and modifications, appears to have been incorporated into our common law.8 220. Why Control is Necessary. - Control of the aërial space by the territorial power underneath is necessary for various purposes in time of peace as well as in time of war. As far as the use of wireless telegraphy is concerned, it is necessary in order to oppose the passage of Herzian waves to the degree that the security or interests of the State may demand. In respect to aërial navigation, it may be desirable or necessary in order to prevent espionage, to enforce the collection of customs duties, maintain sanitary and quarantine regulations, and prevent various crimes, particularly smuggling. 221. The Nature of this Control. From the standpoint of International Law, it would seem that the State underneath has a limited right of territorial sovereignty or jurisdiction over the aërial space above, at least as far as it can be utilized or controlled.10 The aërial space above the ocean or unoccupied territory is of course free; but this can hardly be claimed in respect to that portion of the atmosphere above the territorial waters (including the marginal seas) or above that part of cœlum is the maxim of the law. . . . So that the word 'land' includes not only the face of the earth, but everything under it, or over it," Cooley's Blackstone (4th ed.), Bk. II, p. 18. Cf. Coke upon Littleton (Thomas ed., 1836), Bk. II, ch. 1. 8 It is expressly incorporated into the codes of Germany, France, and Switzerland. For citation and discussion of cases bearing on the rights of the owner of the soil in the United States, see Baldwin and Kuhn, in 4 A. J. (1910), 102 ff., and 123 ff. As far as the State is concerned, the theory of ownership has, of course, been abandoned for that of imperium or territorial sovereignty. Grünwald appears to stand alone in clinging to the theory of dominium or ownership. For citations from the German, French, and Swiss codes, see 4 A. J. (1910), 98 f., 127 f.; Julliot, 7 f.; and Meurer, 13 ff. 9 Art. 3 of the Rules of the Institute. See note 2, supra. 10 Some publicists favor the division of the aerial space, for purposes of jurisdic tion, into an upper and a lower zone. Rolland (13 R. D. I. P., 58 ff.) holds the atmosphere to be territorial to a distance of 330 meters. Fauchille favors exclusive control for purposes of self-defense to a distance of 500 meters (17 R. D. I. P., 60). A number of the older authorities favor the rule or principle of the cannon shot; but, since modern aëronautic cannon are said to have a vertical range of 5500, 7400, and even 11,500 meters, this would render freedom in the upper zone wholly illusory. Besides, the analogy between the marine league or range of cannon shot as applied to the ocean and aërial space soon breaks down. In the case of the ocean the reasons for control decrease in proportion to the distance from the shore; in the case of aërial space, the danger (as, e.g. from the weight of falling bodies) may increase in proportion to the distance from the earth's surface. the land surface of the earth which is inhabited by peoples organized into political communities. The nature of this control appears to be analogous to that exercised over a State's territorial waters, more particularly the marginal seas, straits, and international rivers. Foreign airships should be granted a right of innocent or inoffensive passage; and, in general, the same rules must be applicable to them in the territorial atmosphere as are applied to foreign vessels in territorial waters. Their nationality will doubtless be determined by their flag or registry; and, though in principle subject to the jurisdiction of the State above whose territory they pass, they will be practically exempt from its criminal jurisdiction except in respect to crimes which affect the interests or disturb the peace of its inhabitants.1 BIBLIOGRAPHY Law of Aërial Space in Time of Peace. * Baldwin, in 4 A. J. (1910), 49 ff.; Bluntschli, Art. 632 bis; *Bonfils (Fauchille), Nos. 531, 1-10; Blachere, L'air voie et le droit (1911); Dupuis, in 14 R. D. I. P. (1907), 373; Fauchille, in 8 R. D. I. P. (1901), 414 ff., and 17 R. D. I. P. (1910), 55 ff.; Ibid., in 19 Annuaire (1902), 19-86; Ibid., in 21 Annuaire (1906), 76 ff.; Ibid., in 24 Annuaire (1911), 23 ff., 303 ff.; Fleischmann, Grundgedanken eines Luftrechts (1910); Gareis, in Münchner neusten Nachrichten (17 Feb., 1909), Nr. 39; * Grünwald, Das Luftschiff, etc. (1908); Ibid., in 24 Archiv Oeffent. Rechts (Heft 2, 