Civil Disabilities of Alien Enemies
THE NAVAL PRIZE BILL
CIVIL DISABILITIES OF ENEMY SUBJECTS
Sir,—The Naval Prize Bill has sins enough of its own to answer for. The question dealt with under that heading in Mr. Arthur Cohen's letter of this morning has, however, nothing to do with naval matters, but arises under The Hague Convention of 1907 as to warfare on land, which was ratified by our Government two years ago; unfortunately without any reserve as to the extraordinary provision contained in Art. 28 (h) of that Convention.
I lose not a moment in asking to be allowed to state that my view of the question is, and always has been, the reverse of that attributed to me by my friend Mr. Cohen. No less than three views are entertained as to the meaning of Art. 28 (h). (1) Continental writers, e.g., MM. Fauchille, Kohler, and Ullmann, with the German Whitebook, assert, in the most unqualified manner, that Great Britain and the United States have under this clause abandoned their long-established doctrine as to the suspension of the private rights and remedies of enemy subjects; (2) Our own Government, in a non-confidential reply to an inquiry from Professor Oppenheim, asserts categorically, as does General Davis in the United States, that the clause relates only to the action of a commander in a territory of which he is in occupation; while (3) most English and American writers look upon the meaning of the clause as doubtful. If Mr. Cohen will look at p. 44 of my Laws of War on Land,[048] 1909, he will find that I carry this sceptical attitude so far as to include the clause in question in brackets as "apocryphal," with the comment that "it can hardly, till its policy has been seriously discussed, be treated as a rule of international law." I have accordingly maintained, in correspondence with my Continental colleagues, that the clause should be treated as "non avenue," as "un non sens," on the ground that, while, torn from their context, its words would seem ("ont faux air") to bear the Continental interpretation, its position as part of a "Règlement," in conformity with which the Powers are to "issue instructions to their armed land forces," conclusively negatives this interpretation. I will not to-day trouble you in detail with the very curious history of the clause; which, as originally proposed by Germany, merely prohibited (a commander?) from announcing that the private claims ("réclamations") of enemy subjects would be unenforceable. It is astonishing that no objection was raised by the British or by the American delegates to the subsequent transformation of this innocent clause into something very different, first by the insertion of the words "en justice," and later by the substitution of "droits et actions" for "réclamations." The quiescence of the delegates is the more surprising, as, at the first meeting of the sub-committee, General de Gundel, in the plainest language, foreshadowed what was aimed at by the clause.
Art. 23 (h) is, I submit, incapable of rational interpretation and should be so treated by the Powers. If interpreted at all, its sense must be taken to be that which is now, somewhat tardily, put upon it by our own Government.
I may perhaps refer here to my Laws of War on Land (1908), p. 44, where I describe as "apocryphal" Art. 23 (h) of the Hague Convention No. iv. of 1907; and to my paper upon that article in the Law Quarterly Review for 1912, pp. 94-98, reproduced in the Revue de Droit Inter[049]national, the Revue Générale de Droit International Public, and the Zeitschrift für Völkerrecht und Bundesstaatsrecht, for the same year.
The view there maintained was affirmed by the Court of Appeal in Porter v. Freudenberg, [1915] 1 K.B. 857, at p. 874.
Enemy Ships in Port
Sir,—The action taken by the United States in seizing German merchant ships lying in their ports will raise several questions of interest. It is, however, important at once to realise that, apart from anything which may be contained in old treaties with Prussia, their hands are entirely free in the matter. The indulgences so often granted: to such ships during the last 60 years, notably by themselves in the Spanish War of 1898, under endlessly varying conditions, have been admittedly acts of grace, required by no established rule of international law.
The United States are also unaffected by The Hague Convention No. vi, to which they are not a party. It is therefore superfluous to inquire what construction they would have been bound to put upon the ambiguous language of Section 1 of the Convention, which proclaims that "when a merchant ship of one of the belligerent Powers is, at the commencement of hostilities, in an enemy port, it is desirable that it should be allowed to depart freely," &c. It might perhaps be argued that our own Prize Court might well have refrained from treating this section as if it were obligatory, and have founded its decisions rather upon international law, as supplemented by a non-obligatory custom. Be this as it may, it would seem that the policy of the United States has to some extent felt the influence of Convention vi. in announcing that seizure will, provisionally, only amount to requisitioning.
