der control, or would, if anchored, become harmless on breaking adrift. The laying of such mines was also prohibited when the sole purpose was to intercept commercial shipping. The convention also prohibited the use of torpedoes "which do not become harmless when they have missed the mark." The aim of this convention is to remove the dangers from peaceful navigation without unduly limiting belligerent operations. Neutral powers are also permitted to lay mines during war under restrictions. Provision is made for the removal of mines at the close of war. A large degree of freedom in matter of construction is allowed for a time, because states not having mines of the pattern contemplated in the convention are merely "to convert the material of their mines as soon as possible, so as to bring it into conformity with the foregoing requirements." 15 This convention has been widely criticised and was not wholly satisfactory to those who signed. Westlake says of the use of floating mines: "There is no certainty that floating mines, even if anchored at first, will not get loose, nor even much probability that a large percentage will not get loose. Thus the employment by a belligerent, even in his own territorial waters, or in those of his enemy, which merchantmen may be expected to avoid during war, of contact mines which do not become innocuous as soon as they get loose, is a cause, lying well within the limits of human foresight, of slaughter and damage to peaceable neutrals engaged in their lawful occupations in waters where they have a perfect right to be. During all the two years which have elapsed since the close of the Russo-Japanese War, the seas of the Far East have continued to be the scene of disasters which the employment of such mines in that contest has caused to peaceful shipping and fishermen. Now the right of a state in the waters subject to its sovereignty can certainly not rank higher than that of a private owner in the land or water which is his property. Still less, if possible, can the right of a state in the open sea, which is free to the use of all, rank higher than that of property. But no principle is more firmly established in the science of law than that which says to an owner, 'sic utere tuo ut 15 Id. p. 255, Hague Convention, 1907, Submarine Contact Mines. alienum non lædas.' The right of sovereignty, therefore, does not extend to employing anywhere what may be foreseen to be engines of slaughter and damage to unoffending foreigners. The foreign government whose subjects suffer from such engines does not need to inquire whether their use is prohibited by any positive rule of international law, whether resting on recognized custom or an agreement. They are indefensible in themselves, and the foreign government concerned will be justified, not only in taking up the cause of its injured subjects, but it will not have exceeded its rights if it interferes in order to stop the offending methods of war." 18 The belligerent action during the Russo-Japanese War emphasized the need of control of the use of submarine mines. The Chinese delegate at the Second Hague Convention reported that it was estimated that five hundred or six hundred Chinese had lost their lives by the sinking of many small Chinese vessels which had, in spite of all precautions and while innocently employed, run upon mines that were adrift.17 The Hague Convention Relative to the Laying of Automatic Contact Submarine Mines, of 1907, provides only in part for the regulation of this means of warfare. Many states are in favor of additional restrictions, particularly in order that neutral interests may be more effectively protected. SAME-DISCHARGE OF PROJECTILES AND EXPLOSIVES FROM BALLOONS. 140. The Second Hague Peace Conference prohibited "for a period extending to the close of the Third Conference, the discharge of projectiles and explosives from balloons or by other new methods of a similar nature.” This declaration in regard to the use of balloons and other new methods of warfare of similar nature is a renewal of the declaration to the same effect adopted by the First Peace Conference in 1899, to continue for a period of five years from July 29, 1899. The term, therefore, expired during the 16 Westlake, Int. Law, pt. II, War, p. 322. 173 La Deuxième Conférence, p. 663. Russo-Japanese War on July 29, 1904; but neither party to that war used balloons for such purposes. The present declaration is to continue effective to the close of the Third Peace Conference, 18 which the Second Peace Conference recommended should be assembled after a period corresponding to that between the First and Second Conferences. The declaration in regard to the use of balloons is, of course, binding only upon the signatory powers, and several of the more important states of the world do not seem inclined to bind themselves, even till the close of the Third Peace Conference, and have refrained from signing. SPIES. 141. A spy is a person who, acting clandestinely or under false pretenses, obtains or endeavors to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the enemy.19 The aim of this regulation is to define the class who, because acting in a manner especially dangerous to a belligerent, are liable to special treatment. This may be death by hanging. No penalty shall be inflicted without previous trial, nor if the spy is captured after rejoining his army. To act as a spy is not necessarily regarded as dishonorable, but is to act at risk of extreme penalty. Those who obtain information openly in their proper persons as soldiers in proper uniform, persons in balloons, or a bearer of a flag of truce, who reports what he observes without effort to spy, are not liable to treatment as spies. Treatment as spies was threatened by Prussian officers to those obtaining information by means of balloons in the Franco-Prussian War in 1870, and by the Russian Admiral Alexeiff in the Russo-Japanese War in 1904 to those "communicating war news to the enemy by means of improved apparatus for which provision has not yet been made in existing 18 Hague Declaration, 1907, Discharging Projectiles from Balloons, 19 Hague Convention, 1907, Laws and Customs of War on Land, articles XXIX-XXXI, Appendix, p. 542. conventions." While certain balloonists captured in 1870 were severely treated, they were not condemned as spies. The position assumed in the Russian declaration of 1904 was generally opposed, and no one was treated as a spy under its provisions. It may be said that there is lacking in such cases the essential element of clandestine conduct. CHAPTER XVIII. MILITARY OCCUPATION AND GOVERNMENT. 142. Military Occupation. 143. Military Government. 144. Exercise of Military Authority in Occupied Territory. 146. Military Law, Courts-Martial, etc. 147. Cessation of Military Control. HOSTILE MILITARY OCCUPATION. 142. The effective holding by a hostile military force of a territory of the enemy constitutes hostile military occupation. Military occupation should be distinguished from conquest and from military control. "The term 'conquest,' as it is ordinarily used, is applicable to conquered territory the moment it is taken from the enemy; but, in its more limited and technical meaning, it includes only the real property to which the conqueror has acquired a complete title. Until the ownership of such property so taken is confirmed or made complete, it is held by the right of military occupation (occupatio bellica), which, by the usage of nations and the laws of war, differs from, and falls short of, the right of complete conquest (debellatio, ultima victoria)." 1 Military control implies simply the exercise of authority by the military force rather than by civil officials. Military control may, and often does, continue after an occupied territory has been ceded to the enemy which occupied it, as in the case of Porto Rico after the treaty of peace between Spain and the United States in 1898.2 Military occupation is an incident of war, and as such is not political in its effects." It does not transfer sovereignty, but 12 Halleck, Int. Law (4th Ed.) p. 465. 2 Dooley v. United States, 182 U. S. 222, 21 Sup. Ct. 762, 45 L. Ed. 1074. 3 See Magoon, The Law of Civil Government under Military Occupation; 1 Moore, Int. Law Digest, § 21; 7 Id., §§ 1143-1155; 2 Halleck, Int. Law, c. XXXIII. |