INTERNATIONAL LAW AND PEACE 63 



A suggestion has been made, and seems to have obtained considerable support 

 among French jurists, that there is a distinction between freedom of the air and freedom 

 of passage through the air, that all the progress and development of aviation requires is 

 freedom of passage and that there is no need to lay down any principle as to freedom of 

 the air in connection with aviation. This, however, is a mere theoretical distinction, 

 and facts are settling the matter for themselves. As it is only when comparatively near 

 to earth that the flight of aviators can be controlled by any police, no effort seems as yet 

 to have been made to impose regulations exceeding what it is practically within their 

 power to enforce. Very serious matters will, nevertheless, some day arise out of aviation 

 in time of peace. The more important have been summed up by Mr. Leech as follows : 



(a) Provision for the collection of customs dues, and for the prevention of smuggling; 

 (b) . Prevention of the landing of persons suffering from infectious diseases; 



(c) Prevention of the importation of undesirable aliens; 



(d) Prevention of the inspection from airships, and of the sketching and photographing 

 of forts, arsenals and Government stores and buildings. 



(e) Special precautions against the operations of anarchists, bomb-throwers, and other 

 such persons, and prevention of the importation oi dynamite and other dangerous explosives. 



The questions arising out of the use of air-vessels in time of war are still more serious. 

 At the Hague Conference of 1899 the following declaration was adopted: 



"The Contracting Powers agree to prohibit, for five years, the discharge of projectiles 

 and explosives from balloons, or by other new methods of a similar nature. The present 

 Declaration is only binding on the Contracting Powers in case of war between two or 

 more of them. It shall cease to be binding from the time when in a war between the Con- 

 tracting Powers, one of the belligerents is joined by a non-Contracting Power." 



Only Great Britain did not ratify it, but on expiry of five years it ceased to be 

 operative. At the Conference of 1907, however, it was renewed till the close of the next 

 Conference. This time only Great Britain and the United States, among the Great 

 Powers, ratified it, and in fact ample use was made of aeroplanes for bomb-dropping 

 during the Turco-Italian war. At present, therefore, aviation in wartime is subject 

 only to the general provisions of warfare as laid down by the Hague Military Conven- 

 tions and such general principles of International Law as states choose to respect. 



VI. Arbitration. 



Those who regarded the new Arbitration treaties as heralding the ever wider adop- 

 tion of judicial methods in the settlement of serious differences between states must 

 have been disappointed by the course of recent events. In February 1904 the Russo- 

 Japanese war broke out; in 1905 came the Franco-German crisis over the Morocco 

 question; in 1907 began the Russian intervention in Persia; in 1910 came the French 

 intervention in Morocco; in 1911 a fresh Franco-German crisis coupled with serious 

 Anglo-German friction; in the same year began a war between Italy and Turkey, and in 

 1912 the Balkan war. In none of these cases of violence, potential or actual, was any 

 attempt at a solution of the difficulties by arbitration even suggested by any Power. 



This is not, however, imputable to ill-will towards arbitration on the part of Europe- 

 an Foreign Offices alone. It would have been difficult to submit any of the cases in 

 question to adjudication by a tribunal for the application of " justice," and no rules but 

 those of justice have yet been devised for the decision of cases between states. Really 

 dangerous difficulties with few exceptions have thus far involved considerations which 

 have no reference to the moral principles governing the private life of civilised mankind. 

 Thus, it is difficult to see how a court of arbitration could deal with a claim based on a 

 preponderating interest, with the invasion of a neighbouring state on the ground that it 

 was not properly governed, or with a claim to colonial territory by a state which had 

 too little against another which had more than it could employ. 



On the other hand, the cases which have been tried by the Hague Court have pro 

 tanto removed causes of friction past and possible, as well as causes which might have 

 been fanned into greater importance by difficulties of direct settlement. 



