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Though there are no conventional rules bearing on the subject, it is clear from general principles or analogous customs of warfare at sea or on land that belligerents have the right of waging aerial warfare in the aerial space surrounding the ocean as well as in that above their own territory or above territory under their military occupation (including the marginal seas bordering on such territory). But they clearly do not have the right of using the aerial space surrounding the territory of neutral states (including their marginal waters) for military purposes.

It is also reasonably clear that belligerents have the right of forbidding or restricting the access to, or use of, the aerial space above belligerent territory by neutrals, if such restriction or prohibition is deemed necessary or desirable from a military standpoint.16 They have probably also the right to impose certain restrictions or prohibitions upon neutrals on the high seas within the zone or theatre of military operations.17 They may impose appropriate penalties for the violation of these rules.

Whether the so-called innocent passage of public belligerent airships through neutral aerial space or the utilization by such airships of neutral territory for such relatively innocent purposes as repairs, the procuring of necessary supplies, etc., is permissible, may be considered doubtful.18 It is also doubtful whether the custom of maritime warfare permitting the capture and confiscation of unoffending

16 According to the Declaration of London (Art. 24), "wireless telegraphy, as also balloons and flying machines and their distinctive component parts, together with accessories and articles recognizable as intended for use in connection with balloons and flying machines " may be declared conditional contraband.

Neutral airships would appear to be subject to the rights of visit and search, and liable to capture for carriage of contraband, attempt to enter a blockaded port, or unneutral service. They are liable to the appropriate penalties prescribed in such cases.

17" Belligerents may prevent the emission of waves, even by a neutral subject, upon the high sea within the zone which corresponds to the sphere of action of their military operations." Art. 6 of the Regulations on Wireless Telegraphy adopted by the Institute of International Law in 1906. 21 Annuaire, 328.

18 Total prohibition of or abstention from such acts would be the preferable solution, as being more in accordance with the principles underlying the modern conception of neutral obligation. The prohibition would not necessarily apply to private belligerent airships.

private enemy property on enemy vessels applies to aerial warfare, or whether such property is exempt from seizure except for a purely military purpose, as in the case of warfare on hand. 19

Balloonists and others engaged in aerial warfare, at least if properly enrolled and uniformed, are entitled to all the rights and privileges of lawful combatants. If captured, they should be treated as prisoners of war; 20 if found killed, sick, or wounded, they should be dealt with in accordance with the provisions of the Hague and Geneva Conventions.21

AMOS S. HERSHEY.

19 Here again the rules governing land warfare should be preferred. The practice of pillage or the taking of booty in maritime warfare is a mere historic survival with no real justification on military grounds. There seems to be no good reason for applying it to aerial warfare.

20 These statements appear necessary in view of a disposition shown in some quarters to treat them as spies upon several occasions.

During the Franco-German War of 1870, Prince Bismarck threatened to treat balloonists crossing the German lines as spies. See 1 Guelle, 136.

Early in 1904 Admiral Alexieff also threatened to treat as spies correspondents on board neutral vessels "who may communicate news to the enemy by means of improved apparatus not yet provided for by existing conventions," in case any such "should be arrested off Kwan-tung or within the zone of operations of the Russian fleet." This declaration, which was communicated to the Powers by the Russian Government, was provoked by the presence in the Gulf of Pe-chi-li and adjacent waters near Port Arthur of Mr. Fraser, a London Times' war correspondent on board the Chinese dispatch boat Haimun equipped with wireless telegraphy apparatus. His dispatches were sent to a neutral station at the British port of Wei-hai-wei, whence they were transmitted to London.

On the case of the Haimun, see especially: Fraser, A Modern Campaign (1905); Hershey, The Int. Law and Diplomacy of the Russo-Japanese War, 115 ff.; Lawrence, War and Neutrality (2d ed.), 83 ff.; 1 Rey, La guerre-russo-japonaise, 368 ff.; and Int. Law Situations (1907), 159 ff.

