provisions of this treaty. On the contrary, respect is
due to the draftsmen of it, particularly when realising that
the Convention has been drawn up in a period when civil
aviation was in its infancy. In many respects the special
requirements of the new means of communication have been
taken into account, and those who immediately after the
Great War proved to have an open eye for these requirements
cannot be admired sufficiently. This not only refers to the
articles of the Convention, but also — and not in the last
place — to the provisions of the voluminous annexes. Need-
less to say that, should the matters which are dealt with in
these 8 annexes (such as registration-marks, certificates of
airworthiness, pilots' licences, traffic regulations, meteorological
service and particulaily customs' questions) have been left
to the discretion of national legislation, a chaos might have
heen created and many obstacles might have hindered the
development of civil aviation.

Thus the Paris Convention may be considered as the codi-
fication of public air law.

Only in one respect — as we have mentioned in the fore-
going chapters — the intention of the draftsmen has been
inadequately stated, for insufficient guarantees are given with
regard to a free air traffic so far as regular international air
services are concerned. This is the more to be regretted, as
actually this freedom is — even to a far greater extent than
is the case with respect to the other means of transport —
an indispensable condition for the existence of air traffic.

Against freedom of passage the argument is very frequently put
forward that the air traffic business is kept alive by govern-
ment support and that therefore too heavy financial losses
which might arise from an unrestrained competition should be
avoided. From the following, however, it may appear that
the purpose of government subsidy, as it is generally nowa-
days, viz. to place air traffic on a purely commercial basis,
can be realised only by granting such freedom.

The very character of the subsidy has undergone a change
as aerial navigation developed. It cannot be denied that
when, immediately the Great War was over, civil aviation
was taken in hand, many Governments readily supported the
enterprise from purely military considerations and so national
motives played the most important part. Things changed
gradually : the view that subsidy must not be made subserv-
ient to military purposes emanated distinctly from the
discussion of the Committee of Experts on Civil Aviation
(Subcommission B of the Preparatory Commission for the
Disarmament Conference of the League of Nations) ; in the
final report the following statements have been inserted :

quot;The Committee desires to state at the outset that civil
aviation must in itself be regarded as one of the most import-
ant factors of civilisation, and it is desirable that its free
development should not be hampered by any consideration
unconnected with the importance which that development
possesses from the point of view of scientific, economic and
social progress and of the improvement of communications
between peoples.quot;
and further on :

quot;It must further be recognised that hitherto the develop-
ment of civil aviation in some countries has been closely bound
up, as regards both technique and organisation, with the
requirements and development of military aviation. It would
therefore be desirable that every effort should be directed
towards differentiating more and more clearly between civil
and military aviation ; in this way, civil machines will become
capable of a maximum economic return and will become less
and less useful for military purposes and the activities of civil
aviation can be developed in full freedom without being

subordinated in any way to the military requirements of the
different countries.

The committee therefore submits the following suggestions
as being calculated to afford practical means of attaining the
above mentioned results :

I- It is desirable, that the development of civil aviation
should be directed solely towards economic ends, and should
remain outside the sphere of military interests;
(2 — 6..........)

7- The committee desires to point out the undesirable effects
which may result from the direct or indirect encouragement
by Governments of civil air transport lines for military
rather than for economic or social purposesquot;.

Although these recommendations are generally acceptable,
the same cannot be said with respect to the proposals sub-
mitted to the Disarmament Conference by the French Govern-
ment in February 1932 in so far as they refer to civil aviation.
Considering that the aircraft which run the great international
connections might be converted into bomb-carriers in times
of war, the French Government proposed to internationalise
civil aviation under a regime to be organised by the League
of Nations.
This internationalisation was to include:

a)nbsp;The undertaking by the contracting parties not to permit
their nationals to construct (with the exception of orders
placed in accordance with the conditions fixed in paragraphs
b, c and d hereafter) or to employ machines capable of
military use. The maximum unladen tonnage of authorised
aircraft will be to this end and in accordance with the
advice of their experts, limited by the contracting parties
to a tonnage to be fixed later on.

b)nbsp;The creation of an international civil air transport service
entrusted to continental, inter-continental or inter-colonial
organisations, to operate air transport under the auspices
of the League of Nations, which alone will have the right
to build and to use machines of greater tonnage than
indicated in the preceding paragraph.

c)nbsp;The right to create lines between the home country and
colonial territories representing particular interest for one or
more of the contracting parties, provided always that they
undertake to bear the costs if requested to do so by the
League of Nations, and that they submit to the League for
its approval the number, the type and the unladen tonnage
of the machines to be used.

d)nbsp;The fair distribution, according to their capacity, between
the aviation industries of the different countries, of orders
for material for international civil aviation, in accordance
with conditions to be fixed in an annexed convention.

e)nbsp;The exclusive, permanent and inalienable right for the
League of Nations to requisition all machines for the interna-
tional civil air service.

Thus a proposal purposing a new organisation of civil aviation
is submitted which is based on considerations connected with
the — in itself desirable — limitation of armaments and not
in the first place on the desire to develop commercial air
navigation as much as possible. This is in flat contradiction
to the statement also formulated in 1927 by the above
mentioned Committee of Experts that quot;in any limitation of
air-armaments it is essential to avoid hampering the develop-
ment of civil aviationquot; ; further the declaration adopted on
September 26th 1927 by the Assembly of the League of
Nations quot;that it is desirable that the development of civil
aviation shall be directed solely to economical purposes, outside
the sphere of military interestsquot;, is not taken into account.

