_Aerial Warfare_
It may be desirable to supplement what is said in the following
letters by mentioning that the Declaration of 1899 (to remain
in force for five years) was largely ratified, though not by
Great Britain; that of 1907 (to remain in force till the
termination of the third Peace Conference) was ratified by
Great Britain and by most of the other great Powers in 1909,
not, however, by Germany or Austria; that aerial navigation is
regulated by the Acts, I & 2 Geo. 5, c. 4, and 2 & 3 Geo. 5, c.
22; and that an agreement upon the subject was entered into
between France and Germany, on July 26, 1913, by exchange of
notes, "en attendant la conclusion d'une convention sur cette
matière entre un plus grand nombre d'états" (the international
Conference held at Paris in 1910 had failed to agree upon the
terms of such a Convention); and that Art. 25 of The Hague
Convention of 1907, No. iv., was ratified by Great Britain, and
generally.
THE DEBATE ON AERONAUTICS
Sir,--It is not to be wondered at that the Chairman of Committees
declined to allow yesterday's debate on aviation to diverge into an
enquiry whether the Powers could be induced to prohibit, or limit, the
dropping of high explosives from aerial machines in war time. The
question is, however, one of great interest, and it may be desirable,
with a view to future discussions, to state precisely, since little
seems to be generally known upon the subject, what has already been
attempted in this direction.
In the _Règlement_ annexed to The Hague Convention of 1899, as to the
"Laws and Customs of War on Land," Art. 23, which specifically prohibits
certain "means of injuring the enemy," makes no mention of aerial
methods; but Art. 25, which prohibits "the bombardment of towns,
villages, habitations, or buildings, which are not defended," was
strengthened, when the _Règlement_ was reissued in 1907 as an annexe to
the, as yet not generally ratified, Hague Convention No. iv. of that
year, by the insertion, after the word "bombardment," of the words "by
any means whatever," with the expressed intention of including in the
prohibition the throwing of projectiles from balloons.
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 passed in Committee, and to the
recital of the Convention, which sets out the propriety of extending to
naval bombardments the principles of the _Règlement_ (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 analogous 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 Japan, abstained
from voting. The Japanese 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 trespass under suspicious
circumstances, has been passed 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
Institut de Droit International. The Institut 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 documents 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 Institut, which
will this year be held at Oxford. No success has attended efforts to
pass resolutions in favour of any interference with the employment of
_aéronefs_ 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 Institut 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 passage. 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
space.
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
passage quoted, were thinking not of aerial space, 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 passage, comment
combiner ces deux droits? Lequel des deux est la règle? Lequel
l'exception? Pour le Rapporteur (M. Fauchille) c'est le droit de passage
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 asserted the right of a State to absolute
control of the airspace vertically above its territory. I may, however,
perhaps be permitted to remark that he seems to have been misinformed
when he states that the Institute 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 Institute 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
opposé au principe de la liberté de la navigation aérienne, et s'en
tiendrait[A] plutôt 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 aérienne internationale est libre, sauf le droit
pour les états sous-jacents de prendre certaines mesures à déterminer,
en vue de leur sécurité et de celle des personnes et des biens de leur
territoire."
The Institut 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 "Régime juridique des aérostats" 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 Institution, 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 Conférence," 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 _aéronefs_ 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
Institut 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
circumstances 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
illustration 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 Institution, 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 superincumbent air-spaces.
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.
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