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 pa.s.sed in Committee, and to the recital of the Convention, which sets out the propriety of extending to naval bombardments the principles of the _Reglement_ (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 a.n.a.logous 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 j.a.pan, abstained from voting. The j.a.panese 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 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.
I am, Sir, your obedient servant, T. E. HOLLAND.
Oxford, August 3 (1909).
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 trespa.s.s under suspicious circ.u.mstances, has been pa.s.sed 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 Inst.i.tut de Droit International. The Inst.i.tut has had the topic under consideration ever since 1900, more especially at 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 doc.u.ments 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 Inst.i.tut, which will this year be held at Oxford. No success has attended efforts to pa.s.s resolutions in favour of any interference with the employment of _aeronefs_ 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 Inst.i.tut 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 pa.s.sage. 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 s.p.a.ce.
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 pa.s.sage quoted, were thinking not of aerial s.p.a.ce, but of the element which 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 pa.s.sage, comment combiner ces deux droits? Lequel des deux est la regle? Lequel l"exception? Pour le Rapporteur (M. Fauchille) c"est le droit de pa.s.sage qui prime. Pour moi c"est le droit de conservation."
I am, Sir, your obedient servant, T. E. HOLLAND.
Oxford, February 15 (1913).
SOVEREIGNTY OVER THE AIR
Sir,--Mr. Arthur Cohen has done good service by explaining that Great Britain has practically a.s.serted the right of a State to absolute control of the airs.p.a.ce vertically above its territory. I may, however, perhaps be permitted to remark that he seems to have been misinformed when he states that the Inst.i.tute 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 Inst.i.tute 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 territorial precaution, and those who, like the present writer ("il se proclame oppose au principe de la liberte de la navigation aerienne, et s"en tiendrait[A] plutot 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 aerienne internationale est libre, sauf le droit pour les etats sous-jacents de prendre certaines mesures a determiner, en vue de leur securite et de celle des personnes et des biens de leur territoire."
The Inst.i.tut 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 "Regime juridique des aerostats" 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_.
I am, Sir, your obedient servant, T. E. HOLLAND.
Oxford, May 30 (1913).
ATTACK FROM THE AIR
THE ENFORCEMENT OF INTERNATIONAL LAW
Sir,--In his interesting and important address at the Royal United Service Inst.i.tution, 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 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 Conference," 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)."
I am, Sir, your obedient servant, T. E. HOLLAND.
Oxford, April 24 (1914).
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 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 _aeronefs_ 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 Inst.i.tut 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 circ.u.mstances 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 ill.u.s.tration 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 Inst.i.tution, 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 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.
I am, Sir, your obedient servant, T. E. HOLLAND.
Oxford, May 2 (1914).
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 superinc.u.mbent air-s.p.a.ces.
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_
GERMANY AND THE HAGUE
Sir,--One excuse for German atrocities put forward, as you report, in the _Kolnische Zeitung_, ought probably not to pa.s.s 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 its application would be unreasonable; and I should like to recall the fact that, in the important prize case of the _Mowe_, 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 ent.i.tled 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 s.p.a.ce to spare for such an addition to its own staff.
I am, Sir, your obedient servant, T. E. HOLLAND.
Oxford, December 26 (1914).