435. Rules Respecting Enemy Character Adopted by the London Conference of 1909. - The London Naval Conference which met in 1908-1909 discussed this subject at length, but was unable to come to any agreement beyond these general rules:

"Subject to the provisions 59 respecting transfer of flag, the neutral or enemy character of a vessel is determined by the flag which she has the right to fly.

"The case where a neutral vessel is engaged in a trade which is reserved in time of peace, remains outside the scope of, and is in no wise affected by, this rule (Art. 57).” 60

"The neutral or enemy character of goods found on board an enemy vessel is determined by the neutral or enemy character of the owner (Art. 58)." 61

when actual steps are taken bona fide to abandon such domicile for a different one sine animo revertendi.

"2. This principle applies equally to the cases of an individual, a partnership, or a corporation, residence in the two latter cases being understood to mean the place whence the business is controlled.

"3. In the case of a partnership where one or more of the partners is domiciled in enemy territory, property not liable to be seized as enemy property on other grounds, is presumed to be divided proportionally between the partners, and the share attributed to a partner domiciled in enemy territory is deemed to be enemy property." Parliamentary Blue Book, Miscel., No. 4 (1909), p. 11.

Much of the law of domicile as applied to maritime capture is or should be regarded as obsolete. It is based upon the antiquated conception of war as a hostile relation between individuals as well as States, and an exaggerated idea of the importance of the capture of property which might possibly increase the enemy's It is an illiberal and complicated system -a travesty upon justice supported by legal casuistry. Besides, it is a weak and ineffective weapon of warfare, and has, therefore, no military justification.

resources.

At the London Conference of 1909, all the great maritime Powers (including Great Britain) finally ranged themselves on the side of the principle of nationality (with the exception practically of the United States), thus leaving us in the unenviable position of sole champion of this survival of Toryism in International Law. 59 See infra, § 436.

60 D. L. (Declaration of London), Art. 57. The first paragraph embodies a recognized principle of International Law. See supra, § 207. The second refers to the famous Rule of 1756, usually regarded as obsolete. See supra, § 65 n.

For the text of these rules and the official Report to the Conference, see Higgins, 560-561; and Int. Law Topics of the Naval War College (1910), 130 ff.

"Article 57 safeguards the provisions respecting transfer of flag, as to which it is sufficient to refer to Articles 55 and 56 (see infra, § 436); it might be that a vessel would really have the right to fly a neutral flag, from the point of view of the law of the country to which she claims to belong, but may be regarded as an enemy by a belligerent, because the transfer in virtue of whch she has hoisted the neutral flag, is annulled by Article 55 or by Article 56." Report, op. cit.

61 D. L., 58. But what is to determine the neutral or enemy character of the

"If the neutral character of goods found on board an enemy vessel is not proven, they are presumed to be enemy goods (Art. 59)."

1962

The enemy character of goods on board an enemy vessel continues until they reach their destination, notwithstanding an intervening transfer after the opening of hostilities while the goods are being forwarded.

"If, however, prior to the capture, a former neutral owner exercises, on the bankruptcy of a present enemy owner, a legal right to recover the goods, they regain their neutral character (Art. 60)."

19 63

"The transfer of an enemy

436. Transfer to Neutral Flag. vessel to a neutral flag, effected before the opening of hostilities, is valid, unless it is proved that such transfer was made in order to evade the consequences which the enemy character of the vessel would involve. There is, however, a presumption that the transfer is void if the bill of sale is not on board a vessel which has lost her belligerent nationality less than sixty days before the opening of hostilities. Proof to the contrary is admitted.

There is absolute presumption of the validity of a transfer effected more than thirty days before the opening of hostilities if it is absolute, complete, and conforms to the laws of the countries concerned, and if its effect is such that the control of the vessel and the profits arising from her employment do not remain

owner? Is it domicile or nationality? It was found impossible to agree on this point, the maritime Powers being about equally divided.