Without going into the French proposal in detail attention
has to be paid to some of the disadvantages which it might
entail for civil aviation. In the first place there is a danger
that commercial interests have to give way for considerations
of a political character, in particular with regard to the estab-
lishment of the international airnet; this is the more unde-
sirable as each country can best judge for itself which air
trafiic is most appropriate for local interests. Further the
energy and spirit of enterprise of the constructors and the
development of technique will be checked by the League of
Nations distributing all orders for aircraft and the material
to be used on the lines to the colonies being submitted to the

previous control of the League. But also the enterprise of the
exploitants and hence a rapid and prosperous development of
^r traffic will be disadvantageously affected by this proposal,
the right and the possibility of extending the airnet on all
sides being cut off. In this way the exploitation will be frozen
and the possibility of testing new methods will be eliminated
at least greatly lessened.

In consequence of all these factors commercialisation sinks
mto the background whereas precisely in the general interest
as well as in that of aerial navigation every effort should be
made to place air lines on a paying basis.

It is not impossible that one day such an internationalisa-
tion shall be achieved ; but — apart from the present polit-
ical situation which would make it undesirable if not impos-
sible — air traffic is only in an early stage of its development
At present and what it will come to cannot be forecast with
Any certainty. Moreover internationalisation should not be
imposed from above — and certainly not in connection with
Any scheme of disarmament — but should be the result of a
natural development and a mutual collaboration, on a com-
mercial basis, of the exploitants themselves who are the most
competent authorities in this matter

Moreover other measures than those inserted in the French
proposal, favouring a limitation of air armament may be
taken with regard to civil aviation. In the first place there
Are the recommendations of the above mentioned Committee

On this subject the quot;Comité de Coopération entre Aéronautiques Civilesquot;
the League of Nations adopted in July 1930 the following declaration :
Considérant que le système actuel de la coopération des entreprises aériennes
'ntemationales par le moyen de quot;poolsquot; a pris un développement satisfaisant.

estime que l'état actuel de la législation et des conditions économiques et
Politiques dans lesquelles se développe l'aéronautique civile rend difficilement
*^lisable une forme plus évoluée de la collaboration ;

recommande aux Gouvernements et aux Compagnies d'approfondir et de
perfectionner le système actuel par des accords bilatéraux ou plurilatéraux,
afin d'éviter des concurrences superflues, d'augmenter le rendement économique
service aérien international et de développer entre les diverses entreprises
^et esprit d'entente qui prépare le terrain pour une collaboration plus intime
plus confiantequot;.

of Experts on Civil Aviation ; further the following measures
might be considered : the prohibition of constructing and using
aircraft which technically and constructively are suitable for
military purposes; the prohibition of subsidising aviation
industries ; the requirement that the number of personnel and
the quantity of aircraft is based on a purely economical basis
and is not influenced by considerations of a military nature,
etc. ; in short such measures as are apt to prevent the States
from creating a military reserve out of civil aviation. The
observance of the foregoing should be put under the control
of an international organisation, for instance under the direc-
tion of the League of Nations. Finally the provision sub e
of the French proposal might be adopted in a restrictive way,
viz., that in abnormal circumstances the League of Nations
is entitled in some cases to requisition the aircraft used on
the international lines.

Returning to the statements made in 1927 at Brussels it
may be said that at the moment most countries have com-
plied with same, the purpose of government subsidy being directed
principally towards placing air traffic on a purely com-
mercial basis in order to create a new source of prosperity
whilst for the greater part any military considerations are set
aside. And quot;civil aviation is not only a new source of prosper-
ity for the countries of great resources, but a necessity for
all countries that have either scanty resources or great, though
undeveloped ones. Civil aviation has tremendous opportunities
in those countries of inadequate competitive business. For
example probably the first commercial air transport company
to operate without a financial loss was the company operating
on the Magdalena river in Columbia, where the only competing

These contain — besides those already mentioned — inter alia that
State organs intervening in civil aviation undertakings should be quite
separate from the organs dealing with military aviation; — that, as regards
personnel and, in particular, pilots, it would be desirable that civil aviation
undertakings of all kinds should not require such personnel to have received
a military training or give preference to those who have received such
training; — that civil aviation should be organised on autonomous lines, and
every effort should be made to keep it separate from military aviation.

means of transport is a steamship service taking ten days
to cover the route against eight hours by seaplane. Great
cities of the past were built around splendid harbours. Air-
ports in a measure will minimise the disadvantages that cities
have suffered in the past because of the lack of great harbours.quot;

If, however, air traffic shall come up to these ends, then
indeed an international development should be promoted and
for this a reasonable freedom of movement is essential. In the
realisation of their plans the Governments themselves meet
with difficulties arising from the absence of this factor.

Let us now consider — in the light of the foregoing —
the opinion, repeatedly put forward on different sides, that
such a freedom of movement may lead to overproduction and
unsound and unchecked competition (to the detriment of the
public treasury), and may thus cause complete anarchy.

