Chapter II: Relations Between Belligerents and Neutrals (2)

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.]