II. RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS
I
RIGHTS AND DUTIES DERIVING FROM NEUTRALITY
Vattel, III. § 104--Hall, § 214--Phillimore, III. §§ 136-138--Twiss, II. § 216--Heffter, § 146--Geffcken in Holtzendorff, IV. pp. 656-657--Gareis, § 88--Liszt, § 42--Ullmann, § 191--Bonfils, Nos. 1441-1444--Despagnet, Nos. 684 and 690--Rivier, II. pp. 381-385--Nys, III. pp. 582-639--Calvo, IV. §§ 2491-2493--Fiore, III. Nos. 1501, 1536-1540, and Code, Nos. 1776-1778, 1784--Martens, II. § 131--Kleen, I. §§ 45-46--Mérignhac, pp. 339-342--Pillet, pp. 273-275.
[Sidenote: Conduct in General of Neutrals and Belligerents.]
§ 313. Neutrality can be carried out only if neutrals as well as belligerents follow a certain line of conduct in their relations with one another. It is for this reason that from neutrality derive rights and duties, as well for belligerents as for neutrals, and that, consequently, neutrality can be violated as well by belligerents as by neutrals. These rights and duties are correspondent: the duties of neutrals correspond to the rights of either belligerent, and the duties of either belligerent correspond to the rights of the neutrals.
[Sidenote: What Rights and Duties of Neutrals and of Belligerents there are.]
§ 314. There are two rights and two duties deriving from neutrality for neutrals, and likewise two for belligerents.
Duties of neutrals are, firstly, to act toward belligerents in accordance with their attitude of impartiality; and, secondly, to acquiesce in the exercise of either belligerent's right to punish neutral merchantmen for breach of blockade, carriage of contraband, and rendering unneutral service to the enemy, and, accordingly, to visit, search, and eventually capture them.
The duties of either belligerent are, firstly, to act towards neutrals in accordance with their attitude of impartiality; and, secondly, not to suppress their intercourse, and in especial their commerce, with the enemy.[583]
[Footnote 583: All writers on International Law resolve the duty of impartiality incumbent upon neutrals into many several duties, and they do the same as regards the duty of belligerents--namely, to act toward neutrals in accordance with the latter's impartiality. In this way quite a large catalogue of duties and corresponding rights are produced, and the whole matter is unnecessarily complicated.]
Either belligerent has a right to demand impartiality from neutrals, whereas, on the other hand, neutrals have a right to demand such behaviour from either belligerent as is in accordance with their attitude of impartiality. Neutrals have a right to demand that their intercourse, and in especial their commerce, with the enemy shall not be suppressed; whereas, on the other hand, either belligerent has the right to punish subjects of neutrals for breach of blockade, carriage of contraband, and unneutral service, and, accordingly, to visit, search, and capture neutral merchantmen.
[Sidenote: Rights and Duties of Neutrals contested.]
§ 315. Some writers[584] maintain that no rights derive from neutrality for neutrals, and, consequently, no duties for belligerents, because everything which must be left undone by a belligerent regarding his relations with a neutral must likewise be left undone in time of peace. But this opinion has no foundation. Indeed, it is true that the majority of the acts which belligerents must leave undone in consequence of their duty to respect neutrality must likewise be left undone in time of peace in consequence of the territorial supremacy of every State. However, there are several acts which do not belong to this class--for instance, the non-appropriation of enemy goods on neutral vessels. And those acts which do belong to this class fall nevertheless at the same time under another category. Thus, a violation of neutral territory on the part of a belligerent for military and naval purposes of the war is indeed an act prohibited in time of peace, because every State has to respect the territorial supremacy of other States; but it is at the same time a violation of neutrality, and therefore totally different from other violations of foreign territorial supremacy. This becomes quite apparent when the true inwardness of such acts is regarded. For every State has a right to demand reparation for an ordinary violation of its territorial supremacy, but it need not take any notice of it, and it has no duty to demand reparation. Yet in case a violation of its territorial supremacy constitutes at the same time a violation of its neutrality, the neutral State has not only a right to demand reparation, but has a duty[585] to do so. For, if it did not, this would contain a violation of its duty of impartiality, because it would be favouring one belligerent to the detriment of the other.[586]
[Footnote 584: Heffter, § 149; Gareis, § 88; Heilborn, System, p. 341.]
[Footnote 585: See, for instance, article 3 of Convention XIII. of the Second Peace Conference, which enacts:--"When a ship has been captured in the territorial waters of a neutral Power, such Power must, if the prize is still within its jurisdiction, employ the means at its disposal to release the prize with its officers and crew, and to intern the prize crew. If the prize is not within the jurisdiction of the neutral Power, the captor Government, on the demand of that Power, must liberate the prize with its officers and crew."]
[Footnote 586: See below, § 360.]
On the other hand, it has been asserted[587] that, apart from conventional neutrality, from which treaty obligations arise, it is incorrect to speak of duties deriving from neutrality, since at any moment during the war neutrals could throw up neutrality and become parties to the war. I cannot agree with this opinion either. That a hitherto neutral can at any moment throw up neutrality and take part in the war, is just as true as that a belligerent can at any moment during the war declare war against a hitherto neutral State. Yet this only proves that there is no duty to remain neutral, and no duty for a belligerent to abstain from declaring war against a hitherto neutral State. This is a truism which ought not to be doubted, and is totally different from the question as to what duties derive from neutrality so long as a certain State remains neutral at all. The assertion that such duties derive from neutrality is in no way inconsistent with the fact that neutrality itself can at any moment during the war come to an end through the beginning of war by either a neutral or a belligerent. This assertion only states the fact that, so long as neutrals intend neutrality and so long as belligerents intend to recognise such neutrality of third States, duties derive from neutrality for both belligerents and neutrals.
[Footnote 587: See Gareis, § 88.]
[Sidenote: Contents of Duty of Impartiality.]
§ 316. It has already been stated above, in § 294, that impartiality excludes such assistance and succour to one of the belligerents as is detrimental to the other, and, further, such injuries to one of the belligerents as benefit the other, and that it includes active measures on the part of neutrals for the purpose of preventing belligerents from making use of neutral territories and neutral resources for their military and naval purposes. But all this does not exhaust the contents of the duty of impartiality.
It must, on the one hand, be added that according to the present strict conception of neutrality the duty of impartiality of a neutral excludes all facilities whatever for military and naval operations of the belligerents, even if granted to both belligerents alike. In former times assistance was not considered a violation of neutrality, provided it was given to both belligerents in the same way, and States were considered neutral although they allowed an equal number of their troops to fight on the side of each belligerent. To-day this could no longer happen. From Conventions V. and XIII. of the Second Peace Conference, which deal with neutrality in land and sea warfare respectively, it becomes quite apparent that any facility whatever directly concerning military or naval operations, even if it consists only in granting passage over neutral territory to belligerent forces, is illegal, although granted to both belligerents alike. The duty of impartiality to-day comprises abstention from any active or passive co-operation with belligerents.
On the other hand, it must be added that the duty of impartiality includes the equal treatment of both belligerents regarding such facilities as do not directly concern military or naval operations, and which may, therefore, be granted or not to belligerents, according to the discretion of a neutral. If a neutral grants such facilities to one belligerent, he must grant them to the other in the same degree. If he refuses them to the one, he must likewise refuse them to the other.[588] Thus, since it does not, according to the International Law of the present day, constitute a violation of neutrality if a neutral allows his subjects to supply either belligerent with arms and ammunition in the ordinary way of trade, it would constitute a violation of neutrality to prohibit the export of arms destined for one of the belligerents only. Thus, further, if a neutral allows men-of-war of one of the belligerents to bring their prizes into neutral ports, he must grant the same facility to the other belligerent.
[Footnote 588: See articles 7, 8, 9, 11, 13, 14, of Convention V., and articles 7, 9, 11, 17, 19, 21, 23 of Convention XIII. of the Second Peace Conference.]
[Sidenote: Duty of Impartiality continuously growing more intense.]
§ 317. Although neutrality has already for centuries been recognised as an attitude of impartiality, it has taken two hundred years for the duty of impartiality to attain its present range and intensity. Now this continuous development has by no means ceased. It is slowly and gradually going on, and there is no doubt that during the twentieth century the duty of impartiality will become much more intense than it is at present. The fact that the intensity of this duty is the result of gradual development bears upon many practical questions regarding the conduct of neutrals. It is therefore necessary to discuss separately the relations between neutrals and belligerents in order to ascertain what line of conduct must be followed by neutrals.
[Sidenote: Neutrality Conventions of the Second Peace Conference.]
§ 317_a_. The Second Peace Conference has produced two Conventions concerning neutrality:--
(1) The Convention (V.) respecting the rights and duties of neutral Powers and persons in war on land,[589] which comprises twenty-five articles and has been signed by all the Powers represented at the Conference, except China and Nicaragua; both, however, acceded later. Many Powers have already ratified. Great Britain entered a reservation[590] against articles 16-18, and Argentina against article 18.
[Footnote 589: See Lémonon, pp. 407-425; Higgins, pp. 290-294; Boidin, pp. 121-134; Nippold, § 25; Scott, Conferences, pp. 541-555; Bustamente in A.J. II. (1908), pp. 95-120.]
[Footnote 590: See above, § 88.]
(2) The Convention (XIII.) respecting the rights and duties of neutral Powers in maritime war,[591] which comprises thirty-three articles and has been signed by all the Powers represented at the Conference, except the United States of America, China, Cuba, Nicaragua, and Spain; but America, China, and Nicaragua acceded later. Many Powers have already ratified, but there are a number of reservations; they will be dealt with in due course when the points concerned are being discussed.
[Footnote 591: See Lémonon, pp. 555-606; Higgins, pp. 459-483; Bernsten, § 13; Boidin, pp. 236-247; Dupuis, Guerre, Nos. 277-330; Nippold, § 34; Scott, Conferences, pp. 620-648; Hyde in A.J. II. (1908), pp. 507-527.]
Both Conventions deal comprehensively with the rights and duties of neutrals, but it is not convenient in a treatise on International Law either to treat separately of the duties of neutrals in war on land and on sea, or to dispense with any distinction in the treatment of the several points concerned. The arrangement of topics in the sections of this chapter will, therefore, be independent of the arrangement of topics in the two Conventions, and will be as follows:--Neutrals and Military Operations (§§ 320-328); Neutrals and Military Preparations (§§ 329-335); Neutral Asylum to Soldiers and War Materials (§§ 336-341); Neutral Asylum to Naval Forces (§§ 342-348); Supplies and Loans to Belligerents (§§ 349-352); Services to Belligerents (§§ 353-356).
[Sidenote: Contents of Duty of Belligerents to treat Neutrals in accordance with their Impartiality.]
§ 318. Whereas the relations between neutrals and belligerents require detailed discussion with regard to the duty of impartiality incumbent upon neutrals, the contents of the duty of belligerents to treat neutrals in accordance with their impartiality are so manifest that elaborate treatment is unnecessary. Such duty excludes, firstly, any violation of neutral territory for military or naval purposes of the war;[592] and, secondly, the appropriation of neutral goods, contraband excepted, on enemy vessels.[593] On the other hand, such duty includes, firstly, due treatment of neutral diplomatic envoys accredited to the enemy and found on occupied enemy territory; and, secondly, due treatment of neutral subjects and neutral property on enemy territory. A belligerent who conquers enemy territory must at least grant to neutral envoys accredited to the enemy the right to quit the occupied territory unmolested.[594] And such belligerent must likewise abstain from treating neutral subjects and property established on enemy territory more harshly than the laws of war allow; for, although neutral subjects and property have, by being established on enemy territory, acquired enemy character, they have nevertheless not lost the protection of their neutral home State.[595] And such belligerent must, lastly, pay full damages in case he makes use of his right of angary[596] against neutral property in course of transit through enemy territory.
[Footnote 592: See articles 1-4 of Convention V., and articles 1-5 of Convention XIII. of the Second Peace Conference.]
[Footnote 593: This is stipulated by the Declaration of Paris of 1856.]
[Footnote 594: The position of foreign envoys found by a belligerent on occupied enemy territory is not settled as regards details. But there is no doubt that a certain consideration is due to them, and that they must at least be granted the right to depart. See above, vol. I. § 399.]
[Footnote 595: See above, § 88.]
[Footnote 596: See below, §§ 364-367.]
[Sidenote: Contents of Duty not to suppress Intercourse between Neutrals and the Enemy.]
§ 319. The duty of either belligerent not to suppress intercourse of neutrals with the enemy requires no detailed discussion either. It is a duty which is in accordance with the development of the institution of neutrality. It is of special importance with regard to commerce of subjects of neutrals with belligerents, since formerly attempts were frequently made to intercept all neutral trade with the enemy. A consequence of the now recognised freedom of neutral commerce with either belligerent is, firstly, the rule, enacted by the Declaration of Paris of 1856, that enemy goods, with the exception of contraband, on neutral vessels on the Open Sea or in enemy territorial waters may not be appropriated by a belligerent,[597] and, secondly, the rule, enacted by article 1 of Convention XI. of the Second Peace Conference, that the postal correspondence of neutrals or belligerents, except correspondence destined for or proceeding from a blockaded port, which may be found on a neutral or enemy vessel, is inviolable.[598] But the recognised freedom of neutral commerce necessitates, on the other hand, certain measures on the part of belligerents. It would be unreasonable to impose on a belligerent a duty not to prevent the subjects of neutrals from breaking a blockade, from carrying contraband, and, lastly, from rendering unneutral service to the enemy. International Law gives, therefore, a right to either belligerent to forbid all such acts to neutral merchantmen, and, accordingly, to visit, search, capture, and punish them.[599]
[Footnote 597: That not only goods owned by enemy individuals but also goods owned by the enemy State are exempt from appropriation when on neutral vessels, has been pointed out above, § 177, p. 220, note 2.]
[Footnote 598: See above, § 191, and below, § 411.]
[Footnote 599: That a subject of a neutral State who tries to break a blockade, or carries contraband to the enemy, or renders the enemy unneutral service, violates injunctions of the belligerents, but not International Law, has been shown above in § 296; see also below, §§ 383 and 398.]
II
NEUTRALS AND MILITARY OPERATIONS
Vattel, III. §§ 105, 118-135--Hall, §§ 215, 219, 220, 226--Westlake, II. pp. 179-183--Lawrence, §§ 229, 234-240--Manning, pp. 225-227, 245-250--Twiss, II. §§ 217, 218, 228--Halleck, II. pp. 146, 165, 172--Taylor, §§ 618, 620, 632, 635--Walker, §§ 55, 57, 59-61--Wharton, III. §§ 397-400--Moore, VII. §§ 1293-1303--Wheaton, §§ 426-429--Bluntschli, §§ 758, 759, 763, 765, 769-773--Heffter, §§ 146-150--Geffcken in Holtzendorff, IV. pp. 657-676--Ullmann, § 191--Bonfils, Nos. 1449-1457, 1460, 1469, 1470--Despagnet, Nos. 690-692--Rivier, II. pp. 395-408--Calvo, IV. §§ 2644-2664, 2683--Fiore, III. Nos. 1546-1550, 1574-1575, 1582-1584--Martens, II. §§ 131-134--Kleen, I. §§ 70-75, 116-122--Mérignhac, pp. 352-380--Pillet, pp. 284-289--Perels, § 39--Testa, pp. 173-180--Heilborn, Rechte, pp. 4-12--Dupuis, Nos. 308-310, 315-317, and Guerre, Nos. 277-294--Land Warfare, §§ 465-471.
[Sidenote: Hostilities by and against Neutrals.]
§ 320. The duty of impartiality incumbent upon a neutral must obviously prevent him from committing hostilities against either belligerent. This would need no mention were it not for the purpose of distinction between hostilities on the one hand, and, on the other, military or naval acts of force by a neutral for the purpose of repulsing violations of his neutrality committed by either belligerent. Hostilities of a neutral are acts of force performed for the purpose of attacking a belligerent. They are acts of war, and they create a condition of war between such neutral and the belligerent concerned. If, however, a neutral does not attack a belligerent, but only repulses him by force when he violates or attempts to violate the neutrality of the neutral, such repulse does not comprise hostilities. Thus, if men-of-war of a belligerent attack an enemy vessel in a neutral port and are repulsed by neutral men-of-war, or if belligerent forces try to make their way through neutral territory and are forcibly prevented by neutral troops, no hostilities have been committed by the neutral, who has done nothing else than fulfil his duty of impartiality. Article 10 of Convention V. enacts categorically that "the fact of a neutral Power repelling, even by force, attacks on its neutrality, cannot be considered as a hostile act." And stress must be laid on the fact that it is no longer legitimate for a belligerent to pursue[600] military or naval forces who take refuge on neutral territory; should, nevertheless, a belligerent do this, he must, if possible, be repulsed by the neutral.
[Footnote 600: See above, § 288, p. 352, and below, § 347 (4), p. 422.]
It is, on the other hand, likewise obvious that hostilities against a neutral on the part of either belligerent are acts of war, and not mere violations of neutrality. If, however, belligerent forces attack enemy forces which have taken refuge on neutral territory or which are there for other purposes, such acts are not hostilities against the neutral, but mere violations of neutrality which must be repulsed or for which reparation must be made, as the case may be.
Quite a peculiar condition arose at the outbreak of and during the Russo-Japanese War. The ends for which Japan went to war were the expulsion of the Russian forces from the Chinese Province of Manchuria and the liberation of Korea, which was at the time an independent State, from the influence of Russia. Manchuria and Korea became therefore the theatre of war, although both were neutral territories and although neither China nor Korea became parties to the war. The hostilities which occurred on these neutral territories were in no wise directed against the neutrals concerned. This anomalous condition of matters arose out of the inability of both China and Korea to free themselves from Russian occupation and influence. And Japan considered her action, which must be classified as an intervention, justified on account of her vital interests. The Powers recognised this anomalous condition by influencing China not to take part in the war, and by influencing the belligerents not to extend military operations beyond the borders of Manchuria. Manchuria and Korea having become the theatre of war,[601] the hostilities committed there by the belligerents against one another cannot be classified as a violation of neutrality. The case of the Variag and the Korietz on the one hand, and, on the other, the case of the Reshitelni, may illustrate the peculiar condition of affairs:--
(1) On February 8, 1904, a Japanese squadron under Admiral Uriu entered the Korean harbour of Chemulpo and disembarked Japanese troops. The next morning Admiral Uriu requested the commanders of two Russian ships in the harbour of Chemulpo, the Variag and the Korietz, to leave the harbour and engage him in battle outside, threatening attack inside the harbour in case they would not comply with his request. But the Russian ships did comply, and the battle took place outside the harbour, but within Korean territorial waters.[602] The complaint made by Russia, that in this case the Japanese violated Korean neutrality, would seem to be unjustified, since Korea fell within the region and the theatre of war.
(2) The Russian destroyer Reshitelni, one of the vessels that escaped from Port Arthur on August 10, 1904, took refuge in the Chinese harbour of Chifu. On August 12, two Japanese destroyers entered the harbour, captured the Reshitelni, and towed her away.[603] There ought to be no doubt that this act of the Japanese comprises a violation of neutrality,[604] since Chifu does not belong to the part of China which fell within the region of war.
[Footnote 601: See above, § 71, p. 87; Lawrence, War, pp. 268-294; Ariga, §§ 16-22.]
[Footnote 602: See Lawrence, War, pp. 279-289, and Takahashi, pp. 462-466.]
[Footnote 603: See Lawrence, War, pp. 291-294, and Takahashi, pp. 437-444.]
[Footnote 604: See below, § 361, where the case of the General Armstrong is discussed.]
[Sidenote: Furnishing Troops and Men-of-War to Belligerents.]
§ 321. If a State remains neutral, it violates its impartiality by furnishing a belligerent with troops or men-of-war. And it matters not whether a neutral renders such assistance to one of the belligerents or to both alike. Whereas Convention V. does not mention the furnishing of troops to belligerents on the part of neutrals, article 6 of Convention XIII. enacts that "the supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of warships, ammunition, or war material of any kind whatever, is forbidden."
However, the question is controversial as to whether a neutral State, which in time of peace concluded a treaty with one of the belligerents to furnish him in case of war with a limited number of troops, would violate its neutrality by fulfilling its treaty obligation. Several writers[605] have answered the question in the negative, and there is no doubt that during the eighteenth century such cases happened. But no case happened during the nineteenth century, and there ought to be no doubt that nowadays the answer must be in the affirmative, since a qualified neutrality[606] is no longer admissible.
[Footnote 605: See, for instance, Bluntschli, § 759, and Heffter, § 144. See above, § 306 (2), where the case is quoted of Denmark furnishing troops to Russia in 1788 during a Russo-Swedish war.]