It must be admitted here that the circumstances prevailing
at present, now that on all sides trade-barriers have been
(and will continue to be) erected, hold out little hope for a
successful pleading for freedom of passage. But for the very
reason why the development of aerial navigation makes rather
rapid progress, here, in my opinion, a broader point of view
should be taken, and a greater space of time should be surveyed.

By doing so it cannot be denied that since the Great War
a tendency has become more and more discernible towards
international collaboration, not only with regard to the Govern-
ments (for instance, League of Nations, Permanent Court of
International Justice, Bank of International Settlements), but
also amongst private enterprises (collaboration in the form of
pools, etc.) ; by an efficient division of work an economical
production is striven after. It is rather remarkable that aerial
navigation has experienced, at the very outset, the need
and the necessity of such a collaboration, for even before
there was any comparatively developed civil aviation, the
different companies founded the quot;International Air Traffic
Associationquot;.

Declaration of Mr. H. F. Guggenheim (U.S.A.) before the meeting of
the Committee of Experts on Civil Aviation (see above).

What may be expected when freedom of passage is generally
accorded to international air navigation ?

In the beginning this wiU by no means benefit an econom-
ical exploitation ; immediately a keen competition on the
different airlines will raise its head. Some enterprises which
are now kept alive by their Governments with the utmost
care, may disappear ; and more especially the minor companies
will be driven from their air nets, insignificant though they
may be. For government support has its limits, and cannot
be relied upon infinitely.

The question, however, which State is capable and willing
to give the greatest support to air navigation is not aU domin-
ant, for the enterprises with a large airnet — and these
need not be established at any rate in the larger countries —
harbour a much greater vitality and are for this reason not
under the necessity to fall back on the public treasury at
once. In this connection there is another circumstance. In
Europe up to now comparatively little capital has been invested
in the air-navigation-business (the Dutch company founded
by the private enterprise of certain bankers and shipping
companies being an exception ; here government support was
only granted later). This investment is affected disadvan-
tageously not only by the fact that air transport does not yet
pay, but also by the uncertainty now prevailing with regard
to the freedom of passage which to a great extent causes a
state of instability ; one single country is — by withdrawing
its authorisation — in a position to stop the exploitation of
a great transit connection. Once the desired freedom guaran-
teed, this unstable situation will come to an end and capital
wUl be invested with more confidence.

Finally the big concerns which both technically and in their
organisation are able to do so will fully develop under the
regime of freedom. For civil aviation cannot disappear com-
pletely by mutual competition and lack of money ; during the
few years of its existence it has acquired too important a
place in the world organisation. Even if all the States, com-
pelled by necessity, should stop their subsidies, even then all
air traffic would not be put an end to at once, although a
temporary collapse would be sure to follow.

The contest expected when freedom of passage on the great
international lines is accorded, will cause a survival of the
fittest. But those which survive, wiU prove their capability
of founding a commercially sound business ; the possibility of
their extending their routes in all directions and the progress
of technique will prove to be extremely helpful to lessen
gradually the need of any government subsidy, till in the end
the companies will actually be self-supporting. Then a strong
and independent air traffic will be bom quite capable of
holding its own. The requisite private capital will come for-
ward in the country itself and the path towards rationali-
sation can be safely pursued ; air traffic will be a more attract-
ive investment when it no longer requires any subsidy, for
it can, to some considerable extent, then be exempted from
pvemment control and will in this stage be subject to political
influences in a far lesser degree. At the same time interference
m the internal management of the companies should be relin-
quished on the part of the authorities ; this interference,
however, — which in some countries goes rather far and which
IS necessarily subsequent on the system of subsidising — will
not disappear entirely on the abolition of this system that
has kept aerial navigation going for years together. However,
its influence will gradually weaken ; to this a steadily growing
participation of private share-holders with increasing power in
the company concerned will materially contribute.

In this way the exploitation of aii traffic will grow up on
its own account, and it is the very international character
of this form of transport which will further such development.
Then by mutual collaboration — not imposed from above,
hut accomplished by the participating companies themselves —
and with the aid of the international money-market an equi-
librium together with a rational and economical world-airnet
will be achieved.

5. 7.15. 34. 37. 41 and 42—are placed to the right of the corresponding
articles now in force.)

The High contracting Parties recognise that every Power has complete
and exclusive sovereignty over the air space above its territory.

, For the purpose of the present Convention the territory of a State shall
^ understood as including the national territory, both that of the mother
country and of the colonies, and the territorial waters adjacent thereto.

mnocent passage above its territory to the aircraft of the other contract-
'ug States, provided that the conditions laid down in the present Conven-
tion are observed.

Regulations made by a contracting State as to the admission over its
territory of the aircraft of the other contracting States shall be applied
Without distinction of nationality.

Each contracting State is enti-nbsp;Each contracting State is entitled
M^d for military reasons or in thenbsp;for military reasons or in the inte-
i^terest of public safety to prohibitnbsp;rest of public safety to prohibit
the aircraft of the other contractingnbsp;the aircraft of the other contracting
states, under the penalties pro-nbsp;States, under the penalties pro-
vided by its legislation and subjectnbsp;vided by its legislation and subject
|0 no distinction being made innbsp;to no distinction being made in
'his respect between its privatenbsp;this respect between its private
aircraft and those of the othernbsp;aircraft and those of the other

In that case the locality and the
extent of the prohibited areas
shall be published and notified
beforehand to the other contracting
States.

