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It would be a step decidedly backwards to extend this rule to assistance rendered by neutral aircraft, for we have a better rule, viz., that an aircraft, which enters a belligerent air space, does so at its peril.

The following rules in regard to pre-empted air spaces above the high seas are suggested as a basis for discussion:

1. Belligerents are permitted to establish the following prohibited air spaces above the high seas: (a) for a distance of 20 kilometers from the coast line of belligerent territory; (b) for a distance of 20 kilometers from the seaward margin of a maritime or strategic area; (c) for a radius of 20 kilometers from the scene of a naval combat; and (d) above the area of operations of a blockade.

2. Neutral aircraft which enter prohibited air spaces do so at their peril. Any intruding craft may be fired upon after due warning, or captured. Liability to capture or attack does not extend beyond a prohibited air space and subjacent waters. A captured air craft may be confiscated and its personnel detained and punished according to the nature of their offense, unless it be shown that the aircraft entered the prohibited air space through ignorance, or was driven into it by stress of weather or by other form of vis major. In all cases of innocent intrusion, matériel will be restored as far as practicable, and all personnel will be liberated.

3. No neutral aircraft will be confiscated, nor will any personnel thereof be detained and punished, except by the judgment of a dulyconstituted naval tribunal.

4. Belligerents have no jurisdiction whatever over neutral aircraft outside of prohibited air spaces, except that they may exercise a right of approach for the purpose of determining nationality.

In conclusion, I desire to invite attention to two comprehensive principles which, I trust, have been established by this discussion. First: Owing to the fact that there is no international air commerce and that aircraft must be based on land, or exceptionally on marine vessels -the laws of neutrality have no application to aerial-maritime warfare; there are laws of war only. Second: If we regard pre-empted zones and air spaces at sea as belligerent domain,-which they are in fact for the nonce the laws of aerial-land and of aerial-maritime warfare are practically the same. WILMOT E. ELLIS.

THE DECLARATION OF LONDON OF FEBRUARY 26, 1909

Two projects for the creation of an international prize court were laid before the Second Hague Peace Conference on the same day (June 22, 1907) one by the German and one by the British delegation. The United States at the time and France later warmly approved the proposed institution, and a joint project in the nature of a compromise was drafted and presented to the Conference by the four Powers, which, after much debate, prolonged discussion, opposition on the part of some delegations and hesitation on the part of others, was adopted with some amendments by the Conference and forms what is known as the Convention Relative to the Establishment of an International Prize Court of October 18, 1907.1 Although signed by thirty-three Powers, the court contemplated by the convention has not been established by reason, it would seem, of objections raised by Great Britain to Article 7 of the convention, to remedy which a conference of leading maritime nations was called by Great Britain to agree upon important principles of law to be applied by the court, when constituted, in the decision of certain classes of prize cases. In this conference, known as the International Naval Conference, held at London from December 4, 1908, to February 26, 1909, representatives of Germany, the United States, AustriaHungary, France, Great Britain, Italy, Japan, The Netherlands, Russia, and Spain participated. An agreement, called the Declaration of London, dated February 26, 1909,2 upon the principles of law to be applied by the proposed court, in accordance with Article 7 of the original convention, was reached. Like the original convention, it was also in the nature of a compromise. It met with the approval of the British Government, for it was signed by the delegates of that government acting under instructions, as is the wont of diplomatic conferences, and it seemed at the time that it removed the objections to the ratification of the original

1 Printed in SUPPLEMENT to this JOURNAL, Vol. 2, p. 174.

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convention and to the establishment of the Prize Court in so far as Great Britain was concerned. The government considered it satisfactory and introduced a bill in both Houses of Parliament, modifying British practice in such a way as to meet the requirements of the Prize Court Convention, as modified by the Declaration of London. It passed the House of Commons, but failed in the House of Lords, owing to the unexpected, bitter and persistent opposition on the part of the public, so that the government has up to the spring of 1914 ratified neither the Hague Convention nor the Declaration of London. The signatories of the original convention and of the Declaration have waited, and are still waiting, for favorable action by Great Britain upon these two international documents, apparently unwilling to create the International Prize Court without the co-operation of Great Britain, and to bind themselves by the provisions of the Declaration framed by a conference called by Great Britain to meet British objections, unless it be ratified by Great Britain. The establishment of the Prize Court, therefore, is thus made to depend upon the action of Great Britain.

