The question of the principle upon which the extent of marginal waters should be founded and of the breadth of water that should be included, has of late attracted a considerable amount of attention. It is felt, and growingly felt, not only that the width of three miles is insufficient for the safety of the territory, but that it is desirable for a state to have control over a larger space of water for the purpose of regulating and preserving the fishery in it, the productiveness of sea fisheries being seriously threatened by the destructive methods of fishing which are commonly employed, and in many places by the greatly increased number of fishing vessels frequenting the grounds. After being carefully studied and reported upon by a Committee of the Institut de Droit International, the subject was exhaustively discussed by the Institut at its meeting in Paris, in 1894, the exceptionally large number of thirty-nine members being present. With regard to the necessity of ascribing a greater breadth than three miles of territorial water to the littoral state there was no difference of opinion. As to the extent to which the marginal belt should be enlarged, and the principle upon which enlargement should be based, the same unanimity was not manifested, but ultimately it was resolved by a large majority that a zone of six marine miles from low-water mark ought to be considered territorial for all purposes, and that in time of war a neutral state should have the right to extend this zone by declaration of neutrality or by notification, for all purposes of neutrality, to a distance from the shore corresponding to the extreme range of cannon. (International Law, 4th ed., p. 160 and note.)

Article 3.

Military necessity permits measures that are indispensable for securing the ends of the war and that are in accordance with modern laws and usages of war.

It does not permit wanton devastation, the use of poison, or the doing of any hostile act that would make the return of peace unnecessarily difficult.

Noncombatants are to be spared in person and property during hostilities, as much as the necessities of war and the conduct of such noncombatants will permit.

The launching of projectiles and explosives from balloons, or by other new methods of a similar nature, is prohibited for a term of five years by the Declaration of The Hague, to which the United States became a party. This rule does not apply when at war with a noncontracting Power.

(a) In Article 3, line 4, should the clause "the use of poison" be stricken out?

The first clause, "military necessity permits," etc., provides that only such measures shall be used as are in accord "with modern laws and usages of war."

If there is one measure that is fully understood to be forbidden by the modern laws and usages of war, it is "the use of poison." This is forbidden by all codes. (See Hague Convention with respect to the laws and customs of war on land, Art. 23.) There is no more reason for insertion of "the use of poison" than of many other clauses; indeed less, because the use of poison is more generally forbidden than almost any other act." The clause should therefore be stricken out unless other specifications are to be introduced.

(b) In the same place, should the following be inserted? "The destruction of great public works primarily and mainly intended to promote commerce."

There has been much discussion upon the advisability of forbidding the destruction of "great public works primarily and mainly intended to promote commerce.”

The Suez Canal already has a quasi neutralization. By the Convention of 1888 it was agreed that a system should be established to "guarantee at all times, and for all the powers, the free use of the Suez maritime canal." The articles showing the nature of this agreement as touching Article 3 of the Naval War Code are as follows.

ARTICLE I.

The Suez maritime canal shall always be free and open, in time of war as in time of peace, to every vessel of commerce or of war, without distinction of flag.

Consequently, the high contracting parties agree not in any way to interfere with the free use of the canal, in time of war as in time of peace.

The canal shall never be subjected to the exercise of the right of blockade.

ARTICLE IV.

The maritime canal remaining open in time of war as a free passage, even to the ships of war of belligerents, according to the terms of Article 1 of the present treaty, the high contracting parties agree that no right of war shall be exercised, nor shall any act of hostility, or any act having for its object to obstruct the free navigation of the canal, be committed in the canal and its ports of access, nor within a radius of 3 marine miles from those ports, even though the Ottoman Empire should be one of the belligerent powers.

Vessels of war of belligerents shall not revictual or take in stores in the canal and its ports of access, except in so far as may be strictly

necessary. The transit of the aforesaid vessels through the canal shall be effected with the least possible delay, in accordance with the regulations in force, and without any other intermission than that resulting from the necessities of the service.

Their stay at Port Said and in the roadstead of Suez shall not exceed twenty-four hours, except in case of distress. In such case they shall be bound to leave as soon as possible. An interval of twentyfour hours shall always elapse between the sailing of a belligerent ship from one of the ports of access and the departure of a ship belonging to the hostile power.

ARTICLE V.