Each contracting State may, as an
exceptional measure and in the inte-
rest of public safety, authorise fligM
over the said areas by its national
aircraft.

The position and extent of the
prohibited areas shall be previously
published and shall be notified, as
well as the exceptional authorisations
issued under the last preceding para-
graph, to all the other contracting
States as well as to the InternationM
Commission for Air Navigation.

Each contracting State reserves
also the right in exceptional circum-
stances^ in time of peace and with
immediate effect temporarily to
restrict or prohibit flight over its
territory or over part of its territory
on condition that such restriction or
prohibition shall be applicable with-
out distinction of nationality to the
aircraft of all the other States.

Such decision shall be 'published,
notified to all the contracting States
and communicated to the Interna-
tional Commission for Air Naviga-
tion.

Every aircraft which finds itself above a prohibited area shall, as soon
as aware of the fact, give the signal of distress provided in Paragraph 17 of
Annex D and land as soon as possible outside the prohibited area at one of
the nearest aerodromes of the State unlawfully flown over.

No contracting State shall, except
by a special and temporary autho-
risation, permit the flight above
its territory of an aircraft which
does 'not possess the nationality
of a contracting State unless it has
concluded a special convention

Each contracting State is entitled
to conclude special conventions with
non-contracting States.

with the State in which the aircraft
IS registered. The stipulations of
?uch special convention must not
infringe the rights of the con-
tracting Parties to the present
^onvention and must conform to
the rules laid down by the said
Convention and its Annexes. Such
Special convention shall be com-
municated to the International
Coi^ission for Air Navigation
Which will bring it to the knowledge
of the other contracting States.

conventions shall not infringe the
rights of the contracting Parties to
the present Convention.

Such special conventions in so far
as may be consistent with their objects
shall not be contradictory to the
general principles of the present
Convention.

They shall be communicated to
the International Commission for
Air Navigation which will notify
them to the other contracting States.

Aircraft possess the nationality of the State on the register of which
they are entered, in accordance with the provisions of Section I (c) of
Annex A.

No aircraft shall be entered on
the register of one of the contrac-
ting States unless it belongs wholly
to nationals of such State.

No incorporated company can
be registered as the owner of an
Aircraft unless it possess the nation-
ality of the State in which the
Aircraft is registered, unless the
^resident or chairman of the com-
Pany and at least two-thirds of the
directors possess such nationality,
And unless the company fulfils all
other conditions which may be
prescribed by the laws of the said
State.

The contracting States shall exchange every month among themselves
And transmit to the International Commission for Air Navigation referred
to in article 34 copies of registrations and of cancellations of registrations
Which shall have been entered on their official registers during the preceding

All aircraft engaged in international navigation shall bear their nation-
ality and registration marks as well as the name and residence of the owner
in accordance with Annex A.

Every aircraft engaged in international navigation shall, in accordance
with the conditions laid down in Annex B, be provided with a certificate of
airworthiness issued or rendered valid by the State whose nationality
it possesses.

The commanding officer, pilots, engineers and other members of the
operating crew of every aircraft shall, in accordance with the conditions
laid down in Annex E, be provided with certificates of competency and
licences issued or rendered valid by the State whose nationality the air-
craft possesses.

Certificates of airworthiness and of competency and licences issued or
rendered valid by the State whose nationality the aircraft possesses, in
accordance with the regulations established by Annex B and Annex E and
hereafter by the International Commission for Air Navigation, shall be
recognised as valid by the other States.

Each State has the right to refuse to recognise for the purpose of flights
within the limits of and above its own territory certificates of competency
and licences granted to one of its nationals by another contracting State.

No wireless apparatus shall be carried without a special licence issued
by the State whose nationality the aircraft possesses. Such apparatus
shall not be used except by members of the crew provided with a special
licence for the purpose.

Every aircraft used in public transport and capable of carrying ten or
more persons shall be equipped with sending and receiving wireless appa-
ratus when the methods cf employing such apparatus shall have been
determined by the International Commission for Air Navigation.

This Commission may later extend the obligation of carrying wireless
apparatus to all other classes of aircraft in the conditions and according
to the methods which it may determine.

Every aircraft of a contracting
^tate has the right to cross the air
space of another State without
landing. In this case it shall
lollow the route fixed by the State
g^er which the fiight takes place.
Wowever, for reasons of general
security it will be obliged to land
if ordered to do so by means of
^he signals provided in Annex D.

Every aircraft which passes from
one State into another shall, if the
regulations of the latter State
require it, land in one of the aero-
dromes fixed by the latter. Noti-
ncation of these aerodromes shall
oe given by the contracting States
Jo the International Commission
lor Air Navigation and by it
transmitted to all the contracting
states.

The establishment of interna-
tional airways shall be subject to
the consent of the States flown over.

Every aircraft of a contracting
State has the right to cross the air
space of another State without
landing. In this case it shall follow
the route fixed by the State over
which the flight takes place. How-
ever, for reasons of general security
it will be obliged to land if ordered
to do so by means of the signals
provided in Annex D.

