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diff --git a/41047-8.txt b/41047-8.txt deleted file mode 100644 index 76672e5..0000000 --- a/41047-8.txt +++ /dev/null @@ -1,36493 +0,0 @@ -The Project Gutenberg EBook of International Law. A Treatise. Volume II -(of 2), by Lassa Francis Oppenheim - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org - - -Title: International Law. A Treatise. Volume II (of 2) - War and Neutrality. Second Edition - -Author: Lassa Francis Oppenheim - -Release Date: October 16, 2012 [EBook #41047] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK INTERNATIONAL LAW, A TREATISE, VOL II *** - - - - -Produced by The Online Distributed Proofreading Team at -http://www.pgdp.net (This file was produced from images -generously made available by The Internet Archive/Canadian -Libraries) - - - - - -[Transcriber's note: Original spelling variations have not been -standardized. Underscores have been used to indicate _italic_ fonts.] - - -_BY THE SAME AUTHOR_ - -INTERNATIONAL LAW - -VOL. I.--PEACE - -2nd Edition - -8vo. 18s. net - -LONGMANS, GREEN AND CO. - -LONDON, NEW YORK, BOMBAY, AND CALCUTTA - - - - -INTERNATIONAL LAW - - -A TREATISE - -BY - -L. OPPENHEIM, M.A., LL.D. - -WHEWELL PROFESSOR OF INTERNATIONAL LAW IN THE UNIVERSITY OF CAMBRIDGE - -MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW - -HONORARY MEMBER OF THE ROYAL ACADEMY OF JURISPRUDENCE AT MADRID - - -VOL. II. - -WAR AND NEUTRALITY - -_SECOND EDITION_ - - -LONGMANS, GREEN AND CO. - -39 PATERNOSTER ROW, LONDON - -NEW YORK, BOMBAY, AND CALCUTTA - -1912 - - -All rights reserved - - - - -PREFACE - -TO THE SECOND EDITION - - -The course of events since 1906, when the second volume of this work -first made its appearance, and the results of further research have -necessitated, as in the case of the first volume, the thorough revision -of the text, the rewriting of many portions, and the discussion of a -number of new topics. The additions to this volume are even more -numerous than those to the first, with the consequence that, in spite of -the typographical devices explained in the preface to the second edition -of the first volume, the text of this volume has been increased by one -hundred pages. The increase is, in some measure, due to the fact that -the thirteen Conventions of the Second Hague Peace Conference, and, -further, the Declaration of London, are fully discussed and expounded. -But the increase is also due to the fact that a number of other new -topics have been discussed; I will only mention the questions whether -enemy subjects have _persona standi in judicio_ (§ 100_a_), and whether -trading with enemy subjects is permitted (§ 101). - -The system of the work, with but occasional slight alterations in -arrangement and the headings of the sections, remains the same. In those -cases, however, in which a portion had to be entirely rewritten--as, for -instance, that on Enemy Character, that on Commencement of War, and that -on Unneutral Service--the arrangement of the topics differs from that in -the first edition, and the headings of the sections also differ. Apart -from many new sections, a whole chapter treating of the proposed -International Prize Court has been added at the end of the volume. - -Since some of the Conventions produced by the Second Peace Conference, -and, further, the Declaration of London, have not yet been ratified, the -task of the writer of a comprehensive treatise on International Law is -very difficult: he must certainly not treat the rules in these -unratified documents as law, but, on the other hand, he must not ignore -them. For this reason the right method seemed to be to give everywhere -the law hitherto prevailing, and to give also the changes in the law -which are proposed by these unratified documents. I venture to hope that -this method will enable the reader to form a judgment of his own with -regard to the merits of the Declaration of London. I have not concealed -my conviction that the ratification of this Declaration would mark great -progress in the development of International Law, since it offers a -common agreement upon a number of subjects concerning which there has -been hitherto much discord both in theory and practice. But I have -endeavoured to put the matter impartially before the reader, and I have -taken special care to draw attention to very numerous points which have -not been settled by the Declaration of London. - -In