[Footnote 606: See above, § 305.]
As regards furnishing men-of-war to belligerents, the question arose during the Russo-Japanese War as to whether a neutral violates his duty of impartiality by not preventing his national steamship companies from selling to a belligerent such of their liners as are destined in case of war to be incorporated as cruisers in the national navy. The question was discussed on account of the sale to Russia of the Augusta Victoria and the Kaiserin Maria Theresia by the North German Lloyd, and the Fürst Bismarck and the Columbia by the Hamburg-American Line, vessels which were at once enrolled in the Russian Navy as second-class cruisers, re-named as the Kuban, Ural, Don, and Terek. Had these vessels, according to an arrangement with the German Government, really been auxiliary cruisers to the German Navy, and had the German Government given its consent to the transaction, a violation of neutrality would have been committed by Germany. But the German Press maintained that these vessels had not been auxiliary cruisers to the Navy, and Japan did not lodge a protest with Germany on account of the sale. If these liners were not auxiliary cruisers to the German Navy, their sale to Russia was a legitimate sale of articles of contraband.[607]
[Footnote 607: See below, § 397.]
[Sidenote: Subjects of Neutrals fighting among Belligerent Forces.]
§ 322. Although several States, as Great Britain[608] and the United States of America, by their Municipal Law prohibit their subjects from enlisting in the military or naval service of belligerents, the duty of impartiality incumbent upon neutrals does not at present include any necessity for such prohibition, provided the individuals concerned cross the frontier singly[609] and not in a body. But a neutral must recall his military and naval officers who may have been serving in the army or navy of either belligerent before the outbreak of war. A neutral must, further, retain military and naval officers who want to resign their commissions for the obvious purpose of enlisting in the service of either belligerent. Therefore, when in 1877, during war between Turkey and Servia, Russian officers left the Russian and entered the Servian Army as volunteers with permission of the Russian Government, there was a violation of the duty of impartiality on the part of neutral Russia.
[Footnote 608: See Section 4 of the Foreign Enlistment Act, 1870.]
[Footnote 609: See article 6 of Convention V.]
On the other hand, there is no violation of neutrality in a neutral allowing surgeons and such other non-combatant members of his army as are vested with a character of inviolability according to the Geneva Convention to enlist or to remain in the service of either belligerent.
[Sidenote: Passage of Troops and War Material through Neutral Territory.]
§ 323. In contradistinction to the practice of the eighteenth century,[610] it is now generally recognised that a violation of the duty of impartiality is involved when a neutral allows a belligerent the passage of troops or the transport of war material over his territory.[611] And it matters not whether a neutral gives such permission to one of the belligerents only, or to both alike. The practice of the eighteenth century was a necessity, since many German States consisted of parts distant one from another, so that their troops had to pass through other Sovereigns' territories for the purpose of reaching outlying parts. At the beginning of the nineteenth century the passing of belligerent troops through neutral territory still occurred. Prussia, although she at first repeatedly refused it, at last entered in 1805 into a secret convention with Russia granting Russian troops passage through Silesia during war with France. On the other hand, even before Russia had made use of this permission, Napoleon ordered Bernadotte to march French troops through the then Prussian territory of Anspach without even asking the consent of Prussia. In spite of the protest of the Swiss Government, Austrian troops passed through Swiss territory in 1813, and when in 1815 war broke out again through the escape of Napoleon from the Island of Elba and his return to France, Switzerland granted to the allied troops passage through her territory.[612] But since that time it has become universally recognised that all passage of belligerent troops through neutral territory must be prohibited, and the Powers declared expressis verbis in the Act of November 20, 1815, which neutralised Switzerland, and was signed at Paris,[613] that "no inference unfavourable to the neutrality and inviolability of Switzerland can and must be drawn from the facts which have caused the passage of the allied troops through a part of the territory of the Swiss Confederation." The few instances[614] in which during the nineteenth century States pretended to remain neutral, but nevertheless allowed the troops of one of the belligerents passage through their territory, led to war between the neutral and the other belligerent.
[Footnote 610: See Vattel, III. §§ 119-132.]
[Footnote 611: See Dumas in R.G. XVI. (1909), pp. 289-316.]
[Footnote 612: See Wheaton, §§ 418-420.]
[Footnote 613: See Martens, N.R. II. p. 741.]
[Footnote 614: See Heilborn, Rechte, pp. 8-9.]
[Sidenote: Passage of Wounded through Neutral Territory.]
However, just as in the case of furnishing troops so in the case of passage, it is a moot point whether passage of troops can be granted without thereby violating the duty of impartiality incumbent upon a neutral, in case a neutral is required to grant it in consequence of an existing State-servitude or of a treaty previous to the war. There ought to be no doubt that, since nowadays a qualified neutrality is no longer admissible, the question must be answered in the negative.[615]
[Footnote 615: See above, §§ 305 and 306, and also above, vol. I. § 207. Clauss, Die Lehre von den Staatsdienstbarkeiten (1894), pp. 212-217, must likewise be referred to. See also Dumas in R.G. XVI. (1909), pp. 286-316.]
§ 324. The passage of wounded soldiers is different from that of troops. If a neutral allows the passage of wounded soldiers, he certainly does not render direct assistance to the belligerent concerned. But it may well be that indirectly it is of assistance on account of the fact that a belligerent, thereby relieved from transport of his wounded, can now use the lines of communication for the transport of troops, war material, and provisions. Thus, when in 1870 after the battles of Sedan and Metz, Germany applied to Belgium and Luxemburg to allow her wounded to be sent through their territories, France protested on the ground that the relief thereby created to the lines of communication in the hands of the Germans would be an assistance to the military operations of the German Army. Belgium, on the advice of Great Britain, did not grant the request made by Germany, but Luxemburg granted it.[616]
[Footnote 616: See Hall, § 219, and Geffcken in Holtzendorff, IV. p. 664.]
According to article 14 of Convention V. a neutral Power may grant the passage of wounded or sick to a belligerent. If he does grant it, the trains bringing them must carry neither combatants nor war material, and those of the wounded and sick who belong to the army of the other belligerent must remain on the neutral territory concerned, must there be guarded by the neutral Government, and must, after having recovered, be prevented from returning to their home State and rejoining their corps. By the stipulation of article 14 it is left to the consideration of a neutral whether or no he will allow the passage of wounded and sick to a belligerent; he will, therefore, have to investigate every case and come to a conclusion according to its merits. It should be stated that, according to article 15 of Convention V., the "Geneva Convention applies to the sick and wounded interned in neutral territory."
[Sidenote: Passage of Men-of-War.]
§ 325. In contradistinction to passage of troops through his territory, the duty of impartiality incumbent upon a neutral does not require him to forbid the passage of belligerent men-of-war through the maritime belt forming part of his territorial waters. Article 10 of Convention XIII. categorically enacts that "the neutrality of a Power is not violated (n'est pas compromise) by the mere passage of belligerent men-of-war and their prizes." Since, as stated above in Vol. I. § 188, every littoral State may even in time of peace prohibit the passage of foreign men-of-war through its maritime belt provided such belt does not form a part of the highways for international traffic, it may certainly prohibit the passage of belligerent men-of-war in time of war. However, no duty exists for a neutral to prohibit such passage in time of war, and he need not exclude belligerent men-of-war from his ports either, although he may do this likewise. The reason is that such passage and such admittance into ports contain very little assistance indeed, and are justified by the character of the sea as an international high road. But it is, on the other hand, obvious that belligerent men-of-war must not commit any hostilities against enemy vessels during their passage, and must not use the neutral maritime belt and neutral ports as a basis for their operations against the enemy.[617]
[Footnote 617: See below, § 333.]
[Sidenote: Occupation of Neutral Territory by Belligerents.]
§ 326. In contradistinction to the practice of the eighteenth century,[618] the duty of impartiality must nowadays prevent a neutral from permitting belligerents to occupy a neutral fortress or any other part of neutral territory. If a treaty previously entered into stipulates such occupation, it cannot be granted without violation of neutrality.[619] On the contrary, the neutral must even use force to prevent belligerents from occupying any part of his neutral territory. The question as to whether such occupation on the part of a belligerent would be excusable in case of extreme necessity on account of the neutral's inability to prevent the other belligerent from making use of the neutral territory as a base for his military operations must, I think, be answered in the affirmative, since an extreme case of necessity in the interest of self-preservation must be considered as an excuse.[620]
[Footnote 618: See Kleen, I. § 116.]
[Footnote 619: See Klüber, § 281, who asserts the contrary.]
[Footnote 620: See Vattel, III. § 122; Bluntschli, § 782; Calvo, IV. § 2642. Kleen, I. § 116, seems not to recognise an extreme necessity of the kind mentioned above as an excuse.--There is a difference between this case and the case which arose at the outbreak of the Russo-Japanese War, when both belligerents invaded Korea, for, as was explained above in § 320, Korea and Manchuria fell within the region and the theatre of war.]
[Sidenote: Prize Courts on Neutral Territory.]
§ 327. It has long been universally recognised that the duty of impartiality must prevent a neutral from permitting a belligerent to set up Prize Courts on neutral territory. The intention of a belligerent in setting up a court on neutral territory can only be to facilitate the plundering by his men-of-war of the commerce of the enemy. A neutral tolerating such Prize Courts would, therefore, indirectly assist the belligerent in his naval operations. During the eighteenth century it was not considered illegitimate on the part of neutrals to allow the setting up of Prize Courts on their territory. The Règlement du Roi de France concernant les prises qui seront conduites dans les ports étrangers, et des formalités que doivent remplir les Consuls de S.M. qui y sont établis of 1779, furnishes a striking proof of it. But since in 1793 the United States of America disorganised the French Prize Courts set up by the French envoy Genêt on her territory,[621] it became recognised that such Prize Courts are inconsistent with the duty of impartiality incumbent upon a neutral, and article 4 of Convention XIII. enacts this formerly customary rule.
[Footnote 621: See above, § 291 (1.)]
[Sidenote: Belligerent's Prizes in Neutral Ports.]
§ 328. It would, no doubt, be an indirect assistance to the naval operations of a belligerent if a neutral allowed him to organise on neutral territory the safekeeping of prizes or their sale.
But the case of a temporary stay of a belligerent man-of-war with her prize in a neutral port is different. Neutral Powers may--although most maritime States no longer do it--allow prizes to be brought temporarily into their ports. Articles 21 and 22 of Convention XIII. lay down the following rules in the matter: A prize may only be brought into a neutral port on account of unseaworthiness, stress of weather, or want of fuel or provisions; it must leave as soon as the circumstances which justified its entry are at an end, and if it does not, the neutral Power must order it to leave at once and must, in case of disobedience, employ the means at disposal to release the prize with its officers and crew, and to intern the prize-crew; a prize brought into a neutral port for reasons other than unseaworthiness, stress of weather, or want of fuel or provisions, must forthwith be released by the respective neutral Power.
The question requires attention as to whether a prize whose unseaworthiness is so great that it cannot be repaired, may be allowed to remain in the neutral port and be there sold[622] after the competent Prize Court has condemned it. Since article 21 enacts that an admitted prize must leave the neutral port as soon as the circumstances which justified its entry are at an end, there is no doubt that it may remain if it cannot by repair be made seaworthy. And there ought, consequently, to be no objection to its sale in the neutral port, provided it has previously been condemned by the proper Prize Court.
[Footnote 622: See Kleen, vol. I. § 115.]
While the stipulation of article 21 cannot meet with any objection, the stipulation of article 23 of Convention XIII. is of a very doubtful character. This article enacts that a neutral Power may allow prizes to enter its ports, whether under convoy or not, when they are brought there to be sequestrated pending the decision of a Prize Court. And it is of importance to state the fact that the restriction of article 21 does not apply to prizes brought into a neutral port under the rule of article 23. This rule actually enables a belligerent to safeguard all his prizes against recapture, and a neutral Power which allows belligerent prizes access to its ports under the rule of article 23 would indirectly render assistance to the naval operations of the belligerent concerned. For this reason, Great Britain as well as Japan and Siam entered a reservation against article 23. Be that as it may, those Powers which have accepted article 23 will not, I believe, object to the sale in the neutral port concerned of such sequestrated prizes, provided they have previously been condemned by the proper Prize Court.
III
NEUTRALS AND MILITARY PREPARATIONS
Hall, §§ 217-218, 221-225--Lawrence, §§ 234-240--Westlake, II. pp. 181-198--Manning, pp. 227-244--Phillimore, III. §§ 142-151B--Twiss, II. §§ 223-225--Halleck, II. pp. 152-163--Taylor, §§ 616, 619, 626-628--Walker, §§ 62-66--Wharton, III. §§ 392, 395-396--Wheaton, §§ 436-439--Moore, VII. §§ 1293-1305--Heffter, §§ 148-150--Geffcken in Holtzendorff, IV. pp. 658-660, 676-684--Ullmann, § 191--Bonfils, Nos. 1458-1459, 1464-1466--Despagnet, Nos. 692-693--Rivier, II. pp. 395-408--Calvo, IV. §§ 2619-2627--Fiore, III. Nos. 1551-1570--Kleen, I. §§ 76-89, 114--Mérignhac, pp. 358-360--Pillet, pp. 288-290--Dupuis, Nos. 322-331, and Guerre, Nos. 290-294--Land Warfare, §§ 472-476.
[Sidenote: Depôts and Factories on Neutral Territory.]
§ 329. Although according to the present intense conception of the duty of impartiality neutrals need not[623] prohibit their subjects from supplying belligerents with arms and the like in the ordinary way of trade, a neutral must[624] prohibit belligerents from erecting and maintaining on his territory depôts and factories of arms, ammunition, and military provisions. However, belligerents can easily evade this by not keeping depôts and factories, but contracting with subjects of the neutral concerned in the ordinary way of trade for any amount of arms, ammunition, and provisions.[625]
[Footnote 623: See below, § 350.]
[Footnote 624: See Bluntschli, § 777, and Kleen, I. § 114.]
[Footnote 625: The distinction made by some writers between an occasional supply on the one hand, and, on the other, an organised supply in large proportions by subjects of neutrals, and the assertion that the latter must be prohibited by the neutral concerned, is not justified. See below, § 350.]
[Sidenote: Levy of Troops, and the like.]
§ 330. In former centuries neutrals were not required to prevent belligerents from levying troops on their neutral territories, and a neutral often used to levy troops himself on his territory for belligerents without thereby violating his duty of impartiality as understood in those times. In this way the Swiss Confederation frequently used to furnish belligerents, and often both parties, with thousands of recruits, although she herself always remained neutral. But at the end of the eighteenth century a movement was started which tended to change this practice. In 1793 the United States of America interdicted the levy of troops on her territory for belligerents, and by-and-by many other States followed the example. During the nineteenth century the majority of writers maintained that the duty of impartiality must prevent a neutral from allowing the levy of troops. The few[626] writers who differed made it a condition that a neutral, if he allowed such levy at all, must allow it to both belligerents alike. The controversy is now finally settled, for articles 4 and 5 of Convention V. lay down the rules that corps of combatants may not be formed, nor recruiting offices opened, on the territory of a neutral Power, and that neutral Powers must not allow these acts.
[Footnote 626: See, for instance, Twiss, II. § 225, and Bluntschli, § 762.]
The duty of impartiality must likewise prevent a neutral from allowing a belligerent man-of-war reduced in her crew to enrol sailors in his ports, with the exception of such few men as are absolutely necessary to navigate the vessel to the nearest home port.[627]
[Footnote 627: See article 18 of Convention XIII. and below, § 333 (3), and § 346.]
A pendant to the levy of troops on neutral territory was the granting of Letters of Marque to vessels belonging to the merchant marine of neutrals. Since privateering has practically disappeared, the question as to whether neutrals must prohibit their subjects from accepting Letters of Marque from a belligerent,[628] need not be discussed.
[Footnote 628: See above, § 83. With the assertion of many writers that a subject of a neutral who accepts Letters of Marque from a belligerent may be treated as a pirate, I cannot agree. See above, vol. I. § 273.]
[Sidenote: Passage of Bodies of Men intending to Enlist.]
§ 331. A neutral is not obliged by his duty of impartiality to interdict passage through his territory to men either singly or in numbers who intend to enlist. Thus in 1870 Switzerland did not object to Frenchmen travelling through Geneva for the purpose of reaching French corps or to Germans travelling through Basle for the purpose of reaching German corps, under the condition, however, that these men travelled without arms and uniform. On the other hand, when France during the Franco-German War organised an office[629] in Basle for the purpose of sending bodies of Alsatian volunteers through Switzerland to the South of France, Switzerland correctly prohibited this on account of the fact that this official organisation of the passage of whole bodies of volunteers through her neutral territory was more or less equal to a passage of troops.
[Footnote 629: See Bluntschli, § 770.]
The Second Peace Conference has sanctioned this distinction, for article 6 of Convention V. enacts that "the responsibility of a neutral Power is not involved by the mere fact that persons cross the frontier individually (isolément) in order to offer their services to one of the belligerents." An argumentum e contrario justifies the conclusion that the responsibility of a neutral is involved in case it does allow men to cross the frontier in a body in order to enlist in the forces of a belligerent.
[Sidenote: Organisation of Hostile Expeditions.]
§ 332. If the levy and passage of troops, and the forming of corps of combatants, must be prevented by a neutral, he is all the more required to prevent the organisation of a hostile expedition from his territory against either belligerent. Such organisation takes place when a band of men combine under a commander for the purpose of starting from the neutral territory and joining the belligerent forces. The case, however, is different, if a number of individuals, not organised into a body under a commander, start in company from a neutral State for the purpose of enlisting with one of the belligerents. Thus in 1870, during the Franco-German War, 1200 Frenchmen started from New York in two French steamers for the purpose of joining the French Army. Although the vessels carried also 96,000 rifles and 11,000,000 cartridges, the United States did not interfere, since the men were not organised in a body, and since, on the other hand, the arms and ammunition were carried in the way of ordinary commerce.[630]
[Footnote 630: See Hall, § 222.]
[Sidenote: Use of Neutral Territory as Base of Naval Operations.]
§ 333. Although a neutral is not required by his duty of impartiality to prohibit[631] the passage of belligerent men of-war through his maritime belt, or the temporary stay of such vessels in his ports, it is universally recognised that he must not allow admitted vessels to make the neutral maritime belt and neutral ports the base of their naval operations against the enemy. And article 5 of Convention XIII. enacts that "belligerents are forbidden to use neutral ports and waters as a base of naval operations against their adversaries." The following rules may be formulated as emanating from the principle:--
(1) A neutral must, so far as is in his power, prevent belligerent men-of-war from cruising within his portion of the maritime belt for the purpose of capturing enemy vessels as soon as they leave this belt. It must, however, be specially observed that a neutral is not required to prevent this beyond his power. It is absolutely impossible to prevent such cruising under all circumstances and conditions, especially in the case of neutrals who own possessions in distant parts of the globe. How many thousands of vessels would be necessary, if Great Britain, for instance, were unconditionally obliged to prevent such cruising in every portion of the maritime belt of all her numerous possessions scattered over all parts of the globe?
(2) A neutral must prevent a belligerent man-of-war from leaving a neutral port at the same time as an enemy man-of-war or an enemy merchantman, or must make other arrangements which prevent an attack so soon as both reach the Open Sea.[632] Article 16 of Convention XIII. enacts that there must be an interval of at least twenty-four hours between the departure of a belligerent warship and a ship of the other belligerent.
(3) A neutral must prevent a belligerent man-of-war, whose crew is reduced from any cause whatever, from enrolling sailors in his neutral ports, with the exception of such few hands as are necessary for the purpose of safely navigating the vessel to the nearest port of her home State.[633]
(4) A neutral must prevent belligerent men-of-war admitted to his ports or maritime belt from taking in such a quantity of provisions and coal as would enable them to continue their naval operations, for otherwise he would make it possible for them to cruise on the Open Sea near his maritime belt for the purpose of attacking enemy vessels.
There is, however, no unanimity of the Powers concerning the quantity of provisions and coal which belligerent men-of-war may be allowed to take in. Articles 19 and 20 of Convention XIII. of the Second Peace Conference enact the following:--
Article 19: "Belligerent war-ships may only revictual in neutral ports or roadsteads to bring up their supplies to the peace standard. Similarly these vessels may only ship sufficient fuel to enable them to reach the nearest port in their own country. They may, on the other hand, fill up their bunkers built to carry fuel, when in neutral countries which have adopted this method of determining the amount of fuel to be supplied. If in accordance with the law of the neutral Power, the ships are not supplied with coal within twenty-four hours of their arrival, the duration of their permitted stay is extended by twenty-four hours."