No aircraft of a contracting State
capable of being flown without a
pilot shall, except by special authori-
sation, fly without a pilot over the
territory of another contracting State.

Every aircraft which passes from
one State into another shall, if the
regulations of the latter State
require it, land in one of the aero-
dromes fixed by the latter. Noti-
fication of these aerodromes shall
be given by the contracting States
to the International Commission
for Air Navigation and by it trans-
mitted to all the contracting States.

Every contracting State may^ make
conditional on its prior authorisation
the establishment of international
airways and the creation and opera-
tion of regular international air
navigation lines, with or without
landing, on its territory.

Each contracting State shall have the right to establish reservations
and restrictions in favour of its national aircraft in connection with the
carriage of persons and goods for hire between two points on its territory.

Such reservations and restrictions shall be immediately published, and
shall be communicated to the International Commission for Air Navigation,
^hich shall notify them to the other contracting States.

The aircraft of a contracting State which establishes reservations and
restrictions in accordance with Article 16, may be subjected to the same

reservations and restrictions in any other contracting State, even though
the latter State does not itself impose the reservations and restrictions on
other foreign aircraft.

Eveiy aircraft passing through the territory of a contracting State,
including landing and stoppages reasonably necessary for the purpose of
such transit, shall be exempt from any seizure on the ground of infringe-
ment of patent, design or model, subject to the deposit of security the
amount of which in default of amicable agreement shall be fixed with the
least possible delay by the competent authority of the place of seizure.

(c.) Certificates and licences of the commanding ofiicei, pilots and crew
in accordance with Annex E ;

Upon the departure or landing of an aircraft, the authorities of the count-
ry shall have, in all cases, the right to visit the aircraft and to verify all
the documents with which it must be provided.

Aircraft of the contracting States shall be entitled to the same measures
of assistance for landing, particularly in case of distress, as national aircraft.

With regard to the salvage of aircraft wrecked at sea the principles of
maritime law will apply, in the absence of any agreement to the contrary.

Every aerodrome in a contracting State, which upon payment of charges
is open to public use by its national aircraft, shall likewise be open to the
aircraft of all the other contracting States.

In every such aerodrome there shall be a single tariff of charges for landmg
and length of stay applicable alike to national and foreign aircraft.

Each contracting State undertakes to adopt measures to ensure that
every aircraft flying above the limits of its territory and that every
aircraft wherever it may be, carrying its nationality mark, shall comply
with the regulations contained in Annex D.

Each of the contracting States undertakes to ensure the prosecution and
punishment of aU persons contravening these regulations.

. The carriage by aircraft of explosives and of arms and munitions of war
IS forbidden in international navigation. No foreign aircraft shall be
permitted to carry such articles between any two points in the same con-
tracting State.

Each State may, in aerial navigation, prohibit or regulate the carriage
or use of photographic apparatus. Any such regulations shall be at once
notified to the International Commission for Air Navigation, which shall
lt;^onimunicatc this information to the other contracting States.

As a measure of public safety, the carriage of objects other than those
mentioned in articles 26 and 27 may be subjected to restrictions by any
contracting State. Any such regulations shall be at once notified to the
International Commission for Air Navigation, which shaU communicate
this information to the other contracting States.

All restrictions mentioned in Article 28 shall be applied equally to
national and foreign aircraft. •

(b.) Aircraft exclusively employed in State service, such as posts, cus-
toms. police.

treated as private aircraft and as such shall be subject to all the provisions
of the present Convention.

Every aircraft commanded by a person in military service detailed for
the purpose shall be deemed to be a military aircraft.

No military aircraft of a contracting State shall fly over the territory of
another contracting State nor land thereon without special authorisation.
In case of such authorisation the military aircraft shall enjoy, in principle,
in the absence of special stipulation the privileges which are customarily
accorded to foreign ships of war.

A military aircraft which is forced to land or which is requested or
summoned to land shall by reason thereof acquire no right to the
privileges referred to in the above paragraph.

Special arrangements between the States concerned will determine in
what cases police and customs aircraft may be authorised to cross the
frontier. They shall in no case be entitled to the privileges referred to
in Article 32.

1) The text of the third paragraph as modified bij the Protocol of December
iith 1929 reads: quot;Each State represented on the Commission shall have one
votequot;. (See also Art. 40)

The International Commission
tor Air Navigation shall determine
the rules of its own procedure and
the place of its permanent seat,
out it shall be free to meet in such
places as it may deem convenient.
Its first meeting shall take place
at Paris. This meeting shall be
convened by the French Govern-
ment, as soon as a majority of the
Signatory States shall have notified
to it their ratification of the present
Convention.

(a.) To receive proposals from
^r to make proposals to any of the
contracting States for the modi-
fication or amendment of the pro-
visions of the present Convention,
and to notify changes adopted;
. (b.) To carry out the duties
imposed upon it by the present
Article and by Articles 9, 13. 14.

(d.) To collect and communicate
to the contracting States infor-
mation of every kind concerning
international air navigation ;

(e.) To collect and communicate
to the contracting States all infor-
mation relating to wireless lele-
graphy, meteorology and med-
ical science which may be of inte-
rest to air navigation ;

(f-) To ensure the publication of
maps for air navigation in accord-
ance with the provisions of Annex F;

(g-) To give its opinion on ques-
tions which the States may submit
lOr examination.