CHAPTER VI
THE CONDUCT OF WARFARE
The three following sections relate to the waters in which hostile operations may take place. Section 1 probably calls for no explanatory remark. With reference to Section 2, dealing with certain spaces of water more or less closed to belligerent action, it may be desirable to state that the letters as to the Suez Canal were written to obviate some misconceptions as to the purport of the Convention of October 29, 1888, and to maintain that it was not, at the time of writing, operative, so far as Great Britain was concerned.
This state of things was, however, altered by the Anglo-French Convention of April 8, 1804, which, concerned principally with the settlement of the Egyptian and Newfoundland questions, provides, in Art. 6, that "In order to assure the free passage of the Suez Canal, the Government of His Britannic Majesty declares that it adheres to the stipulations of the Treaty concluded on the 29th October 1888; and to their becoming operative. The free passage of the canal being thus guaranteed, the execution of the last phrase of paragraph 1, and that of paragraph 2 of the 8th article of this Treaty, will remain suspended."
The last phrase of paragraph 1 of Art. 8 relates to annual meetings of the agents of the signatory Powers.
Paragraph 2 of this Article relates to the presidency of a special commissioner of the Ottoman Government over those meetings.
On the whole question see Parl. Papers, Egypt, No. 1 (1888), Commercial, No. 2 (1889), and the present writer's Studies in International Law, pp. 275-293. Note must, of course, now be taken of the constitutional changes resulting from the war of 1914.
The provisions of the Treaty of 1888, with reference to the free navigation of the Suez Canal, have, of course, acquired a new importance from their adoption into the Hay-Pauncefote Treaty of November 18, 1901, as to the Panama Canal, and from the divergent views taken of their interpretation, as so adopted.[051]
SECTION 1
On the Open Sea
Sir,—Your remarks upon "the wide and ambiguous suggestions" contained in the Pope's Peace Note are especially apposite to his desire for "the freedom of the seas." It is regrettable that his Holiness does not explain the meaning which he attaches to this phrase, in itself unmeaning, so dear to the Germans. He is doubtless well aware that the sea is already free enough, except to pirates, in time of peace, and must be presumed to refer to time of war, and specifically to propose the prohibition of any such interference with neutral shipping as is now legalised by the rules relating to visit and search, contraband and blockade.
If this be indeed the Pope's meaning, his aspirations are now less likely than ever to be realised. It is curious to reflect that the proposal actually made by our own Government at The Hague Conference of 1907, apparently under the impression that Great Britain would be always neutral, for protecting the carriage of contraband was most fortunately defeated by the opposition of the other great naval Powers, of which Germany was one.
SECTION 2
In Other Waters
Sir,—Your correspondent "M.B." has done good service by calling attention to the misleading nature of the often-repeated [052]statement that the Suez Canal has been "neutralised" by the Convention of 1888. Perhaps you will allow me more explicitly to show why, and how far, this statement is misleading.
In the first place, this Convention is inoperative. It is so in consequence of the following reservation made by Lord Salisbury in the course of the negotiations which resulted in the signature of the Convention:—
"Les Délégués de la Grande-Bretagne ... pensent qu'il est de leur devoir de formuler une réserve générale quant à l'application de ces dispositions en tant qu'elles ne seraient pas compatibles avec l'état transitoire et exceptionnel où se trouve actuellement l'Egypte, et qu'elles pourraient entraver la liberté d'action de leur Gouvernement pendant la période de l'occupation de l'Egypte par les forces de sa Majesté Britannique."
Being thus unaffected by the treaty, the canal retains those characteristics which it possesses, under the common law of nations, as a narrow strait, wholly within the territory of one Power and connecting two open seas. The fact that the strait is artificial may, I think, be dismissed from consideration, for reasons stated by me in the Fortnightly Review for July, 1883. The characteristics of such a strait are unfortunately by no means well ascertained, but may perhaps be summarised as follows. In time of peace, the territorial Power is bound by modern usage to allow "innocent passage," under reasonable conditions as to tolls and the like, not only to the merchant vessels, but also, probably, to the ships of war, of all nations. In time of war, the territorial Power, if belligerent, may of course carry on, and is exposed to, hostilities in the strait as elsewhere, and the entrances to the strait are liable to a blockade. Should the territorial Power be neutral, the strait would be closed to hostilities, though it would probably be open to the "innocent passage" of belligerent ships of war.