Article 20: "Belligerent war-ships which have shipped fuel in a port belonging to a neutral Power may not within the succeeding three months replenish their supply in a port of the same Power."
Great Britain, Japan, and Siam, while they have accepted article 20,[634] have entered a reservation against article 19. Great Britain upholds her rule that belligerent warships shall not be allowed to take in more provisions and fuel in neutral ports than is necessary to bring them safely to the nearest port of their own country.
While, therefore, the matter is not settled, it is agreed that it makes no difference whether the man-of-war concerned intends to buy provisions and coal on land or to take them in from transport vessels which accompany or meet her in neutral waters.
(5) A neutral must prevent belligerent men-of-war admitted into his ports or maritime belt from replenishing with ammunition and armaments, and from adding to their armaments, as otherwise he would indirectly assist them in preparing for hostilities (article 18 of Convention XIII.). And it makes no difference whether the ammunition and armaments are to come from the shore or are to be taken in from transport vessels.
Similarly a neutral must prevent belligerent men-of-war in his ports and roadsteads from carrying out such repairs as would add in any manner whatever to their fighting force. The local authorities of the neutral Power must decide what repairs are absolutely necessary to make these vessels seaworthy, and such repairs are allowed, but they must be carried out with the least possible delay (article 17 of Convention XIII.).
(6) A neutral must prevent belligerent men-of-war admitted into his ports from remaining there longer than is necessary for ordinary and legitimate purposes.[635] It cannot be said that the rule adopted in 1862 by Great Britain, and followed by some other maritime States, not to allow a longer stay than twenty-four hours, is a rule of International Law. It is left to the consideration of neutrals to adopt by their Municipal Law any rule they think fit so long as the admitted men-of-war do not prolong their stay for any other than ordinary and legitimate purposes. Article 12 of Convention XIII. prescribes the twenty-four hours rule only for those neutral countries which have not special provisions to the contrary in their Municipal Laws.[636] But it is agreed--and article 14 of Convention XIII. enacts it--that belligerent men-of-war, except those exclusively for the time devoted to religious, scientific, or philanthropic purposes, must not prolong their stay in neutral ports and waters beyond the time permitted, except on account of damage or stress of weather. A neutral would certainly violate his duty of impartiality if he were to allow belligerent men-of-war to winter in his ports or to stay there for the purpose of waiting for other vessels of the fleet or transports.
The rule that a neutral must prevent belligerent men-of-war from staying too long in his ports or waters, became of considerable importance during the Russo-Japanese War, when the Russian Baltic Fleet was on its way to the Far East. Admiral Rojdestvensky is said to have stayed in the French territorial waters of Madagascar from December 1904 till March 1905, for the purpose of awaiting there a part of the Baltic Fleet that had set out at a later date. The Press likewise reported a prolonged stay by parts of the Baltic Fleet during April 1905 at Kamranh Bay and Hon-kohe Bay in French Indo-China. Provided the reported facts be true, France would seem to have violated her duty of impartiality by not preventing such an abuse of her neutral ports.
(7) A neutral must prevent more than three men-of-war belonging to the same belligerent from being simultaneously in one of his ports or roadsteads unless his Municipal Law provides the contrary (article 15 of Convention XIII.).
(8) At the outbreak of war a neutral must warn all belligerent men-of-war which were in his ports or roadsteads or in his territorial waters before the outbreak of war, to depart within twenty-four hours or within such time as the local law prescribes (article 13[637] of Convention XIII.).
[Footnote 631: See Curtius, Des navires de guerre dans les eaux neutres (1907).]
[Footnote 632: See below, § 347 (1).]
[Footnote 633: See article 18 of Convention XIII. and above, § 330.]
[Footnote 634: But Germany has entered a reservation against article 20.]
[Footnote 635: See below, § 347.]
[Footnote 636: Germany, Domingo, Siam, and Persia have entered a reservation against article 12.]
[Footnote 637: Germany has entered a reservation against article 13.]
[Sidenote: Building and Fitting-out of Vessels intended for Naval Operations.]
§ 334. Whereas a neutral is in no[638] wise obliged by his duty of impartiality to prevent his subjects from selling armed vessels to the belligerents, such armed vessels being merely contraband of war, a neutral is bound to employ the means at his disposal to prevent his subjects from building, fitting out, or arming, to the order of either belligerent, vessels intended to be used as men-of-war, and to prevent the departure from his jurisdiction of any vessel which, by order of either belligerent, has been adapted to warlike use.[639] The difference between selling armed vessels to belligerents, on the one hand, and building them to order, on the other hand, is usually defined in the following way:--
An armed ship, being contraband of war, is in no wise different from other kinds of contraband, provided she is not manned in a neutral port so that she can commit hostilities at once after having reached the Open Sea. A subject of a neutral who builds an armed ship or arms a merchantman, not to order of a belligerent but intending to sell her to a belligerent, does not differ from a manufacturer of arms who intends to sell them to a belligerent. There is nothing to prevent a neutral from allowing his subjects to sell armed vessels, and to deliver them to belligerents, either in a neutral port or in a port of the belligerent. In the case of the La Santissima Trinidad[640] (1822), as in that of the Meteor[641] (1866), American courts have recognised this.[642]
[Footnote 638: See below, §§ 350 and 397.]
[Footnote 639: See article 8 of Convention XIII.]
[Footnote 640: 7 Wheaton, § 340.]
[Footnote 641: See Wharton, III. § 396, p. 561.]
[Footnote 642: See Phillimore, III. § 151B, and Hall, § 224.]
On the other hand, if a subject of a neutral builds armed ships to order of a belligerent, he prepares the means of naval operations, since the ships on sailing outside the territorial waters of the neutral and taking in a crew and ammunition can at once commit hostilities. Thus, through carrying out the order of the belligerent, the neutral territory concerned has been made the base of naval operations. And as the duty of impartiality includes the obligation of the neutral to prevent either belligerent from making neutral territory the base of military or naval operations, a neutral violates his neutrality by not preventing his subjects from carrying out an order of a belligerent for the building and fitting out of men-of-war.
This distinction, although of course logically correct, is hair-splitting. It only shows that neutral States ought[643] to be required to prevent their subjects from supplying arms, ammunition, and the like, to belligerents. But so long as this progress is not made, the above distinction will probably continue to be drawn, in spite of its hair-splitting character.
[Footnote 643: See below, § 350.]
[Sidenote: The Alabama Case and the Three Rules of Washington.]
§ 335. The movement for recognition of the fact that the duty of impartiality requires a neutral to prevent his subjects from building and fitting out to order of belligerents vessels intended for naval operations, began with the famous case of the Alabama. It is not necessary to go into all the details[644] of this case. It suffices to say that in 1862, during the American Civil War, the attention of the British Government was drawn by the Government of the United States to the fact that a vessel for warlike purposes was built in England to order of the insurgents. This vessel, afterwards called the Alabama, left Liverpool in July 1862 unarmed, but was met at the Azores by three other vessels, also coming from England, which supplied her with guns and ammunition, so that she could at once begin to prey upon the merchantmen of the United States. On the conclusion of the Civil War, the United States claimed damages from Great Britain for the losses sustained by her merchant marine through the operations of the Alabama and other vessels likewise built in England. Negotiations went on for several years, and finally the parties entered, on May 8, 1871, into the Treaty of Washington[645] for the purpose of having their difference settled by arbitration, five arbitrators to be nominated--Great Britain, the United States, Brazil, Italy, and Switzerland, each choosing one. The treaty contained three rules, since then known as "The Three Rules of Washington," to be binding upon the arbitrators, namely:[646]--
"A neutral Government is bound--
"Firstly. To use due diligence to prevent the fitting out, arming, or equipping within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or carry on war against a Power with which it is at peace, and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted in whole or in part, within such jurisdiction, to warlike use.
"Secondly. Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.
"Thirdly. To exercise due diligence in its waters, and as to all persons within its jurisdiction, to prevent any violations of the foregoing obligations and duties."
[Footnote 644: See Mountague Bernard, Neutrality of Great Britain during the American Civil War (1870), pp. 338-496; Geffcken, Die Alabama Frage (1872); Pradier-Fodéré, La Question de l'Alabama (1872); Caleb Cushing, Le Traité de Washington (1874); Bluntschli in R.I. II. (1870), pp. 452-485; Balch, L'Évolution de l'arbitrage international (1908), pp. 43-70.]
[Footnote 645: Martens, N.R.G. XX. p. 698.]
[Footnote 646: See Moore, VII. § 1330.]
In consenting that these rules should be binding upon the arbitrators, Great Britain expressly declared that, in spite of her consent, she maintained that these rules were not recognised rules of International Law at the time when the case of the Alabama occurred, and the treaty contains also the stipulation that the parties--
"Agree to observe these rules as between themselves in future, and to bring them to the knowledge of other Maritime Powers, and to invite them to accede to them."
The appointed arbitrators[647] met at Geneva in 1871, held thirty-two conferences there, and gave decision[648] on September 14, 1872, according to which England had to pay 15,500,000 dollars damages to the United States.
[Footnote 647: See Moore, Arbitrations, I. pp. 495-682.]
[Footnote 648: The award is printed in full in Moore, Arbitrations, I. pp. 653-659, and in Phillimore, III. § 151.]
The arbitrators put a construction upon the term due diligence[649] and asserted other opinions in their decision which are very much contested and to which Great Britain never consented. Thus, Great Britain and the United States, although they agreed upon the three rules, did not at all agree upon the interpretation thereof, and they could, therefore, likewise not agree upon the contents of the communication to other maritime States stipulated by the Treaty of Washington. It ought not, therefore, to be said that the Three Rules of Washington[650] have literally become universal rules of International Law. Nevertheless, they were the starting-point of the movement for the universal recognition of the fact that the duty of impartiality obliges neutrals to prevent their subjects from building and fitting out, to order of belligerents, vessels intended for warlike purposes, and to prevent the departure from their jurisdiction of any vessel, which, by order of a belligerent, has been adapted to warlike use. Particular attention must be paid to the fact that, although article 8 of Convention XIII. in other respects copies almost verbally the first of the Three Rules of Washington, it differs from it in so far as it replaces the words "to use due diligence" by "to employ the means at its disposal." For this reason the construction put by the Geneva arbitrators upon the term due diligence cannot find application to the rule of article 8, the employment of the means at the disposal of a neutral to prevent the acts concerned being a mere question of fact.
[Footnote 649: See below, § 363.]
[Footnote 650: As regards the seven rules adopted by the Institute of International Law, at its meeting at the Hague in 1875, as emanating from the Three Rules of Washington, see Annuaire, I. (1877), p. 139.]
IV
NEUTRAL ASYLUM TO LAND FORCES AND WAR MATERIAL
Vattel, III. §§ 132-133--Hall, §§ 226 and 230--Halleck, II. p. 150--Taylor, § 621--Wharton, III. § 394--Moore, VII. §§ 1314-1318--Bluntschli, §§ 774, 776-776A, 785--Heffter, § 149--Geffcken in Holtzendorff, IV. pp. 662-665--Ullmann, § 191--Bonfils, Nos. 1461-1462--Rivier, II. pp. 395-398--Calvo, IV. §§ 2668-2669--Fiore, III. Nos. 1576, 1582, 1583--Martens, II. § 133--Mérignhac, pp. 370-376--Pillet, pp. 286-287--Kleen, II. §§ 151-157--Holland, War, Nos. 131-133--Zorn, pp. 316-352--Heilborn, Rechte und Pflichten der neutralen Staaten in Bezug auf die während des Krieges auf ihr Gebiet übertretenden Angehörigen einer Armee und das dorthingebrachte Kriegsmaterial der kriegführenden Parteien (1888), pp. 12-83--Rolin-Jaequemyns in R.I. III. (1871), pp. 352-366--Land Warfare, §§ 485-501.
[Sidenote: On Neutral Asylum in general.]
§ 336. Neutral territory, being outside the region of war,[651] offers an asylum to members of belligerent forces, to the subjects of the belligerents and their property, and to war material of 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 for self-preservation excepted--prevent them from violating the territorial supremacy of neutrals, enemy persons as well as enemy goods are perfectly safe on neutral territory. It is true that neither belligerent has a right to demand from a neutral[652] such asylum for his subjects, their property, and his State property. But neither has he, on the other hand, any right to demand that a neutral refuse such asylum to the enemy. The territorial supremacy of the neutral enables him to use his discretion, and either to grant or to refuse asylum. However, the duty of impartiality incumbent upon him must induce a neutral granting asylum to take all such measures as are necessary to prevent his territory from being used as a base of hostile operations.
[Footnote 651: See above, §§ 70 and 71.]
[Footnote 652: The generally recognised usage for a neutral to grant temporary hospitality in his ports to vessels in distress of either belligerent is an exception to be discussed below in § 344.]
Now, neutral territory may be an asylum, first, for private enemy property; secondly, for public enemy property, especially war material, cash, and provisions; thirdly, for private subjects of the enemy; fourthly, for enemy land forces; and, fifthly, for enemy naval forces. Details, however, need only be given with regard to asylum to land forces, war material, and naval forces. For with regard to private property and private subjects it need only be mentioned that private war material brought into neutral territory stands on the same footing as public war material of a belligerent brought there, and, further, that private enemy subjects are safe on neutral territory even if they are claimed by a belligerent for the committal of war crimes.
Only asylum to land forces and war material will be discussed here in §§ 337-341, asylum to naval forces being reserved for separate discussion in §§ 342-348. As regards asylum to land forces, a distinction must be made between (1) prisoners of war, (2) single fugitive soldiers, and (3) troops or whole armies pursued by the enemy and thereby induced to take refuge on neutral territory.
[Sidenote: Neutral Territory and Prisoners of War.]
§ 337. Neutral territory is an asylum to prisoners of war of either belligerent in so far as they become free ipso facto by their coming into neutral territory. And it matters not in which way they come there, whether they escape from a place of detention and take refuge on neutral territory, or whether they are brought as prisoners into such territory by enemy troops who themselves take refuge there.[653]
[Footnote 653: The case of prisoners on board a belligerent man-of-war which enters a neutral port is different; see below, § 345.]
The principle that prisoners of war regain their liberty by coming into neutral territory has been generally recognised for centuries. An illustration occurred in 1558, when several Turkish and Barbary captives escaped from one of the galleys of the Spanish Armada which was wrecked near Calais, and, although the Spanish Ambassador claimed them, France considered them to be freed by the fact of their coming on her territory, and sent them to Constantinople.[654] But has the neutral on whose territory a prisoner has taken refuge the duty to retain such fugitives and thereby prevent them from rejoining the enemy army? Formerly this question was not settled. In 1870, during the Franco-German War, Belgium answered the question in the affirmative, and detained a French non-commissioned officer who had been a prisoner in Germany and had escaped into Belgian territory with the intention of rejoining at once the French forces. Whereas this case was controversial,[655] all writers agreed that the case was different if escaped prisoners wanted to remain on the neutral territory. As such refugees might at any subsequent time wish to rejoin their forces, the neutral was by his duty of impartiality considered to be obliged to take adequate measures to prevent their so doing. There was likewise no unanimity regarding prisoners brought into neutral territory by enemy forces taking refuge there. It was agreed that such prisoners became free by being brought into neutral territory; but whereas some writers[656] maintained that they could not be detained in case they intended at once to leave the neutral territory, others asserted that they must always be detained and that they must comply with such measures as the neutral considers necessary to prevent them from rejoining their forces.
[Footnote 654: See Hall, § 226, p. 641, note 1.]
[Footnote 655: See Rolin-Jaequemyns in R.I. III. (1871), p. 556; Bluntschli, § 776; Heilborn, Rechte, pp. 32-34.]
[Footnote 656: For instance, Heilborn, Rechte, pp. 51-52.]
Article 13 of Convention V. settles the controversy by enacting that a neutral who receives prisoners of war who have escaped or who are brought there by troops of the enemy taking refuge on neutral territory, shall leave them at liberty, but that, if he allows them to remain on his territory, he may--he need not!--assign them a place of residence so as to prevent them from rejoining their forces. Since, therefore, everything is left to the discretion of the neutral, he will have to take into account the merits and needs of every case and to take such steps as he thinks adequate. But so much is certain that a belligerent may not in every case categorically demand from a neutral who receives escaped prisoners, or such as have been brought there by troops who take refuge, that he should detain them.
The case of prisoners who, with the consent of the neutral, are transported through neutral territory is different. Such prisoners do not become free on entering the neutral territory, but there is no doubt that a neutral, by consenting to the transport, violates his duty of impartiality, because such transport is equal to passage of troops through neutral territory (article 2 of Convention V.).
Attention must, lastly, be drawn to the case where enemy soldiers are amongst the wounded whom a belligerent is allowed by a neutral to transport through neutral territory. Such wounded prisoners become free, but they must, according to article 14 of Convention V., be guarded by the neutral so as to insure their not again taking part in military operations.[657]
[Footnote 657: See also article 15 of Convention X. and below, § 348_a_.]
[Sidenote: Fugitive Soldiers on Neutral Territory.]
§ 338. A neutral may grant asylum to single soldiers of belligerents who take refuge on his territory, although he need not do so, and may at once send them back to the place they came from. If he grants such asylum, his duty of impartiality obliges him to disarm the fugitives and to take such measures as are necessary to prevent them from rejoining their forces. But it must be emphasised that it is practically 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. And, before he can incur responsibility for not doing so, a neutral must actually be in a position to detain such fugitives. Thus Luxemburg, during the Franco-German War, could not prevent hundreds of French soldiers, who, after the capitulation of Metz, fled into her territory, from rejoining the French forces; because, according to the condition[658] of her neutralisation, she is not allowed to keep an army, and therefore, in contradistinction to Switzerland and Belgium, was unable to mobilise troops for the purpose of fulfilling her duty of impartiality.
[Footnote 658: See above, vol. I. § 100.]
[Sidenote: Neutral Territory and Fugitive Troops.]
§ 339. On occasions during war large bodies of troops, or even a whole army, are obliged to cross the neutral frontier for the purpose of escaping captivity. A neutral need not permit this, and may repulse them on the spot, but he may also grant asylum. It is, however, obvious that the presence of such troops on neutral territory is a danger for the other party. The duty of impartiality incumbent upon a neutral obliges him, therefore, to disarm such troops at once, and to guard them so as to insure their not again performing military acts against the enemy during the war. Convention V. enacts the following rules:--
Article 11: "A neutral Power which receives in its territory troops belonging to the belligerent armies shall detain them, if possible, at some distance from the theatre of war. It may keep them in camps, and even confine them in fortresses or localities assigned for the purpose. It shall decide whether officers are to be left at liberty on giving their parole that they will not leave the neutral territory without authorisation."
Article 12: "In the absence of a special Convention, the neutral Power shall supply the interned with the food, clothing, and relief which the dictates of humanity prescribe. At the conclusion of peace, the expenses caused by internment shall be made good."
It is usual for troops who are not actually pursued by the enemy--for if pursued they have no time for 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 the custody of the neutral. Such conventions are valid without needing ratification, provided they contain only such stipulations as do not disagree with International Law and as concern only the requirements of the case.
Stress must be laid on the fact that, 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--see above, Vol. I. § 445--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.
The most remarkable instance known in history is the asylum granted by Switzerland during the Franco-German War to a French army of 85,000 men with 10,000 horses which crossed the frontier on February 1, 1871.[659] France had, after the conclusion of the war, to pay about eleven million francs for the maintenance of this army in Switzerland during the rest of the war.
[Footnote 659: See the Convention regarding this asylum between the Swiss General Herzog and the French General Clinchant in Martens, N.R.G. XIX. p. 639.]
[Sidenote: Neutral Territory and Non-combatant Members of Belligerent Forces.]
§ 340. The duty of impartiality incumbent upon a neutral obliges him to detain in the same way as soldiers such non-combatant[660] members of belligerent forces as cross his frontier. He may not, however, detain army surgeons and other non-combatants who are privileged according to article 2 of the Geneva Convention.
[Footnote 660: See Heilborn, Rechte, pp. 43-46. Convention V. does not mention any rule concerning this matter.]
[Sidenote: Neutral Territory and War Material of Belligerents.]
§ 341. It can happen during war that war material belonging to one of the belligerents is brought into neutral territory for the purpose of saving it from capture by the enemy. Such war material can be brought by troops crossing the neutral frontier for the purpose of evading captivity, or it can be purposely sent there by order of a commander. Now, a neutral is by no means obliged to admit such material, just as he is not obliged to admit soldiers of belligerents. But if he admits it, his duty of impartiality obliges him to seize and retain it till after the conclusion of peace. War material includes, besides arms, ammunition, provisions, horses, means of military transport such as carts and the like, and everything else that belongs to the equipment of troops. But means of military transport belong to war material only so far as they are the property of a belligerent. If they are hired or requisitioned from private individuals, they may not be detained by the neutral.
