"The attack or bombardment, by any means whatever, of towns, villages, habitations, or buildings which are not defended is forbidden (Art. 25)." 4

440. (b) On Wireless Telegraphy. But the following rules may be said to bear indirectly on the subject:

"Belligerents are also forbidden: (a) To erect on the territory of a neutral Power a wireless telegraphy station, or any apparatus intended to serve as a means of communication with belligerent forces on land or sea;

"(b) To use any installation of this kind established by them. before the war on the territory of a neutral Power for purely military purposes, and which has not been opened for the service of public messages (Art. 3)." 5

"A neutral Power is not bound to forbid or restrict, on behalf of belligerents, the use of telegraphic or telephonic cables or wireless telegraphy apparatus, whether belonging to it or to companies or private individuals (Art. 8)." 6

441. The Theater of Aërial Warfare. - Though there are no positive or 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 aërial warfare in the aërial 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 do not have the right of using the aërial space surrounding the territory of neutral States (including their marginal waters) for military purposes.

4 H. R. (1907), 25. Cf. supra, § 382.

'H. C. (1907), 3. This article was suggested by the experiences of the RussoJapanese War, when the Russians erected a receiving station at Chefoo in China for the purpose of communicating with Port Arthur by wireless telegraphy. See Hershey, 122, 124, 266-267; Higgins, 282-283, 291; Lawrence, War and Neutrality (2nd ed.), 213-220; and Scholtz, Drahtlose Telegraphie u. Neutralität, 13 ff.

Art. 5 of 5 H. C. also makes it obligatory upon neutrals not to permit such acts on its territory.

According to 13 H. C. (1907), 5, belligerents are particularly forbidden to "erect wireless telegraphy stations, etc." in neutral ports or waters. Cf. infra, § 461.

5 H. C., 8. Art. 9 adds: "Every restrictive or prohibitive measure taken by a neutral Power in regard to the matters referred to in Articles 7 and 8 must be applied impartially by it to the belligerents.

"The neutral Power shall see to it that the same obligation is observed by companies or private owners of telegraph or telephone cables or of wireless telegraphy apparatus."

442. Restrictions on Neutrals. It is also reasonably clear that belligerents have the right of forbidding or restricting the access to, or use of, the aërial space above belligerent territory by neutrals, if such restriction or prohibition is deemed necessary or desirable from a military standpoint. They have probably also the right to impose certain restrictions or prohibitions upon neutrals above the high seas within the zone or theater of military operations.8 They may impose appropriate penalties for the violation of these rules.

443. Some Doubtful Points. Whether the so-called innocent passage of public belligerent airships through neutral aërial 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. It is also doubtful whether the custom of maritime warfare permitting the capture and confiscation of unoffending private enemy property on enemy vessels applies to aërial warfare, or whether such property is exempt from seizure except for a purely military purpose, as in the case of warfare on land.10

444. Rights of Balloonists and Aëronauts. - Balloonists and others engaged in aërial 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

7 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, for attempts to enter a blockaded port, or for unneutral services. They are liable to the appropriate penalties prescribed in such cases.

8 "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, 323.

Total prohibition or abstention from such acts would be the preferable solution, as being more in accordance with the principles underlying the modern conception of neutral obligations. Cf. infra, § 445. The prohibition would not necessarily apply to private belligerent airships.

10 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 aërial warfare.

war; if killed, sick, or wounded, they should be dealt with in accordance with the provisions of the Hague and Geneva Conventions.12

BIBLIOGRAPHY

Aërial Warfare or The Law of Aërial Space in Time of War (with special reference to Balloons, Aëroplanes, and Wireless Telegraphy). - * Boiden, in 16 R. D. I. P. (1909), 261 ff.; *Bonfils (Fauchille), liv. IV, Nos. 1440, 1442-1448; *Fauchille, in 19 Annuaire, 55-67; Ibid., in 21 Annuaire, 76 ff.; Hearn, Airships in Peace and War (2nd ed., 1910); Kausen, Die Radiotelegraphie, etc. (1910), 75 ff.; Kebedgy, in 36 R. D. I. (1904), 445 ff.; Mérignhac, Les lois de la guerre sur terre (1903), 197 ff.; * Meyer, Die Luftschiffahrt 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. (1906), 58 ff.; Schneeli, Radiotelegraphie und Völkerrecht (1908), §§ 14-37; *Scholz, Drahtlose Telegraphie u Neutralität (1905); 1 Scott, The Hague Conferences, 649-654; Int. Law Situations (1907), 138 ff.; Ibid. (1911 and 1912).

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

11 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, 115 ff.; Lawrence, War and Neutrality (2nd ed.), 83 ff.; *1 Rey, 368 ff.; Int. Law Situations (1907), 159 ff.