It may be worth while to enquire how far this state of things would be affected by the Convention of 1888, were [053]it to come into operation. The status of the canal in time of peace would be substantially untouched, save by the prohibition to the territorial Power to fortify its banks. Even with reference to time of war, several of the articles of the Convention merely reaffirm well-understood rules applicable to all neutral waters—e.g. that no hostilities may take place therein. The innovations proposed by the Convention are mainly contained, as "M.B." points out, in the first article, which deals with the position of the canal when the territorial Power is belligerent. In such a case, subject to certain exceptions, with a view to the defence of the country, the ships of that Power are neither to attack nor to be attacked in the canal, or within three miles of its ports of access, nor are the entrances of the canal to be blockaded. This is "neutralisation" only in a limited and vague sense of the term, the employment of which was indeed carefully avoided not only in the Convention itself but also in the diplomatic discussions which preceded it.
Sir,—Your correspondent "M.B.," if he will allow me to say so, supports this morning a good case by a bad argument, which ought hardly to pass without remark.
It is impossible to accept his suggestion that the article which he quotes from the Treaty of Paris can be taken as containing "an international official definition of neutralisation as applied to waters." The article in question, after declaring the Black Sea to be "neutralisée," no doubt goes on to explain the sense in which this phrase is to be understood, by laying down that the waters and ports of that sea are perpetually closed to the ships of war of all nations. It is, however, well known that such a state of things as is described in the latter part of the article is so far from [054]being involved in the definition of "neutralisation" as not even to be an ordinary accompaniment of that process. Belgium is unquestionably "neutralised," but no one supposes that the appearance in its waters and ports of ships of war is therefore prohibited. The fact is that the term "neutralisée" was employed in the Treaty of Paris as a euphemism, intended to make less unpalatable to Russia a restriction upon her sovereign rights which she took the earliest opportunity of repudiating.
Sir,—Will you allow me to reply in the fewest possible words to the questions very courteously addressed to me by Mr. Gibson Bowles in his letter which appeared in The Times of yesterday?
1. It is certainly my opinion, for what it is worth, that the full operation of the Convention of 1888 is suspended by the reserves first made on behalf of this country during the sittings of the Conference of 1885. These reserves were texually repeated by Lord Salisbury in his despatch of October 21, 1887, enclosing the draft convention which, three days later, was signed at Paris by the representatives of France and Great Britain, the two Powers which, with the assent of the rest, had been carrying on the resumed negotiations with reference to the canal. Lord Salisbury's language was also carefully brought to the notice of each of the other Powers concerned; in the course of the somewhat protracted discussions which preceded the final signature of the same convention at Constantinople on October 29, 1888.
2. All the signatories of the convention having thus become parties to it after express notice of "the conditions under which her Majesty's Government have expressed [055]their willingness to agree to it," must, it can hardly be doubted, share the view that the convention is operative only sub modo.
3. Supposing the convention to have become operative, and supposing the territorial Power to be neutral in a war between States which we may call A and B, the convention would certainly entitle A to claim unmolested passage for its ships of war on their way to attack the forces of B in the Eastern seas.
4. The language of the convention, being as it, is the expression of a compromise involving much re-drafting, is by no means always as clear as it might be. But when Mr. Gibson Bowles is again within reach of Blue-books he will probably agree with me that the treaty need not, as he suggests, be "read as obliging the territorial Power, even when itself a belligerent, to allow its enemy to use the canal freely for the passage of that enemy's men-of-war." The wide language of Art. 1 (which is substantially in accordance with Mr. Gibson Bowles's reminiscence of it) must be read in connection with Art. 10, and without forgetting that, in discussing the effect of an attack upon the canal by one of the parties to the convention, Lord Salisbury wrote in 1887, "on the whole it appears to be the sounder view that, in such a case, the treaty, being broken by one of its signatories, would lose its force in all respects."
THE CLOSING OF THE DARDANELLES
Sir,—Now that the pressure upon your space due to the clash of opposing views of domestic politics is likely to be for the moment relaxed, you may, perhaps, not think it inopportune that attention should be recalled to a question of permanent international interest raised by the recent [056]action of the Turkish Government in closing the Dardanelles to even commercial traffic.