It can likewise happen during war that war material, originally the property of one of the belligerents but seized and appropriated by the enemy, is brought by the latter into neutral territory. Does such material, through coming into neutral territory, become free, and must it be restored to its original owner, or must it be retained by the neutral and after the war be restored to the belligerent who brought it into the neutral territory? In analogy with prisoners of war who become free through being brought into neutral territory, it is maintained[661] that such war material becomes free and must be restored to its original owner. To this however, I cannot agree.[662] Since war material becomes through seizure by the enemy his property and remains his property unless the other party re-seizes and thereby re-appropriates it, there is no reason for its reverting to its original owner upon transportation into neutral territory.[663]
[Footnote 661: See Hall, § 226.]
[Footnote 662: See Heilborn, Rechte, p. 60, and Land Warfare, § 492. The Dutch Government at the Second Peace Conference proposed a rule according to which captured war material brought by the captor into neutral territory should be restored, after the war, to its original owner, but--see Deuxième Conférence, Actes, vol. i. p. 145--this proposal was not accepted.]
[Footnote 663: See Heilborn, Rechte, pp. 61-65, where the question is discussed as to whether a neutral may claim a lien on war material brought into his territory for expenses incurred for the maintenance of detained troops belonging to the owner of the war material.]
V
NEUTRAL ASYLUM TO NAVAL FORCES
Vattel, III. § 132--Hall, § 231--Twiss, II. § 222--Halleck, II. p. 151--Taylor, §§ 635, 636, 640--Wharton, III. § 394--Wheaton, § 434--Moore, VII. §§ 1314-1318--Bluntschli, §§ 775-776B--Heffter, § 149--Geffcken in Holtzendorff, IV. pp. 665-667, 674--Ullmann, § 191--Bonfils, No. 1463--Despagnet, No. 692 ter--Rivier, II. p. 405--Calvo, IV. §§ 2669-2684--Fiore, III. Nos. 1576-1581, 1584, and Code, Nos. 1788-1792--Martens, II. § 133--Kleen, II. § 155--Pillet, pp. 305-307--Perels, § 39, p. 231--Testa, pp. 173-187--Dupuis, Nos. 308-314, and Guerre, Nos. 304-328--Ortolan, II. pp. 247-291--Hautefeuille, I. pp. 344-405--Takahashi, pp. 418-484--Bajer in R.I. 2nd Ser. II. (1900), pp. 242-244--Lapradelle in R.G. XI. (1904), p. 531.
[Sidenote: Asylum to Naval Forces in contradistinction to Asylum to Land Forces.]
§ 342. Whereas asylum granted by a neutral to land forces and single members of them is conditioned by the obligation of the neutral to disarm such forces and to detain them for the purpose of preventing them from joining in further military operations, a neutral may grant temporary asylum to men-of-war of belligerents without being obliged to disarm and detain them.[664] The reason is that the sea is considered an international highway, that the ports of all nations serve more or less the interests of international traffic on the sea, and that the conditions of navigation make a certain hospitality of ports to vessels of all nations a necessity. Thus the rules of International Law regarding asylum of neutral ports to men-of-war of belligerents have developed on somewhat different lines from the rules regarding asylum to land forces. But the rule, that the duty of impartiality incumbent upon a neutral must prevent him from allowing belligerents to use his territory as a base of operations of war, is nevertheless valid regarding asylum granted to their men-of-war.
[Footnote 664: See, however, below, § 347, concerning the abuse of asylum, which must be prohibited.]
[Sidenote: Neutral Asylum to Naval Forces optional.]
§ 343. Although a neutral may grant asylum to belligerent men-of-war in his ports, he has no duty to do so. He may prohibit all belligerent men-of-war from entering any of his ports, whether these vessels are pursued by the enemy or desire to enter for other reasons. However, his duty of impartiality must prevent him from denying to the one party what he grants to the other, and he may not, therefore, allow entry to men-of-war of one belligerent without giving the same permission to men-of-war of the other belligerent (article 9 of Convention XIII.). Neutrals as a rule admit men-of-war of both parties, but they frequently exclude all men-of-war of both parties from entering certain ports. Thus Austria prohibited during the Crimean War all belligerent men-of-war from entering the port of Cattaro. Thus, further, Great Britain prohibited during the American Civil War the access of all belligerent men-of-war to the ports of the Bahama Islands, the case of stress of weather excepted.
Be that as it may, since a neutral must prevent belligerents from making his territory the base of military operations, he must not allow an unlimited number of men-of-war belonging to one of the belligerents to stay simultaneously in one of his ports. Article 15 of Convention XIII. limits the number of such men-of-war to three, unless there are special provisions to the contrary in the Municipal Law of the neutral concerned.
[Sidenote: Asylum to Naval Forces in Distress.]
§ 344. To the rule that a neutral need not admit men-of-war of the belligerents to neutral ports there is no exception in strict law. However, there is an international usage that belligerent men-of-war in distress should never be prevented from making for the nearest port. In accordance with this usage vessels in distress have always been allowed entry even to such neutral ports as were totally closed to belligerent men-of-war. There are even instances known of belligerent men-of-war in distress having asked for and been granted asylum by the enemy in an enemy port.[665]
[Footnote 665: See above, § 189.]
[Sidenote: Exterritoriality of Men-of-War during Asylum.]
§ 345. The exterritoriality, which according to a universally recognised rule of International Law men-of-war must enjoy[666] in foreign ports, obtains even in time of war during their stay in neutral ports. Therefore, prisoners of war on board do not become free by coming into the neutral port[667] so long as they are not brought on shore, nor do prizes[668] brought into neutral ports by belligerents. On the other hand, belligerent men-of-war are expected to comply with all orders which the neutral makes for the purpose of preventing them from making his ports the base of their operations of war, as, for instance, with the order not to leave the ports at the same time as vessels of the other belligerent. And, if they do not comply voluntarily, they may be made to do so through application of force, for a neutral has the duty to prevent by all means at hand the abuse of the asylum granted.
[Footnote 666: See above, vol. I. § 450.]
[Footnote 667: See above, § 337.]
[Footnote 668: See articles 21-23 of Convention XIII.]
Special provision is made by article 24 of Convention XIII. for the case of a belligerent man-of-war which refuses to leave a neutral port. This article enacts:--"If, notwithstanding the notification of the neutral Power, a belligerent ship of war does not leave a port where it is not entitled to remain, the neutral Power is entitled to take such measures as it considers necessary to render the ship incapable of putting to sea so long as the war lasts, and the commanding officer of the ship must facilitate the execution of such measures. When a belligerent ship is detained by a neutral Power, the officers and crew are likewise detained. The officers and crew so detained may be left in the ship or kept either on another vessel or on land, and may be subjected to such measures of restriction as it may appear necessary to impose upon them. A sufficient number of men must, however, be always left on board for looking after the vessel. The officers may be left at liberty on giving their word not to quit neutral territory without permission."
If a vessel is granted asylum for the whole time of the war--see below, § 347 (3 and 4)--and is, therefore, dismantled, she loses the character of a man-of-war, no longer enjoys the privilege of exterritoriality due to men-of-war in foreign waters, and prisoners on board become free, although they must be detained by the neutral concerned.
[Sidenote: Facilities to Men-of-War during Asylum.]
§ 346. A belligerent man-of-war, to which asylum is granted in a neutral port, is not only not disarmed and detained, but facilities may even be rendered to her as regards slight repairs, and the supply of provisions and coal. However, a neutral may only allow small repairs of the vessel herself and not of her armaments;[669] for he would render assistance to one of the belligerents, to the detriment of the other, if he were to allow the damaged armaments of a belligerent man-of-war to be repaired in a neutral port. And, further, a neutral may only allow a limited amount of provisions and coal to be taken in by a belligerent man-of-war in neutral ports;[670] for, if he did otherwise, he would allow the belligerent to use the neutral ports as a base for operations of war. And, lastly, a neutral may allow a belligerent man-of-war in his ports to enrol only such a small number of sailors as is necessary to navigate her safely to the nearest port of her home State.[671]
[Footnote 669: See above, § 333 (5), and below, § 347 (3).]
[Footnote 670: See above, § 333 (4).]
[Footnote 671: See above, §§ 330 and 333 (3).]
[Sidenote: Abuse of Asylum to be prohibited.]
§ 347. It would be easy for belligerent men-of-war to which asylum is granted in neutral ports to abuse such asylum if neutrals were not required to prohibit such abuse.
(1) A belligerent man-of-war can abuse asylum, firstly, by ascertaining whether and what kind of enemy vessels are in the same neutral port, accompanying them when they leave, and attacking them immediately they reach the Open Sea. To prevent such abuse, in the eighteenth century several neutral States arranged that, if belligerent men-of-war or privateers met enemy vessels in a neutral port, they were not to be allowed to leave together, but an interval of at least twenty-four hours was to elapse between the sailing of the vessels. During the nineteenth century this so-called twenty-four hours rule was enforced by the majority of States, and the Second Peace Conference, by article 16 of Convention XIII., has made it a general rule[672] by enacting:--"When war-ships belonging to both belligerents are present simultaneously in a neutral port or roadstead, a period of not less than twenty-four hours must elapse between the departure of the ship belonging to one belligerent and the departure of the ship belonging to the other. The order of departure is determined by the order of arrival, unless the ship which arrived first is so circumstanced that an extension of its stay is permissible. A belligerent war-ship may not leave a neutral port or roadstead until twenty-four hours after the departure of a merchant ship flying the flag of its adversary."
(2) Asylum can, secondly, be abused by wintering in a port in order to wait for other vessels of the same fleet, or by similar intentional delay. There is no doubt that neutrals must prohibit this abuse by ordering such belligerent men-of-war to leave the neutral ports. Following the example set by Great Britain in 1862,[673] several maritime States have adopted the rule of not allowing a belligerent man-of-war to stay in their neutral ports for more than twenty-four hours, except on account of damage or stress of weather. Other States, such as France, do not, however, object to a more prolonged stay in their ports. Article 12 of Convention XIII. prescribes the twenty-four hours rule only for those neutral countries which have not special provisions to the contrary in their Municipal Laws.[674]
(3) Asylum can, thirdly, be abused by repairing a belligerent man-of-war which has become unseaworthy. Although small repairs are allowed,[675] a neutral would violate his duty of impartiality by allowing such repairs as would make good the unseaworthiness of a belligerent man-of-war. During the Russo-Japanese War this was generally recognised, and the Russian men-of-war Askold and Grossovoi in Shanghai, the Diana in Saigon, and the Lena in San Francisco had therefore to be disarmed and detained. The crews of these vessels had likewise to be detained for the time of the war.
(4) Asylum can, lastly, be abused by remaining in a neutral port an undue length of time in order to escape attack and capture by the other belligerent. Neutral territorial waters are in fact an asylum for men-of-war which are pursued by the enemy, but, since nowadays a right of pursuit into neutral waters, as asserted by Bynkershoek,[676] is no longer recognised, it would be an abuse of asylum if the escaped vessel were allowed to make a prolonged stay in the neutral waters. A neutral who allowed such abuse of asylum would violate his duty of impartiality, for he would assist one of the belligerents to the disadvantage of the other.[677] Therefore, when after the battle off Port Arthur in August 1904 the Russian battleship Cesarewitch, the cruiser Novik, and three destroyers escaped, and took refuge in the German port of Tsing-Tau in Kiao-Chau, the Novik, which was uninjured, had to leave the port after a few hours,[678] whereas the other vessels, which were too damaged to leave the port, were disarmed and, together with their crews, detained till the conclusion of peace. And when, at the end of May 1905, after the battle of Tsu Shima, three injured Russian men-of-war, the Aurora, Oleg, and Jemchug, escaped into the harbour of Manila, the United States of America ordered them to be disarmed and, together with their crews, to be detained during the war.
[Footnote 672: See above, § 333 (2), and Hall, § 231, p. 651.]
[Footnote 673: See Hall, § 231, p. 653.]
[Footnote 674: See above, § 333 (6)--Germany, Domingo, Siam, and Persia have entered a reservation against article 12.]
[Footnote 675: See above, § 333 (5) and § 346.]
[Footnote 676: Quaest. jur. publ. I. c. 8. See also above, § 288, p. 352, and § 320, p. 387.]
[Footnote 677: It was only during the Russo-Japanese War in 1904 that this became generally recognised, and article 24 of Convention XIII. places it beyond all doubt. Until the Russo-Japanese War it was still a controverted question whether a neutral is obliged either to dismiss or to disarm and detain such men-of war as had fled into his ports for the purpose of escaping attack and capture. See Hall, § 231, p. 651, and Perels, § 39, p. 213, in contradistinction to Fiore, III. No. 1578. The "Règlement sur le régime légal des navires et de leurs équipages dans les ports étrangers," adopted by the Institute of International Law in 1898 at its meeting at the Hague--see Annuaire, XVII. (1898), p. 273--answers (article 42) the question in the affirmative.]
[Footnote 678: This case marks the difference between the duties of neutrals as regards asylum to land and naval forces. Whereas land forces crossing neutral frontiers must either be at once repulsed or detained, men-of-war may be granted the right to stay for some limited time within neutral harbours and to leave afterwards unhindered; see above, § 342. The supply of a small quantity of coal to the Novik in Tsing-Tau was criticised by writers in the Press, but unjustly. For--see above, § 346--a neutral may allow a belligerent man-of-war in his port to take in so much coal as is necessary to navigate her to her nearest home port.]
[Sidenote: Neutral Men-of-War as an Asylum.]
§ 348. It can happen during war that neutral men-of-war pick up and save from drowning soldiers and sailors of belligerent men-of-war sunk by the enemy, or that they take belligerent marines on board for other reasons. Such neutral men-of-war being an asylum for the rescued marines, the question has arisen whether such rescued marines must be given up to the enemy, or must be detained during the war, or may be brought to their home country. Two cases are on record which illustrate this matter.
(1) At the beginning of the Chino-Japanese War, on July 25, 1894, after the Japanese cruiser Naniwa had sunk the British ship Kow-shing, which served as transport carrying Chinese troops,[679] forty-five Chinese soldiers who clung to the mast of the sinking ship were rescued by the French gunboat Lion and brought to the Korean harbour of Chemulpo. Hundreds of others saved themselves on some islands near the spot where the incident occurred, and 120 of these were taken on board the German man-of-war Iltis and brought back to the Chinese port of Tientsin.[680]
(2) At the beginning of the Russo-Japanese War, on February 9, 1904, after the Russian cruisers Variag and Korietz had accepted the challenge[681] of a Japanese fleet, fought a battle outside the harbour of Chemulpo, and returned, crowded with wounded, to Chemulpo, the British cruiser Talbot, the French Pascal, and the Italian Elba received large numbers of the crews of the disabled Russian cruisers. The Japanese demanded that the neutral ships should give up the rescued men as prisoners of war, but the neutral commanders demurred, and an arrangement was made according to which the rescued men were handed over to the Russians under the condition that they should not take part in hostilities during the war.[682]
[Footnote 679: See above, § 89, p. 114, note 1.]
[Footnote 680: See Takahashi, Cases on International Law during the Chino-Japanese War (1899), pp. 36 and 51.]
[Footnote 681: See above, § 320 (1).]
[Footnote 682: See Lawrence, War, pp. 63-75, and Takahashi, pp. 462-466.]
The Second Peace Conference has settled the question, for article 13 of Convention X. enacts:--"If wounded, sick, or shipwrecked are taken on board a neutral man-of-war, precaution must be taken, so far as possible, that they do not again take part in the operations of the war."
[Sidenote: Neutral Territory and Shipwrecked Soldiers.]
§ 348_a_. Just as in war on land members of the belligerent forces may find themselves on neutral territory, so in war on sea shipwrecked or wounded or sick belligerent soldiers can be brought into neutral territory. Two cases of this kind must be distinguished:--
(1) According to article 14 of Convention X. it is left to the belligerent man-of-war who captures shipwrecked, wounded, or sick enemy soldiers to send them to a neutral port. The neutral Power concerned need not receive them, but, on the other hand, may grant them asylum. If asylum is granted, the neutral Power is, according to article 15 of Convention X., obliged--unless there is an arrangement to the contrary between the neutral Power and both belligerents--to guard them so as to prevent them from again taking part in the war,[683] the expenses for tending and interning them to be paid by the belligerent to whom they belong.
(2) Neutral merchantmen[684] can either of their own accord have rescued wounded, sick, or shipwrecked men, or they can have taken them on board on appeal by belligerent men-of-war. The surrender of these men may, according to article 12 of Convention X., be demanded at any time by any belligerent man-of-war. But if such demand be not made and the men be brought into a neutral port, they need not be detained by the neutral concerned.
[Footnote 683: See above, § 205.]
[Footnote 684: See above, § 208 (2).]
VI
SUPPLIES AND LOANS TO BELLIGERENTS
Vattel, III. § 110--Hall, §§ 216-217--Lawrence, § 235--Westlake, II. pp. 217-219--Phillimore, III. § 151--Twiss, II. § 227--Halleck, II. p. 163--Taylor, §§ 622-625--Walker, § 67--Wharton, III. §§ 390-391--Moore, VII. §§ 1307-1312--Bluntschli, §§ 765-768--Heffter, § 148--Geffcken in Holtzendorff, IV. pp. 687-700--Ullmann, §§ 191-192--Bonfils, Nos. 1471-1474--Despagnet, Nos. 693-694--Rivier, II. pp. 385-411--Calvo, IV. §§ 2624-2630--Fiore, III. Nos. 1559-1563--Martens, II. § 134--Kleen, I. §§ 66-69, 96-97--Mérignhac, pp. 360-364--Pillet, pp. 289-293--Dupuis, Nos. 317-319--Land Warfare, §§ 477-480.
[Sidenote: Supply on the part of Neutrals.]
§ 349. The duty of impartiality must prevent a neutral from supplying belligerents with arms, ammunition, vessels, and military provisions.[685] And it matters not whether such supply takes place for money or gratuitously. A neutral who sold arms and ammunition to a belligerent at a profit would violate his duty of impartiality as also would one who transferred such arms and ammunition to a belligerent as a present. This is a settled rule so far as direct transactions regarding such supply between belligerents and neutrals are concerned. The case is different where a neutral does not directly and knowingly deal with a belligerent, although he may, or ought to, be aware that he is indirectly supplying a belligerent. Different States have during neutrality taken up different attitudes regarding such cases. Thus in 1825, during the War of Independence which the Spanish South American Colonies waged against their mother country, the Swedish Government sold three old men-of-war, the Försigtigheten, Euridice, and Camille to two merchants, who on their part sold them to English merchants, representatives of the Government of the Mexican insurgents. When Spain complained, Sweden rescinded the contract.[686] Further, the British Government in 1863, during the American Civil War, after selling an old gunboat, the Victor, to a private purchaser and subsequently finding that the agents of the Confederate States had obtained possession of her, gave the order that during the war no more Government ships should be sold.[687] On the other hand, the Government of the United States of America, in pursuance of an Act passed by Congress in 1868 for the sale of arms which the end of the Civil War had rendered superfluous, sold in 1870, notwithstanding the Franco-German War, thousands of arms and other war material which were shipped to France.[688] This attitude of the United States is now generally condemned, and article 6 of Convention XIII. may be quoted against a repetition of such a practice on the part of a neutral State. This article prohibits the supply in any manner, directly or indirectly, by a neutral to a belligerent, of warships, ammunition, or war material of any kind whatever.
[Footnote 685: See article 6 of Convention XIII.]
[Footnote 686: See Martens, Causes Célèbres, V. pp. 229-254.]
[Footnote 687: See Lawrence, § 235.]
[Footnote 688: See Wharton, III. § 391, and Moore, VII. § 1309.]
[Sidenote: Supply on the part of Subjects of Neutrals.]
§ 350. In contradistinction to supply to belligerents by neutrals, such supply by subjects of neutrals is lawful, and neutrals are not, therefore, obliged according to their duty of impartiality to prevent such supply. Article 7 of Convention V. and article 7 of Convention XIII. concur in enacting the old customary rule that "A neutral Power is not bound to prevent the export or transit, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or fleet." And article 18[689] of Convention V. recognises the fact that the furnishing of supplies to a belligerent by such subjects of neutrals as do not live on the territory of the other party, or on the territory occupied by that party, does not invest these individuals with enemy character. When in August 1870, during the Franco-German War, Germany lodged complaints with the British Government for not prohibiting its subjects from supplying arms and ammunition to the French Government, Great Britain correctly replied that she was not by International Law under the obligation to prevent her subjects from committing such acts. Of course, such neutral as is anxious to avoid all controversy and friction can by his Municipal Law order his subjects to abstain from such acts, as for instance Switzerland and Belgium did during the Franco-German War. But such injunctions arise from political prudence, and not from any obligation imposed by International Law.