1909), 190-201, and 477 ff.; Hazeltine, The Law of the Air (1911); Hilty, in 19 Archiv des Öffent. Rechts (1905), 87 ff.; Holtzendorff, in 2 Handbuch; 230; Julliot, De la proprieté du domain aérien (1909); Jurisch, Grundzüge des Luftrechts (1877); * Kausen, Die Radiotelegraphie im Völkerrecht (1910); Kenny, in 4 Zeitschrift (1910), 472 ff.; Kohler, in 4 Zeitschrift (1910), 588 ff.; Kuhn, in 4 A. J. (1910), 109 ff.; Liszt (3d ed.), § 9, p. 76; Loubeye, Les principes du droit aérien (1911); Lyklama, Air Sovereignty (1910); * Meili, Das drahtlose Telegraphie (1908); Ibid., Das Luftschiff, etc. (1908); * Meurer, Luftschiffahrtsrecht (1909); Ibid., in 16 R. D. I. P. (1909), 76 ff.; Meyer, Die Erschliessung des Luftraumes, etc. (1909); 2 Mérignhac, 398 ff.; 1 Nys, 523-532; Ibid., in 34 R. D. I., 501 ff.; Ibid., in 19 Annuaire, 86-114; 1 Rivier, 140 f.; Rolland, in 13 R. D. I. P. (1906) 58 ff.; Schneeli, Radiotelegraphie und Völkerrecht (1908), §§ 7-13; Sperl, in 18 R. D. I. P. (1911), 473 ff.; Schroeder, Der Luftflug, etc. (1911); Ullmann (2d ed.), § 86, p. 289, and § 147, pp. 426427; Wilson and Tucker, § 57; Wilhelm, in 18 J. I. D. (1891), 440 ff., 171 ff.; Wilson, Int. Law, §§ 30, 43; Ibid., in Am. Pol. Sci. Rev. (1911), 171 ff. For fuller Bibliographies, see Bonfils, Kausen, Meyer, Sperl, etc. * "This would at least be the case with private airships. Public airships will probably enjoy the rights and privileges of so-called exterritoriality, as in the case of public vessels or warships. CHAPTER XVI INDIVIDUALS AS OBJECTS OF INTERNATIONAL LAW 222. Individuals as Objects of the Law of Nations. As stated in an earlier chapter,1 individuals are objects rather than subjects of International Law. Inasmuch as their international rights and obligations are mainly secured and determined by the States or political communities to which they belong, their nationality or political allegiance is a matter of the first importance. 223. What is Nationality? - Nationality is usually defined' as the status or tie which unites an individual to a particular State. It involves reciprocal relations of allegiance and protection, and generally, though not always, implies that the individual clothed with a national character is a citizen or subject of the State to which he owes allegiance. This national character is determined by municipal or State Law, and it fre quently happens that several States lay claim to the allegiance of the same individual (this is a case of so-called double nationality) or that an individual is left without any nationality whatever (the Germans call it Staatslos or Heimatlos). In the former case conflicts between States are apt to arise which call 1 See supra, note on pp. 92-93 n. See, in addition, Diena in 16 R. D. I. P. (1909), 5-7 ff. See especially 1 Oppenheim, §§ 288-292, for a good discussion and references on this point. 2 Nationality as here defined is a legal term and should be distinguished from the vague political or ethnological sense in which it is often used. Thus we speak of an individual as possessing German, Italian, Polish, or even Jewish nationality, without any necessary reference to a particular State. 3 The terms citizen and subject have the same meaning in International Law. Citizen is usually applied to members of a State having a republican form of government; subject to those with monarchical institutions. Thus we speak of British subjects and American citizens. Since individuals who are not citizens in the strict or narrow sense are sometimes clothed with a national character, the term national is now preferred by many statesmen and publicists. for the exercise of the greatest tact and forbearance. In the latter case injustice may result to those individuals who are in a sense outlaws from the standpoint of International Law. I. NATIVE-BORN CITIZENS OR SUBJECTS numerous and im State claims juris- 224. Native-born Citizens. The most portant class of individuals over whom a diction are native-born citizens or subjects. to the application of this term, there is a wide divergence in theory and practice. All modern legislation supports the principle that children born within the territory of a State to parents who are themselves citizens are clothed with the nationality of their parents. But there is not the same unanimity in respect to those born outside the State's territory to parents who are citizens, nor in respect to those born within the State's territory to alien parents. 