An unsuccessful attempt was made to agree upon the following rules as a compromise:

"The neutral or enemy character of goods found on board an enemy vessel is determined by the neutral or enemy nationality of their owner, or, in case of lack of nationality or of double nationality (neutral or enemy) of the owner, by his domicile in a neutral or enemy country.

"The goods belonging to a limited liability or joint stock company are, however, considered as neutral or enemy according as the company has its headquarters in a neutral or enemy country."

2 D. L., 59. "Art. 59 enunciates the traditional rule according to which goods found on board an enemy vessel are, failing proof to the contrary, presumed to be enemy goods; this is merely a simple presumption, leaving to the claimant (not only) the right, but (also) the burden, of proving his rights." Report on the Declaration of London, in Higgins, 605; or in Int. Law Topics (1910), 135.

D. L., 60. "This provision contemplates the case where goods which were enemy property at the time of departure have been the subject of a sale or transfer during the course of the voyage. ." Report, op cit.

in the same hands as before the transfer. If, however, the vessel lost her belligerent nationality less than sixty days before the opening of hostilities, and if the bill of sale is not on board, the capture of the vessel would give no right to damages (Art. 55)." 64

The transfer of an enemy vessel to a neutral flag, effected after the opening of hostilities, is void unless it is proved that such transfer was not made in order to evade the consequences which the enemy character of the vessel would involve.

"There is, however, absolute presumption that a transfer is void :

"(1) If the transfer has been made during a voyage or in a blockade port.

"(2) If there is a right of redemption or recovery.

(3) If the requirements upon which the right to fly the flag depends according to the laws of the country under which the vessel is sailing, have not been observed (Art. 56).” 65

*

BIBLIOGRAPHY

Enemy Character. Bentwich, The Declaration of London (1911), chs. 5-6; Ibid., War and Private Property, 79-81, 142-147; *De Boeck, Nos. 159-190; Bordwell, 215-221; 4 Calvo, §8 1932-1952; 2 Despagnet, Nos. 636-649; *Dupuis (1899), Nos. 92-129; Ibid., (1911), ch. 4; 3 Fiore, Nos. 1432-1436; Geffcken, in 4 Holtzendorff, 581-588; *Hall, Pt. III, ch. 6; *Latifi, ch. 3; Lawrence, Pt. III, ch. 2; 7 Moore, Digest, §§ 1189-1194; *Nys, in 39 R. D. I. (1907), 149 ff.; 2 Oppenheim, §§ 87-92; 3 Phillimore, §§ 84-86; 2 Piédelièvre, Nos. 1117-1125; 8 P.-Fodéré, Nos. 3166 f.; Taylor, §§ 468 and 517; Twiss, §§ 152-162; Walker, §§ 39-43; *2 Westlake, 140-154; Wheaton, §§ 324-341; *Int. Law Topics (1906), 22-24; Ibid. (1910), 108 ff.

Laws of Maritime Warfare generally (besides the general treatises). Atherley-Jones, Commerce in War (1907); Azuni, Le droit maritime de

64 D. L., 55. For a good commentary on this article, see Report, etc., in Higgins, 600 f.; or Int. Law Topics (1909), 123 f. See also Bentwich, The Dec. of London (1911), 104-107.

65 D. L., 56. See commentaries op. cit. These rules apply to vessels.

It is a principle of Anglo-American Law that, in time of war or in contemplation thereof, goods shipped on account of the consignee are regarded as his goods from the time of shipment, and he cannot divest himself of this risk by special agreement. The Packet De Bilboa (1799), 2 C. Rob. 133, and Scott, 609. But it seems that the French rule permits the shipper to take such risk. Les Trois Frères, Pistoye et Duverdy, 357, and Snow, 348.

