trality or warranted the internment of the plane. It is not perceived that an airship of a belligerent Power on a long range cruise would be entitled to less favorable treatment in a neutral port than would a man-of-war which, as you know, is allowed to enter for a limited time for the purpose of refueling or making necessary repairs. I do not mean by this to suggest that an aeroplane should be treated as a warship. This is a matter on on which I express no opinion." The Assistant Secretary of State (Castle) to Commander Richard E. Byrd, Sept. 30, 1927, MS. Department of State, file 700.00111/-. The airships of belligerents shall not fly above the territory Habana or the territorial waters of neutrals if it is not in conformity with convention, the regulations of the latter. Convention on maritime neutrality, signed at Habana, Feb. 20, 1928, art. 14, 4 Treaties, etc. (Trenwith, 1938) 4743, 4747; 47 Stat. 1989, 1993. 1928 It can now be said to be international law that belligerent war 1939 planes have no right to fly into or through neutral jurisdiction. The subjacent neutral state has complete jurisdiction over the air, and the practice of neutrals in the last war and the provisions of codes and conventions since that time established the fact that the military planes of belligerents are barred from flight in neutral air. Naval airplanes attached to a warship are considered to be a part of the ship as long as they are in contact with the vessel. Such planes, therefore, if actually on board a warship, may enter a neutral harbor, but they may not leave the war vessel to fly over the neutral's domain. 1939 U.S. Naval War College, Int. Law Situations 85. "An aircraft while on board a belligerent warship, including an aircraftcarrier, shall be regarded as part of such warship." Research in International Law, Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War (Harvard Law School), art. 3, 33 A.J.I.L. Supp. (1939) 231. The comment on the article shows support for this rule in article 28 of the Italian law of July 8, 1938 and in article 8 of the Scandinavian neutrality rules of May 27, 1938. Ibid. 232. To like effect, see art. 41 of the Rules of Aerial Warfare, drafted at The Hague in 1923 (cited ante). See also 1926 U.S. Naval War College, Int. Law Situations 110. The Minister of the Netherlands informed the Department of State in 1939 that in regard of neutrality in the air the Netherlands assumes the following position: 1. The air column over the Netherlands is considered an integral part of its territory up to an unlimited altitude. 2. The flying, at any altitude, over Netherlands territory by belligerent aircraft is a violation of Netherlands neutrality. 3. The Netherlands Government will employ all possible means for the maintenance of its neutrality in the air. 4. In considering a neutral power's responsibility for the flying over its territory by belligerent aircraft the actual circumstances should in each particular case be an important factor in reaching a decision on the question whether that neutral power has adequately lived up to its obligation. The Minister of the Netherlands (Loudon) to the Under Secretary of State (Welles), Sept. 5, 1939, MS. Department of State, file 740.00111 European War 1939/600. See note by Kuhn in 34 A.J.I.L. (1940) 104, with respect to press reports indicating that the German Government was claiming a right to fly over territory of the Netherlands and Belgium at a height of more than three miles, acting on the theory that national sovereignty over the air-spaces is limited to a distance analogous to the maritime territorial belt. With respect to sovereignty over air-space above national territory, see vol. IV, ch. XIII, §365, of this Digest. The general declaration of neutrality approved at Panamá on October 3, 1939 provides that the American republics: (f) Shall regard as a contravention of their neutrality any flight by the military aircraft of a belligerent state over their own territory. With respect to non-military aircraft, they shall adopt the following measures: such aircraft shall fly only with the permission of the competent authority; all aircraft, regardless of nationality, shall follow routes determined by the said authorities; their commanders or pilots shall declare the place of departure, the stops to be made and their destination; they shall be allowed to use radiotelegraphy only to determine their route and flying conditions, utilizing for this purpose the national language, without code, only the standard abbreviations being allowed; the competent authorities may require aircraft to carry a co-pilot or a radio operator for purposes of control. Belligerent military aircraft transported on board warships shall not leave these vessels while in the waters of the American republics; belligerent