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The Green Bag
mitting their projects to^the International Committee, which in Jplenary session selects a final wording by majority vote. The result is ^unofficial and therefore not binding on any government, but the very plan of elaboration entitles the articles of the code to the utmost respect. ^fHere, for the first time in the history of the world, an international effort to set the legal standards of all nations regarding a new development of inter course which science has rendered pos sible is being made simultaneously with the advent of the thing itself. Following hard upon the organization of the International Committee came a diplomatic conference at Paris in May and June, 1910, the call for which had antedated the formation of the com mittee and which was empowered to reach a decision, if possible, upon a legal code for the air. The conference found itself unable to produce a set of rules satisfactory to the delegates of the eight een states represented, and it adjourned until November, 1910, when it again adjourned, this time sine die. Thus official international action failed of its purpose in its first attempt to legislate for the airman. Simultaneously with the meeting of the diplomatic conference, a congress of private character, though international in scope, was held at Verona, Italy. It was called the International Juridic Congress for the Regulation of Aerial Locomotion, and the result of its meeting was the adoption of a set of opinions, which together indicate the broad bases upon which the Congress believed inter national legislation should be predicated. These separate movements to secure a firm legal foundation for the control of aerial flight are notable, but they have not been successful enough to pre vent controversy, and the very keystone of any body of aerial law is unfortunately
the thing most at issue. What shall be the conception of the airspace for purposes of legislation and law? Shall it be free after the analogy of the sea or shall it be considered as an extension of the earth, subject to entire sovereignty or to such sovereignty as the earth sees fit to exert over it? Around this alter native a considerable battle has waged, and bids fair to continue. It seems likely that the sovereignty theory will win, on the score that it gives the sub jacent state greater power over its at mosphere. It is certain that complete control over the atmosphere by the owner of the land is an idea in consonance with our common law, as well as with the droit civil of France, where aerial free dom has its only serious advocates. Some two dozen American and English cases point clearly to full terrestrial jurisdiction, or, from the national point of view, sovereignty. Controversy has arisen because of an attempted analogy with the sea and a desire to extend the "high sea" theory to a newly conquered element. The analogy is wrong in prac tice and therefore wrong in law, which has for one of its important functions the recognition of distinctions not ap parent to the layman, and of effecting justice by that recognition. Circumstances of a nature peculiar to the element have made it advisable to consider the sea as outside of any national jurisdiction, chiefly because the land inhabitant has no general interest in what occurs upon the sea. But this conception has been modified by various servitudes upon the freedom of the "high sea." Text writers, appealing to the imagination, explain that the high sea is free because it defies any effort to possess it, because it is fluid and immense and uncontrolled.