I cordially agree, as would, I suppose, most people, with your leading article of some weeks since in deprecating any crude application to the case of the Dardanelles and Bosporus of dicta with reference to freedom of passage through straits connecting two open seas. It would, indeed, be straining what may be taken to be a general principle of international law to say that Turkey is by it prohibited from protecting her threatened capital by temporarily closing the Straits.
A good deal of vague reference has, however, been made in the discussions which have taken place upon the subject to "Treaties" under which it seems to be thought that trading ships enjoy, in all circumstances, rights of free navigation through the Straits in question which they would not have possessed otherwise. I should like, therefore, with your permission, to state what seem to be the relevant Treaty provisions upon the subject, whether between the Powers constituting the European Concert collectively, or between Russia and Turkey as individual Powers.
As to what may be described as the "European" Treaties, it is necessary, once for all, to put aside as irrelevant Art. 10 of the Treaty of Paris of 1856 and its annexed Convention; Art. 2 of the Treaty of London of 1871; and the confirmatory Art. 63 of the Treaty of Berlin of 1878. These articles have exclusive reference to the "ancient rule of the Ottoman Empire," under which, so long as the Porte is at peace, no foreign ships of war are to be admitted into the Straits. There are, however, two articles, still in force, of these "European" Treaties which may seem to bear upon the present inquiry. By Art. 12 of the Treaty of Paris:—
"Free from any impediment, the commerce in the ports and waters of the Black Sea shall be subject only to regulations of health, Customs, [057]and police, framed in a spirit favourable to the development of commercial transactions."
And by Art. 3 of the Treaty of London:—
"The Black Sea remains open, as heretofore, to the mercantile marine of all nations."
It is submitted that these provisions relate solely to commerce carried on by vessels already within the Black Sea, and contain no covenant for an unrestricted right of access to that sea.
As between Russia and Turkey individually, Treaties which are still in force purport, no doubt, to give to the former a stronger claim to free passage through the Straits for her mercantile marine than that which can be supposed to be enjoyed by other Powers. By Art. 7, for instance, of the Treaty of Adrianople of 1829, the Porte recognises and declares the passage of the "Canal de Constantinople," and of the Strait of the Dardanelles, to be entirely free and open to Russian merchant vessels; and goes on to extend the same privilege to the merchant vessels of all Powers at peace with Turkey. Art. 24 of the Treaty of San Stefano is still more explicit, providing that "the Bosporus and Dardanelles shall remain open in time of war as in time of peace to the merchant vessels of neutral States arriving from or bound to Russian ports." The rest of the article contains a promise by the Porte never henceforth to establish a "fictitious blockade, at variance with the spirit of the Declaration of Paris"; meaning thereby such a blockade of ports on the Black Sea as had been enforced by Turkish ships of war stationed at the entrance to the Bosporus.
It may well be doubted whether these articles, containing concessions extorted from Turkey at the end of wars in which she had been defeated, ought not, like so many other provisions of the Treaty of San Stefano, to have been abrogated by the Treaty of Berlin. They are of such a character that, in the struggle for existence, Turkey can hardly be blamed for disregarding them. As was said [058]long ago, "Ius commerciorum aequum est, at hoc acquius, tuendae salutis." The imperious necessities of self-preservation were recognised both by Lord Morley and by Lord Lansdowne in the debate which took place on May 3, although Lord Lansdowne intimated that
"the real question, which will have to be considered sooner or later, is the extent to which a belligerent Power, controlling narrow waters which form a great trade avenue for the commerce of the world, is justified in entirely closing such an avenue in order to facilitate the hostile operations in which the Power finds itself involved."
It is, I think, clear that the solution of a question at once so novel and so delicate must be undertaken, not by any one Power, but by the Concert of Europe, or of the civilised world, which must devise some guarantee for the safety of any littoral Power which would be called upon in the general interest to restrict its measures of self-defence. In the meantime, we may surely say that the case is provided for neither by established international law nor by "European" Treaties; and, further, that the Treaties between Russia and Turkey, which do provide for it, are not such as it is desirable to perpetuate.