In time of war belligerent powers shall not disembark nor embark within the canal and its ports of access either troops, munitions, or materials of war. But in case of an accidental hindrance in the canal, men may be embarked or disembarked at the ports of access by detachments not exceeding 1,000 men, with a corresponding amount of war material.

ARTICLE VI.

Prizes shall be subject, in all respects, to the same rules as the vessels of war of belligerents.

ARTICLE VII.

The powers shall not keep any vessel of war in the waters of the canal (including Lake Timsah and the Bitter Lakes).

Nevertheless, they may station vessels of war in the ports of access of Port Said and Suez, the number of which shall not exceed two for each power.

This right shall not be exercised by belligerents. (Holland, Studies in International Law, p. 289.)

It is proposed to give to the Panama or any similar great commercial undertaking exemption because an easily inflicted injury might destroy the work of years without giving to the belligerent any corresponding military advantage, e. g., the breaking of a dam which might flood or destroy much of the work on the Panama Canal.

If the United States constructs the canal without any provision for neutralization other than that in the HayPauncefote Treaty of 1901, which is binding on Great Britain and the United States, some provision in regard to great public works might be desirable, provided other nations agree to the same rule. The advisability of an international agreement in regard to such great public

works is admitted, but it would not be advisable for the United States to forbid its officers action which other states do not deny to their officers.

Therefore the provisions of this clause as it stands, omitting "the use of poison," because that is covered by general rules, should stand.

(c) Under the provisions of the clause beginning "Noncombatants are to be spared," etc., should an unarmed dispatch boat be treated in any respects differently from an armored enemy's vessel; if so, in what respect?

The vessel is liable to treatment as a vessel engaged in the service of the enemy. In respect to the vessel, this case falls under the first paragraph of Article 13, and in respect to the personnel, under Article 10 of the code, which are as follows:

ART. 13. All public vessels of the enemy are subject to capture, except those engaged in purely charitable or scientific pursuits, in voyages of discovery, or as hospital ships under the regulations hereinafter mentioned.

ART. 10. The personnel of all public unarmed vessels of the enemy, either owned or in his service as auxiliaries, are liable, upon capture, to detention as prisoners of war.

(7) In the application of The Hague rule in regard to the launching of projectiles and explosives, what would be the effect if an enemy contracting party should make an offensive and defensive alliance with a noncontracting party?

This rule would cease to be binding. This portion of the code should read:

By the Declaration of The Hague, signed July 29, 1899, to which the United States is a party, it is provided that:

The contracting powers agree to prohibit, for a term of five years, the launching of projectiles and explosives from balloons, or by other new methods of 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 contracting powers one of the belligerents is joined by a noncontracting power.

(e) Should this Hague rule be renewed at the expiration of the five-year period?

The reasons for the limitation of the period to five years are shown in the report of The Hague Conference, made by the late Mr. Holls:

On the subject of balloons, the subcommittee first voted a perpetual prohibition of their use, or that of similar new machines, for throwing projectiles or explosives. In the full committee, on motion of Captain Crozier, the prohibition was unanimously limited to cover a period of five years only. The action taken was for humanitarian reasons alone, and was founded upon the opinion that balloons, as they now exist, form so uncertain a means of injury that they can not be used with accuracy. The persons or objects injured by throwing explosives may be entirely disconnected from the conflict, and such that their injury or destruction would be of no practical advantage to the party making use of the machines. The limitation of the prohibition to five years' duration preserves liberty of action under such changed circumstances as may be produced by the progress of invention. (The Peace Conference at The Hague, p. 95.)

The reasons that applied at the time of the Peace Conference are equally valid at the present time; therefore the article, as cited under (d) above, from present indications, should be renewed.

Article 4.

The bombardment, by a naval force, of unfortified and undefended towns, villages, or buildings is forbidden, except when such bombardment is incidental to the destruction of military or naval establishments, public depots of munitions of war, or vessels of war in port, or unless reasonable requisitions for provisions and supplies essential, at the time, to such naval vessel or vessels are forcibly withheld, in which case due notice of bombardment shall be given.

The bombardment of unfortified and undefended towns and places for the nonpayment of ransom is forbidden.

(a) Would it not be more strictly correct and in accord with the best opinion so to amend Article 4 as to read:

The bombardment by a naval force of unfortified and undefended towns, villages, or buildings is forbidden, though such towns, villages, or buildings are liable to the damages incidental to the destruction of military or naval establishments, public depots of munitions of war, or vessels of war in port, and such towns,