military aircraft landing in the territory of an American republic shall be interned with their crews until the cessation of hostilities, except in cases in which the landing is made because of proven distress. There shall be exempted from the application of these rules cases in which there exist conventions to the contrary. Report of the Delegate of the United States of America to the Meeting of the Foreign Ministers of the American Republics, Held at Panamá, September 23-October 3, 1939 (Department of State, Conference Ser. 44, 1940) 55-56. A Canadian army plane on a training flight, not at the time engaged on any hostile mission or in any hostile activity, made a forced landing, through mistake, in territory of the United States near the Canadian border on March 9, 1940. The plane and members of the crew were allowed 24 hours within which to return to Canada, the time-limit beginning when the Canadian Legation was informed of the decision of the United States Government. It was indicated that the ruling was not to be taken as a precedent. Attorney General Jackson to Secretary Hull, Mar. 11, 1940, MS. Department of State, file 842.248/83. An American military plane which landed near Khabarovsk, Siberia, on Apr. 18, 1942, was interned, together with its crew, by the Soviet authorities. New York Times, Apr. 24, 1942, p. 1, col. 8; ibid., Apr. 25, 1942, p. 1, col. 7. The Turkish Government interned four American military planes and their crews, when they made forced landings in Turkish territory in June 1942. MS. Department of State, file 811.248; New York Times, June 14, 1942, pt. I, p. 1, col. 8; ibid., June 15, 1942, p. 1, col. 5. An American Army plane which made a forced landing in French Guinea in May 1942 was likewise interned by the French authorities. MS. Department of State, file 811.2351T. BELLIGERENT PERSONNEL AND MATÉRIEL ARMED FORCES 8679 Hague Convention V provides: ARTICLE XI. A neutral Power which receives on its territory troops belonging to the belligerent armies shall intern them, as far as possible, at a distance from the theatre of war. It may keep them in camps and even confine them in fortresses or in places set apart for this purpose. It shall decide whether officers can be left at liberty on giving their parole not to leave the neutral territory without permission. ARTICLE XII. In the absence of a special Convention to the contrary, the neutral Power shall supply the interned with the food, clothing, and relief required by humanity. At the conclusion of peace the expenses caused by the intern- 2 Treaties, etc. (Malloy, 1910) 2290, 2298-2299; 36 Stat. 2310, 2324. With respect to the internment of Mexican revolutionists under Hague The Department of State in 1912 informed the Ambassador to Mexico "insurrectionary leaders captured in this country can not be surrendered Orders were given for their internment in the United States. The Acting Internment (Henry Lane Wilson), telegram of Oct. 3, 1912 (paraphrase), MS. Department of State, file 812.00/5063; 1912 For. Rel. 850. . . . Neutral territory, being outside the region of war, offers an asylum to members of belligerent forces, to the subjects of the belligerents and their property, and to war material belonging to the belligerents. Since, according to the present rules of International Law, the duty of either belligerent to treat neutrals according to their impartiality must-the case of extreme necessity in self-defence excepted-prevent them from violating the territorial supremacy of neutrals, enemy persons and goods are perfectly safe on neutral territory. It is true that neither belligerent has a right to demand from a neutral such asylum for his subjects, their property, and his State property. But neither has he any right to demand that a neutral should refuse it to the enemy. The territorial supremacy of the neutral enables him to use his discretion in granting or refusing asylum. However, his duty of impartiality must compel him, if he grants it, to take all such measures as are necessary to prevent his territory from being used as a base of hostile operations. II Oppenheim's International Law (6th ed., by Lauterpacht, 1940) 579. "... A neutral may grant asylum to single soldiers of belligerents who take refuge on his territory, although he need not do so, but may at once send them back. If he grants such asylum, his duty of impartiality obliges him to disarm them, and to take such measures as are necessary to prevent them from rejoining their forces. But it is in practice impossible for a neutral to be so watchful as to detect every single fugitive who enters his territory. It will always happen that such fugitives steal into neutral territory and leave it again later on to rejoin their forces without the neutral being responsible. "Different