THE CLOSING OF THE DARDANELLES
Sir,—I am reminded by Mr. Lucien Wolf's courteous letter that I ought probably to have mentioned, in alluding to the Treaty of San Stefano, that it is doubtful whether Art. 24 of that Treaty is in force. It was certainly left untouched by the Treaty of Berlin, but the language of the relevant article (3) of the definitive Treaty of Peace of 1879 is somewhat obscure, nor is much light to be gained upon the point from the protocol of the 14th séance of the Congress of Berlin, at which Art. 24 came up for discussion.
The earlier Treaties, however, which were revived beyond [059]question by Art. 10 of the Treaty of 1879, grant to Russian merchant vessels full rights of passage between the Black Sea and the Ægean, exercisable, for all that appears, in time of war as well as of peace, although these Treaties contain no express words to that effect. Such rights, I would again urge, if enjoyed by one Power, should be enjoyed by all; upon terms to be settled, not by any pair of Powers but by the Powers collectively.
SECTION 3
In a Special Danger Zone?
Sir,—It may perhaps be desirable, for the benefit of the general reader, to distinguish clearly between the two topics dealt with in the recent announcement of German naval policy.
1. We find in it what may, at first sight, suggest the establishment of a gigantic "paper blockade," such as was proclaimed in the Berlin Decree of 1806, stating that "Les îles Britanniques sont déclarées en état de blocus." But in the new decree the term "blockade" does not occur, nor is there any indication of an intention to comply with the prescriptions of the Declaration of Paris of 1856 as to the mode in which such an operation must be conducted. What we really find in the announcement is the specification of certain large spaces of water, including the whole of the British Channel, within which German ships will endeavour to perpetrate the atrocities about to be mentioned.
2. These promised, and already perpetrated, atrocities [060]consist in the destruction of merchant shipping without any of those decent preliminary steps, for the protection of human life and neutral property, which are insisted on by long established rules of international law. Under these rules, the exercise of violence against a merchant vessel is permissible, in the first instance, only in case of her attempting by resistance or flight to frustrate the right of visit which belongs to every belligerent cruiser. Should she obey the cruiser's summons to stop, and allow its officers to come on board, they will satisfy themselves, by examination of her papers, and, if necessary, by further search, of the nationality of ship and cargo, of the destination of each, and of the character of the latter. They will then decide whether or no they should make prize of the ship, and in some cases may feel justified in sending a prize to the bottom, instead of taking her into port. Before doing so it is their bounden duty to preserve the ship papers, and, what is far more important, to provide for the safety of all on board.
This procedure seems to have been followed, more or less, by the submarines which sank the Durward in the North Sea, and several small vessels near the Mersey, but is obviously possible to such craft only under very exceptional circumstances. It was scandalously not followed in the cases of the Tokomaru, the Ikaria, and the hospital ship (!) Asturias, against which a submarine fired torpedoes, off Havre, without warning or inquiry, and, of course, regardless of the fate of those on board. The threat that similar methods of attack will be systematically employed, on a large scale, on and after the 18th inst., naturally excites as much indignation among neutrals as among the Allies of the Entente.
SECTION 4
Aerial Warfare
It may be desirable to supplement what is said in the following letters by mentioning that the Declaration of 1899 (to remain in force for five years) was largely ratified, though not by Great Britain; that of 1907 (to remain in force till the termination of the third Peace Conference) was ratified by Great Britain and by most of the other great Powers in 1909, not, however, by Germany or Austria; that aerial navigation is regulated by the Acts, I & 2 Geo. 5, c. 4, and 2 & 3 Geo. 5, c. 22; and that an agreement upon the subject was entered into between France and Germany, on July 26, 1913, by exchange of notes, "en attendant la conclusion d'une convention sur cette matière entre un plus grand nombre d'états" (the international Conference held at Paris in 1910 had failed to agree upon the terms of such a Convention); and that Art. 25 of The Hague Convention of 1907, No. iv., was ratified by Great Britain, and generally.
Sir,—It is not to be wondered at that the Chairman of Committees declined to allow yesterday's debate on aviation to diverge into an enquiry whether the Powers could be induced to prohibit, or limit, the dropping of high explosives from aerial machines in war time. The question is, however, one of great interest, and it may be desirable, with a view to future discussions, to state precisely, since little seems to be generally known upon the subject, what has already been attempted in this direction.
