not adjacent by the air, and not be dependent for it upon the consent of other nations. The notion that the adjacent surrounding countries may forbid entirely the innocent passage of Swiss commercial aircraft cannot fairly be based upon the idea that this result is requisite for the safety of these countries, for everybody knows better. Nations not parties to the Convention ought to seek admission to it, and if it is denied, they are entitled to feel that their citizens have less rights than other men and are denied a substantial part of human freedom. Such states ought not to submit without protest. Only military reasons can be sufficient for such an exclusion as this. We must not let "great captains with their guns and drums disturb our judgment" but "for an hour," and expect the "patient, wise, far-seeing" jurist of the future to look at this question in a different way.

In the last paragraph of Article 15 we find:

"The establishment of international airways shall be subject to the consent of the States flown over."

In the same article it is earlier provided that—

“Every aircraft of a contracting State has the right to cross another State without landing. In this case it shall follow the route fixed by the State over which the flight takes place."

The use of aerodromes is guaranteed by Article 25 upon terms of equality which will rejoice advocates of the liberty of the air. Taking the two quotations from Article 15 together, it may be assumed that the air space cannot be closed to through transit altogether, under conditions of peace. No state should have the right to forbid international airways entirely. If Switzerland is a party to the Convention, it should not have the right in times of peace to close every pass through the Alps to the passage of aircraft. This would, to say the least, deny to travelers the possibility of a sublime experience. It might seriously affect legitimate trade and important mails. Undoubtedly a state should have the right to exclude the passage of military aircraft over any areas, and of commercial aircraft over military areas, or populous communities, but not the right to bar the way altogether. High mountains and deserts as well as perilous seas, jungles, and savage communities limit the passage of aircraft. To add artificial and unnecessary legal barriers would be to create international grievances and add a new terror to

isolation. Free traders feel a natural repugnance to this sort of thing. It requires no great ingenuity to conceive of many articles which could be conveniently transported by air, such as the mails, dyes, medicines, instruments, jewels, lace, securities, and many more. The newspapers tell us already of a daily express service between London and Paris at a guaranteed speed of over a hundred miles an hour.

In Article 23 we have an excellent solution of the question of jurisdiction over legal relations. As between persons on board of aircraft, the nationality of the aircraft governs, in case of flight without landing. The analogy of the ship at sea is followed. This article, like Article 18 in regard to infringement of patents, and Article 33 in regard to exterritoriality, is not consistent with the theory of absolute sovereignty of the underlying state. Power is given the state beneath to protect its military and fiscal laws, and the public safety, and to regulate air navigation. By 'Article 33 military aircraft, only if voluntarily admitted, enjoy the privilege of exterritoriality. By Article 34 the privilege is denied to police and customs aircraft, even though admitted by agreement.

In Article 35, the control of the International Commission for Air Navigation is definitely committed to Great Britain, the United States, France, Italy, and Japan, although provision is made for representation of each contracting party. We see here that it is a treaty for peace we are considering, and that the negotiators have been concerned with military safety and national punishments as preliminary to the future of a world at peace. Suitable provision is made for amendments to the Convention. Article 38 provides for international arbitration, but Article 39 provides:

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

No specific number of states are required to ratify. Liberal provision is made by Articles 43 and 44 for the admission of states to the Convention; nevertheless a state which participated in the present war but not in the negotiation of the Convention, unless a member of the League of Nations, can be admitted only by unani

The rules in case of territorial waters will be found analogous. I WESTLAKE INTERNATIONAL LAW (1910), 193.

mous vote until January 1, 1923, and after that date only by a three-fourths vote so counted as to give the Entente Powers the control. There is here the possible opportunity for injustice to be done, and these provisions have undoubtedly a military basis.

By Article 45, a state may withdraw from the Convention after January 1, 1922, by giving a year's notice.

It is impossible to examine the recent legal literature of aviation without noticing that the actual development of the art of flying has increased the necessity for police regulation to an extent entirely unexpected, and that the result has been to compel much more general recognition of the right of the state to regulate the entire air space overhead. The recent frightful accident at Chicago, where a burning airship fell through the roof of a bank, doing great injury to life and property by the explosion of gasoline contained in its fuel tanks, emphasizes this necessity of regulation in peace, while the great conflict has made the same necessity very clear in war.10 More and more limitations have been found necessary to be placed upon the liberty of the air. But the right freely to navigate the air upon commercial errands must not perish from the earth; the air space must not be made a field for national monopoly; peaceful access to the sea and to other nations through the air must be preserved and protected, not surrendered to the will of the strongest. The necessity for international air routes with the necessary aerodromes will become more and more apparent every day.