from the case of fugitive soldiers is the case of fugitive deserters. If they desert and cross the neutral territory for the purpose of joining the enemy, their case is hardly different from the case of men who pass through a neutral territory, intending to enlist in the army of a belligerent. For this reason they need not be interned if they come individually; but they must be interned if they come in a body. On the other hand, if they desert without any such intention, they need not be interned, even though they come in a body. "It is usual for troops who are not actually pursued by the enemyif pursued, they have no time to do it—to enter through their commander into a convention with the representative of the neutral concerned, stipulating the conditions upon which they cross the frontier and give themselves into his custody. ... "Although the detained troops are not prisoners of war captured by the neutral, they are nevertheless in his custody, and therefore under his disciplinary power, just as prisoners of war are under the disciplinary power of the State which keeps them in captivity. They do not enjoy the exterritoriality due to armed forces abroad, because they are disarmed. As the neutral is required to prevent them from escaping, he must apply stern measures, and he may punish severely every member of the detained force who attempts to frustrate such measures, or does not comply with the disciplinary rules regarding order, sanitation, and the like." Ibid. 582-583, 584. "Other instances occurred during the World War, when after the fall of Antwerp in 1914 Holland interned British troops which crossed into Holland, south of the River Scheldt, to escape the German Army, and when the local authorities in Spanish ... Guinea interned 900 Germans and 14,000 natives who crossed the Spanish frontier from German Cameroon. When Germany and Russia invaded Poland in 1939, Lithuania, Hungary, and Roumania interned considerable Polish forces which crossed the frontiers of these countries." Ibid. 584. With respect to the treatment of Allied military aviators who landed in Luxembourg in 1917 and 1918 and were interned by the Government of Luxembourg in its capacity as a neutral, which refused to surrender them to the occupying German authorities, see Luxembourg, Neutralité du GrandDuché pendant la guerre de 1914-1918 (1919), pp. xxiv-xxv, 75–77; MS. Department of State, file 763.72111/7322. In the early part of the war in 1914 some Belgian soldiers who had discarded their uniforms for civilian clothes crossed the frontier into the Netherlands; the Netherlands Government interned all such persons in civilian clothes who were found to have upon them identification tags or marked underwear from which it appeared that the wearer belonged to the armed forces of a belligerent. Vandenbosch, Neutrality of the Netherlands During the World War (1927) 157. A number of deserters from the German Army crossed the frontier into the Netherlands from Belgium in the early days of the war in 1914 and were interned. According to the press the German Government informed the Netherlands Government that it would no longer reimburse the latter for expenses incurred in the internment of German deserters and would give no aid to the dependents of such deserters who lived in Germany. The Netherlands thereupon adopted a new rule with respect to deserters crossing its frontier, freeing those already interned and refraining from interning those crossing thereafter. It took the position that deserters had lost their character of belligerents. It held, however, that they should not be freed until the neutral had made an independent investigation with regard to the circumstances under which they crossed the frontier and as to whether they were regarded as deserters in their own country and had been condemned as such. Ibid. 157-158; Netherlands, Ministry of Foreign Affairs, Recueil de diverses communications du Ministre des Affaires Étrangères aux États-Généraux par rapport à la neutralité des Pays-Bas et au respect du droit des gens (1916) 178. In comparing the case of two German officers who had left the Geier with that of Major Robertson of the British Army who had been allowed to pass through the United States although he had fought against Germany in the Far East, Mr. Lansing wrote: "... Major Robertson arrived in the United States as an individual and not as a part of an organized military body traveling together. The United States, therefore, in its governmental capacity as a neutral, was not bound under the principles of international law to intern him or to interfere with his freedom of movement so long as his conduct did not infringe the proprieties of international or municipal law." The German Ambassador (Count von Bernstorff) to the Secretary of State (Bryan), |