International Law. A Treatise Volume Ii Part 45

[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 a.s.sistance to the naval operations of the belligerent concerned. For this reason, Great Britain as well as j.a.pan 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--Merignhac, pp.

358-360--Pillet, pp. 288-290--Dupuis, Nos. 322-331, and _Guerre_, Nos. 290-294--_Land Warfare_, ---- 472-476.

[Sidenote: Depots 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 depots and factories of arms, ammunition, and military provisions. However, belligerents can easily evade this by not keeping depots 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 a.s.sertion 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 a.s.sertion 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: Pa.s.sage of Bodies of Men intending to Enlist.]

-- 331. A neutral is not obliged by his duty of impartiality to interdict pa.s.sage 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 pa.s.sage of whole bodies of volunteers through her neutral territory was more or less equal to a pa.s.sage 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 (_isolement_) 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 pa.s.sage 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 pa.s.sage 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 circ.u.mstances 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 wars.h.i.+p and a s.h.i.+p 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 quant.i.ty 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 quant.i.ty 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-s.h.i.+ps may only revictual in neutral ports or roadsteads to bring up their supplies to the peace standard.

Similarly these vessels may only s.h.i.+p 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 s.h.i.+ps 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-s.h.i.+ps which have s.h.i.+pped 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, j.a.pan, and Siam, while they have accepted article 20,[634] have entered a reservation against article 19. Great Britain upholds her rule that belligerent wars.h.i.+ps 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 replenis.h.i.+ng with ammunition and armaments, and from adding to their armaments, as otherwise he would indirectly a.s.sist 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 sh.o.r.e 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 Munic.i.p.al 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 Munic.i.p.al 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-j.a.panese 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 Munic.i.p.al 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.]