over the frontier by weather, it is to come down at once and report to the nearest military authority. In these circumstances extraterritorial advantages will be granted to the distressed aircraft, and it may not be detained." 1 Local laws as to aerial navigation, but not touching upon the subject of the jurisdiction of the general government, have been enacted by the States of Connecticut and Massachusetts. It is left for the general government to determine whether robbery in the air partakes of the nature of piracy or not. From the discussion upon the subject of sovereignty of the air engaged in by many European and American writers, there can be found three (3) distinct views given as enunciated by them: "1. That the air is free, reserving to subjacent states the right to adopt such measures as are necessary for municipal and private security." This is in substance the principle advocated by M. Fauchelle, adopted by the Institute of International Law in 1906 and 1911 and by the Comité Juridique International de l'Aviation in 1910. "2. That the state is sovereign over the superincumbent air, but there is a right of innocent passage." This is Professor Westlake's view, presented to the Institute of International Law, in 1906, at Ghent. "3. The state has exclusive jurisdiction over the aerial space above its territory." This principle is supported by Professor Wilson, Professor Zitelmann, Doctor H. D. Hazeltine in his "Law of the Air," and Doctor J. F. Lycklama in his “Air Sovereignty." 2 The writer inclines to the second view, given by the late Professor Westlake, which recognizes the analogy of the marine league or the territorial jurisdiction over marginal waters with its territorial control, but the usage of innocent passage in peace time and holding in reserve for war time the exercise of complete jurisdiction and supervision. As to the area of com 1 Blewett Lee, A. J. I. L., no. 3, vol. VII, p. 496. 2 Roy E. Curtis, A. J. I. L., vol. VIII, no. 2, p. 265. plete freedom and permissible war operations, this extends in time of peace to the air above the high seas and above the territory of the national owner of the air craft and in war time to the superincumbent air of the enemy. It is considered by military authorities of the United States that the act of Congress in regard to military secrets provides now for the exercise of its jurisdiction in the air above military works and fortifications. This matter of the sovereignty of the air, so jealously guarded by the great naval and military powers of Europe, can only be regulated in its international phases by international convention more or less general in extent. 165. Aerial Warfare as Affected by the Laws of War.The second Hague conference readopted Declaration I, concerning the discharge of projectiles and explosives from balloons, by which "the contracting powers agree to prohibit for a period extending to the close of the third peace conference the discharge of projectiles and explosives from balloons or by other new methods of a similar nature." 1 This declaration is, of course, only binding upon the contracting powers and only in case of a war between contracting belligerents. The declaration was signed by twenty-seven of the forty-four powers present, including the United States. The non-signatory powers include Germany, Spain, France, Italy, Japan, Mexico, Russia, and Sweden. Notwithstanding the progress of humanitarian methods, the development of aerial warfare will most probably prevent the renewal of this declaration after its expiration and allow its usage in most European wars at present. In Article 24 of the laws of war on land as adopted by the second Hague conference it is forbidden to attack or bombard, by any means whatever, towns, villages, habitations, and buildings which are not defended. This may be construed to be equally applicable to naval or military attacks. It is unlimited in its duration of time, and this convention has been 1 Higgins, "Peace Conferences," pp. 484-491. signed by all the powers except China, Spain, and Nicaragua. It can hardly be said to prevent an attack upon buildings undefended of themselves, but located within the limits of a defended town.1 In the same convention in the second paragraph of Article 29, on the subject of spies, it is provided that persons sent in balloons to deliver despatches and generally to maintain communication between the various parts of an army or a territory are not to be considered as spies. As to the use of balloons to obtain information such usage can properly be classed among scouting operations, and the operators should not be classed as spies, whether soldiers or civilians, as they do not come under the head of those persons who are acting clandestinely or on false pretences. If captured, such persons can be made prisoners of war. They are also in the same category as persons mentioned in Article 11 of the Convention X of the second Hague, who, when sick or wounded, shall be respected and tended by the captors.3 In Article No. 53 of Convention IV, in treating of the occupation of an enemy's country, it is stated that all appliances whether on land, at sea, or in the air, adapted for the transmission of news, or for the transport of persons or goods, apart from cases governed by maritime law, depots of arms, and, generally, all kinds of war material, may be seized, even though belonging to private persons, but they must be restored and indemnities for them regulated at the peace. 166. Wireless Telegraphy.-Wireless or radio-telegraphy has come into use and into warfare of late years as the Hertzian waves which it produces were only discovered in 1887. The present lack of control of the direction in which the waves may move differentiates the service from that of wire telegraphy and causes a weakness in transmitting and re 1 Higgins, "Hague Conferences," pp. 237 and 269, 270. Higgins, "Hague Conferences," p. 369. ceiving the Hertzian waves in that the information of military or naval matters can either be shared by those within reach and likewise interrupted or to an extent substituted. To this confusion is added a great diversity of systems in use, causing a need for governmental and international regulation. It is generally conceded that the right to legislate for wireless telegraphy is within the power and right of the state. The following references are made to wireless telegraphy in the adopted conventions of The Hague and London naval conferences. In Convention IV, giving the laws and customs of war on land, in the part treating of military authority over the territory of the hostile state, it is stated that "all appliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the transport of persons or goods, apart from cases governed by maritime law, depots of arms, and, generally, all kinds of war material, may be seized, even though belonging to private persons; but they must be restored and indemnities for them regulated at the peace." 1 Article 3 of Convention V of the second Hague Conference reads as follows: "Belligerents are also forbidden “(a) To erect on the territory of a neutral a wireless-telegraphy station or any apparatus intended to serve as a means of communication with belligerent forces on land or sea. "(b) To make any use of any installation of this kind established by them before the war on the territory of a neutral power for purely military purposes and not previously opened for the service of public messages." This article is the result of the experience of the RussoJapanese War. The Russians erected a wireless telegraphic station at Chifu on the Gulf of Pechili, on the opposite side of which Port Arthur, then under siege, was placed. By these means the forces of the garrison, though under a close siege by 'Higgins, "Hague Conferences," p. 251. 'Higgins, "Hague Peace Conferences," pp. 282, 291. sea and land, were enabled to keep up communication with their home government for military or other purposes.1 Neutrals, by Article 8 of the same convention, are not bound to forbid or restrict this use on behalf of belligerents; but if they do, the restriction must be applied impartially. In the declaration of London, under the head of contraband, it is declared in Article 24, Clause 7, that the following can be treated as conditional contraband: "material for telegraphs, wireless telegraphs, and telephones."2 In Article 45 of the declaration of London, the following references would include wireless-telegraph service. It calls for the condemnation of a neutral, as if the vessel carried contraband for unneutral service, if a neutral vessel is on a voyage specially undertaken with a view to the transmission of intelligence in the interest of the enemy. In Article 46 it is provided that a neutral vessel will be condemned, as if she were an enemy merchant vessel, if she is exclusively devoted at the time in the transmission of intelligence in the interest of the enemy. After a discussion upon wireless telegraphy at the United States Naval War College the following summary and conclusions were reached: 66 'From practice as shown in various states, from the opinion of the courts and of writers, from the votes of conferences, and from international agreements, it is evident that the state within whose jurisdiction a wireless-telegraph apparatus is or passes is and will be authorized to exercise a degree of control over its use. The responsibility resting upon such will be large." The general conclusions reached are: (a) A belligerent may regulate or prohibit the use of wireless telegraph within the area of hostilities. "(b) A neutral state should use reasonable care to prevent 1 T. J. Lawrence, "War and Neutrality in the Far East," p. 218. See Appendix IV, and Higgins, "Hague Conferences," pp. 593-6. |