. Any modification of the provi-
sions of any one of the Annexes
may be made by the International
Commission for Air Navigation
^en such modification shall have
j^en approved by three fourths of
the total possible votes which could
oc cast if all the States were repre-

(a.) To receive proposals from or
to make proposals to any of the
contracting States for the modi-
fication or amendment of the pro-
visions of the present Convention,
and to notify changes adopted ;

(b.) To carry oat the duties
imposed upon it by the present
Article and by Articles 9, 13, 14,
15, 16, 27, 28, 36 and 37 of the
present Convention ;

(d.) To collect and communicate
to the contracting States informa-
tion of every kind concerning inter-
national air navigation ;

(e.) To collect and communicate
to the contracting States all infor-
mation relating to wireless telegra-
phy, meteorology and medical
science which may be of interest
to air navigation ;

(f.) To ensure the publication of
maps for air navigation in accord-
ance with the provisions of Annex
F;

(g.) To give its opinion on ques-
tions which the States may submit
for examination.

Any modification of the provi-
sions of any one of the Annexes may
be made by the International Com-
mission for Air Navigation when
such modification shall have been
approved by three fourths 0/ the
total votes of the States represented
at the Session and two thirds of the
total possible votes which could Ix;
cast if all the States were repre-
sented. Such modification shall
become effective from the time
when it shall have been notified
by the International Commission
for Air Navigation to all the con-
tracting States.

Any proposed modification of
the Articles of the present Convent-
ion shall be examined by the
International Commission for Air

sented: this majority must, more-
over, include at least three of the
five following States: the United
States of America, the British
Empire, France, Italy, Japan. Such
modification shall become effective
from the time when it shall have
been notified by the International
Commission for Air Navigation to
all the contracting States.

Any proposed modification of
the Articles of the present Conven-
tion shall be examined by the
International Commission for Air
Navigation, whether it originates
with one of the contracting States
or with the Commission itself.
No such modification shall be pro-
posed for adoption by the contrac-
ting States, unless it shall have
been approved by at least two-
thirds of the total possible votes.

All such modifications of the
Articles of the Convention (but
not of the provisions of the Annexes)
must be formally adopted by the
contracting States before they
become effective.

The expenses of organisation and
operation of the International Com-
mission for Air Navigation shall
be borne by the contracting States ;
the total shall be allocated in the
proportion of two shares each for
the United States of America, the
British Empire, France, Italy and
Japan and one share each for all the
other States.

The expenses occasioned by the
sending of technical delegations
will be borne by their respective
States.

The High contracting Parties undertake as far as they are respectively
concerned to co-operate as far as possible in international measures con-
cerning :

Navigation, whether it originates
with one of the contracting States
or with the Commission itself.
No such modification shall be
proposed for adoption by the con-
tracting States, unless it shall have
been approved by at least two-
thirds of the total possible votes.

All such modifications of the
Articles of the Convention (but
not of the provisions of the Anne-
xes) must be formally adopted by
the contracting States before they
become effective.

The expenses of the International
Commission for Air Navigation
shall be borne by the contracting
States in the proportion fixed by the
said Commission.

The expenses occasioned by the
sending of technical delegations
will be borne by their respective
States.

(b.) The publication of standard aeronautical maps, and the establish-
jnent of a uniform system of ground marks for flying, in accordance with
the provisions of Annex F ;

(c.) The use of wireless telegraphy in air navigation, the establishment
of the necessary wireless stations, and the observance of international
Wireless regulations.

. General provisions relative to customs in connection with international
air navigation are the subject of a special agreement contained in Annex H
the present Convention.

Nothing in the present Convention shall be construed as preventing
the contracting States from concluding, in conformity with its principles.
Special protocols as between State and State in respect of customs, police,
posts and other matters of common interest in connection with air naviga-
tion. Any such protocols shall be at once notified to the International
J-ommission for Air Navigation which shall communicate this information
to the other contracting States.

. In the case of a disagreement
l^tween two or more States relating
to the interpretation of the present
Convention, the question in dispute
snail be determined by the Perma-
nent Court of International Justice
50 be established by the League of
Rations, and until its establishment
oy arbitration.

If the parties do not agree on the
enoice of the arbitrators, they
sh^l proceed as follows :

Each of the parties shall name
arbitrator, and the arbitrators
Snail meet to name an umpire.

the arbitrators cannot agree,
tne parties shall each name a
tnird State, and the third States
^0 named shall proceed to designate
tne umpire, by agreement or by
each proposing a name and then
^^^pninmg the choice by lot.

Disagreement relating to the
echnical regulations annexed to
tne present Convention, shall be
settled by the decision of the Inter-
national Commission for Air Navi-
gation by a majority of votes.

between two or more States relating
to the interpretation of the present
Convention, the question in dispute
shall be determined by the Perma-
nent Court of International Jus-
tice. Provided that, if one of the
States concerned has not accepted
the Protocols relating to the Court,
the question in dispute shall, on the
demand of such State, he settled by
arbitration.

the question whether the inter-
pretation of the Convention or
that of a regulation is concerned,
final decision shall be made by-
arbitration as provided in the first
paragraph of this Article.