Partisans of the judicial settlement of international disputes are discouraged by the delay in creating the first international court in the technical sense of the work, and the friends of the Hague Conference are worried by the failure of Great Britain to pass the legislation necessary to establish the court, because various Powers, it would seem, hesitate to take part in a third conference at The Hague, which it has been expected would meet in 1915, until this important convention of the Second Conference has been carried into effect. In view of these circumstances it seems advisable to point out the objections raised to the original Prize Court Convention, to analyse the provisions of the Declaration of London, and to consider the reasons which militate against its acceptance by Great Britain, for the failure to ratify these instruments not only prevents the establishment of the proposed court, but blocks the Third Hague Conference.

OBJECTIONS TO THE INTERNATIONAL PRIZE COURT CONVENTION

Let us first consider the objections to the convention. It should be said that Great Britain was not the only country opposed to the convention in its original form. The United States shared to a considerable

degree the doubts and scruples of Great Britain as to Article 7, but not to the extent of making its modification a condition precedent to its acceptance. The American Government felt that it could ratify the convention notwithstanding its disapproval of Article 7, if Great Britain should do so. The objection of the United States was of a different nature and has fortunately been met by the Powers in a large and generous spirit, so that the United States stands ready to co-operate with them in the establishment of the court, whenever Great Britain is in a position to ratify the convention. The convention in its third article contemplates an appeal from the decisions of national courts in matters of prize to the proposed International Prize Court, with the result that a decision of the Supreme Court of the United States might be reversed on appeal. Many lawyers believed that this provision of the convention was inconsistent with the Constitution of the United States, which provides in Article III, Section 1, that "the judicial power of the United States shall be vested in one Supreme Court," and that an appeal in the strict and technical sense of the word to the International Prize Court would deprive the Supreme Court of its final authority in judicial matters. It may be said that the United States, while possessing power to pass upon questions of international law affecting it or its States, does not possess the power to decide finally questions of international law affecting foreign nations, its citizens or subjects, and that each nation possesses the same right as the United States to pass upon an international question affecting it. As no nation has renounced its right in favor of the United States, it is evident that the framers of the American Constitution could only invest the Supreme Court with the power to decide questions which the United States possessed as a member of the society of nations. While this is true in general, it is especially true in prize cases, which are international in character and are settled by international, not by municipal law. Indeed, the great Lord Stowell was accustomed to say that he administered international law, not the law of England, and he maintained the doctrine, truer in theory than in fact, that the Court of Admiralty which he graced for so many years, was an international, not a municipal court. But whether this be true or not, the fact is that foreign nations have always claimed and have constantly exercised the right to protest prize decisions and to have them finally

settled either by diplomacy or by mixed commissions or temporary tribunals, of which latter procedure a most successful instance was the commission between Great Britain and the United States, created by the seventh article of the Jay treaty of 1794. It has never been alleged that this commission sitting at London violated the Constitution of the United States, and it is difficult to see how a court in the settlement of similar cases and likewise sitting in a foreign country-Holland-can be unconstitutional merely because it is permanent instead of created for the special occasion. It may also be mentioned in this connection that the practice inaugurated by the Jay treaty has been generally followed; that the United States has frequently submitted to such commissions or tribunals upon the request of foreign nations, particularly of Great Britain, international questions decided by its Supreme Court to which objection.is taken by foreign nations, and that the awards of such commissions and tribunals, inconsistent with the decision of the Supreme Court, have been accepted and complied with by the United States. The proposed court, it would seem, is therefore not to be considered as a court in the national sense, or, at any rate, that it is not a court in the sense of the Constitution of the United States. A single example will make this clear. The case of the Circassian (2 Wallace, 135) decided by the Supreme Court of the United States in 1864, to the effect that a blockade is not raised by land occupation of the port was strenuously objected to by Great Britain, with the result that the question was submitted to the Anglo-American Mixed Claims Commission of 1872. The Commission, after considering the judgment of the court, decided in favor of the claimants, and the United States paid the award. practical purposes, this was an appeal from and a reversal of a judgment of the Supreme Court by a mixed commission, although, technically speaking, it may be said that only the question involved in the decision was submitted, not the decision itself, and that the judgment was not technically reversed,--a view apparently followed by the Supreme Court, in the case of the Adula (176 U. S., 361) arising out of the recent SpanishAmerican War.

34 Moore's Arbitrations, pp. 3911-3923.

For

• Foreign Relations of the United States, 1874, pp. 570-572; ibid., 1875, Pt. I, p. 655.

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