62 INTERNATIONAL LAW AND PEACE 



line from Cape Sviatoi to Cape Kanin as a closed sea, a claim in which it is contended 

 both Norway and Great Britain have tacitly acquiesced. 1 



Involving analogous considerations is the still controverted question of Hudson Bay, 

 which is entirely surrounded by Canadian territory. Its entrance like that of the 

 White Sea exceeds any width suggested for the closing of bays. In principle there is no 

 difference between Hudson Bay and the Gulf of St. Lawrence. Yet it is held by certain 

 authorities that Hudson Bay like the White Sea is a closed sea. No such claim has 

 ever been made for the Gulf of St. Lawrence, which is in a similar position. 2 



The question of bays in connection with the existing territorial waters practice was 

 dealt with in the North Atlantic Fisheries case by the Hague Court in its award of Octo- 

 ber 25, 1910. The three-mile limit was confirmed and bays were the subject of a 

 recommendation to adopt in principle the ten-mile width of the North Sea Fisheries 

 convention. 3 The award is dealt with more fully below in connection with arbitration. 



V. The Law of the Air. 



The law of the air of late has from time to time occupied the attention of Govern- 

 ments. Under a British Act (Aerial Navigation Act, June 2, 1911) " for the purpose of 

 protecting the public against danger," the Government is empowered to forbid aerial 

 navigation over certain areas according to circumstances or limit it to certain kinds of 

 air-craft. These very wide powers are obviously capable of application on such a scale 

 as practically to amount to the assertion of absolute sovereignty over the superincum- 

 bent air of the whole of British territory. 



Questions affecting international law may arise out of any far-reaching exercise of 

 this claim. Have foreign air-vessels a right of innocent passage through the air, as they 

 have through the territorial waters, of any state? It has been suggested that, following 

 the analogy of the sea, no state is entitled to claim sovereignty over a greater height than 

 cannon-range can command, that to assert a claim over the air ad coelum over any coun- 

 try is as exaggerated as the now obsolete claims over whole seas, which were eventually 

 whittled down to a margin of sea following the trend of the adjacent coast. The Insti- 

 tute of International Law, 4 at its Ghent meeting in 1906, declared the air free, subject 

 only to such rights as the necessities of self-preservation required. This view seems 

 to follow the analogy of the relatio'n of the high sea to territorial waters. 



Mr. H. Brougham Leech (" The Jurisprudence of the Air," Fortnightly Review, 

 August 1912) has made the following apt observations on the subject: 



"There is, from one important point of view, a marked difference between the open sea 

 and supratcrritorial air. An ordinary vessel on the open sea cannot damage persons or 

 property on land; a war- vessel cannot do any such damage save of deliberate intention. 

 Furthermore, collision at sea cannot be productive of any injury to those on land. But any 

 vessel traversing the supra-territorial air can do much mischief to those on the earth beneath; 

 any accident to such vessels may result in serious injury; and accidents, arising either from 

 collision, storm, or the failure of the machinery, are not only more liable to happen, but they 

 may involve injuries to third parties, from the risk of indicting which, sea-going vessels are 

 entirely free. Therefore the analogy between the open sea and the supra-territorial atmos- 

 phere breaks down and the state is entitled to protection against these unusual dangers." 



Prof. Sir Erie Richards, in a lecture delivered at Oxford (Oct. 26) 5 on the sover- 

 eignty of the air, has expressed the opinion that the theory of the air being free had in 

 fact never been accepted as a principle of International Law. It found no support in 

 any analogy which could be drawn from the Laws of Nations. "States," he said, 

 "must be the judges of the necessary safeguard they imposed for their protection." 

 " The principle of state sovereignty over the air was the only basis on which Interna- 

 tional Law could safely rest." 



1 Times, March n, 1911. 



2 See, on the contention that Hudson Bay is by immemorial usage an open sea, T. W. 

 Balch, "la Baie de Hudson," Revue de droit international, ipil. 



3 See E. B. xix, 787; "North Sea Fisheries." Also xxviii, 409; "Territorial Waters." 



4 See E. B. xxi, 15; "Peace." 



& Sec Times, October 28, 1912. 



