Chapter II: Relations Between Belligerents and Neutrals (3)

§ 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.