In the Règlement annexed to The Hague Convention of 1899, as to the "Laws and Customs of War on Land," Art. 23, which specifically prohibits certain "means of injuring the enemy," makes no mention of aerial methods; but Art. 25, which prohibits "the bombardment of towns, villages, habitations, or buildings, which are not defended," was strengthened, when the Règlement was reissued in 1907 as an annexe to the, as yet not generally ratified, Hague Convention No. iv. of that year, by the insertion, [062]after the word "bombardment," of the words "by any means whatever," with the expressed intention of including in the prohibition the throwing of projectiles from balloons.
The Hague Convention No. ix. of 1907, also not yet generally ratified, purports to close a long controversy, in accordance with the view which you allowed me to advocate, with reference to the naval manoeuvres of 1888, by prohibiting the "naval bombardment of ports, towns, villages, habitations, or buildings, which are not defended." The words "by any means whatever" have not been here inserted, one would incline to think by inadvertence, having regard to what passed in Committee, and to the recital of the Convention, which sets out the propriety of extending to naval bombardments the principles of the Règlement (cited, perhaps again by inadvertence, as that of 1899) as to the Laws and Customs of War on Land.
But the topic was first squarely dealt with by the first of the three Hague Declarations of 1899, by which the Powers agreed to prohibit, for five years, "the throwing of projectiles and explosives from balloons, or by other analogous new methods." The Declaration was signed and ratified by almost all the Powers concerned; not, however, by Great Britain.
At The Hague Conference of 1907, when the Belgian delegates proposed that this Declaration, which had expired by efflux of time, should be renewed, some curious changes of opinion were found to have occurred. Twenty-nine Powers, of which Great Britain was one, voted for renewal, but eight Powers, including Germany, Spain, France, and Russia, were opposed to it, while seven Powers, one of which was Japan, abstained from voting. The Japanese delegation had previously intimated that, "in view of the absence of unanimity on the part of the great military Powers, there seemed to be no great use in binding their country as against certain Powers, while, as against the rest, it would still be necessary to study and bring to perfection [063]this mode of making war." Although the Declaration, as renewed, was allowed to figure in the "Acte final" of the Conference of 1907, the dissent from it of several Powers of the first importance must render its ratification by the others highly improbable; nor would it seem worth while to renew, for some time to come, a proposal which, only two years ago, was so ill received.
I may perhaps add, with reference to what was said by one of yesterday's speakers, that any provision on the topic under discussion would be quite out of place in the Geneva Convention, which deals, not with permissible means of inflicting injury, but exclusively with the treatment of those who are suffering from injuries inflicted.
THE AERIAL NAVIGATION ACT
PRACTICAL DIFFICULTIES
Sir,—The haste with which Colonel Seely's Bill, authorising resort to extreme measures for the prevention of aerial trespass under suspicious circumstances, has been passed through all its stages, was amply justified by the urgent need for such legislation, which Russia seems to have been the first to recognise. The task of those responsible for framing regulations for the working of the new Act will be no easy one. They will be brought face to face with practical difficulties, such as led to the adjournment of the Paris Conference of 1910.
In the meantime, it may interest your readers to have some clue to what has taken place, with reference to the more theoretical aspects of the questions involved, in so competent and representative a body as the Institut de Droit International. The Institut has had the topic under consideration ever since 1900, more especially at [064]its sessions for the years 1902, 1906, 1910, and 1911. In the volumes of its "Annuaire" for those years will be found not only the text of the resolutions adopted on each occasion, together with a summary account of the debates which preceded their adoption, but also, fully set out, the material which had been previously circulated for the information of members, in the shape of reports and counter-reports from inter-sessional committees, draft resolutions, and such critical observations upon these documents as had been received by the secretary. The special committee upon the subject, of which M. Fauchille is Rapporteur, is still sitting, and the topic will doubtless be further debated at the session of the Institut, which will this year be held at Oxford. No success has attended efforts to pass resolutions in favour of any interference with the employment of aéronefs in time of war, such as was proposed by The (now discredited) Hague Declaration, prohibiting the throwing of projectiles and explosives from airships. With reference to the use of these machines in time of peace, the debates have all along revealed a fundamental divergence of opinion between the majority of the Institut and a minority, comprising those English members who have made known their views. Both parties are agreed that aerial navigation must submit to some restrictions, but the majority, starting from the Roman law dictum, "Naturali iure omnium communia sunt aer, aqua profluens, et mare," would always presume in favour of freedom of passage. The minority, on the other hand, citing sometimes the old English saying, "Cuius est solum eius est usque ad coelum," hold that the presumption must be in favour of sovereignty and ownership as applicable to superimposed air space.
