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(a) Do existing rules of international law adequately cover new methods of attack or defense resulting from the introduction or development, since The Hague Conference of 1907, of new agencies of warfare?

(b) If not so, what changes in the existing rules ought to be adopted in consequence thereof as a part of the law of nations? II. That notices of appointment of the members of the commission shall, within three months after the adjournment of the present conference, be transmitted to the Government of the United States of America which after consultation with the powers concerned will fix the day and place for the meeting of the commission.

III. That the commission shall be at liberty to request assistance and advice from experts in international law and in land, naval, and aerial warfare.

IV. That the commission shall report its conclusions to each of the powers represented in its membership.

Those powers shall thereupon confer as to the acceptance of the report and the course to be followed to secure the consideration of its recommendations by the other civilized powers. (Ibid., p. 1640.)

It was also resolved by the conference:

That it is not the intention of the powers agreeing to the appointment of a commission to consider and report upon the rules of international law respecting new agencies of warfare that the commission shall review or report upon the rules or declarations relating to submarines or to the use of noxious gases and chemicals already adopted by the powers in this conference.

This last resolution left as the main problem for the commission of jurists that of aerial warfare, even though the treaty relating to the use of submarines and noxious gases was not ratified by all the powers.

Status of rules as to aircraft in peace.-The rules for the use of aircraft in time of peace have gradually developed with the progress of aviation. The convention for the regulation of aerial navigation, signed at Paris October 13, 1919, stated generally accepted principles for the time of peace, and by article 38 provided: "In case of war the provisions of the present convention shall not affect the freedom of action of the contracting states, either as belligerents or as neutrals." The first article

declared, however, that "the high contracting parties recognize that every power has complete and exclusive sovereignty in the air space above its territory." This being true in the time of peace would be unquestioned in the time of war.

World War practice.-During the World War states exercised the right to exclude aircraft altogether.

Switzerland made its position as a neutral clear in the ordinance of August 4, 1914:

17. As to aviation, attention will be given to what follows:

(a) Balloons and aircraft not belonging to the Swiss Army can not rise and navigate in the aerial space situated above our territory unless the persons ascending in the apparatus are furnished with a special authorization, delivered in the territory occupied by the army, by the commander of the army; in the rest of the country, by the Federal military department.

(b) The passage of all balloons and aircraft coming from abroad into our aerial space is forbidden. It will be opposed if necessary by all available means and these aircraft will be controlled whenever that appears advantageous.

(c) In case of the landing of foreign balloons or aircraft, their passengers will be conducted to the nearest superior military commander who will act according to his instructions. The apparatus and the articles which it contains ought, in any case, to be seized by the military authorities or the police. The Federal military department or the commander of the army will decide what ought to be done with the personnel and matériel of a balloon or aircraft coming into our territory through force majeure, and when there appears to be no reprehensible intention or negligence. (1916 N. W. C. Int. Law Topics, p. 73.)

The proclamation of the United States relating to the neutrality of the Panama Canal Zone, November 13, 1914, stated:

RULE 15. Aircraft of a belligerent power, public or private, are forbidden to descend or arise within the jurisdiction of the United States at the Canal Zone, or to pass through the air spaces above the lands and waters within said jurisdiction. (Ibid. p. 99.)

Aircraft on vessels of war.-It has been maintained that aircraft are analogous to the boats of a vessel of war, and may be used in transporting the personnel of the

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vessel of war to and from shore in the same manner that the ship's boats are used. This might be true in some cases if conditions were favorable, and sometimes also it might be possible to use aircraft from the deck of a vessel to fly to the neighborhood of a merchant vessel at sea. At present, however, such is not the purpose for which space is given up to aircraft on board a vessel of war, and such is not the reason for the careful training of aircraft personnel. There would be no sound military argument for carrying aircraft on vessels of war merely to take the place if conditions were favorable of the ship's boats.

Fuel and supplies.-It has long been admitted and is embodied in many conventions and proclamations that fuel and supplies may be afforded in a neutral port, but not more often than once in three months. XIII Hague Convention, rights and duties of neutral powers in maritime war, provided:

ART. 19. Belligerent ships of war can not revictual in neutral ports or roadsteads except to complete their normal peace supply. Similarly these vessels can take only sufficient fuel to enable them to reach the nearest port of their own country. They may, on the other hand, take the fuel necessary to fill up their bunkers properly so called, when in neutral countries which have adopted this method of determining the amount of fuel to be supplied.

If, in accordance with the law of the neutral power, ships are not supplied with coal until twenty-four hours after their arrival, the lawful duration of their stay is extended by twenty-four hours.

ART. 20. Belligerent ships of war which have taken fuel in a port of a neutral power can not within the succeeding three months replenish their supply in a port of the same power.

The United States in 1914 issued proclamations of neutrality containing the following provisions in regard to supplies and fuel:

No ship of war or privateer of a belligerent shall be permitted, while in any port, harbor, roadstead, or waters within the jurisdiction of the United States, to take in any supplies except provisions and such other things as may be requisite for the sub

sistence of her crew, and except so much coal only as may be sufficient to carry such vessel, if without any sail power, to the nearest port of her own country; or in case the vessel is rigged to go under sail, and may also be propelled by steam power, then with half the quantity of coal which she would be entitled to receive if dependent upon steam alone, and no coal shall be again supplied to any such ship of war or privateer in the same or any other port, harbor, roadstead, or waters of the United States, without special permission, until after the expiration of three months from the time when such coal may have been last supplied to her within the waters of the United States, unless such ship of war or privateer shall, since last thus supplied, have entered a port of the government to which she belongs. N. W. C. Int. Law Topics, p. 86.)

(1916

Fighting strength.-It had been well understood that repairs involving increase of fighting strength were not to be made in neutral ports. Before the World War, regulations and proclamations had made this evident. In the Danish royal order of December 20, 1912, concerning the neutrality of Denmark in case of war between foreign powers, it was stated, in article 5, a:

All repair relating to the fighting capacity of the vessel is prohibited. The authorities concerned indicate which repairs to be accomplished and when completed the vessel leaves as soon as possible.

CONCLUSION

While the rules in regard to the treatment of aircraft. and vessels bearing aircraft have not been fully agreed upon, it may be presumed that the general principles embodied in rules for the conduct of warfare will not be greatly modified. The application of accepted rules will necessarily be adapted to the changing methods and means of warfare. Neutrals will observe these rules when clearly set forth, and in absence of clear rules will probably apply for regulation of conduct of aircraft, parallel and analogous rules to those for the regulation of other means of transportation and observation. The use of a neutral port for the purpose of increasing the fighting strength of a vessel has been in general prohibited. The

transfer of aircraft in a neutral port from one vessel of war of X to another vessel of war of State X may be presumed to be to increase the fighting capacity of one of the vessels, and the same may be presumed in the transfer of aircraft fuel and parts.

SOLUTION

State Z may legally decline to permit within its jurisdiction the transfer of aircraft or of aircraft fuel or parts.