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The Hague Regulations (Arts. 13 and 29) include " newspaper correspondents and reporters among the army followers entitled to treatment as prisoners of war; and expressly exclude individuals in balloons to deliver dispatches, etc.,"

from the category of spies.

21 On the Law of Aerial Space in Time of Peace, see Baldwin, in 4 this JOURNAL (1910), 94 ff.; Bluntschli, Art. 632 bis; Bonfils (Fauchille), Nos. 531, 1-10; Blachère, L'air voie et le droit (1911); Dupuis in 14 R. D. I. P. (1907), 373; Fauchille in 8 R. D. I. P. (1901), 414 ff. and 17 R. D. I. P. (1910), 55 ff.; Ibid., in 19 Annuaire (1902), 19-86; Ibid., in 21 Annuaire (1906), 76 ff.; Ibid., in 24 Annuaire (1911), 23 ff., 303 ff.; Gareis, in Münchner Neusten Nachrichten

(17 Feb., 1909), Nr. 39; Fleischmann, Grundgedanken eines Luftrechts (1910); Hazeltine, The Law of the Air (1911); Hilty in 19 Archiv des öffent. Rechts (1905), 87 ff.; Holtzendorff, in 2 Holtzendorff, 230; Grünwald, Das Luftschiff, etc. (1908); Ibid., in 24 Archiv Oeffent. Rechts, Heft 2 (1909), 190-201, & 477 ff.; Julliot, De la proprieté du domain aérien (1909); Jurisch, Grundzüge des Luftrechts (1897); Kausen, Die Radiotelegraphie im Völkerrecht (1910); Kenny, in 4 Zeitschrift (1910), 472 ff.; Kohler, in 4 Zeitschrift (1910), 588 ff.; Kuhn, in 4 this JOURNAL (1910), 109 ff.; Liszt (3d ed.), § 9, p. 76; Loubeye, Les principes du droit aérien (1911); Lyklama, Air Sovereignty (1910); Meili, Das drahtlose Telegraphie (1908); Ibid., Das Luftschiff, etc. (1908); Meurer, Lufftschiffahrtsrecht (1909); Ibid., in 16 R. D. I. P. (1909), 76 ff.; Meyer, Die Erschliessung des Luftraunes, etc. (1909); 2 Mérignhac, 398 ff.; 1 Nys, 523-32; Ibid., in 34 R. D. I P. 501 ff.; Ibid., in 19 Annuaire, 86–114; 1 Rivier, 140 f.; Rolland, in 13 R. D. I. P. (1906), 58 ff.; Schneeli, Radiotelegraphie und Völkerrecht (1908), §§ 7-13; Sperl, in 18 R. D. I. P. (1911), 473 ff.; Schroeder, Der Lutfflug, etc. (1911); Ullman (2d ed.), § 86, p. 289, and § 147, pp. 426-27; Wilson and Tucker, § 57; Wilhelm, in 18 J. I. D. (1891), 440 ff., 171 ff.; Wilson, Int. Law, §§ 30, 43; Ibid., in 5 Am. Pol. Sci. Rev. (1911), 171 ff. For fuller bibliographies, see Bonfils, Kausen, Meyer, Sperl, etc.

On Aerial Warfare, or the Law of Aerial Space in Time of War (with special reference to balloons, aeroplanes and wireless telegraphy), see: Boiden, in 16 R. D. I. P. (1909), 261 ff.; Bonfils-Fauchille, liv. IV, Nos. 1440, 2-8; Fauchille, in 19 Annuaire, 55–77; Idem., in 21 Annuaire, 76 ff.; Hearn, Airships in Peace and War (2d ed.), 1910; Kausen, Die Radiotelegraphie, etc. (1910), 75 ff.; Kebedgy, in 36 R. D. I. P. (1904), 445 ff.; Mérignhac, Les lois de la guerre sur terre (1903), 197 ff.; Meyer, Die Luftschiffart in Kriegsrechtlicher Bedeutung (1909); Phillipson, Two Studies in Int. Law (1908) 104 ff.; Philit, La guerre aérienne (1910); Rolland, in 13 R. D. I. P. (1908), 58 ff.; Schneeli, Radiotelegraphie und Völkerrecht (1908), 14-37; 1 Scott, The Hague Conferences, 649-54; Int. Law Situations (1907), 138 ff.; Scholz, Drahtlose Telegraphie u Neutralität (1905).

