“…The traditional history of international law also is a history of landappropriations. At certain times, sea-appropriations also became part of this history, and then the nomos of the earth rests on a particular relation between firm land and free sea. Today, as a result of a new spatial
phenomenon - the possibility of a domination of air space - firm land and free sea alike are being altered drastically, both in and of themselves and in relation to each other. Not only are the dimensions of territorial sovereignty changing, not only is the efficacy and velocity of the means of human power, transport, and information changing, but so, too, is the content of this effectivity. This always has a spatial dimension and always remains an important concept of international law for land-appropriations and land-occupations, as well as for embargoes and blockades. Consequently, as a result of these developments, the relation between protection and obedience, and with it the structure of political and social power and their relation to other powers, is changing. We are on the threshold of a new stage of human spatial consciousness and global order…
…we must consider an elementary distinction, because it is not inconsequential whether the industrialized and mechanized world that men have created with the help of technology has a terrestrial or a maritime foundation. But today, it is conceivable that the air will envelop the sea and perhaps even the earth, and that men will
transform their planet into a combination of produce warehouse and aircraft carrier. Then, new amity lines will be drawn, beyond which
atomic and hydrogen bombs will fall. Nevertheless, we cling to the hope that we will find the normative order of the earth, and that the peacemakers will inherit the earth…
…In the long controversy over freedom of the sea, English governmental practice and official reports lacked both a new principle and the clarity of new, carefully considered concepts. With good conscience, Tudors, as well as Stuarts and the people as a whole, enriched themselves with the plundered treasures of their buccaneers. But the stock phrases of official language with respect to Spain and Portugal remained the same. They did not transcend the formulas of scholastic natural law and Roman civil law, such as had been used by Vitoria and others more than a century before. If the English Queen said, as reputed in an often cited declaration of 1580 to the Spanish envoy, that the sea and the air are free for the common use of all people, this is completely in line with the argumentation and linguistic style of many similar expressions by 16th century French kings. Nor did English authors intellectually set the course for the new freedom with respect to freedom of the sea in the “hundred-year book war.”…
…This last point is especially important. The transition from land to sea had precipitated unforeseen consequences in world history. In this case, it had affected the basic structure of European international law and its separation of firm land and free sea. As long as one understood by “Western Hemisphere” only a continental landmass, it was linked with a mathematical-physical line of division, as well as with a concrete geographical-physical and historical form. But its expansion and displacement to the sea made the concept of “Western Hemisphere” even more abstract in the sense of an empty and overwhelming, mathematically and geographically determined
spatial dimension. As Friedrich Ratzel put it, space had protruded into the expanse and evenness of the sea. In military science and in strategic discussions, one occasionally finds the sharp formulation of a French author that the sea is a level surface without obstructions, upon which strategy dissolves into geometry. Of course, this mere surface dimensionality led to the suspension of the antithesis between land and sea, and, as soon as airspace was introduced as a new dimension, to a new spatial structure…
…The spatial perspective of the separated surfaces of land and sea had to change fundamentally when an independent third type of arms -the air force- took its place besides the army and the navy. At first the new type
of weapon was considered to be a mere reinforcement and augmentation of both land war and sea war, to be a mere appurtenance to and component of old weapons. For this reason, the air force was considered in terms of the old concepts of enemy, war, and booty, together with all their old orientations to a separate theater of war. Soon, however, it became evident that this reinforcement and augmentation had altered fundamentally the essence of the theater of war and the attendant space on which it was based. It immediately was obvious that a naval fleet shielded by aircraft no longer was confined to the surface of the free sea, that purely maritime weapons
had become old style. It also immediately was obvious that prize law augmented by airplanes had changed essentially the purely maritime character and, thus, the traditional juridical justification of prize law. Naturally, one
could use an airplane to pursue prize law on the high sea. For many, this changed nothing juridically with respect to maritime prize law. This new and effective means of controlling commerce by sea was considered to be purely technical, to be an additional means of detaining, capturing, and rerouting ships, etc. In reality, however, the airplane had abrogated the purely maritime character of the old prize law, because it had nullified the surface of the free sea and, thereby, the clear antithesis of mutual enemies…”
Contributed by
Maurizio Lazzarato