[Footnote 689: That Great Britain has entered a reservation against article 18, and the portent of this reservation, has been pointed out above, in § 88, p. 109, note 1.]
The endeavour to make a distinction between supply in single cases and on a small scale on the one hand, and, on the other, supply on a large scale, and to consider only the former lawful,[690] has neither in theory nor in practice found recognition. As International Law stands, belligerents may make use of visit, search, and seizure to protect themselves against conveyance of contraband by sea to the enemy by subjects of neutrals. But so far as their neutral home State is concerned, such subjects may, at the risk of having their property seized during such conveyance, supply either belligerent with any amount of arms, ammunition, coal, provisions, and even with armed ships,[691] provided always that they deal with the belligerents in the ordinary way of commerce.
[Footnote 690: See Bluntschli, § 766.]
[Footnote 691: See above, § 334, and below, § 397.]
The case is different when there is no ordinary commerce with a belligerent Government and when subjects of neutrals directly supply a belligerent army or navy, or parts of them. If, for instance, a belligerent fleet is cruising outside the maritime belt of a neutral, the latter must prevent vessels of his subjects from bringing coal, arms, ammunition, and provisions to that fleet, for otherwise he would allow the belligerent to make use of neutral resources for naval operations.[692] But he need not prevent vessels of his subjects from bringing coal, arms, ammunition, and provisions to belligerent ports, although the supply is destined for the navy and the army of the belligerent. He need not prevent belligerent merchantmen from coming into his ports and carrying arms and the like, bought from his subjects, over to the ports of their home State. And he need not prevent vessels of his subjects from following a belligerent fleet and supplying it en route[693] with coal, ammunition, provisions, and the like, provided such supply does not take place in the neutral maritime belt.
[Footnote 692: See above, § 333 (4).]
[Footnote 693: See above, § 311, p. 375, note 4.]
There is no doubt that, as the law stands at present, neutrals need not prevent their subjects from supplying belligerents with arms and ammunition. Yet, on the other hand, there is no doubt either that such supply is apt to prolong a war which otherwise would come to an end at an earlier date. But it will be a long time, if ever it happens, before it is made a duty of neutrals to prevent such supply as far as is in their power, and to punish such of their subjects as engage in it. The profit derived from such supply being enormous, the members of the Family of Nations are not inclined to cripple the trade of their subjects by preventing it. And belligerents want to have the opportunity of replenishing with arms and ammunition if they run short of them during war. The question is merely one of the standard of public morality.[694] If this standard rises, and it becomes the conviction of the world at large that supply of arms and ammunition by subjects of neutrals is apt to lengthen wars, the rule will appear that neutrals must prevent such supply.
[Footnote 694: See above, vol. I. § 51 (6) p. 83.]
[Sidenote: Loans and Subsidies on the part of Neutrals.]
§ 351. His duty of impartiality must prevent a neutral from granting a loan to either belligerent. Vattel's (III. § 110) distinction between such loans as are granted on interest and such as are not so granted, and his assertion that loans on the part of neutrals are lawful if they are granted on interest with the pure intention of making money, have not found favour with other writers. Nor do I know any instance of such loan on interest having occurred during the nineteenth century.
What is valid regarding a loan is all the more valid regarding subsidies in money granted to a belligerent on the part of a neutral. Through the granting of subsidies a neutral becomes as much the ally of the belligerent as he would by furnishing him with a number of troops.[695]
[Footnote 695: See above, §§ 305, 306, 321.]
[Sidenote: Loans and Subsidies on the part of Subjects of Neutrals.]
§ 352. It was formerly a moot point in the theory of International Law whether a neutral is obliged by his duty of impartiality to prevent his subjects from granting subsidies and loans to belligerents for the purpose of enabling them to continue the war. Several writers[696] maintained either that a neutral was obliged to prevent such loans and subsidies altogether, or at least that he must prohibit a public subscription on neutral territory for such loans and subsidies. On the other hand, a number of writers asserted that, since money is just as much an article of commerce as goods, a neutral was in no wise obliged to prevent on his territory public subscription by his subjects to loans for the belligerents. In contradistinction to the theory of International Law, the practice of the States has beyond doubt established the fact that neutrals need not prevent on their territory subscription to loans for belligerents. Thus in 1854, during the Crimean War, France protested in vain against a Russian loan being raised in Amsterdam, Berlin, and Hamburg. In 1870, during the Franco-German War, a French loan was raised in London. In 1877, during the Russo-Turkish War, no neutral prevented his subjects from subscribing to the Russian loan. Again, in 1904, during the Russo-Japanese War, Japanese loans were raised in London and Berlin, and Russian loans in Paris and Berlin. The Second Peace Conference, by enacting in article 7 of Convention V. that a neutral is not bound to prevent the export ... of anything which can be of use to an army or fleet, has indirectly recognised that a neutral need not prevent the subscription on his territory to loans for belligerents.
[Footnote 696: See Phillimore, III. § 151; Bluntschli, § 768; Heffter, § 148; Kleen, I. § 68. The case of De Wütz v. Hendricks (9 Moore, 586) quoted by Phillimore in support of his assertion that neutrals must prevent their subjects from subscribing to a loan for belligerents, is not decisive, for Lord Chief Justice Best declared only "that it was contrary to the Law of Nations for persons residing in this country to enter into any agreements to raise money by way of a loan for the purpose of supporting subjects of a foreign State in arms against a Government in alliance with our own."]
But matters differ somewhat in regard to subsidies to belligerents by subjects of neutrals. A neutral is not indeed obliged to prevent individual subjects from granting subsidies to belligerents, just as he is not obliged to prevent them from enlisting with either belligerent. But if he were to allow on his territory a public appeal for subscriptions to such subsidy, he would certainly violate his duty of impartiality; for loans are a matter of commerce, subsidies are not. It must, however, be emphasised that public appeals for subscriptions of money for charitable purposes in favour of the wounded, the prisoners, and the like, need not be prevented, even if they are only made in favour of one of the belligerents.
The distinction between loans and subsidies is certainly correct as the law stands at present. But there is no doubt that the fact of belligerents having the opportunity of getting loans from subjects of neutrals is apt to lengthen wars. The Russo-Japanese War, for instance, would have come to an end much sooner if either belligerent could have been prevented from borrowing money from subjects of neutrals. Therefore, what has been said above in § 350 with regard to the supply of arms and ammunition on the part of subjects of neutrals applies likewise to loans: they will no longer be considered lawful when the standard of public morality rises.
VII
SERVICES TO BELLIGERENTS
Westlake, II. pp. 219-220--Despagnet, No. 696 bis--Bonfils, No. 1475[1]--Ullmann, § 192--Rivier, II. pp. 388-391--Calvo, IV. §§ 2640-2641--Martens, II. § 134--Perels, § 43--Kleen, I. §§ 103-108--Lawrence, War, pp. 83-92, 218-220--Scholz, Drahtlose Telegraphie und Neutralität (1905), passim, and Krieg und Seekabel (1904), pp. 122-133--Land Warfare, §§ 481-484--Kebedgy, in R.I. 2nd Ser. IV. (1904), pp. 445-451.
[Sidenote: Pilotage.]
§ 353. Since pilots are in the service of littoral States the question as to whether neutrals may permit their pilots to render services to belligerent men-of-war and transport vessels, is of importance. Article 11[697] of Convention XIII. enacts that "a neutral Power may allow belligerent war-ships to employ its licensed pilots." Since, therefore, everything is left to the discretion of neutrals, they will have to take the merits and needs of every case into account. There would certainly be no objection to a neutral allowing belligerent vessels to which asylum is legitimately granted, to be piloted into his ports, and likewise such vessels to be piloted through his maritime belt if their passage is not prohibited. But a belligerent might justly object to the men-of-war of his adversary being piloted on the Open Sea by pilots of a neutral Power, except in a case of distress.
[Footnote 697: Germany has entered a reservation against article 11.]
It is worth mentioning that Great Britain during the Franco-German War in 1870, prohibited her pilots from conducting German and French men-of-war which were outside the maritime belt, except when in distress.
[Sidenote: Transport on the part of Neutrals.]
§ 354. It is generally recognised that the duty of impartiality incumbent upon a neutral obliges him to prevent his men-of-war and other public vessels from rendering transport services to either belligerent. Therefore, such vessels must neither carry soldiers nor sailors belonging to belligerent forces, nor their prisoners of war, nor ammunition, military or naval provisions, nor despatches. The question as to how far such vessels are prevented from carrying enemy subjects other than members of the forces depends upon the question whether by carrying those individuals they render such service to one of the belligerents as is detrimental to the other. Thus, when the Dutch Government in 1901, during the South African War, intended to send a man-of-war, the Gelderland, to President Kruger for the purpose of conveying him to Europe, they made sure in advance that Great Britain did not object.
The question has been raised[698] as to whether a neutral whose rolling stock runs on the railway lines of a belligerent, may continue to leave such rolling stock there although it is being used for the transport of troops, war material, and the like. The answer, I believe, ought to be in the negative, for there is no doubt that, if the rolling stock remains on the railway lines of a belligerent, the neutral concerned is indirectly rendering transport services to the belligerent. It is for this reason that article 19 of Convention V. enacts that railway material coming from the territory of neutrals shall not be requisitioned or used by a belligerent except in the case and to the extent required by absolute necessity.[699]
[Footnote 698: See Nowacki, Die Eisenbahnen im Kriege (1906), p. 126.]
[Footnote 699: See below, § 365.]
[Sidenote: Transport on the part of Neutral Merchantmen and by neutral rolling stock.]
§ 355. Just as a neutral is not obliged to prevent his merchantmen from carrying contraband, so he is not obliged to prevent them from rendering services to belligerents by carrying in the way of trade enemy troops, and the like, and enemy despatches. Neutral merchantmen rendering such services to belligerents do so at their own risk, for these are unneutral services for which the merchantmen may be punished[700] by the belligerents, but for which the neutral State under whose flag such merchantmen sail bears no responsibility whatever.
[Footnote 700: See below, §§ 407-413.]
And the same is valid with regard to rolling stock belonging to private railway companies of a neutral State. That such rolling stock may not, without the consent of the companies owning it, be made use of by a belligerent for the transport of troops, war material, and the like, except in the case of and to the extent required by absolute necessity, follows from article 19 of Convention V. But, if a private railway company gives its consent, and if its rolling stock is made use of for warlike purposes, it acquires enemy character, article 19 of Convention V. does not apply, and the other belligerent may seize and appropriate it as though it were the property of the enemy State.[701]
[Footnote 701: See Nowacki, Die Eisenbahnen im Kriege (1906), p. 128.]
[Sidenote: Information regarding Military and Naval Operations.]
§ 356. Information regarding military and naval operations may be given and obtained in so many various ways that several cases must be distinguished:--
(1) It is obvious that the duty of impartiality incumbent upon a neutral obliges him to prevent his men-of-war from giving any information to a belligerent concerning naval operations of the other party. But a neutral bears no responsibility whatever for private vessels sailing under his flag which give such information. Such vessels run, however, the risk of being punished for rendering unneutral service.[702]
[Footnote 702: See below, §§ 409 and 410, and articles 45, Nos. 1 and 2, and 46, No. 4, of the Declaration of London.]
(2) It is likewise obvious that his duty of impartiality must prevent a neutral from giving information concerning the war to a belligerent through his diplomatic envoys, couriers, and the like. But the question has been raised as to whether a neutral is obliged to prevent couriers[703] from carrying despatches for a belligerent over his neutral territory. I believe the answer must be in the negative, at least so far as those couriers in the service of diplomatic envoys and such agents as carry despatches from a State to its head or to diplomatic envoys abroad are concerned. Since they enjoy--as stated above, Vol. I. §§ 405 and 457--inviolability for their persons and official papers, a neutral cannot interfere and find out whether these individuals carry information to the disadvantage of the enemy.
[Footnote 703: See Calvo, § 2640.]
(3) According to article 8 of Convention V. "a neutral Power is not bound to forbid or restrict the employment, on behalf of belligerents, of telegraph or telephone cables, or of wireless telegraphy apparatus whether belonging to it, or to companies, or to private individuals." Since, therefore, everything is left to the discretion of the neutral concerned, he will have to take the merits and needs of every case into consideration, and act accordingly. But so much is certain that a belligerent may not categorically request neutrals to forbid or restrict such employment of their telegraph wires and the like on the part of his adversary.
The case is different when a belligerent intends to arrange the transmitting of messages through a submarine cable purposely laid over neutral territory or through telegraph and telephone wires purposely erected on neutral territory. This would seem to be an abuse of neutral territory, and the neutral must prevent it. Accordingly, when in 1870, during the Franco-German War, France intended to lay a telegraph cable from Dunkirk to the North of France, the cable to go across the Channel to England and from there back to France, Great Britain refused her consent on account of her neutrality. And again in 1898, during war between Spain and the United States of America, when the latter intended to land at Hong Kong a cable proposed to be laid from Manila, Great Britain refused her consent.[704]
[Footnote 704: See Lawrence, War, p. 219.]
The case is likewise different when a belligerent intends to erect in a neutral country, or in a neutral port or neutral waters, a wireless telegraphy station or any apparatus intended as a means of communication with belligerent forces on land or sea, or to make use of any installation of this kind established by him before the outbreak of war for purely military purposes, and not previously opened for the service of the public generally. According to articles 3 and 5 of Convention V. and article 5 of Convention XIII., a neutral is bound to prohibit this. The case which occurred in 1904, during the Russo-Japanese War and the siege of Port Arthur, when the Russians installed an apparatus for wireless telegraphy in Chifu and communicated thereby with the besieged, constituted a violation of neutrality.
(4) It is obvious that his duty of impartiality must prevent a neutral from allowing belligerents to establish intelligence bureaux on his territory. On the other hand, a neutral is not obliged to prevent his subjects from giving information to belligerents, be it by letter, telegram, telephone, or wireless telegraphy. In especial a neutral is not obliged to prevent his subjects from giving information to belligerents by wireless telegraphy apparatus installed on a neutral merchantman. Such individuals run, however, the risk of being punished as spies, provided they act clandestinely or under false pretences, and the vessel concerned is subject to the risk of being captured and confiscated for rendering unneutral service.
Stress must be laid on the fact that newspaper correspondents making use of wireless telegraphy from on board neutral merchantmen for the purpose of sending news to their papers,[705] may not be treated as spies, and the merchantmen concerned may not be confiscated, although belligerents need by no means allow the presence of such vessels at the seat of war. Thus, during the Russo-Japanese War, the Haimun, a vessel fitted with a wireless telegraphy apparatus for the service of the Times, was ordered away by the Japanese. But, of course, an individual can at the same time be a correspondent for a neutral newspaper and a spy, and he may then be punished for espionage.
[Footnote 705: See Lawrence, War, pp. 84-88. On newspaper correspondents generally in naval warfare, see Higgins, War and the Private Citizen (1912), pp. 91-114, and in Z.V. VI. (1912), pp. 19-28, and the literature and cases there cited.]
VIII
VIOLATION OF NEUTRALITY
Hall, §§ 227-229--Lawrence, §§ 233, 238, 239--Phillimore, III. §§ 151A-151B--Taylor, §§ 630 and 642--Wharton, III. §§ 402, 402A--Wheaton, §§ 429-433--Moore, VII. §§ 1319-1328, 1334-1335--Bluntschli, §§ 778-782--Heffter, § 146--Geffcken in Holtzendorff, IV. pp. 667-676, 700-709--Ullmann, § 191--Bonfils, No. 1476--Despagnet, No. 697--Pradier-Fodéré, No. 3235--Rivier, II. pp. 394-395--Calvo, IV. §§ 2654-2666--Fiore, III. Nos. 1567-1570--Martens, II. § 138--Kleen, I. § 25--Dupuis, Nos. 332-337.
[Sidenote: Violation of Neutrality in the narrower and in the wider sense of the Term.]
§ 357. Many writers who speak of violation of neutrality treat under this head only of violations of the duty of impartiality incumbent upon neutrals. And indeed such violations only are meant, if one speaks of violation of neutrality in the narrower sense of the term. However, it is necessary for obvious reasons to discuss not only violations of the duty of impartiality of neutrals, but violations of all duties deriving from neutrality, whether they are incumbent upon neutrals or upon belligerents. In the wider sense of the term violation of neutrality comprises, therefore, every performance or omission of an act contrary to the duty of a neutral towards either belligerent as well as contrary to the duty of either belligerent towards a neutral. Everywhere in this treatise the term is used in its wider sense.
It is important to remember that violations of neutrality on the part of belligerents must not be confounded with violations of the laws of war by which subjects of neutral States suffer damage. If, for instance, an occupant levies excessive contributions from subjects of neutral States domiciled in enemy country in contravention of article 49 of the Hague Regulations, this is a violation of the Laws of War, for which, according to article 3 of Convention IV., the belligerent concerned must pay compensation, but it is not a violation of neutrality.
[Sidenote: Violation in contradistinction to End of Neutrality.]
§ 358. Violation of neutrality must not be confounded with the ending of neutrality,[706] for neither a violation on the part of a neutral[707] nor a violation on the part of a belligerent brings ipso facto neutrality to an end. If correctly viewed, the condition of neutrality continues to exist between a neutral and a belligerent in spite of a violation of neutrality. It must be emphasised that a violation of neutrality contains nothing more than a breach of a duty deriving from the condition of neutrality. This applies not only to violations of neutrality by negligence, but also to those by intention. Even in an extreme case in which the violation of neutrality is so great that the offended party considers war the only adequate measure in answer to it, it is not the violation which brings neutrality to an end, but the determination of the offended party. For there is no violation of neutrality so great as to oblige the offended party to make war in answer to it, such party having always the choice whether it will keep up the condition of neutrality or not.
[Footnote 706: See above, § 312.]
[Footnote 707: But this is almost everywhere asserted, as the distinction between the violation of the duty of impartiality incumbent upon neutrals on the one hand, and on the other, the ending of neutrality, is usually not made.]
But this applies only to mere violations of neutrality, and not to hostilities. The latter are acts of war and bring neutrality to an end; they have been characterised in contradistinction to mere violations above in § 320.
[Sidenote: Consequences of Violations of Neutrality.]
§ 359. Violations of neutrality, whether committed by a neutral against a belligerent or by a belligerent against a neutral, are international delinquencies.[708] They may at once be repulsed, the offended party may require the offender to make reparation, and, if this is refused, it may take such measures as it thinks adequate to exact the necessary reparation.[709] If the violation is only slight and unimportant, the offended State will often merely complain. If, on the other hand, the violation is very substantial and grave, the offended State will perhaps at once declare that it considers itself at war with the offender. In such case it is not the violation of neutrality which brings neutrality to an end, but the declaration of the offended State that it considers the violation of so grave a character as to oblige it to regard itself at war with the offender.
[Footnote 708: See above, vol. I. § 151.]
[Footnote 709: See above, vol. I. § 156.]
That a violation of neutrality can only, like any other international delinquency, be committed by malice or culpable negligence,[710] and that it can be committed through a State's refusing to comply with the consequences of its "vicarious" responsibility for acts of its agents or subjects,[711] is a matter of course. Thus, if a belligerent fleet attacks enemy vessels in neutral territorial waters without an order from its Government, the latter bears "vicarious" responsibility for this violation of neutral territory on the part of its fleet. If the Government concerned refuses to disown the act of its fleet and to make the necessary reparation, this "vicarious" responsibility turns into "original" responsibility, for a case of violation of neutrality and an international delinquency has then arisen. And the same is valid if an agent of a neutral State without an order of his Government commits such an act as would constitute a violation of neutrality in case it were ordered by the Government; for instance, if the head of a province of a neutral, without thereto being authorised by his Government, allows forces of a belligerent to march through this neutral territory.
[Footnote 710: See above, vol. I. § 154.]
[Footnote 711: See above, vol. I. § 150.]
[Sidenote: Neutrals not to acquiesce in Violations of Neutrality committed by a Belligerent.]