In case of war, the provisions of the present Convention shall not affect
the freedom of action of the contracting States either as belligerents or as
neutrals.

The provisions of the present Convention are completed by the Annexes
A to H which, subject to Article 34, shall have the same effect and shall
come into force at the same time as the Convention itself.

The British Dominions and India shall be deemed to be States for the
purposes of the present Convention

The territories and nationals of Protectorates or of territories administ-
ered in the name of the Lea^e of Nations, shall, for the purposes of the
present Convention, be assimilated to the territory and nationals of the
Protecting or Mandatory States.

States which have not taken Any State shall be permitted to
)art in the war of 1914-1919 shall adhere to the present Convention,
je permitted to adhere to the This adhesion shall be notified
present Convention.nbsp;through the diplomatic channel to

This adhesion shall be notified the Government of the French
through the diplomatic channel to Republic, and by it to all the signa-
the Government of the French tory or adhering States.
Republic, and by it to all the signa-
tory or adhering States.

war of 1914-1919 but which is not
a signatory of the present Conven-
tion, may adhere only if it is a
member of the League of Nations
or, until January i, 1923, if its
adbesion is approved by the Allied
and Associated Powers signatories
of the Treaty of Peace concluded
with the said State. After January

1923, this adhesion may be
admitted if it is agreed to by at
least three-fourths of the signatory
and adhering States voting under
the conditions provided by Article
34 of the present Convention.

Applications for adhesions shall
addressed to the Government
of the French Republic, which will
communicate them to the other
contracting Powers. Unless the
State applying is admitted ipso
facto as a Member of the League of
Nations, the French Government
WiU receive the votes of the said
Powers and will announce to them
the result of the voting.

The present Convention may not be denounced before January i, 1922.
In case of denunciation, notification thereof shall be made to the Govern-
ment of the French Republic, which shall communicate it to the other
contracting Parties. Such denunciation shall not take effect until at
least one year after the giving of notice, and shall take effect only with
respect to the Power which has given notice.

Each Power will address its ratification to the French Government,
which will inform the other signatory Powers.

The ratifications will remain deposited in the archives of the French
Government.

. The present Convention will come into force for each signatory Power,
m respect of other Powers which have already ratified, forty days from the
date of the deposit of its ratification.

On the coming into force of the present Convention, the French Govern-
ment will transmit a certified copy to the Powers which under the Treaties
of Peace have undertaken to cnforce rules of aerial navigation in conform-
ity with those contained in it.

. Done at Paris, the thirteenth day of October nineteen hundred and
nineteen in a single copy which shall remain deposited in the archives of
the French Government, and of which duly authorised copies shall be sent
to the contracting States.

The said copy, dated as above, may be signed until the twelfth day of
April nineteen hundred and twenty inclusively.

In FAITH WHEREOF the hereinaftemamcd Plenipotentiaries whose
powers have been found in good and due form have signed the present
Convention in the French, English and Italian languages, which are equally
authentic.

This list only contains works consulted with regard to the present
volume ; for a complete bibliography on air law see : André
Henry-Couannier, «Eléments Créateurs du Droit Aérien», pp. 299—338.

Agrement, Dr. Albert, La procédure dans les arbitrages inter-
nationaux (1905).
Brégi, Christian, The freedom of the air. (World Trade no. 11 ;

Doering, Dr. Hermann, Das internationale Recht der Privat-
luftfahrt. (Radetzki, Berlin 1927.)
Fachiri, A. P., Permanent Court of International Justice (1925).
Fauchille, Paul, Le domaine aérien et le régime juridique des
aérostats. (Revue Gén. de Droit International Public, part. VIII ;
1901.)

paix. (Pédone, Paris ; 1911.)
Fraser, Henry S., La mer territoriale. (Revue de Droit Internatio-
nal, tome III ; 1929.)
Gl annini, Amedeo, La Souveraineté des États sur l'espace aérien.

(Droit Aérien no. i, 1931-)
Grünwald, Das Luftschiff in völkerrechtlicher und strafrecht-
licher Beziehung. (Hellwing, Hannover; 1908.)
van Hamel, Prof. Mr. J. A., Vrijheid van luchtvaart en vaste
internationale vliegdiensten. (Mededeelingen Nederlandsche Ver-
eeniging voor Internationaal Recht, no. 18 ; 1931.)
Hazeltine, Harold D., The law of the air. (University of London
Press ; 1911.)

Henry-Couannier, André, Les excès de la réglementation aérienne
anglaise. (Revue Juridique de la Locomotion Aérienne IV ; 1913.)

réglementation de la Navigation Aérienne. (Edition Aérienne, Paris.)
d'HooGHE, Eduard, Droit Aérien. (Dupont, Paris.)
Hostie, Jean, Le Domaine Maritime. (Revue de droit international
et de législation comparée, tome 8, no. 3 ; 1927.)

Loder, Dr. B. C. J., La différence entre l'arbitrage international
et la justice internationale (1923).

Lycklama à Nyeholt, Dr. J., De Luchtvaart in het Volkenrecht.
(Dorsman, Noordwijk ; 1910.)

de Magyary, Géra, La Juridiction de la Cour permanente de
Justice Internationale (1931).

