end to naval warfare. Absolute freedom of the seas, therefore, is largely incompatible with the existence of naval warfare. Under these circumstances naval powers can hardly be expected to surrender willingly their chief means of carrying on war. The reform of naval and land warfare must go hand in hand; it would obviously be discrimination to draw the teeth of strong naval powers and leave the great military powers free to employ the right of siege and other analogous weapons. It has been many times pointed out that a freedom of the seas which would exclude the right of blockade and the right to prevent the transportation of contraband to the enemy would have made difficult if not impossible the defeat of the Confederacy during the Civil war and it would probably have insured the triumph of Germany during the recent war.

The seas should, however, be free in the sense that no belligerent should be permitted to plant mines in them outside his own territorial waters, to assert control over portions of them under the guise of war zones, to blockade directly neutral ports, to conduct unlawful searches, to extend the doctrine of contraband beyond reasonable limits, or to interfere generally with the transportation of letter mail on neutral steamers.

$576. The Need of New Regulations. As has been stated above, the recent war demonstrated not only that many of the existing rules of international law are inadequate and to some extent out of harmony with present-day conditions, but that new rules have been made necessary largely in consequence of the invention of new instrumentalities and methods of warfare. Aside from the prohibition of the Hague convention in respect to the bombardment of undefended places, the conduct of aerial warfare is unregulated by convention; 2 and since the

1 Cf. Woolsey, Freedom of the Land and Freedom of the Sea, 28 Yale Law Journal, 153; Corbett, The League of Peace and a Free Sea; Baty, The Supposed Chaos in the Law of Nations, Penn. Law Review, June, 1915, p. 78; Fenwick, The Freedom of the Seas, 11 Amer. Pol. Sci. Review, 387; Coudert, Neutral Rights upon the Seas, Annals of the Amer. Acad. of Pol. and Soc. Sci., July, 1917, 58 ff; Anderson, Freedom of the Seas, ibid., pp. 65 ff.; Hurd, Freedom of the Seas, Fortnightly, 108 (New Ser. 102), pp. 685 ff.; Balfour, The Freedom of the Seas, London Weekly Times, May 26, 1916 (interview). Mr. Balfour observes that to "paralyze naval power and leave military power uncontrolled is surely the worst injury which international law can inflict upon mankind."

* The proposed convention for the regulation of international air navigation prepared by a subcommittee of the Peace Conference deals only partially with the conduct of aerial warfare, many questions raised during the late war not being touched upon at all.

NEED OF NEW RULES

461 late war was the first in which the air ship was employed as an instrument of combat, there is no body of customary law governing the conduct of this mode of warfare. The above-mentioned prohibition lays down no test for determining what constitutes defence. The test applied in land and naval warfare, namely the presence of troops, the existence of fortifications, and the like, is not a proper test in aerial warfare, and the matter should receive the attention of a future conference. The employment of air craft for dropping bombs on peaceful towns situated far behind the lines, whether they are defended in the sense of possessing fortifications or not, should be forbidden and aerial activities confined to the zone of military operations. There is no difference in principle between torpedoing a merchant vessel without warning and drowning the non-combatant crews and passengers and the indiscriminate dropping of bombs by air craft upon towns and villages inhabited only by non-combatants. The proposal made in the Institute of International Law in 1911 and seriously advocated by a large number of distinguished jurists to so restrict the use of air craft was one which should receive the careful consideration of the next conference. It seems quite illogical to ban the submarine and leave the aviator free to launch his bombs upon private houses and upon unoffending peaceful non-combatants hundreds of miles behind the battle lines.

The introduction and employment of the air ship on a large scale has also given rise to a host of questions involving the rights of neutrals, the more important of which have been referred to in Chapter XIX. There are as yet no international regulations dealing with these questions except in so far as the rules of land and naval warfare can be interpreted to apply to them. In view of the important part which the air ship seems destined to play in the wars of the future the adoption of a convention regulating the conduct of aerial warfare would seem to be one of the necessary tasks of the next conference.

The submarine torpedo boat, like the air ship, is largely a new instrument of warfare, and the conditions under which it may be employed should be precisely defined. Like the air ship, it is a lawful instrument only when it is employed against legitimate objects of attack. Its operations should be restricted by international convention and its employment for the sinking of merchant vessels should be absolutely forbidden.