§ 360. It is entirely within the discretion of a belligerent whether he will acquiesce in a violation of neutrality committed by a neutral in favour of the other belligerent. On the other hand, a neutral may not exercise the same discretion regarding a violation of neutrality committed by one belligerent and detrimental to the other. His duty of impartiality rather obliges him in the first instance to prevent, with the means at his disposal, the belligerent concerned from committing such violation; for instance, to repulse an attack of men-of-war of a belligerent on enemy vessels in neutral ports. Thus article 3 of Convention XIII. enacts:--"When a ship has been captured in the territorial waters of a neutral Power, such Power must, if the prize is still within its jurisdiction, employ the means at its disposal to release the prize with its officers and crew, and to intern the prize crew." And in case he could not prevent and repulse a violation of his neutrality, the same duty obliges him to exact due reparation from the offender,[712] for otherwise he would favour the one party to the detriment of the other. If a neutral neglects this obligation, he is thereby committing a violation of neutrality on his part for which he may be made responsible by such belligerent as has suffered through the violation of neutrality committed by the other belligerent and acquiesced in by the neutral. For instance, if belligerent men-of-war seize enemy vessels in ports of a neutral, and if the neutral, who could not or did not prevent this, exacts no reparation from the belligerent concerned, the other party may make the neutral responsible for the losses sustained.
[Footnote 712: See articles 25 and 26 of Convention XIII. This duty is nowadays universally recognised, but before the nineteenth century it did not exist, although the rule that belligerents must not commit hostilities on neutral territory, and in especial in neutral ports and waters, was well recognised. That in spite of its recognition this rule was in the eighteenth century frequently infringed by commanders of belligerent fleets, may be illustrated by many cases. Thus, for instance, in 1793, the French frigate Modeste was captured in the harbour of Genoa by two British men-of-war (see Hall, § 220). And in 1801, during war against Sweden, a British frigate captured the Freden and three other Swedish vessels in the Norwegian harbour of Oster-Risoer (see Ortolan, II. pp. 413-418).]
[Sidenote: Case of the General Armstrong.]
§ 361. Some writers[713] maintain that a neutral is freed from responsibility for a violation of neutrality through a belligerent attacking enemy forces in neutral territory, in case the attacked forces, instead of trusting for protection or redress to the neutral, defend themselves against the attack. This rule is adopted from the arbitral award in the case of the General Armstrong. In 1814, during war between Great Britain and the United States of America, the American privateer General Armstrong, lying in the harbour of Fayal, an island belonging to the Portuguese Azores, defended herself against an attack of an English squadron, but was nevertheless captured. The United States claimed damages from Portugal because the privateer was captured in a neutral Portuguese port. Negotiations went on for many years, and the parties finally agreed in 1851 upon arbitration to be given by Louis Napoleon, then President of the French Republic. In 1852 Napoleon gave his award in favour of Portugal, maintaining that, although the attack on the privateer in neutral waters comprised a violation of neutrality, Portugal could not be made responsible, on account of the fact that the attacked privateer chose to defend herself instead of demanding protection from the Portuguese authorities.[714] It is, however, not at all certain that the rule laid down in this award will find general recognition in theory and practice.[715]
[Footnote 713: See, for instance, Hall, § 228, and Geffcken in Holtzendorff, IV. p. 701.]
[Footnote 714: See Moore, Arbitrations, II. pp. 1071-1132; Calvo, IV. § 2662; and Dana's note 208 in Wheaton, § 429.]
[Footnote 715: The case of the Reshitelni, which occurred in 1904, during the Russo-Japanese War, and is somewhat similar to that of the General Armstrong, is discussed above in § 320 (2). That no violation of neutrality took place in the case of the Variag and Korietz, is shown above in § 320 (1).]
[Sidenote: Mode of exacting Reparation from Belligerents for Violations of Neutrality.]
§ 362. It is obvious that the duty of a neutral not to acquiesce in violations of neutrality committed by one belligerent to the detriment of the other obliges him to repair, so far as he can, the result of such wrongful acts. Thus, he must liberate[716] a prize taken in his neutral waters, or prisoners made on his territory, and the like. In so far, however, as he cannot, or not sufficiently, undo the wrong done, he must exact reparation from the offender. Now, no general rule can be laid down regarding the mode of exacting such reparation, since everything depends upon the merits of the individual case. Only as regards capture of enemy vessels in neutral waters has a practice grown up, which must be considered binding, and according to which the neutral must claim the prize, and eventually damages, from the belligerent concerned, and must restore her to the other party. Thus in 1800, during war between Great Britain and the Netherlands, Prussia claimed before the British Prize Court the Twee Gebroeders,[717] a Dutch vessel captured by the British cruiser L'Espiègle in the neutral maritime belt of Prussia. Sir William Scott ordered restoration of the vessel, yet he refused costs and damages, because the captor had not violated Prussian neutrality intentionally but only by mistake and misapprehension. Thus again, in 1805, during war between Great Britain and Spain, the United States claimed before the British Prize Court the Anna,[718] a Spanish vessel captured by the English privateer Minerva within their neutral maritime belt. Thus, further, in 1864, during the American Civil War, when the Confederate cruiser Florida was captured by the Federal cruiser Wachuset in the neutral Brazilian port of Bahia, Brazil claimed the prize. As the latter had sunk while at anchor in Hampton Roads, she could not be restored, but the United States expiated the violation of neutrality committed by her cruiser by court-martialing the commander; further, by dismissing her Consul at Bahia for having advised the capture; and, finally, by sending a man-of-war to the spot where the violation of neutrality had taken place for the special purpose of delivering a solemn salute to the Brazilian flag.[719]
[Footnote 716: See article 3 of Convention XIII.]
[Footnote 717: 3 C. Rob. 162.]
[Footnote 718: 5 C. Rob. 373. See above, vol. I. § 234.]
[Footnote 719: See Moore, VII. § 1334, p. 1090.]
[Sidenote: Negligence on the part of Neutrals.]
§ 363. Apart from intentional violations of neutrality, a neutral can be made responsible only for such acts favouring or damaging a belligerent as he could by due diligence have prevented, and which by culpable negligence he failed to prevent. It is by no means obligatory for a neutral to prevent such acts under all circumstances and conditions. This is in fact impossible, and it becomes more obviously so the larger a neutral State, and the longer its boundary lines. So long as a neutral exercises due diligence for the purpose of preventing such acts, he is not responsible in case they are nevertheless performed. However, the term due diligence has become controversial through the definition proffered by the United States of America in interpreting the Three Rules of Washington, and through the Geneva Court of Arbitration adopting such interpretation.[720] According to this interpretation the due diligence of a neutral must be in proportion to the risks to which either belligerent may be exposed from failure to fulfil the obligations of neutrality on his part. Had this interpretation been generally accepted, the most oppressive obligations would have become incumbent upon neutrals. But no such general acceptance has taken place. The fact is that due diligence in International Law can have no other meaning than it has in Municipal Law. It means such diligence as can reasonably be expected when all the circumstances and conditions of the case are taken into consideration.
[Footnote 720: See above, § 335.]
Be that as it may, the Second Peace Conference has taken a step which certainly excludes for the future the continuation of the controversy regarding the interpretation of due diligence, for articles 8 and 25 of Convention XIII., instead of stipulating due diligence on the part of neutrals, stipulate the employment of the means at their disposal.
[Sidenote: Laying of Submarine Contact Mines by Neutrals.]
§ 363_a_. In order to defend themselves against possible violations of their neutral territory, neutrals may lay automatic contact mines off their coasts. If they do this, they must, according to article 4 of Convention VIII., observe the same rules and take the same precautions as are imposed upon belligerents, and as have been expounded above, § 182_a_. Moreover they must, according to paragraph 2 of article 4 of Convention VIII., give notice in advance to mariners of the place where automatic contact mines have been laid, and this notice must be communicated at once to the Governments through the diplomatic channels.
Convention VIII. is quite as unsatisfactory in its rules concerning mines laid by neutrals as in its rules concerning mines laid by belligerents, and the danger to neutral shipping created by mines laid by neutrals is very great, all the more as the laying of mines by neutrals is not restricted to their maritime belt. For article 4 of Convention VIII. speaks of the laying of contact mines on the part of neutral Powers off their coasts, without limiting the laying within the three-mile wide maritime belt as was proposed at the Second Peace Conference, and as article 6[721] of the Règlementation internationale de l'Usage des Mines sous-marines et torpilles of the Institute of International Law likewise proposes.
[Footnote 721: See Annuaire, XXIV. (1911), p. 302.]
IX
RIGHT OF ANGARY
Hall, § 278--Lawrence, § 233--Westlake, II. p. 119--Phillimore, III. § 29--Halleck, I. p. 485--Taylor, § 641--Walker, § 69--Bluntschli, § 795A--Heffter, § 150--Bulmerincq in Holtzendorff, IV. pp. 98-103--Geffcken in Holtzendorff, IV. pp. 771-773--Ullmann, § 192--Bonfils, No. 1440--Despagnet, No. 494--Rivier, II. pp. 327-329--Kleen, II. §§ 165 and 230--Perels, § 40--Hautefeuille, III. pp. 416-426--Holland, War, Nos. 139-140--Land Warfare, §§ 507-510--Albrecht, Requisitionen von neutralem Privateigenthum, insbesondere von Schiffen (1912), pp. 24-66.
[Sidenote: The Obsolete Right of Angary.]
§ 364. Under the term jus angariae[722] many writers on International Law place the right, often claimed and practised in former times, of a belligerent deficient in vessels to lay an embargo on and seize neutral merchantmen in his harbours, and to compel them and their crews to transport troops, ammunition, and provisions to certain places on payment of freight in advance.[723] This practice arose in the Middle Ages,[724] and was made much use of by Louis XIV. of France. To save the vessels of their subjects from seizure under the right of angary, States began in the seventeenth century to conclude treaties by which they renounced such right with regard to each other's vessels. Thereby the right came into disuse during the eighteenth century. Many writers[725] assert, nevertheless, that it is not obsolete, and might be exercised even to-day. But I doubt whether the Powers would concede to one another the exercise of such a right. The facts that no case happened in the nineteenth century and that International Law with regard to rights and duties of neutrals has become much more developed during the eighteenth and nineteenth centuries, would seem to justify the opinion that such angary is now probably obsolete,[726] although some writers[727] deny this.
[Footnote 722: The term angaria, which in medieval Latin means post station, is a derivation from the Greek term ἄγγαρος for messenger. Jus angariae would therefore literally mean a right of transport.]
[Footnote 723: See above, § 40.]
[Footnote 724: On the origin and development of the jus angariae, see Albrecht, op. cit. pp. 24-37.]
[Footnote 725: See, for instance, Phillimore, III. § 29; Calvo, III. § 1277; Heffter, § 150; Perels, § 40.]
[Footnote 726: See Article 39 of the "Règlement sur le régime légal des navires ... dans les ports étrangers" adopted by the Institute of International Law (Annuaire, XVII. 1898, p. 272): "Le droit d'angarie est supprimé, soit en temps de paix, soit en temps de guerre, quant aux navires neutres."]
[Footnote 727: See Albrecht, op. cit. pp. 34-37.]
[Sidenote: The Modern Right of Angary.]
§ 365. In contradistinction to this probably obsolete right to compel neutral ships and their crews to render certain services, the modern right of angary consists in the right of belligerents to make use of, or destroy in case of necessity, for the purpose of offence and defence, neutral property on their own or on enemy territory or on the Open Sea. In case property of subjects of neutral States is vested with enemy character,[728] it is not neutral property in the strict sense of the term neutral, and all rules respecting appropriation, utilisation, and destruction of enemy property obviously apply to it. The object of the right of angary is such property of subjects of neutral States as retains its neutral character from its temporary position on belligerent territory and which therefore is not vested with enemy character. All sorts of neutral property, whether it consists of vessels or other[729] means of transport, or arms, ammunition, provisions, or other personal property, may be the object of the right of angary, provided the articles concerned are serviceable to military ends and wants. The conditions under which the right may be exercised are the same as those under which private enemy property may be utilised or destroyed, but in every case the neutral owner must be fully indemnified.[730]
[Footnote 728: See above, § 90.]
[Footnote 729: Thus in 1870, during the Franco-German War, the Germans seized hundreds of Swiss and Austrian railway carriages in France and made use of them for military purposes.]
[Footnote 730: See article 6 of U.S. Naval War Code:--"If military necessity should require it, neutral vessels found within the limits of belligerent authority may be seized and destroyed, or otherwise used for military purposes, but in such cases the owners of the neutral vessels must be fully recompensed. The amount of the indemnity should, if practicable, be agreed upon in advance with the owner or master of the vessel; due regard must be had for treaty stipulations upon these matters." See also Holland, War, No. 140.]
A remarkable case[731] happened in 1871 during the Franco-German War. The Germans seized some British coal-vessels lying in the river Seine at Duclair, and sank them for the purpose of preventing French gunboats from running up the river. On the intervention of the British Government, Count Bismarck refused to recognise the duty of Germany to indemnify the owners of the vessels sunk, although he agreed to pay indemnities.
[Footnote 731: See Albrecht, op. cit. pp. 45-48.]
However, it may safely be maintained that a duty to pay indemnities for any damage done by exercising the right of angary must nowadays be recognised. Article 53 of the Hague Regulations stipulates the payment of indemnities for the seizure and utilisation of all appliances adapted to the transport of persons or goods which are the private property of inhabitants of occupied enemy territory, and article 52 of the Hague Regulations stipulates payment for requisitions; if, thus, the immunity from confiscation of private property of inhabitants is recognised, all the more must that of private neutral property temporarily on occupied enemy territory be recognised also.
[Sidenote: Right of Angary concerning Neutral Rolling Stock.]
§ 366. A special case of the right of angary has found recognition by article 19 of Convention V. of the Second Peace Conference enacting that railway material coming from the territory of a neutral Power, whether belonging to the neutral State or to companies or private persons, shall not be requisitioned or utilised by a belligerent, except in the case of and to the extent required by absolute necessity, that it shall as soon as possible be sent back to the country of origin, and that compensation shall be paid for its use.[732] But it must be mentioned that article 19 gives a right to a neutral Power, whose railway material has been requisitioned by a belligerent, to retain and make use of, to a corresponding extent, railway material coming from the territory of the belligerent concerned.
[Footnote 732: See Nowacki, Die Eisenbahnen im Kriege (1906), pp. 115-126, and Albrecht, op. cit. pp. 22-24.]
[Sidenote: Right of Angary not deriving from Neutrality.]
§ 367. Whatever the extent of the right of angary may be, it does not derive from the law of neutrality. The correlative duty of a belligerent to indemnify the neutral owner of property appropriated or destroyed by the exercise of the right of angary does indeed derive from the law of neutrality. But the right of angary itself is rather a right deriving from the law of war. As a rule this law gives, under certain circumstances and conditions, the right to a belligerent to seize, make use of, or destroy private property of inhabitants only of occupied enemy territory, but under other circumstances and conditions, and very exceptionally, it likewise gives a belligerent the right to seize, use, or destroy such neutral property as is temporarily on occupied enemy territory.
III. BLOCKADE
I
CONCEPTION OF BLOCKADE
Grotius, III. c. 1, § 5--Bynkershoek, Quaest. jur. publ. I. c. 2-15--Vattel, III. § 117--Hall, §§ 233, 237-266--Lawrence, §§ 246-252--Westlake, II. pp. 228-239--Maine, pp. 107-109--Manning, pp. 400-412--Phillimore, III. §§ 285-321--Twiss, II. §§ 98-120--Halleck, II. pp. 182-213--Taylor, §§ 674-684--Walker, §§ 76-82--Wharton, III. §§ 359-365--Moore, VII. §§ 1266-1286--Wheaton, §§ 509-523--Bluntschli, §§ 827-840--Heffter, §§ 154-157--Geffcken in Holtzendorff, IV. pp. 738-771--Ullmann, § 182--Bonfils, Nos. 1608-1659--Despagnet, Nos. 620-640--Pradier-Fodéré, VI. Nos. 2676-2679, and VIII. Nos. 3109-3152--Nys, III. pp. 224-244, 693-694--Rivier, II. pp. 288-298--Calvo, V. §§ 2827-2908--Fiore, III. Nos. 1606-1629--Martens, II. § 124--Pillet, pp. 129-144--Kleen, I. §§ 124-139--Ortolan, II. pp. 292-336--Hautefeuille, II. pp. 189-288--Gessner, pp. 145-227--Perels, §§ 48-51--Testa, pp. 221-229--Dupuis, Nos. 159-198, and Guerre, Nos. 113-136--Boeck, Nos. 670-726--Holland, Prize Law, §§ 106-140--U.S. Naval War Code, articles 37-43--Bernsten, § 10--Nippold, II. § 32--Bargrave Deane, The Law of Blockade (1870)--Fauchille, Du blocus maritime (1882)--Carnazza-Amari, Del blocco maritimo (1897)--Frémont, De la saisie des navires en cas de blocus (1899)--Guynot-Boissière, Du blocus maritime (1899)--§§ 35-44 of the "Règlement international des prises maritimes" (Annuaire, IX. 1887, p. 218), adopted by the Institute of International Law--Atherley-Jones, Commerce in War (1906) pp. 92-252--Söderquist, Le Blocus Maritime (1908)--Hansemann, Die Lehre von der einheitlichen Reise im Rechte der Blockade und Kriegskonterbande (1910)--Güldenagel, Verfolgung und Rechtsfolgen des Blockadebruches (1911)--Hirschmann, Das internationale Prisenrecht (1912) §§ 17-23--Kennedy in The Journal of the Society of Comparative Legislation, New Series, IX. (1908), pp. 239-251--Myers in A.J. IV. pp. 571-595--General Report presented to the Naval Conference of London by its Drafting Committee, articles 1-21.
[Sidenote: Definition of Blockade.]
§ 368. Blockade is the blocking by men-of-war[733] of the approach to the enemy coast or a part of it for the purpose of preventing ingress and egress of vessels of all nations. Blockade must not be confounded with siege, although it may take place concurrently with siege. Whereas siege aims at the capture of the besieged place, blockade endeavours merely to intercept all intercourse, and especially commercial intercourse, by sea between the coast and the world at large. Although blockade is, as shown above in §§ 173 and 174, a means of warfare against the enemy, it concerns neutrals as well, because the ingress and egress of neutral vessels are thereby interdicted and may be punished.
[Footnote 733: When in 1861, during the American Civil War, the Federal Government blocked the harbour of Charleston by sinking ships laden with stone, the question arose whether a so-called stone-blockade is lawful. There ought to be no doubt--see below, § 380--that such a stone-blockade is not a blockade in the ordinary sense of the term, and that neutral ships may not be seized and confiscated for having attempted egress or ingress. But, on the other hand, there ought to be no doubt either that this mode of obstructing an enemy port is as lawful as any other means of sea warfare, provided the blocking of the harbour is made known so that neutral vessels can avoid the danger of being wrecked. See Wharton, III. § 361A; Fauchille, Blocus, pp. 143-145; Perels, § 35, p. 187.]
Blockade in the modern sense of the term is an institution which could not develop until neutrality was in some form a recognised institution of the Law of Nations, and until the freedom of neutral commerce was in some form guaranteed. The institution of blockade dates from the sixteenth century,[734] but it has taken several hundred years for the institution to reach its present condition, since, until the beginning of the nineteenth century, belligerents frequently made use of so-called paper blockades, which are no longer valid, a blockade now being binding only if effective.
[Footnote 734: See Fauchille, Blocus, pp. 2-6.]
It is on account of the practical importance of blockade for the interests of neutrals that the matter is more conveniently treated with neutrality than with war. And it must be noted that blockade as a means of warfare must not be confounded with so-called pacific blockade, which is a means of compulsive settlement of State differences.
Apart from the stipulation of the Declaration of Paris that a blockade to be binding must be effective, no conventional rules concerning blockade were in existence until the Declaration of London, nor was the practice of the States governed by common rules covering all the points concerned. But articles 1-21 of the Declaration of London now offer a code of the law of blockade and will, should this Declaration be ratified, in time produce a common practice of all maritime States.
[Sidenote: Blockade, Strategic and Commercial.]
§ 369. A blockade is termed strategic if it forms part of other military operations directed against the coast which is blockaded, or if it be declared in order to cut off supply to enemy forces on shore. In contradistinction to blockade strategic, one speaks of a commercial blockade, when a blockade is declared simply in order to cut off the coast from intercourse with the outside world, although no military operations take place on shore. That blockades commercial are, according to the present rules of International Law, as legitimate as blockades strategic, is not generally denied. But several writers[735] maintain that blockades purely commercial ought to be abolished as not in accordance with the guaranteed freedom of neutral commerce during war.
[Footnote 735: See Hall, § 233.]
[Sidenote: Blockade to be Universal.]
§ 370. A blockade is really in being when vessels of all nations are interdicted and prevented from ingress or egress. Blockade as a means of warfare is admissible only in the form of a universal blockade, that is--as article 5 of the Declaration of London stipulates--it "must be applied impartially to the vessels of all nations." If the blockading belligerent were to allow the ingress or egress of vessels of one nation, no blockade would exist.[736]
[Footnote 736: The Rolla (1807), 6 C. Rob. 364; the Franciska (1855), Spinks, 287. See also below, § 382.]