Martin, Hein, Die Stellung des Hafens und Küstenmeers im
Völkerrecht. (Steinebach, München ; 1918.)

Meili, Dr. F., Das Luftschiff im internen und Völkerrecht. (Füssli,
Zürich ; 1908.)

Meyer, Alex, Le Code de l'Air. (Revue Jur. Int. de Ia Locomo-
tion Aérienne I ; 1910.)

Mitrovitch, Dr. A., L'aviation au point de vue économique et
juridique. (Drag Gregoritch, Belgrade.)

Morrison Bishop, Crawford, International Arbitral Procedure.
(King Bros., Baltimore ; 1930.)

Oppikofer, Dr. Hans, L'aéronautique commerciale internationale
et l'administration nationale. (Série de publications de la Société
des Nations, II, Communications et Transit 1930, VIII, 6.),

pittard, Edmond, Dominium Cœli. (Zeitschrift für das gesamte
Luftrecht, Band i ; 1926.)

PoLiTis, N., Le problème des limitations de la souveraineté et la
théorie de l'abus des droits dans les rapports internationaux.
(Académie de Droit International I, vol. 6 ; 1925.)

Roper, Albert, L'origine de la Convention Aérienne du 13 octobre
1919, son extension progressive de 1922 à 1928 et le problème
de sa révision. (Revue de droit international et de législation
comparée, tome III ; 1929.)

Sandeman, Sir John Allen, General Report presented on behalf
of the Coordination Committee of the Transport and Communi-
cations Group. (Int. Chamber of Commerce, no. 15 ; 1931.)

Sperl, Prof. Dr. Hans, Die Luftfahrt vom Standpunkte der Rechts-
wissenschaft. (Hoemes, Buch des Fluges, Band III.)

Spiropulos, J., Der Luftraum integrierender Teil des Staatsgebietes.
(Rossberg, Leipzig ; 1921.)

droit international public, no. 4, tome V; 1931.)
de Visscher, Fernand, Le droit international des communications

paix. (Revue de droit international et de législation comparée,
tome 8, no. 3 ; 1927.)
-, Le régime juridique de l'espace atmosphérique et la question

de la nationalité des aéronefs. (Zeitschrift für das gesamte Luft-
recht, Band 2, Heft i ; 1928.)

Wegerdt, Dr. Alfred, L'Allemagne et la Convention de Naviga-
tion Aérienne de Paris du 13 octobre 1919. (Zeitschrift für das
gesamte Luftrecht, Band 2, Heft i ; 1928.)

Weiler, Joseph, Das Gastrecht der Schiffe in den Häfen zur
Friedenszeit. (Staudenraus, Würzburg ; 1926.)

De drijvende eilanden, welke in den Atlantischen Oceaan
en elders zullen worden verankerd, dienen een onder inter-
nationale controle gesteld gebied te vormen.

Als scheepstoebehooren, bedoeld in het derde lid van art.
309 W.V.K., moet ook het aan boord van het schip opge-
stelde catapultvliegtuig worden beschouwd.

Bij het treffen van regelen inzake misdrijven en overtre-
dingen, gepleegd aan boord van luchtvaartuigen boven vreemd
grondgebied, dient op den voorgrond te staan, dat in het
algemeen de wetten van het land, welks nationaliteit het
luchtvaartuig bezit, toepassing vinden.

Het is gewenscht in het desbetreffend ontwerp-verdrag de
aansprakelijkheid voor schade, toegebracht door luchtvaartui-
gen aan personen en goederen, welke zich op een openbaar
luchtvaartterrein bevinden, te beperken in dien zin, dat de
exploitant van het luchtvaartuig bevrijd is, wanneer hij aan-
toont, dat hij en zijn ondergeschikten alle maatregelen, welke
ter vermijding van de schade redelijkerwijze verwacht konden
Worden, genomen hebben, of dat het hun onmogelijk was
deze te nemen.

In tegenstelling met de bepaling van artikel 32, tweede lid
van het Luchtvaartverdrag van Parijs dient ook een militair
luchtvaartuig, hetwelk door overmacht gedwongen is zonder
voorafgaande vergunning op vreemd grondgebied te landen,
in beginsel de voorrechten, welke gewoonlijk aan vreemde
oorlogsschepen worden toegekend, te genieten,

Het ware gewenscht een internationale regeling inzake beslag
op in geregelden dienst gebezigde luchtvaartuigen te treffen,
welke eenerzijds het leggen van beslag uitsluit en anderzijds
voldoende, door bemiddeling van de betrokken Regeeringen te
verschaffen waarborgen inhoudt,

Bij onroerend goed is legaat niet als een wijze van eigen-
domsverkrijging doch als titel van levering te beschouwen.

Bij verkoop van een verzekerd goed gaat de verplichting
tot premiebetaling op den kooper over, tenzij deze weigert
de verzekering over te nemen.

Een enkel nummer, ingeslagen in een onderdeel van een
motor, kan zijn een geschrift in den zin van art. 225 W.v.S.
(Anders H.R. 15 Juni 1931, W, 12351, i.)

Het gemeentebestuur treedt in zijn functie van zelfbestuur
op als orgaan van het Rijk of de provincie, niet als orgaan
van de gemeente.

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