Chapter XXXI: Section 4: Neutral Hospitality

The Hague Convention of 1907, No. xiii., not yet ratified by
Great Britain, suggests in Art. 12, with reference to the
question here raised, that "à défaut d'autres dispositions
spéciales de la législation de la Puissance neutre, il est
interdit aux navires de guerre des belligérants de demeurer
dans les ports et rades ou dans les eaux territoriales de la
dite Puissance pendant plus de 24 heures sauf dans les cas
prévues par la présente Convention."

BELLIGERENT FLEETS IN NEUTRAL WATERS

Sir,--A novel question as to belligerent responsibilities would be suggested for solution if, as seems to be reported in Paris, Admiral Rozhdestvensky over-stayed his welcome in the waters of Madagascar, although ordered to leave them by his own Government in compliance with "pressing representations" on the part of the Government of France.

A much larger question is, however, involved in the discussion which has arisen as to the alleged neglect by France to prevent the use of her Cochin-Chinese waters by the Russians as a base of operations against Japan. We are as yet in the dark as to what is actually occurring in those waters, and are, perhaps, for that very reason in a better position for endeavouring to ascertain what are the obligations imposed on a neutral in such a case by international law.

It is admitted on all hands that a neutral Power is bound not to permit the "asylum" which she may grant to ships of war to be so abused as to render her waters a "base of operations" for the belligerent to which those ships belong. Beyond this, international law speaks at present with an uncertain voice, leaving to each Power to resort to such measures in detail as may be necessary to ensure the due performance of a duty which, as expressed in general terms, is universally recognised.

The rule enforced since 1862 by Great Britain for this purpose limits the stay of a belligerent warship, under ordinary circumstances, to a period of twenty-four hours; and the same provision will be found in the neutrality proclamations issued last year by, e.g. the United States, Egypt, China, Denmark, Sweden and Norway. So by Japan and Russia in 1898. This rule, convenient and reasonable as it is, is not yet a rule of international law; as Lord Percy has had occasion to point out, in replying to a question addressed to him in the House of Commons. The proclamations of most of the Continental Powers do not commit their respective Governments to any period of time, and the material clauses of the French circular, to which most attention will be directed at the present time, merely provide as follows:--

"(1) En aucun cas, un belligérant ne peut faire usage d'un
port Français, ou appartenant à un État protégé, dans un but
de guerre, &c. (2) La durée du séjour dans nos ports de
belligérants, non accompagnés d'une prise, n'a été limitée
par aucune disposition spéciale; mais pour être autorisés à y
séjourner, ils sont tenus de se conformer aux conditions
ordinaires de la neutralité, qui peuvent se résumer ainsi
qu'il suit:--(_a_) ... (_b_) Les dits navires ne peuvent, _à
l'aide de ressources puisées à terre_, augmenter leur
matériel de guerre, renforcer leurs équipages, ni faire des
enrôlements volontaires, même parmi leurs nationaux. (_c_)
Ils doivent s'abstenir de toute enquête sur les forces,
l'emplacement ou les ressources de leurs ennemis, ne pas
appareiller brusquement pour poursuivre ceux qui leur
seraient signalés; en un mot, s'abstenir de faire du lieu de
leur résidence la base d'une opération quelconque contre
l'ennemi. (3) Il ne peut être fourni à un belligérant que les
vivres, denrées, et moyens de réparations nécessaires à la
subsistence de son équipage ou à la sécurité de sa
navigation."

Under the twenty-four hours rule, the duty of the neutral Government is clear. Under the French rules, all must evidently turn upon the wisdom and _bonne volonté_ of the officials on the spot, and of the home Government, so far as it is in touch with them. We have no reason to suppose that the qualities in question will not characterise the conduct of the French at the present moment. There can, however, be no doubt that a better definition of the mode in which a neutral Power should prevent abusive use of the asylum afforded by its ports and waters is urgently required. The point is one which must prominently engage the attention of the special conference upon the rights and duties of neutrals, for which a wish was expressed by The Hague Conference of 1899, and, more recently, by President Roosevelt.

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, April 20 (1905).

THE APPAM

Sir,--It is satisfactory to learn that the United States Neutrality Board has decided adversely to the contention that the _Appam_ is a German ship of war. Her treatment as a prize would then, _prima facie_, seem to be governed by Art. 21 of The Hague Convention, No. xiii., which provides for her being released, together with her officers and crew, while the prize crew is to be interned. This Convention has been duly ratified both by Germany and by the United States. Its non-ratification by Great Britain is, I conceive, irrelevant.

But Germany contends that the situation is governed by Art. 19, the text of which has been several times set out in your columns, of the old Convention of 1799. This may startle those who are acquainted with what occurred at The Hague in 1907, and I have seen no reference to what must be the gist of the German argument on the point. They no doubt argue that the old Convention remains unrepealed by No. xiii. of The Hague, because the latter Convention is of no effect, in pursuance of its common form Art. 28, to the effect that:--"The provisions of the present Convention do not apply except between contracting Powers, and then only if all the belligerents are parties to the Convention" (which is by no means the case).

Your obedient servant, T. E. HOLLAND. Oxford, February 4 (1916).

Certain reservations on ratification do not affect Arts. 21 or
22.

The State Department ruled that the case did not fall within
the protecting clauses of the Treaty of 1799, which granted
asylum only to ships of war accompanying prizes, whereas the
_Appam_ was herself a prize. Proceedings by the owners in the
local Federal Court for possession of the ship resulted in a
decision in their favour, against which the Germans are
appealing in the Supreme Court. They do not seem to have raised
the objection, mentioned in the letter, as to the applicability
of Convention viii.

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