For leading cases on the Ownership and Transfer of Goods in Transit, see Scott, 607-628; or Snow, 339–355.

l'Europe (1790); Bardas, Das öffentliche Seerecht Ostereichs (1909); Bentwich, War and Private Property (1907); * De Boeck, De la proprieté privée ennemie (1882); Bowles, The Declaration of Paris of 1856 (1900); Ibid., Sea Law and Sea Power (1910); * Boyens-Lewis, Das deutsche Seerecht (1897 and 1901 in 2 vols.); * Cauchy, Le droit mar. int. (1862) in 2 vols.; De Cussy, Phases et causes célèbres de droit maritime (1856); Desjardins, Le droit commercial maritime (1898); *Dupuis, Le droit de la guerre maritime d'après les doctrines anglaises (1899); Ibid., Le droit de la guerre maritime, etc. (1911); Funck-Brentano, in 1 R. D. I. P. (1894), 325 ff.; Geffcken, in 20 R. D. I., 451 ff.; Gessner, in 10 R. D. I., 489 ff.; Glass, Maritime Int. Law (1885); *Hautefeuille, Histoire des origenes, etc. (1869); Ibid., Questions de droit maritime int. (1861); Holland, Manual of (British) Prize Law (1888); Latifi, Effects of War on Property (1909); Leroy, La guerre mar. (1900); Lorimer, in 7 R. D. I., 261-268; Mahan, The Influence of Sea Power on History, passim; Ibid., The Influence of Sea Power upon the French Revolution and Empire (1892), passim; Ibid., Sea Power and the War of 1812 (1905), passim; Nys, La guerre maritime (1881); Ibid., in 7 R. D. I. (1875), passim; *Ortolan, Règles int. et diplomatie de la mer (1864); * Perels, Manuel de droit mar. int. (1884); Ibid., Das int. öffent. Seerecht der Gegenwart (2nd ed., 1903); Pillet, in 5 R. D. I. P. (1898), 444 ff.; Ibid., Les lois actuelles de la guerre (2d ed., 1903); Rosse, Guide int. du commandant de bâtiment de guerre (1891); Stockton's (U. S.), Naval War Code (1900); Testa, Le droit int. mar. (1886); Twiss, in 16 R. D. I. (1884), 113 ff.

*

For fuller bibliographies, see De Boeck, Bonfils, Olivart, etc. For Bibliographies on particular topics, see footnotes to this chapter, passim. For bibliography on prize law, see infra, p. 532. For references on the London Naval War Conference of 1909, see supra, p. 86.

CHAPTER XXVIII

AERIAL WARFARE

RECENT inventions in modes of aërial transportation and communication, notably by means of the aëroplane, dirigible balloons, and wireless telegraphy, make it seem necessary (or at least desirable) to deal separately with aërial warfare.

437. Few Positive Rules of Aërial Warfare. -Very few positive rules or principles of International Law applicable to this field of future warfare have been thus far developed. The rules are largely inferential and speculative in their character, and are based upon generally recognized principles or analogous practices in land or naval warfare.

438. The Hague Declaration.-Many of the States represented at the Second Hague Peace Conference of 1907 agreed 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." But this "Declaration" was only signed by twenty-seven States, and the Signatories did not include four of the great maritime Powers. It cannot, therefore, be regarded as an integral part of International Law.

439. The Hague Regulations. (a) As to Bombardment. The only positive rule of International Law bearing directly on the subject of aërial warfare which is based upon convention is found in the Hague Regulations respecting the Laws and Customs of War on Land:

1 Cf. the Law of Aerial Space in Time of Peace, supra, ch. 15. 21 H. D. (1907). Higgins, 485-491. See select Bibliography, Ibid., p. 488. 3 Viz. Germany, Italy, Russia, and Japan. The remaining non-Signatory Powers were Chile, Denmark, Spain, Guatemala, Mexico, Montenegro, Nicaragua (which has since adhered), Paraguay, Roumania, Servia, Sweden, and Venezuela. It should be noted that the United States was among the Signatories.