The invention of other agencies of destruction, notably asphyxiating and poisonous gases, has provoked much discussion as to the means that may be employed by a belligerent for injurying his enemy. This latter question is an old one, one which has come to the front with the invention of every new instrumentality of destruction, and there is little likelihood that there will ever be an agreement as to what instruments are and what are not legitimate. The Hague convention deals to some extent with the means of injurying the enemy, but, as is so often the case with these conventions, the generality of the language employed leaves belligerents a large discretion. Most persons are agreed that if war cannot be conducted in a civilized manner it can at least and should be conducted with some regard to the principles of humanity. The progress of inventive science and the certainty that the wars of the future will be carried on by more powerful and destructive agencies than ever before known, make it important that the next conference should endeavor to define with more precision the means that may be employed against those whose unhappy lot it will be to participate actively in such wars.

Aside from the need of new regulations governing the employment of newly invented instrumentalities and agencies of destruction the existing rules of international law should be supplemented by regulations covering various matters now unregulated either by convention or custom. The right of reprisal so often resorted to or threatened during the late war is not touched upon by any of the international conventions. An effort should be made to define the acts for which resort to this doubtful expedient shall be recognized as legitimate and some limit set to the conduct of belligerents in the choice of the means they may adopt in carrying out their measures of reprisal. Likewise, the right of hostage-taking so greatly abused by the Germans during the late war is not dealt with by any of the international conventions. It should either be forbidden outright or the purposes for which hostages may be taken and the treatment to which they may be subjected should be precisely defined. The whole doctrine of military necessity should likewise be carefully considered and an effort made to define its limits. As interpreted by the Germans during the late war it virtually reduced the Hague conventions to a nullity.

NECESSITY OF INTERNATIONAL CONFERENCE 463

These conventions recognize that the law may be overridden whenever considerations of military necessity require it, but they make no attempt to define the term or set limits to the power of belligerents. As the law now stands therefore, belligerents are left largely to their own arbitrary discretion.

§ 577. Necessity of an International Conference. In respect to these and other matters the existing conventions are either silent, inadequate, or out of harmony with present-day conditions. There is hardly one of the Hague conventions that cannot be greatly improved in the light of the experience of the recent war. The whole body of international law needs thorough revision and amplification; so far as possible, its rules ought to be precisely stated and embodied in a written code and they should embrace not only regulations governing the conduct of war and the customary relations of peace, but in a larger degree also the whole domain of international commerce, trade, navigation, labor, finance, international waterways, and the like.1 To this end there should be assembled at as early a date as possible a conference representing the powers, to which should be sent as delegates their leading international jurists and statesmen for the purpose of carrying out this large and necessary task. Mr. Elihu Root has expressed regret that the covenant of the League of Nations does not mention international law at all except in its preamble and that "no method is provided and no purpose is expressed to insist upon obedience to law, to develop the law and to press forward agreement upon its rules and recognition of its obligations." Among the amendments which he proposed to the draft of the covenant was that the executive council should call a general conference to meet not less than two years not more than five years after the signing of the covenant, for the purpose of "reviewing the conditions of international law and of agreeing upon and stating in authoritative form the principles and rules thereof." He also suggested that regular conferences for this purpose should be held at stated times. This task may be said to be one of the

1 Cf. Alvarez, Le Droit International de l'Avenir, p. 126, and De Louter, La Crise du Droit International, 26 Rev. Gén. de Droit Int. Pub. (1919).

2 N. Y. Times, March 31, 1919. Lord Bryce also remarks that "the first duty of the allies is to call a conference for revising the laws and usages of war on land and sea." He suggests that the Hague conventions and the Declaration of London might form the basis of the revision; that the new international law should enumer

legacies left by the war and it should be entered upon at the earliest possible date and with the seriousness of purpose commensurate with the magnitude of its importance.

ate in more detail the acts which shall be forbidden and that appropriate penalties should be prescribed for the violations of the same. See his address on the "Outlook for International Law," Proceedings of the American Society of International Law, 1915.