For fuller bibliographies, see Bonfils, Kausen, Meyer, etc.

RUSSIA'S LIABILITY IN TORT FOR PERSIA'S BREACH OF CONTRACT

On August 18/31, 1907, the Governments of Great Britain and Russia entered into the following agreement:

His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India, and His Majesty the Emperor of All the Russias, animated by the sincere desire to settle by mutual agreement different questions concerning the interest of their States on the Continent of Asia, have determined to conclude Agreements destined to prevent all cause of misunderstanding between Great Britain and Russia in regard to the questions referred to, and have nominated for this purpose their respective plenipotentiaries, to wit:

His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India, the Right Honourable Sir Arthur Nicolson, His Majesty's Ambassador Extraordinary and Plenipoteniary to His Majesty the Emperor of All the Russias;

His Majesty the Emperor of All the Russias, the Master of his Court Alexander Iswolsky, Minister for Foreign Affairs;

Who, having communicated to each other their full powers, found in good and due form, have agreed upon the following:

Arrangement concerning Persia.

The Governments of Great Britain and Russia having mutually engaged to respect the integrity and independence of Persia, and sincerely desiring the preservation of order throughout that country and its peaceful development, as well as the permanent establishment of equal advantages for the trade and industry of all other nations;

Considering that each of them has, for geographical and economic reasons, a special interest in the maintenance of peace and order in certain provinces of Russia adjoining, or in the neighborhood of, the Russian frontier on the one hand, and the frontiers of Afghanistan and Baluchistan on the other hand, and being desirous of avoiding all cause of conflict between their respective interests in the above mentioned Provinces of Persia:

Have agreed on the following terms.

I.

Great Britain engages not to seek for herself, and not to support in favour of British subjects, or in favour of the subjects of third Powers, any concessions of a political or commercial nature such as conces

sions for railways, banks, telegraphs, roads, transport, insurance, etc. beyond a line starting from Kasr-i-Shirin, passing through Isfahan, Yezd, Kakhk, and ending at a point on the Persian frontier at the intersection of the Russian and Afghan frontiers, and not to oppose, directly or indirectly, demands for similar concessions in this region which are supported by the Russian Government. It is understood that the abovementioned places are included in the region in which Great Britain engages not to seek the concessions referred to.

II.

Russia, on her part, engages not to seek for herself and not to support, in favour of Russian subjects, or in favour of the subjects of third Powers, any concessions of a political or commercial nature such as concessions for railways, banks, telegraphs, roads, transport, insurance, etc. beyond a line going from the Afghan frontier by way of Gazik, Birjand, Kirman, and ending at Bunder Abbas, and not to oppose, directly or indirectly, demands for similar concessions in this region which are supported by the British Government. It is understood that the above-mentioned places are included in the region in which Russia engages not to seek the concessions referred to.

III.

Russia, on her part, engages not to oppose, without previous arrangement with Great Britain, the grant of any concessions whatever to British subjects in the regions of Persia situated between the lines mentioned in Articles I and II.

Great Britain undertakes a similar arrangement as regards the grant of concessions to Russian subjects in the same regions of Persia.

All concessions existing at present in the regions indicated in Articles I and II are maintained.

IV.

It is understood that the revenues of all the Persian customs, with the exception of those of Farsistan, and of the Persian Gulf, revenues guaranteeing the amortization and the interest of the loans concluded by the Government of the Shah with the "Banque d'Escompte et des Prets de Perse" up to the date of the signature of the present arrangement, shall be devoted to the same purpose as in the past.

It is equally understood that the revenues of the Persian customs of Farsistan and of the Persian Gulf, as well as those of the fisheries on the Persian shore of the Caspian Sea and those of the posts and telegraphs,

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