On the other hand, provided a blockade is universal, a special licence of ingress or egress may be given to a special vessel and for a particular purpose,[737] and men-of-war of all neutral nations may be allowed to pass to and fro unhindered.[738] Thus, when during the American Civil War the Federal Government blockaded the coast of the Confederate States, neutral men-of-war were not prevented from ingress and egress. But it must be specially observed that a belligerent has a right to prevent neutral men-of-war from passing through the line of blockade, and it is entirely within his discretion whether or not he will admit or exclude them; nor is he compelled to admit them all, even though he has admitted one or more of them.
[Footnote 737: This exception to the general rule is not mentioned by the Declaration of London, but I have no doubt that the International Prize Court would recognise it.]
[Footnote 738: Recognised by article 6 of the Declaration of London.]
[Sidenote: Blockade, Outwards and Inwards.]
§ 371. As a rule a blockade is declared for the purpose of preventing ingress as well as egress. But sometimes only ingress or only egress is prevented. In such cases one speaks of "Blockade inwards" and of "Blockade outwards" respectively. Thus the blockade of the mouth of the Danube declared by the Allies in 1854 during the Crimean War was a "blockade inwards," since the only purpose was to prevent supply reaching the Russian Army from the sea.[739]
[Footnote 739: The Gerasimo (1857), 11 Moore, P.C. 88.]
[Sidenote: What Places can be Blockaded.]
§ 372. In former times it was sometimes asserted that only ports, or even only fortified[740] ports, could be blockaded, but the practice of the States has always shown that single ports and portions of an enemy coast as well as the whole of the enemy coast may be blockaded. Thus during the American Civil War the whole of the coast of the Confederate States to the extent of about 2500 nautical miles was blockaded. And attention must be drawn to the fact, that such ports of a belligerent as are in the hands of the enemy may be the object of a blockade. Thus during the Franco-German War the French blockaded[741] their own ports of Rouen, Dieppe, and Fécamp, which were occupied by the Germans. Article 1 of the Declaration of London indirectly sanctions the practice of the States by enacting that "a blockade must not extend beyond the ports and coasts belonging to or occupied by the enemy."
[Footnote 740: Napoleon I. maintained in his Berlin Decrees: "Le droit de blocus, d'après la raison et l'usage de tous les peuples policés, n'est applicable qu'aux places fortes."]
[Footnote 741: See Fauchille, Blocus, p. 161.]
[Sidenote: Blockade of International Rivers.]
§ 373. It is a moot question whether the mouth of a so-called international river may be the object of a blockade, in case the riparian States are not all belligerents. Thus, when in 1854, during the Crimean War, the allied fleets of Great Britain and France blockaded the mouth of the Danube, Bavaria and Württemberg, which remained neutral, protested. When in 1870 the French blockaded the whole of the German coast of the North Sea, they exempted the mouth of the river Ems, because it runs partly through Holland. And when in 1863, during the blockade of the coast of the Confederate States, the Federal cruiser Vanderbilt captured the British vessel Peterhoff[742] destined for Matamaros, on the Mexican shore of the Rio Grande, the American Courts released the vessel on the ground that trade with Mexico, which was neutral, could not be prohibited.
[Footnote 742: 5 Wallace, 49. See Fauchille, Blocus, pp. 171-183; Phillimore, III. § 293A; Hall, § 266; Rivier, II. p. 291.]
The Declaration of London would seem to settle the controversy only as regards one point. By enacting that "the blockading forces must not bar access to neutral ports or coasts," article 18 certainly prohibits the blockade of the whole mouth of a boundary river between a neutral and a belligerent State, as, for instance, the River Rio Grande in case of war with the United States of America, provided Mexico remained neutral. But no provision is made for the case of the blockade of the mouths of rivers, such as the Danube or the Rhine, for example, which pass through several States between their sources and their mouths at the sea coast, if one or more upper riparian States remain neutral.
[Sidenote: Justification of Blockade.]
§ 374. The question has been raised in what way blockade, which vests a belligerent with a certain jurisdiction over neutral vessels and which has detrimental consequences for neutral trade, could be justified.[743] Several writers, following Hautefeuille,[744] maintain that the establishment of a blockade by a belligerent stationing a number of men-of-war so as to block the approach to the coast includes conquest of that part of the sea, and that such conquest justifies a belligerent in prohibiting ingress and egress of vessels of all nations. In contradistinction to this artificial construction of a conquest of a part of the sea, some writers[745] try to justify blockade by the necessity of war. I think, however, no special justification of blockade is necessary at all. The fact is that the detrimental consequences of blockade to neutrals stand in the same category as the many other detrimental consequences of war to neutrals. Neither the one nor the other need be specially justified. A blockade interferes indeed with the recognised principle of the freedom of the sea, and, further, with the recognised freedom of neutral commerce. But all three have developed together, and when the freedom of the sea in time of peace and war, and, further, when the freedom of neutral commerce became generally recognised, the exceptional restrictions of blockade became at the same time recognised as legitimate.
[Footnote 743: The matter is thoroughly treated by Fauchille, Blocus, pp. 13-36, and Güldenagel, op. cit. pp. 39-86.]
[Footnote 744: See Hautefeuille, II. pp. 190-191.]
[Footnote 745: See Gessner, p. 151; Bluntschli, § 827; Martens, II. § 124.]
II
ESTABLISHMENT OF BLOCKADE
See the literature quoted above at the commencement of § 368.
[Sidenote: Competence to establish Blockade.]
§ 375. A declaration of blockade being "a high[746] act of sovereignty" and having far-reaching consequences upon neutral trade, it is generally recognised not to be in the discretion of a commander of a naval force to establish blockade without the authority of his Government. Article 9 of the Declaration of London precisely enacts that "a Declaration of blockade is made by the blockading Power or by the naval authorities acting in its name." The authority of his Government to establish a blockade can be granted to a commander of a naval force purposely for a particular blockade, the Government ordering the commander of a squadron to blockade a certain port or coast. Or a Government can expressly delegate its power to blockade to a commander for use at his discretion. And if operations of war take place at great distance[747] from the seat of Government and a commander finds it necessary to establish a blockade, the latter can become valid through his Government giving its immediate consent after being informed of the act of the commander. And, further, the powers vested in the hands of the supreme commander of a fleet are supposed to include the authority to establish a blockade in case he finds it necessary, provided that his Government acquiesces as soon as it is informed of the establishment of the blockade.[748]
[Footnote 746: The Henrik and Maria (1799), 1 C. Rob. 146.]
[Footnote 747: The Rolla (1807), 6 C. Rob. 364.]
[Footnote 748: As regards the whole matter, see Fauchille, Blocus, pp. 68-73.]
[Sidenote: Declaration and Notification of Blockade.]
§ 376. A blockade is not in being ipso facto by the outbreak of war. And even the actual blocking of the approach to an enemy coast by belligerent men-of-war need not by itself mean that the ingress and egress of neutral vessels are to be prohibited, since it can take place for the purpose of preventing the egress and ingress of enemy vessels only. Continental writers, therefore, have always considered notification to be essential for the establishment of a blockade. English, American, and Japanese writers, however, have not hitherto held notification to be essential, although they considered knowledge on the part of a neutral vessel of an existing blockade to be necessary for her condemnation for breach of blockade.[749]
[Footnote 749: See below, § 384.]
But although Continental writers have always held notification to be essential for the establishment of blockade, they differed with regard to the kind of notification that is necessary. Some writers[750] maintained that three different notifications must take place--namely, first, a local notification to the authorities of the blockaded ports or coast; secondly, a diplomatic or general notification to all maritime neutral States by the blockading belligerent; and, thirdly, a special notification to every approaching neutral vessel. Other writers[751] considered only diplomatic and special notification essential. Others again[752] maintained that special notification to every approaching neutral vessel is alone required, although they recommended diplomatic notification as a matter of courtesy.
[Footnote 750: See, for instance, Kleen, I. § 131.]
[Footnote 751: See, for instance, Bluntschli, 831-832; Martens, II. § 124, Gessner, p. 181.]
[Footnote 752: See, for instance, Hautefeuille, II. pp. 224 and 226; Calvo, V. § 2846; Fauchille, pp. 219-221.]
As regards the practice of States, it has always been usual for the commander who established a blockade to send a notification of the blockade to the authorities of the blockaded ports or coast and the foreign consuls there. It has, further, always been usual for the blockading Government to notify the fact diplomatically to all neutral maritime States. And some States, as France and Italy, have always ordered their blockading men-of-war to board every approaching neutral vessel and notify her of the establishment of the blockade. But Great Britain, the United States of America, and Japan did not formerly consider notification to be essential for the institution of a blockade. They held the simple fact that the approach was blocked, and egress and ingress of neutral vessels actually prevented, to be sufficient to make the existence of a blockade known, and when no diplomatic notification had taken place, they did not seize a vessel for breach of blockade whose master had no actual notice of the existence of the blockade. English,[753] American,[754] and Japanese[755] practice, accordingly, made a distinction between a so-called de facto blockade on the one hand, and, on the other, a notified blockade.
[Footnote 753: The Vrouw Judith (1799), 1 C. Rob. 150.]
[Footnote 754: See U.S. Naval War Code, articles 39-40.]
[Footnote 755: See Japanese Prize Law, article 30.]
The Declaration of London, when ratified, will create a common practice, for articles 8 to 12 represent an agreement of the Powers on the following points:--
(1) There must be a declaration as well as a notification in order to make a blockade binding (article 8). If there is either no proper declaration or no proper notification, the blockade is not binding.
(2) A declaration of blockade is made either by the blockading Power or by the naval authorities acting in its name. The declaration of blockade must specify (a) the date when the blockade begins; (b) the geographical limits of the coastline under blockade; and (c) the period within which neutral vessels may come out (article 9). If the commencement of the blockade or its geographical limits are given inaccurately in the declaration, or if no mention is made of the period within which neutral vessels may come out, or if this period is given inaccurately, the declaration is void, and a new declaration is necessary in order to make the blockade binding (article 10).
(3) Notification of the declaration of blockade must at once be made. Two notifications are necessary (article 11):--
The first notification must be made by the Government of the blockading fleet to all neutral Governments either through the diplomatic channel, or otherwise, for instance by telegraph. The purpose of this notification is to enable neutral Governments to inform merchantmen sailing under their flag of the establishment of a blockade.
The second notification must be made to the local authorities by the officer commanding the blockading force; these authorities have on their part to notify, as soon as possible, the foreign consuls at the blockaded port or coastline. The purpose of this notification is to enable neutral merchantmen in the blockaded port or ports to receive knowledge of the establishment of the blockade and to prepare themselves to leave the port within the period specified in the declaration of blockade.
(4) The rules as to declaration and notification of blockade apply to cases where the limits of a blockade have been extended, or where a blockade is re-established after having been raised (article 12).
[Sidenote: Length of Time for Egress of Neutral Vessels.]
§ 377. As regards ingress, a blockade becomes valid the moment it is established; even vessels in ballast have no right of ingress. As regards egress, it has always been usual for the blockading commander to grant a certain length of time within which neutral vessels might leave the blockaded ports unhindered, but no rule existed respecting the length of such time, although fifteen days were frequently granted.[756] This usage of granting to neutral vessels a period within which they may leave the blockaded port, has been made a binding rule by the Declaration of London. For, since article 9 enacts that a declaration of blockade must specify the period within which neutral vessels may come out, it implicitly enacts that the granting of such a period is compulsory, although it may only be long enough to enable neutral vessels to make their way out as quickly as possible.
[Footnote 756: According to U.S. Naval War Code, article 43, thirty days are allowed "unless otherwise specially ordered."]
[Sidenote: End of Blockade.]
§ 378. Apart from the conclusion of peace, a blockade can come to an end in three different ways.
It may, firstly, be raised, or restricted in its limits, by the blockading Power for any reason it likes. In such a case it has always been usual to notify the end of blockade to all neutral maritime States, and article 13 of the Declaration of London turns this usage into a binding rule by enacting that the voluntary raising of a blockade, as also any restrictions in its limits, must, in the same way as the declaration of a blockade, be notified to all neutral Governments by the blockading Power, as well as to the local authorities by the officer commanding the blockading fleet.
A blockade can, secondly, come to an end through an enemy force driving off the blockading squadron or fleet. In such case the blockade ends ipso facto by the blockading squadron being driven away, whatever their intention as to returning may be. Should the squadron return and resume the blockade, it must be considered as new, and not simply the continuation of the former blockade, and another declaration and notification are necessary (article 12 of the Declaration of London).
The third ground for the ending of a blockade is its failure to be effective, a point which will be treated below in § 382.
III
EFFECTIVENESS OF BLOCKADE
See the literature quoted above at the commencement of § 368.
[Sidenote: Effective in contradistinction to Fictitious Blockade.]
§ 379. The necessity for effectiveness in a blockade by means of the presence of a blockading squadron of sufficient strength to prevent egress and ingress of vessels became gradually recognised during the first half of the nineteenth century; it became formally enacted as a principle of the Law of Nations through the Declaration of Paris in 1856, and the Declaration of London enacts it by article 2. Effective blockade is the contrast to so-called fictitious or paper blockade, which was frequently practised during the seventeenth, eighteenth, and at the beginning of the nineteenth century.[757] Fictitious blockade consists in the declaration and notification that a port or a coast is blockaded without, however, posting a sufficient number of men-of-war on the spot to be really able to prevent egress and ingress of every vessel. It was one of the principles of the First and of the Second Armed Neutrality that a blockade should always be effective, but it was not till after the Napoleonic wars that this principle gradually found universal recognition. During the second half of the nineteenth century even those States which had not acceded to the Declaration of Paris did not dissent regarding the necessity for effectiveness of blockade.
[Footnote 757: See Fauchille, Blocus, pp. 74-109.]
[Sidenote: Condition of Effectiveness of Blockade.]
§ 380. The condition of effectiveness of blockade, as defined by the Declaration of Paris, is its maintenance by such a force as is sufficient really to prevent access to the coast. But no unanimity exists respecting what is required to constitute an effective blockade according to this definition. Apart from differences of opinion regarding points of minor interest, it may be stated that in the main there are two conflicting opinions.
According to one opinion, the definition of an effective blockade pronounced by the First Armed Neutrality of 1780 is valid, and a blockade is effective only when the approach to the coast is barred by a chain of men-of-war anchored on the spot and so near to one another that the line cannot be passed without obvious danger to the passing vessel.[758] This corresponds to the practice hitherto followed by France.
[Footnote 758: See Hautefeuille, II. p. 194; Gessner, p. 179; Kleen, I. § 129; Boeck, Nos. 676-681; Dupuis, Nos. 173-174; Fauchille, Blocus, pp. 110-142. Phillimore, III. § 293, takes up the same standpoint in so far as a blockade de facto is concerned:--"A blockade de facto should be effected by stationing a number of ships, and forming as it were an arch of circumvallation round the mouth of the prohibited port, where, if the arch fails in any one part, the blockade itself fails altogether."]
According to another opinion, a blockade is effective when the approach is watched--to use the words of Dr. Lushington[759]--"by a force sufficient to render the egress and ingress dangerous, or, in other words, save under peculiar circumstances, as fogs, violent winds, and some necessary absences, sufficient to render the capture of vessels attempting to go in or come out most probable." According to this opinion there need be no chain of anchored men-of-war to expose any vessels attempting to break the blockade to a cross fire, but a real danger of capture suffices, whether the danger is caused by cruising or anchored men-of-war. This is the standpoint of theory and practice of Great Britain and the United States, and it seems likewise to be that of Germany and several German writers.[760] The blockade during the American War of the whole coast of the Confederate States to the extent of 2500 nautical miles by four hundred Federal cruisers could, of course, only be maintained by cruising vessels; and the fact that all neutral maritime States recognised it as effective shows that the opinion of dissenting writers has more theoretical than practical importance.
[Footnote 759: In his judgment in the case of the Franciska (1855), Spinks, 287.]
[Footnote 760: See Perels, § 49; Bluntschli, § 829; Liszt, § 41, III.]
The Declaration of London has settled the controversy in so far as article 3 enacts that "the question whether a blockade is effective, is a question of fact." Each case must, therefore, be judged according to its merits, and the before mentioned decision of Dr. Lushington would seem to have found implied recognition by article 3.
The question of effectiveness being one of fact, and the real danger to passing vessels being the characteristic of effectiveness of blockade, it must be recognised that in certain cases and in the absence of a sufficient number of men-of-war a blockade may be made effective through planting land batteries within range of any vessel attempting to pass,[761] provided there be at least one man-of-war on the spot. But a stone blockade,[762] so called because vessels laden with stones are sunk in the channel to block the approach, is not an effective blockade.
[Footnote 761: The Nancy (1809), 1 Acton, 63; the Circassian (1864), 2 Wallace, 135; the Olinde Rodrigues (1898), 174, United States, 510. See also Bluntschli, § 829; Perels, § 49; Geffcken in Holtzendorff, IV. p. 750; Walker, Manual, § 78.]
[Footnote 762: See above, § 368, p. 450, note 1. It ought to be mentioned here also that according to article 2 of Convention VIII. "it is forbidden to lay automatic contact mines off the ports and coasts of the enemy, with the sole object of intercepting commercial navigation."]
And it must, lastly, be mentioned that the distance of the blockading men-of war from the blockaded port or coast is immaterial so long as the circumstances and conditions of the special case justify such distance. Thus during the Crimean War the port of Riga was blockaded by a man-of-war stationed at a distance of 120 miles from the town, in the Lyser Ort, a channel three miles wide forming the only approach to the gulf.[763]
[Footnote 763: The Franciska (1855), Spinks, 287. See Hall, § 260, and Holland, Studies, pp. 166-167.]
[Sidenote: Amount of Danger which creates Effectiveness.]
§ 381. It is impossible to state exactly what degree of danger to a vessel attempting to pass is necessary to prove an effective blockade. It is recognised that a blockade does not cease to be effective in case now and then a vessel succeeds in passing the line unhindered, provided there was so much danger as to make her capture probable. Dr. Lushington strikingly dealt with the matter in the following words:[764]--"The maintenance of a blockade must always be a question of degree--of the degree of danger attending ships going into or leaving a port. Nothing is further from my intention, nor indeed more opposed to my notions, than any relaxation of the rule that a blockade must be sufficiently maintained; but it is perfectly obvious that no force could bar the entrance to absolute certainty; that vessels may get in and get out during the night, or fogs, or violent winds, or occasional absence; that it is most difficult to judge from numbers alone. Hence, I believe that in every case the inquiry has been, whether the force was competent and present, and, if so, the performance of the duty was presumed; and I think I may safely assert that in no case was a blockade held to be void when the blockading force was on the spot or near thereto on the ground of vessels entering into or escaping from the port, where such ingress or egress did not take place with the consent of the blockading squadron."
[Footnote 764: In his judgment in the case of the Franciska (1855), Spinks, 287.]
[Sidenote: Cessation of Effectiveness.]
§ 382. A blockade is effective so long as the danger lasts which makes probable the capture of such vessels as attempt to pass the approach. A blockade, therefore, ceases ipso facto by the absence of such danger, whether the blockading men-of-war are driven away, or are sent away for the fulfilment of some task which has nothing to do with the blockade, or voluntarily withdraw, or allow the passage of vessels in other cases than those which are exceptionally admissible. Thus, when in 1861, during the American Civil War, the Federal cruiser Niagara, which blockaded Charleston, was sent away and her place was taken after five days by the Minnesota, the blockade ceased to be effective, although the Federal Government refused to recognise this.[765] Thus, further, when during the Crimean War Great Britain allowed Russian vessels to export goods from blockaded ports, and accordingly the egress of such vessels from the blockaded port of Riga was permitted, the blockade of Riga ceased to be effective, because it tried to interfere with neutral commerce only; therefore, the capture of the Danish vessel Franciska[766] for attempting to break the blockade was not upheld.
[Footnote 765: See Mountague Bernard, Neutrality of Great Britain during the American Civil War (1870), pp. 237-239.]
[Footnote 766: Spinks, 287. See above, § 370.]
On the other hand, practice[767] and the majority of writers have always recognised the fact that a blockade does not cease to be effective in case the blockading force is driven away for a short time through stress of weather, and article 4 of the Declaration of London precisely enacts that "a blockade is not regarded as raised if the blockading force is temporarily withdrawn on account of stress of weather." English[768] writers, further, have hitherto denied that a blockade loses effectiveness through a blockading man-of-war being absent for a short time for the purpose of chasing a vessel which succeeded in passing the approach unhindered,[769] but the Declaration of London does not recognise this.[770]
[Footnote 767: The Columbia (1799), 1 C. Rob. 154.]