It is hardly necessary to observe that neither of the maxims just mentioned was formulated with reference to problems which have only presented themselves within the last few years. The Romans, in the passage quoted, were thinking not of aerial space, but of the element which [065]fills it. The old English lawyers were preoccupied with questions as to projecting roofs and overhanging boughs of trees. The problems now raised are admittedly incapable of solution a priori, but the difference between the two schools of thinkers is instructive, as bearing upon the extent to which those who belong to one or the other school would incline towards measures of precaution against abuses of the novel art. This difference was well summed up at one of our meetings by Professor Westlake as follows: "Conservation et passage, comment combiner ces deux droits? Lequel des deux est la règle? Lequel l'exception? Pour le Rapporteur (M. Fauchille) c'est le droit de passage qui prime. Pour moi c'est le droit de conservation."
Sir,—Mr. Arthur Cohen has done good service by explaining that Great Britain has practically asserted the right of a State to absolute control of the airspace vertically above its territory. I may, however, perhaps be permitted to remark that he seems to have been misinformed when he states that the Institute of International Law has arrived at no decision upon the subject. The facts are as follows: The problems presented by the new art of aerostation have been under the consideration of the Institute since 1900, producing a large literature of reports, counter-reports, observations, and draft rules, to debates upon which no fewer than four sittings were devoted at the Madrid meeting in 1911. Wide differences of opinion then disclosed themselves as to territorial rights over the air, the radical opposition being between those members who, with M. Fauchille, the Reporter of the Committee, would presume in favour of freedom of aerial navigation, subject, as they would admit, to some measures of [066]territorial precaution, and those who, like the present writer ("il se proclame opposé au principe de la liberté de la navigation aérienne, et s'en tiendrait plutôt au principe cuius est solum, huius est usque ad coelum, en y apportant au besoin quelques restrictions," "Annuaire," p. 821), would subject all aerial access to the discretion of the territorial Power.
The discussion took place upon certain bases, and No. 3 of these was ultimately adopted, though only by 21 against 10 votes, to the following effect: "La circulation aérienne internationale est libre, sauf le droit pour les états sous-jacents de prendre certaines mesures à déterminer, en vue de leur sécurité et de celle des personnes et des biens de leur territoire."
The Institut then proceeded to deal with bases relating to a time of war, but was unable to make much progress with them in the time available. The debate upon the "Régime juridique des aérostats" was not resumed at Christiania in 1911, nor is it likely to be at Oxford "in the autumn of the present year," as Mr. Cohen has been led to suppose. Other arrangements were found to be necessary, at a meeting which took place a week ago between myself and the other members of our bureau.
ATTACK FROM THE AIR
THE ENFORCEMENT OF INTERNATIONAL LAW
Sir,—In his interesting and important address at the Royal United Service Institution, Colonel Jackson inquired: "Can any student of international law tell us definitely that such a thing as aerial attack on London is outside the rules; and, further, that there exists an authority by which the rules can be enforced?" As one of the students [067]to whom the Colonel appeals I should be glad to be allowed to reply to the first of his questions.
The "Geneva Convention" mentioned in the address has, of course, no bearing upon aerial dangers. The answer to the question is contained in the, now generally ratified, Hague Convention No. iv. of 1907. Art. 25 of the regulations annexed to this Convention runs as follows:
"It is forbidden to attack or to bombard by any means whatever (par quelque moyen que ce soit) towns, villages, habitations, or buildings which are not defended."
It clearly appears from the "Actes de la Conférence," e.g. T. i., pp. 106, 109, that the words which I have italicised were inserted in the article, deliberately and after considerable discussion, in order to render illegal any attack from the air upon undefended localities; among which I conceive that London would unquestionably be included.
I cannot venture to ask the hospitality of your columns for an adequate discussion of the gallant officer's second question, as to the binding force attributable to international law. Upon this I may, however, perhaps venture to refer him to some brief remarks, addressed to you a good many years ago, and now to be found at pp. 101 and 105 of the new edition of my "Letters to The Times upon War and Neutrality (1881-1918)."