revising and rewriting this volume I have remained true to the -principle of impartiality, neither taking the part of any one nation, -nor denouncing any other. The discredit which International Law -concerning War and Neutrality suffers in the minds of certain sections -of the public is largely due to the fact that many writers have not in -the past approached the subject with that impartial and truly -international spirit which is indispensable for its proper treatment. - -Many friends of the book have asked that the second edition might, in -the Appendix, offer an English translation of the French texts -concerned. I was prepared to accede to their request, but had to abstain -from doing so on account of the fact that the addition of a translation -would have made the volume too bulky for convenience; the new -Conventions of the Second Hague Peace Conference, the Declaration of -London together with the Report of the Drafting Committee of the Naval -Conference of London, the Naval Prize Bill of 1911, and the Geneva -Convention Act of 1911, all of which necessarily had to be added, having -increased the Appendix very considerably. - -It has been the aim of my assistants and myself to make the quotations -in this and the preceding volume as correct as possible. However, -considering that there are many thousands of citations, it would be a -miracle if there were not numerous mistakes and misprints in them, in -spite of the great care which has been bestowed upon the matter. I shall -be most grateful, therefore, if readers will kindly draw my attention to -any inaccuracy they may notice. - -My thanks are once more due to reviewers and readers who have drawn my -attention to mistakes and misprints in the first edition; and I am again -indebted to Miss B. M. Rutter and Mr. C. F. Pond for their valuable -assistance in reading the proofs and in drawing up the Table of Cases -and the alphabetical Index. - - L. OPPENHEIM. - - WHEWELL HOUSE, - CAMBRIDGE, - _June 1, 1912_. - - - - -ABBREVIATIONS - -OF TITLES OF BOOKS, ETC., QUOTED IN THE TEXT - - -The books referred to in the bibliography and notes are, as a rule, -quoted with their full titles and the date of their publication. But -certain books, periodicals, and Conventions which are very often -referred to throughout this work are quoted in an abbreviated form, as -follows:-- - - A.J. = The American Journal of International - Law. - Annuaire = Annuaire de l'Institut de Droit - International. - Ariga = Ariga, La Guerre Russo-Japonaise - (1908). - Barboux = Barboux, Jurisprudence Du Conseil Des - Prises Pendant La Guerre De 1870-71 - (1871). - Barclay, Problems = Barclay, Problems of International - Practice and Diplomacy (1907). - Bernsten = Bernsten, Das Seekriegsrecht (1911). - Bluntschli = Bluntschli, Das moderne Völkerrecht der - civilisirten Staaten als Rechtsbuch - dargestellt, 3rd ed. (1878). - Boeck = Boeck, De La Propriété Privée Ennemie - Sous Pavillon Ennemi (1882). - Boidin = Boidin, Les Lois De La Guerre et Les Deux - Conférences De La Haye (1908). - Bonfils = Bonfils, Manuel De Droit International - Public, 6th ed. by Fauchille (1912). - Bordwell = Bordwell, The Law of War between - Belligerents (1908). - Bulmerincq = Bulmerincq, Das Völkerrecht (1887). - Calvo = Calvo, Le Droit International, etc., 5th - ed., 6 vols. (1896). - Convention I. = Hague Convention for the pacific - settlement of international disputes. - Convention II. = Hague Convention respecting the - limitation of the employment of force - for the recovery of contract debts. - Convention III. = Hague Convention relative to the - commencement of hostilities. - Convention IV. = Hague Convention concerning the laws and - customs of war on land. - Convention V. = Hague Convention respecting the rights - and duties of neutral Powers and - persons in war on land. - Convention VI. = Hague Convention relative to the status - of enemy merchantmen at the outbreak - of hostilities. - Convention VII. = Hague Convention relative to the - conversion of merchantmen into - men-of-war. - Convention VIII. = Hague Convention concerning the laying of - automatic submarine contact mines. - Convention IX. = Hague Convention respecting bombardment - by naval forces in time of war. - Convention X. = Hague Convention for the adaptation of - the principles of the Geneva - Convention to maritime war. - Convention XI. = Hague Convention concerning certain - restrictions on