The Hague Regulations (Arts. 13 and 29) include newspaper correspondents and reporters" among the army followers entitled to treatment of prisoners of war; and expressly exclude individuals in balloons to deliver dispatches, etc." from the category of spies. See supra, p. 398 n.

12 See supra, chs. 26 and 27, passim.

PART VI

THE LAW OF NEUTRALITY

CHAPTER XXIX

THE NATURE, HISTORICAL DEVELOPMENT, AND THE CHARACTERISTICS OR FUNDAMENTAL PRINCIPLES OF NEUTRALITY

445. Definition and Nature of Neutrality. Neutrality has been well defined as "the condition of those States which in time of war take no part in the contest, but continue pacific intercourse with the belligerents.' " 1 It consists in the total abstention from or absolute prohibition of certain acts (such as the sale of warships or the fitting and sending out of military expeditions to aid either belligerent), as well as the observance of a strict impartiality in all cases where indirect assistance or support is still permissible (such as coaling or repair of belligerent warships in neutral ports). It also involves the acquiescence in or tolerance of certain acts (such as the exercise of the rights of visit and search) by the belligerents.

446. Historical Development of Neutrality. - The Law of Neutrality can scarcely be said to have existed in anything like its modern form prior to the close of the eighteenth century.

1 Lawrence, Principles (4th ed.), p. 473. For various definitions of neutrality, see 4 Calvo, § 2491; and 8 P.-Fodéré, No. 3224.

2 "Neutrality does not consist in the mere impartial treatment of opposing belligerents, but in the entire abstinence from any direct assistance of either party in his warfare." Walker, Science, etc., 374.

3 In such cases a State is bound to use "due diligence" or the "means at its disposal" for the prevention of these acts.

The very idea of neutrality as a principle of public law or conduct appears to have been almost unknown to the nations of Antiquity and the peoples of the Middle Ages, at least prior to the publication of the Consolato del Mare in 1494; though, as Westlake (II, 161) observes, "the fact of neutrality" must be as old as war itself.

The theory of neutral rights and obligations was formulated by Bynkershoek, Hübner, De Martens, and Vattel in the eighteenth century, but it was first put into actual practice by the United States during the Washington administration."

Owing to the outrageous conduct of "Citizen" Genêt, a newly appointed French minister who arrived in the United States in April, 1893, in fitting out privateers and otherwise violating American neutrality, Jefferson, then Secretary of State, asserted that it is " the right of every nation to prohibit acts of sovereignty from being exercised by any other within its limits, and the duty of a neutral nation to prohibit such as would injure one of the warring Powers."7

Even Grotius devotes only one short chapter (lib. III, cap. 17) to those whom he calls medii. The gist of his impracticable doctrine is contained in a single sentence: "It is the duty of those who stand apart from a war to do nothing which may strengthen the side which has the worse cause or which may impede the motions of him who is carrying on a just war; and in a doubtful case, to act alike to both sides, in permitting transit, in supplying provisions, in not helping persons beseiged."

Bynkershoek (in 1737) called neutrals non hostes, though Nys (see 3 Droit int., 559-560, and 2 Etudes, 59) has traced the use of the term neutralité back to French edicts and treaties belonging to the close of the fifteenth century. It appears that the first publicist to use the word "neutrality" was Neumayr de Ramsla in $620.

In the seventeenth century some progress was made in the regulation of the exercise of the rights of visit and search, as also in the law governing captures for carriage of contraband and breach of blockade. But the territorial sovereignty of neutral waters was frequently violated, and it was still customary to permit the levy of troops on neutral soil.

The principle of territorial sovereignty was better respected in the eighteenth century; but it was still regarded as permissible for a State remaining neutral to furnish troops to a belligerent in accordance with a treaty obligation, and levies of troops on neutral soil apart from treaty stipulations were not severely condemned. "The First Armed Neutrality formed by Russia in 1780 to resist the maritime pretensions of England was an important step in this direction, but its principles were soon violated even by Russia. Cf. supra, § 65.

* M. Genêt granted commissions to American citizens who fitted out privateers manned with Americans in American ports for the purpose of preying on British commerce. He also set up Prize Courts (in connection with French Consulates in the United States) which proceeded to try and condemn British vessels captured by French cruisers. When remonstrated with, Genêt's conduct was marked by extreme insolence.

For the story of Genêt's controversy with the Washington administration, see any good history of the United States. See especially 4 Moore, § 639; and Dana, note 215 to Wheaton, 536 ff.

7

Jefferson to Genêt, June 5, 1793, 2 and 7 Moore's Digest, §§ 224 and 1295. In a communication to Mr. Morris, United States Minister to France, dated