ATTACK FROM THE AIR
THE RULES OF INTERNATIONAL LAW
Sir,—In reply to Colonel Jackson's inquiry as to any rule of international law bearing upon aerial attack upon London, I referred him to the, now generally accepted, prohibition of the "bombardment, by any means whatever, of towns, &c., which are not defended." This rule has [068]been growing into its present form ever since the Brussels Conference of 1874. The words italicised were added to it in 1907, to show that it applies to the action of aéronefs as well as to that of land batteries. It clearly prohibits any wanton bombardment, undertaken with no distinctly military object in view, and the prohibition is much more sweeping, for reasons not far to seek, than that imposed by Convention No. ix. of 1907 upon the treatment of coast towns by hostile fleets.
So far good; but further questions arise, as to which no diplomatically authoritative answers are as yet available; and I, for one, am not wise above that which is written. One asks, for instance, what places are prima facie "undefended." Can a "great centre of population" claim this character, although it contains barracks, stores, and bodies of troops? For the affirmative I can vouch only the authority of the Institut de Droit International, which in 1896, in the course of the discussion of a draft prepared by General Den Beer Pourtugael and myself, adopted a statement to that effect. A different view seems to be taken in the German Kriegsbrauch, p. 22. One also asks: Under what circumstances does a place, prima facie, "undefended," cease to possess that character? Doubtless so soon as access to it is forcibly denied to the land forces of the enemy; hardly, to borrow an illustration from Colonel Jackson's letter of Thursday last, should the place merely decline to submit to the dictation of two men in an aeroplane.
I read with great pleasure the colonel's warning, addressed to the United Service Institution, and am as little desirous as he is that London should rely for protection upon The Hague article, ambiguous as I have confessed it to be; trusting, indeed, that our capital may be enabled so to act at once in case of danger as wholly to forfeit such claim as it may in ordinary times possess to be considered an "undefended" town. Let the principle [069]involved in Art. 25 be carried into much further detail, should that be found feasible, but, in the meantime, let us not for a moment relax our preparation of vertical firing guns and defensive aeroplanes.
The war of 1914 has definitely established the employment of aircraft for hostile purposes, and, as evidenced by the reception given by belligerents to neutral protests, the sovereignty of a state over its superincumbent air-spaces.
On the bombardment of undefended places, cf. supra, pp. 30, 62, 67, 68; infra, pp. 97, 109, 112-123.
On the authority of International Law, supra, pp. 25, 66, 67; infra, pp. 77, 114, 115, 137, 169.
SECTION 5
Submarines
Sir,—One excuse for German atrocities put forward, as you report, in the Kolnische Zeitung, ought probably not to pass unnoticed, denying, as it does, any binding authority to the restrictions imposed upon the conduct of warfare, on land or at sea, by The Hague Conventions of 1907. It is true that each of these Conventions contains an article to the effect that its provisions "are applicable only between the contracting Powers, and only if all the belligerents are parties to the Convention." It is also true that three of the belligerents in the world-war now raging—namely, Serbia, Montenegro, and, recently, Turkey—although they have (through their delegates) signed these Conventions, have not yet ratified them. Therefore, urges the Zeitung, the Conventions are, for present purposes, waste paper. The argument is as technically correct as [070]its application would be unreasonable; and I should like to recall the fact that, in the important prize case of the Möwe, Sir Samuel Evans, in a considered judgment, pointed out the undesirability of refusing application to the maritime conventions because they had not been ratified by Montenegro, which has no navy, or by Serbia, which has no seaboard; and accordingly, even after Turkey, which also has not ratified, had become a belligerent, declined to deprive a German shipowner of an indulgence to which he was entitled under the Sixth Hague Convention.
Admiral von Tirpitz was perhaps not serious when he intimated to the representative of the United Press of America that German submarines might be instructed to torpedo all trading vessels of the Allies which approach the British coasts. The first duty of a ship of war which proposes to sink an enemy vessel is admittedly, before so doing, to provide for the safety of all its occupants, which (except in certain rare eventualities) can only be secured by their being taken on board of the warship. A submarine has obviously no space to spare for such an addition to its own staff.