225. The jus soli. According to the feudal principle of the jus soli, nationality is primarily determined by the place or locality of birth. Consequently, children born to alien parents within the State's territory are clothed with its nationality. If carried out to its logical conclusion, this system would also require that those born outside the State's territory to parents who are citizens should not inherit the nationality of their parents. But this conclusion is not drawn nowadays.5 Modern States are practically unanimous in claiming for children born abroad to its citizens the nationality of their parents." The jus soli prevails in principle in Great Britain, the United States, Portugal, and most of the States of Latin America. 226. The jus sanguinis. - According to the Roman and early Germanic principle of the jus sanguinis, nationality is based The jus soli is of feudal origin and was originally based upon the territorial relation of a fief to its lord. During the Middle Ages it gradually supplanted the more ancient jus sanguinis, which was again given wide currency in Europe through the adoption of the Napoleonic Code. 5 However, this seems to have been the doctrine of the French publicists of the old régime. See the citation from Bacquet, in Weiss, Manuel de droit int. privé, p. 7, and 1 Traité, 43. But many American States (including the United States) only actually claim those who show an intention to reside in the country of their origin. Others grant them the right of option after they have attained their majority. primarily upon descent or parentage." Thus, according to this system, children born outside a State's territory to parents who are citizens, are clothed with the nationality of their parents, whereas those born within a State's territory to alien parents are regarded as foreigners. This system prevails in Germany, Austria, Hungary, Sweden, and Switzerland. 227. Mixed Systems. - A mixed system prevails in France, Belgium, Holland, Greece, Turkey, Russia, Spain, Italy, etc. In France, e.g. (which may be regarded as a type of this class of States), every child of a Frenchman is held to be of French nationality, whether born in France or abroad; whereas an individual born in France to alien parents, and not domiciled in France at the age of majority, is regarded as a foreigner. But until the completion of his twenty-second year, such an individual has the option of making an act of submission by declaring his intention to acquire a French domicile; and if he acquires such a domicile within a year after his act of submission, he may claim French nationality by means of a declaration which will be registered with the Ministry of Justice. 7 The jus sanguinis was not merely a Roman and early Germanic conception, but this principle of inheritance or descent may be said to have been that of antiquity itself. As stated above, it was incorporated into the Napoleonic Code, and was thus given a wide currency in Europe. The Civil Code of Napoleon (1804) does not declare in express terms that children inherit the nationality of their parents. Art. 9, § 1 gave to a child born to alien parents on French soil, and who is not domiciled in France at the time of his majority (those having French domicile being considered French unless they have made a contrary choice), the right to choose French nationality within a year after attaining his majority, provided he acquires a French domicile within a year after his declaration. Art. 10, § 1 simply declares that "every child born of a Frenchman in a foreign country is French." The new Art 8, § 1o of the Civil Code (law of 1889) is thus conceived: "Any individual born of a Frenchman in France or abroad is French." For the text of the law of 1889, see Andreani, La condition des étrangers en France (1907), ch. 3, pp. 111 ff., or 2 Sieber, Das Staatsburgerrecht, etc. (1907), 86 ff. "Every individual born in France to foreign parents (one of whom is himself born there) is French, saving the privilege (if it is the mother who is born in France) of declining French nationality within the year following his majority." Art. 1, § 3o of the law of 1893. See Andreani, p. 123. For an English translation of the laws of 1899 and 1893, see Report on Citizenship, etc., 72 House Doc., No. 326, 59th Cong., 2d sess. (1906-1907), 317 ff. 8 Cogordan, La nationalité (2d ed.), 81. For a commentary on Art. 9 of the Civil Code and Art. 8, § 4° of the law of 1889, see Cogordan, § 5. This article is slightly modified by the law of 1893. See Andreani, 123 f. |