law, for no remonstrances against the Japanese ordinances were filed. If it becomes necessary for a belligerent to assume maritime jurisdiction for a distance greater than a league from his coast in order to prevent espionage from marine vessels, there is no good reason why he should not assume jurisdiction over the air space for a distance of 12 miles (20 kilometers) further in order to prevent espionage from aircraft. The question of extending the seaward limit of aerial jurisdiction-general and special-is a matter of such importance to Powers within aerialcruising range of one another as to require consideration at the next Hague Conference.

Some writers have attempted to extend to aerial craft the laws of maritime warfare relating to the treatment of commercial vessels. Such attempts lead to impracticable results and unnecessary complications. In return for the privileges granted to belligerents in the way of preempting air spaces over the high seas for hostilities, they should not be permitted to interfere in any way with neutral aircraft outside of such spaces, except perhaps to exercise a right of approach with a view of determining belligerent or non-belligerent character. It is neither practicable nor worth while for aircraft to engage in contraband trade, render unneutral service, or break blockade. As for the first, the amount of cargo that can be carried is negligible, and freights would be prohibitive. No form of unneutral service of any value-short of actual participation in hostilities-can be rendered by an aircraft. The transmission of information or dispatches by neutral carriers has lost whatever importance it ever had. Belligerent aircraft are better fitted for the task than private aircraft; and mail steamers, submarine cables, telegraph lines, and radiotelegraphy offer still better facilities. The transportation of military persons by neutral aircraft on behalf of a belligerent would be as foolhardy as unnecessary under the conditions of modern warfare. The question has been debated as to whether, under the Declaration of London, a blockade can be effective unless the blockading fleet prevents access to the enemy coast by aircraft. There is no doubt that the delegates to the London Conference had in mind access by marine vessels only, and hence a prize court would probably hold that aerial access would not invalidate the blockade. However, no Power will in the future attempt a blockade unless one or more vessels carry hydro-aeroplanes

in sufficient number to punish attempts to enter the air space above the area of blockade.

It has been held that a private aircraft which is captured at sea, must be sent in with its personnel to a prize court for adjudication.15 This assumption is obviously based on the rule that all private property captured at sea by a belligerent war vessel must be adjudicated by a national prize court; but all precedents deal with the capture of marine vessels only, and the reason for the rule was the protection of innocent commerce. However, if there is any doubt as to what procedure should be followed, aircraft and their personnel should, by international convention, be specifically excluded from prize court jurisdiction, this for three reasons. First: Since no neutral commerce is involved, the question to be decided is whether or not there has been an intrusion by neutrals into belligerent operations at sea. Army tribunals deal with such questions on land, and there is no reason why naval tribunals cannot be entrusted with the same powers. Second: If captured neutral aeronauts believe they have been treated too severely, or that the capture took place beyond the limits of belligerent jurisdiction, the matter could be taken up by the neutral government concerned by diplomatic representation, or by presenting its claims to the Permanent Court of Arbitration at The Hague. Third: It is not, in general, practicable to send an aircraft into a prize court. In most cases, the craft will be wrecked when it falls into the hands of a naval force, and nothing can be done with it except to abandon it or stow the wreckage on a war vessel, where space is precious. If the craft is not wrecked, it will probably be beyond cruising distance of one of the belligerent's home ports. If it is within cruising distance, who will navigate it,—the captured personnel placed on their honor, or a prize crew of sailors unacquainted with aircraft in general, and foreign ones in particular? And finally there will be no "papers" for a court to pass on.

The attempt to carry into the air the laws of contraband, unneutral service, and blockade might lead to results detrimental to humanitarian interests. The rule that neutral vessels may render assistance to belligerents, without incurring any penalty beyond the condemnation of the property involved, is unfortunately entrenched in international law. 15 See International Law Situations, 1912, pp. 90-91.

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.

2 Ibid., Vol. 3, p. 184.

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