Of the three theories of the legal status of the air space, one follows the analogy of the high seas, one that of territorial waters, one that of the land. The advocate of each theory will find something in the Convention which is countenanced by his theory; none of the three theories is consistent with the entire Convention. The analogy of the land has been followed most.

In this connection it is interesting to note that the new German Constitution of July 31, 1919, by Article 7, Section 19, confers upon the national government the right of legislation over communication by vehicles propelled by power in the air. Subject to the veto of the national government the separate states may act

10 "Flying over populous centres has been prohibited since the entry of Marshal Pétain into Metz, when an aviator, flying low over a crowded square where a review was to take place, struck a telegraph wire and fell into a crowd, killing half a dozen persons." NEW YORK TIMES, October 13, 1919.

in the absence of national legislation (Article 12). Before the recent war Germany was well advanced in commercial aerial navigation. Great Britain, we know, cherishes great designs for rapid long-distance communication through the air. We will say also of England's ruler,

"His state

Is kingly; thousands at his bidding speed,

And post o'er land and ocean without rest."

But in this instance civilization will not be served by having any nation "only stand and wait."

After all, the normal state of mankind is peace, not war; and in peaceful times no nation is likely to find the right of flying across other countries more valuable than England.

In spite of all criticism, this Convention would be an important gain to humanity, and its adoption would be a great step in placing international aviation upon a legal basis, and hastening the commercial conquest of the air. The law was made for man, and not man for the law. Even if the Convention plays havoc with excellent juristic theories, we must be prepared to sacrifice logic for the peace of the world, and to accept that which can be made better, rather than stand out for an impossible perfection. If the present Convention is the result of the recent experiences of war, we may reasonably expect victories of peace, no less renowned, to come later. Defects which actual experience indicates to exist will be corrected, and if the Convention has obstructed unnecessarily the aerial domain, doubtless more freedom will come in due time. Indeed, when all nations applying for admission have been admitted, it will be hard to find serious fault with the Convention as it stands, and we may expect all to sound its praises."

NEW YORK.

Blewett Lee.

11 According to Press Dispatches from Paris, October 14, 1919, the Convention was signed by the representatives of many countries on the 13th, but representatives of the United States were allowed six months for further consideration. It is stated that the American Patent Office questioned whether under the Convention the United States courts would have jurisdiction if foreign machines carried devices infringing United States patents. Compare Article 18.

THE

THE NATIONAL WAR LABOR BOARD

HE National War Labor Board originated from the apparent need, during the autumn of 1917, of improving the relations between employers and employees during the period, at least, of the war. The cost of living was steadily rising. Strikes were alarmingly on the increase. The labor supply was constantly shifting. As a result there were frequent acute shortages, and the supply of labor was beginning to be affected by the draft. The coal shortage became more threatening, and transportation was congested. The need for ships was imperative. The call for increased production of war material grew more insistent and the public mind was uneasy over the situation. The appearance of the President at the convention of the American Federation of Labor helped to focus thinking on industrial relations as the heart of the problem of production. After much consideration the Council of National Defense suggested to the Secretary of Labor that he summon a conference board of employers, labor leaders, and representatives of the public to work out, if possible, the fundamental principles and policies to govern relations between capital and labor during the war. The Secretary of Labor adopted the suggestion, and late in January, 1918, requested one of the leading employers' associations, the National Industrial Conference Board, and the American Federation of Labor to appoint representatives. Two representatives of the public were also appointed. The body so created, known as the War Labor Conference Board, met, worked out a set of principles, and recommended the creation of a National War Labor Board "to adjust disputes in fields of production necessary for the effective conduct of the war."

This recommendation was adopted by the Secretary, and the members of the War Labor Conference Board were nominated by him as members of the National War Labor Board. This action was confirmed by President Wilson by a proclamation dated April 8, 1918, approving the nomination of the members of the board by the Secretary of Labor and providing that the powers and principles worked out by the War Labor Conference Board should be exercised, and be followed by the National War Labor Board.