[Footnote 768: See Twiss, II. § 103, p. 201, and Phillimore, III. § 294.]
[Footnote 769: See article 37 of U.S. Naval War Code.]
[Footnote 770: See the Report of the Drafting Committee on article 4 of the Declaration of London.]
IV
BREACH OF BLOCKADE
See the literature quoted above at the commencement of § 368.
[Sidenote: Definition of Breach of Blockade.]
§ 383. Breach or violation of blockade is the unallowed ingress or egress of a vessel in spite of the blockade. The attempted breach is, so far as punishment is concerned, treated in the same way as the consummated breach, but the practice of States has hitherto differed with regard to the question at what time and by what act an attempt to break a blockade commences.
It must be specially observed that the blockade-runner violates International Law as little as the contraband carrier. Both (see below, § 398) violate injunctions of the belligerent concerned.
[Sidenote: No Breach without Notice of Blockade.]
§ 384. Since breach of blockade is, from the standpoint of the blockading belligerent, a criminal act, knowledge on the part of a vessel of the existence of a blockade is essential for making her egress or ingress a breach of blockade.
It is for this reason that Continental theory and practice have never considered a blockade established without local and diplomatic notification, so that every vessel might have, or might be supposed to have, notice of the existence of a blockade. And for the same reason some States, as France and Italy, have never considered a vessel to have committed a breach of blockade unless a special warning was given her before her attempted ingress by one of the blockading cruisers stopping her and recording the warning upon her log-book.[771]
[Footnote 771: See above, § 376.]
British, American, and Japanese practice regarding the necessary knowledge of the existence of a blockade on the part of a vessel has always made a distinction between actual and constructive notice, no breach of blockade having been held to exist without either the one or the other.[772] Actual notice has been considered knowledge acquired by a direct warning from one of the blockading men-of-war or knowledge acquired from any other public or private source of information. Constructive knowledge has been presumed knowledge of the blockade on the part of a vessel on the ground either of notoriety or of diplomatic notification. The existence of a blockade has always been presumed to be notorious to vessels within the blockaded ports, but it has been a question of fact whether it was notorious to other vessels. And knowledge of the existence of a blockade has always been presumed on the part of a vessel in case sufficient time had elapsed after the home State of the vessel had received diplomatic notification of the blockade, so that it could inform thereof all vessels sailing under its flag, whether or no they had actually received, or taken notice of, the information.[773]
[Footnote 772: See Holland, Prize Law, §§ 107, 114-127; U.S. Naval War Code, article 39; Japanese Prize Law, article 30.]
[Footnote 773: The Vrouw Judith (1799), 1 C. Rob. 150; the Neptunus (1799), 2 C. Rob. 110; the Calypso (1799), 2 C. Rob. 298; the Neptunus (1800), 3 C. Rob. 173; the Hoffnung (1805), 6 C. Rob. 112.]
The Declaration of London follows, to a certain extent, British, American, and Japanese practice, but differs chiefly in the presumption that knowledge of a blockade is never absolute, but may in every case be rebutted. Article 14 enacts that "the liability of a neutral vessel to capture for breach of blockade is contingent on her knowledge, actual or presumptive, of the blockade." Knowledge of the blockade is presumed, failing proof to the contrary, in case the vessel has left a neutral port subsequent to the notification of the blockade to the Power to which such port belongs, and provided that the notification was made in sufficient time (article 15). But in case a neutral vessel approaching a blockaded port has neither actual nor presumptive knowledge of the blockade, she is not considered in delicto, and notification must be made to her by recording a warning on her log-book, stating the day and hour and the geographical position of the vessel at the time (article 16, first paragraph). Further, if a neutral vessel is coming out of a blockaded port, she must be allowed to pass free, in case, through the negligence of the officer commanding the blockading fleet, no declaration of blockade was notified to the local authorities, or in case, in the declaration as notified, no period was mentioned within which neutral vessels might come out (article 16, second paragraph).
[Sidenote: The former practice as to what constitutes an Attempt to break Blockade.]
§ 385. The practice of States as well as the opinions of writers have hitherto differed much regarding such acts of a vessel as constitute an attempt to break blockade.
(1) The Second Armed Neutrality of 1800 intended to restrict an attempt to break blockade to the employment of force or ruse by a vessel on the line of blockade for the purpose of passing through. This was, on the whole, the practice of France, which moreover, as stated before, required that the vessel should previous to the attempt have received special warning from one of the blockading men-of-war. Many writers[774] took the same standpoint.
(2) The practice of other States, as Japan, approved by many writers,[775] went beyond this and considered it an attempt to break blockade when a vessel, with or without force or ruse, endeavoured to pass the line of blockade. This practice frequently saw an attempt complete in the fact that a vessel destined for a blockaded place was found anchoring or cruising near the line of blockade.
(3) The practice of Great Britain and the United States of America went furthest, since it considered it an attempted breach of blockade when a vessel, not destined according to her ship papers for a blockaded port, was found near it and steering for it; and, further, when a vessel destined for a port, the blockade of which was diplomatically notified, started on her journey knowing that the blockade had not been raised, except when the port from which the vessel sailed was so distant from the scene of war as to justify her master in starting for a destination known to be blockaded, on the chance of finding that the blockade had been removed, and with an intention of changing her destination should that not prove to be the case.[776] This practice, further, applied the doctrine of continuous voyages[777] to blockade, for it considered an attempt of breach of blockade to have been committed by such vessel as, although ostensibly destined for a neutral or an unblockaded port, is in reality intended, after touching there, to go on to a blockaded port.[778]
(4) During the Civil War the American Prize Courts carried the practice further by condemning such vessels for breach of blockade as knowingly carried to a neutral port cargo ultimately destined for a blockaded port, and by condemning for breach of blockade such cargo, but not the vessel, as was ultimately destined for a blockaded port, when the carrying vessel was ignorant of this ulterior destination of the cargo. Thus the Bermuda,[779] a British vessel with a cargo, part of which was, in the opinion of the American Courts, ultimately destined for the blockaded ports of the Confederate States, was seized on her voyage to the neutral British port of Nassau, in the Bahama Islands, and condemned for breach of blockade by the American Courts. The same happened to the British vessel Stephen Hart,[780] which was seized on her voyage to the neutral port of Cardenas, in Cuba. And in the famous case of the Springbok,[781] a British vessel also destined for Nassau, in the Bahama Islands, which was seized on her voyage to this neutral British port, the cargo alone was finally condemned for breach of blockade, since, in the opinion of the Court, the vessel was not cognisant that the cargo was intended to reach a blockaded port. The same happened to the cargo of the British vessel Peterhoff[782] destined for the neutral port of Matamaros, in Mexico. The British Government declined to intervene in favour of the British owners of the respective vessels and cargoes.[783]
[Footnote 774: See Hautefeuille, II. p. 134; Kleen, I. § 137; Gessner, p. 202; Dupuis, No. 185; Fauchille, Blocus, p. 322.]
[Footnote 775: See Bluntschli, § 835; Perels, § 51; Geffcken in Holtzendorff, IV. p. 763; Rivier, II. p. 431. See also § 25 of the Prussian Regulations (1864) concerning Naval Prizes, and article 31 of the Japanese Naval Prize Law.]
[Footnote 776: See Holland, Prize Law, § 133, and U.S. Naval War Code, article 42; the Betsey (1799), 1 C. Rob. 332.]
[Footnote 777: On this doctrine, see below, § 400, p. 499, note 1.]
[Footnote 778: See Holland, Prize Law, § 134, and the case of the James Cook (1810), Edwards, 261.]
[Footnote 779: 3 Wallace, § 14.]
[Footnote 780: 3 Wallace, 559.]
[Footnote 781: 5 Wallace, 1.]
[Footnote 782: 5 Wallace, 28.]
[Footnote 783: See Parliamentary Papers, Miscellaneous, N. 1 (1900), "Correspondence regarding the Seizure of the British Vessels Springbok and Peterhoff by the United States Cruisers in 1863."]
It is true that the majority of authorities[784] assert the illegality of these judgments of the American Prize Courts, but it is a fact that Great Britain at the time recognised as correct the principles which are the basis of these judgments.
[Footnote 784: See, for instance, Holland, Prize Law, p. 38, note 2; Phillimore, III. § 298; Twiss, Belligerent Right on the High Seas (1884), p. 19; Hall, § 263; Gessner, Kriegführende und neutrale Mächte (1877), pp. 95-100; Bluntschli, § 835; Perels, § 51; Fauchille, pp. 333-344; Martens, II. § 124. See also Wharton, III. § 362, p. 401, and Moore, VII. § 1276.]
[Sidenote: What constitutes an Attempt to break Blockade according to the Declaration of London.]
§ 385_a_. The Declaration of London proposes a settlement of this controversial matter by enacting in article 17 that "neutral vessels may not be captured for breach of blockade except within the area of operations of the men-of-war detailed to render the blockade effective," and in article 19 that "whatever may be the ulterior destination of a vessel or of her cargo, she may not be captured for breach of blockade, if, at the moment, she is on the way to a non-blockaded port."
Accordingly, a neutral vessel, to be guilty of an attempt to break blockade, must actually have entered the area of operations (rayon d'action) of the blockading fleet. This area of operations is a question of fact in each case of a blockade. "When a Government decides to undertake blockading operations against some part of the enemy coast it details a certain number of men-of-war to take part in the blockade, and entrusts the command to an officer whose duty it is to use them for the purpose of making the blockade effective. The commander of the naval force thus formed posts the vessels at his disposal according to the line of the coast and the geographical position of the blockaded places, and instructs each vessel as to the part which she has to play, and especially as to the zone which she is to watch. All the zones watched taken together and so organised as to make the blockade effective, form the area of operations of the blockading force."[785]
[Footnote 785: Report of the Drafting Committee on article 17.]
But the fact alone that a neutral vessel has entered the area of operations is not sufficient to justify her capture, she must also be destined and be on her way to the blockaded port. If she passes through the area of operations without being destined and on her way to the blockaded port, she is not attempting to break the blockade. Even should the ulterior destination of a vessel or her cargo be the blockaded port, she is not considered to attempt to break the blockade, if, at the moment of the visitation, she is really on her way to a non-blockaded port (article 19). However, she must really, and not only apparently, be on her way to a non-blockaded port; if it can be proved that in reality her immediate destination is the blockaded port and that she only feigns to be destined for a non-blockaded port, she may be captured, for she is actually attempting to break the blockade.[786]
[Footnote 786: See the Report of the Drafting Committee on article 19.]
From these stipulations of the Declaration of London it becomes quite apparent that the application to blockade of the doctrine of continuous voyage in any form is not admissible.
[Sidenote: When Ingress is not considered Breach of Blockade.]
§ 386. Although blockade inwards interdicts ingress to all vessels, if not especially licensed,[787] necessity makes exceptions to the rule.
[Footnote 787: See above, § 370.]
According to the practice which has hitherto been quite general, whenever a vessel either by need of repairs,[788] stress of weather,[789] want of water[790] or provisions, or upon any other ground was absolutely obliged to enter a blockaded port, such ingress did not constitute a breach of blockade. On the other hand, according to the British practice at any rate, ingress did not cease to be breach of blockade if caused by intoxication of the master,[791] ignorance[792] of the coast, loss of compass,[793] endeavour to get a pilot,[794] and the like, or an attempt to ascertain[795] whether the blockade was raised.[796]
[Footnote 788: The Charlotta (1810), Edwards, 252.]
[Footnote 789: The Fortuna (1803), 5 C. Rob. 27.]
[Footnote 790: The Hurtige Hanne (1799), 2 C. Rob. 124.]
[Footnote 791: The Shepherdess (1804), 5 C. Rob. 262.]
[Footnote 792: The Adonis (1804), 5 C. Rob. 256.]
[Footnote 793: The Elizabeth (1810), Edwards, 198.]
[Footnote 794: The Neutralitet (1805), 6 C. Rob. 30.]
[Footnote 795: The Spes and Irene (1804), 5 C. Rob. 76.]
[Footnote 796: See Holland, Prize Law, §§ 135-136.]
The Declaration of London recognises that necessity makes exceptions to the rule that vessels may not enter a blockaded port. Article 7 enacts that "in circumstances of distress, acknowledged by an officer of the blockading force, a neutral vessel may enter a place under blockade, and subsequently leave it, provided that she has neither discharged nor shipped any cargo there." It has, however, to be kept in view that article 7, firstly, does not define the term circumstances of distress, and, secondly, makes it a condition that the circumstances concerned must be acknowledged by an officer of the blockading force. Everything is, therefore, prima facie at any rate, left to the consideration of the respective officer. A vessel in distress will have to signal to the man-of-war of the blockading force which she meets within the area of operations that she intends to enter the blockaded port, and the commander of the man-of-war will have to convince himself that circumstances of distress really exist, and that no fraud is intended. The commander may deny the condition of distress, and then the vessel may not proceed, although the State whose flag she flies may ask for indemnities in case there really was distress and the vessel was lost or damaged by not being allowed to enter the blockaded port. On the other hand, when once the commander of the man-of-war has acknowledged that the respective vessel is in a condition of distress, it is not in his discretion, but he is in duty bound,[797] to allow her to enter the blockaded port.
[Footnote 797: See Report of the Drafting Committee on article 7.]
[Sidenote: When Egress is not considered Breach of Blockade.]
§ 387. There are a few cases of egress which, according to the hitherto prevailing practice of Great Britain and most other States, were not considered breaches of blockade outwards.[798] Thus, a vessel that was in a blockaded port before the commencement of the blockade[799] was allowed to sail from this port in ballast, as was also a vessel that had entered during a blockade either in ignorance of it or with the permission of the blockading squadron.[800] Thus, further, a vessel the cargo of which was put on board before the commencement of the blockade was allowed to leave the port afterwards unhindered.[801] Thus, again, a vessel obliged by absolute necessity to enter a blockaded port was afterwards allowed to leave it unhindered. And a vessel employed by the diplomatic envoy of a neutral State for the exclusive purpose of sending home from a blockaded port distressed seamen of his nationality was also allowed to pass unhindered.[802]
[Footnote 798: See Holland, Prize Law, § 130; Twiss, II. § 113; Phillimore, III. § 313.]
[Footnote 799: The Frederick Moltke (1798), 1 C. Rob. 86.]
[Footnote 800: The Juno (1799), 2 C. Rob. 116.]
[Footnote 801: The Vrouw Judith (1799), 1 C. Rob. 150.]
[Footnote 802: The Rose in Bloom (1811), 1 Dodson, 55.]
The Declaration of London recognises by article 7--see above, § 386--that a vessel which, on account of distress, entered a blockaded port, must be allowed to leave it afterwards, provided she has neither discharged nor shipped cargo there. And article 16, second paragraph--see above, § 384--enacts that a vessel coming out of a blockaded port must be allowed to pass free, if, through the negligence of the commander of the blockading fleet, no declaration of blockade has been notified to the local authorities, or if, in the declaration as notified, no period has been mentioned within which neutral vessels might come out. But beyond these the Declaration of London does not specify any cases in which egress is not considered breach of blockade. The International Prize Court will, if established, have to develop a more detailed practice concerning the matter.
[Sidenote: Passage through Unblockaded Canal no Breach of Blockade.]
§ 388. A breach of blockade can only be committed by passing through the blockaded approach. Therefore, if the maritime approach to a port is blockaded whilst an inland canal leads to another unblockaded port of the enemy or to a neutral port, no breach of blockade is committed by the egress or the ingress of a vessel passing such canal for the purpose of reaching the blockaded port.[803]
[Footnote 803: The Stert (1801), 4 C. Rob. 65. See Phillimore, III. § 314.]
Although the Declaration of London does not mention this point, the International Prize Court would surely decide it as stated, since this decision is based on common sense.
V
CONSEQUENCES OF BREACH OF BLOCKADE
See the literature quoted above at the commencement of § 368.
[Sidenote: Capture of Blockade-running Vessels.]
§ 389. It is universally recognised that a vessel may be captured for a breach of blockade in delicto only, that means, during the time of an attempt to break it, or of the breach itself. But here again practice as well as theory hitherto have differed much, since there has been no unanimity with regard to the extent of time during which an attempt of breach and the breach itself could be said to be actually continuing.
It has already been stated above in § 385 that it has been a moot point from what moment a breach of blockade could be said to have been attempted, and that according to the practice of Great Britain and the United States an attempt was to be found in the fact that a vessel destined for a blockaded port was starting on her voyage. It is obvious that the controversy bore upon the question from what point of time a blockade-running vessel must be considered in delicto.
But it has been likewise a moot point as to when the period of time during which a blockade-running vessel might be said to be in delicto came to an end. According to Continental theory and practice, such vessel was considered to be in delicto only so long as she was actually on the line of blockade, or, having fled from there, so long as she was pursued by one of the blockading cruisers. On the other hand, according to the practice of Great Britain[804] and the United States,[805] a blockade-running vessel was held to be in delicto so long as she had not completed her voyage from the blockaded port to the port of her destination and back to the port from which she started originally, the voyage out and home being considered one voyage. But a vessel was held to be in delicto so long only as the blockade continued, capture being no longer admissible in case the blockade had been raised or had otherwise come to an end.
[Footnote 804: The Welvaart van Pillaw (1799), 2 C. Rob. 128; General Hamilton (1805), 6 C. Rob. 61.]
[Footnote 805: See U.S. Naval War Code, article 44.]
The Declaration of London, when ratified, will settle the controversy, for, according to article 20, a vessel is in delicto so long only as she is pursued by a man-of-war of the blockading force, and she may no longer be captured if the pursuit is abandoned or if the blockade is raised. Stress must be laid on two points. Firstly, the pursuit must be carried out by a man-of-war belonging to the blockading force, and not by any other cruiser. Secondly, a blockade-breaking vessel is liable to capture so long as the pursuit lasts, whether or no she is still within the area of operations; even if for a while she has taken refuge in a neutral port, she may, on coming out, be captured, provided the captor is one of the men-of-war of the blockading force which pursued her and waited for her outside the port of refuge.[806]
[Footnote 806: See the Report of the Drafting Committee on article 20.]
[Sidenote: Penalty for Breach of Blockade.]
§ 390. Capture being effected, the blockade-runner must be sent to a port to be brought before a Prize Court. For this purpose the crew may be temporarily detained, as they will have to serve as witnesses. In former times the crew could be imprisoned, and it is said that even capital[807] punishment could have been pronounced against them. But since the eighteenth century this practice of imprisoning the crew has been abandoned, and nowadays the crew may not even be made prisoners of war, but must be released as soon as the Prize Court has pronounced its verdict.[808] The only penalty which may be pronounced is confiscation of the vessel and the cargo. But the practice[809] of the several States has hitherto differed much concerning the penalty for breach of blockade. According to British and American practice, confiscation of both vessel and cargo used to take place in case the owners of the vessel were identical with those of the cargo. In case vessel and cargo had not the same owners, confiscation of both took place only when the cargo consisted of contraband of war or the owners knew of the blockade at the time the cargo was shipped for the blockaded port.[810] And it mattered not whether the captured vessel which carried the cargo had herself actually passed through the blockaded line, or the breach of blockade was effected through a combined action of lighters and the vessel, the lighters passing the line and discharging the cargo into the vessel near the line, or vice versa.[811] The cargo alone was confiscated according to the judgments of the American Prize Courts during the Civil War in the case of the Springbok and in similar cases[812] when goods ultimately destined for a blockaded port were sent to a neutral port on a vessel whose owners were ignorant of this ulterior destination of the goods.
[Footnote 807: See Bynkershoek, Quaest. jur. publ. I. c. 11.]
[Footnote 808: See Calvo, V. §§ 2897-2898. U.S. Naval War Code, article 45.]
[Footnote 809: See Fauchille, Blocus, pp. 357-394: Gessner, pp. 210-214; Perels, § 51, pp. 276-278.]
[Footnote 810: The Mercurius (1798), 1 C. Rob. 80; the Columbia (1799), 1 C. Rob. 154; the Alexander (1801), 4 C. Rob. 93; the Adonis (1804), 5 C. Rob. 256; the Exchange (1808), Edwards, 39; the Panaghia Rhomba (1858), 12 Moore, P.C. 168--See Phillimore, III. §§ 318-319.]
[Footnote 811: The Maria (1805), 6 C Rob. 201.]
[Footnote 812: See above, § 385 (4).]
The Declaration of London settles the matter by a very simple rule, for according to article 21 the penalty for blockade-breaking is condemnation of the vessel in all cases, and condemnation of the cargo also, unless the owner proves that at the time of the shipment of the goods the shipper neither knew nor could have known of the intention of the vessel to break the blockade. The case in which the whole or part of the cargo consists of contraband, is not mentioned by article 21, but its condemnation is a matter of course.