the exercise of the - right of capture in maritime war. - Convention XII. = Hague Convention concerning the - establishment of an International - Prize Court. - Convention XIII. = Hague Convention respecting the rights - and duties of neutral Powers in - maritime war. - Despagnet = Despagnet, Cours De Droit International - Public, 4th ed. by de Boeck (1910). - Deuxième Conférence, - Actes = Deuxième Conférence Internationale De La - Paix, Actes et Documents, 3 vols. - (1908-1909). - Dupuis = Dupuis, Le Droit De La Guerre Maritime - D'après Les Doctrines Anglaises - Contemporaines (1899). - Dupuis, Guerre = Dupuis, Le Droit De La Guerre Maritime - D'après Les Conférences de la Haye et - de Londres (1911). - Field = Field, Outlines of an International - Code, 2 vols. (1872-1873). - Fiore = Fiore, Nouveau Droit International - Public, deuxième édition, traduite - de l'Italien et annotée par Antoine, - 3 vols. (1885). - Fiore, Code = Fiore, Le Droit International Codifié, - nouvelle édition, traduite de - l'Italien par Antoine (1911). - Gareis = Gareis, Institutionen des Völkerrechts, - 2nd ed. (1901). - Gessner = Gessner, Le Droit Des Neutres Sur Mer - (1865). - Grotius = Grotius, De Jure Belli ac Pacis (1625). - Hague Regulations = Hague Regulations respecting the Laws - and Customs of War on Land, adopted - by the Hague Peace Conference of - 1907. - Hall = Hall, A Treatise on International Law, - 4th ed. (1895). - Halleck = Halleck, International Law, 3rd English - ed. by Sir Sherston Baker, 2 vols. - (1893). - Hartmann = Hartmann, Institutionen des praktischen - Völkerrechts in Friedenszeiten - (1874). - Hautefeuille = Hautefeuille, Des Droits Et Des Devoirs - Des Nations Neutres En Temps De - Guerre Maritime, 3 vols. 2nd ed. - (1858). - Heffter = Heffter, Das Europäische Völkerrecht der - Gegenwart, 8th ed. by Geffcken - (1888). - Heilborn, Rechte = Heilborn, Rechte und Pflichten der - Neutralen Staaten in Bezug auf die - während des Krieges auf ihr Gebiet - übertretenden Angehörigen einer Armee - und das dorthin gebrachte - Kriegsmaterial der Kriegführenden - Parteien (1888). - Heilborn, System = Heilborn, Das System des Völkerrechts - entwickelt aus den völkerrechtlichen - Begriffen (1896). - Higgins = Higgins, The Hague Peace Conferences - (1909). - Holland, Prize Law = Holland, A Manual of Naval Prize Law - (1888). - Holland, Studies = Holland, Studies in International Law - (1898). - Holland, - Jurisprudence = Holland, The Elements of Jurisprudence, - 6th ed. (1893). - Holland, War = Holland, The Laws of War on Land (1908). - Holtzendorff = Holtzendorff, Handbuch des Völkerrechts, - 4 vols. (1885-1889). - Kleen = Kleen, Lois et Usages De La Neutralité, - 2 vols. (1900). - Klüber = Klüber, Europäisches Völkerrecht, 2nd ed. - by Morstadt (1851). - Kriegsbrauch = Kriegsbrauch im Landkriege (1902). (Heft - 31 der kriegsgeschichtlichen - Einzelschriften, herausgegeben vom - Grossen Generalstabe, - Kriegsgeschichtliche Abtheilung I.). - Land Warfare = Edmonds and Oppenheim, Land Warfare. An - Exposition of the Laws and Usages of - War on Land for the Guidance of - Officers of His Majesty's Army - (1912). - Lawrence = Lawrence, The Principles of International - Law, 4th ed. (1910). - Lawrence, Essays = Lawrence, Essays on some Disputed - Questions of Modern International Law - (1884). - Lawrence, War = Lawrence, War and Neutrality in the Far - East, 2nd ed. (1904). - Lémonon = Lémonon, La Seconde Conférence De La - Paix (1908). - Liszt = Liszt, Das Völkerrecht, 6th ed. (1910). - Longuet = Longuet, Le Droit Actuel De La Guerre - Terrestre (1901). - Lorimer = Lorimer, The Institutes of International - Law, 2 vols. (1883-1884). - Maine = Maine, International Law, 2nd ed. (1894). - Manning = Manning, Commentaries on the Law of - Nations, new ed. by Sheldon Amos - (1875). - Martens = Martens, Völkerrecht, German translation - of the Russian original, 2 vols. - (1883). - Martens, G. F. = G. F. Martens, Précis Du Droit Des Gens - Moderne De l'Europe, nouvelle éd. by - Vergé, 2 vols. (1858). - Martens, R. | - Martens, N.R. | - Martens, N.S. | - Martens, N.R.G. | - Martens, N.R.G. | - 2nd Ser. | - Martens. N.R.G. | - 3rd Ser. | = These are the abbreviated quotations of - the different parts of Martens, - Recueil de Traités (see p. 102 of - vol. i.), which are in common use. - Martens, Causes = Martens, Causes Célèbres du Droit des - Célèbres Gens, 5 vols., 2nd ed. (1858-1861). - Mérignhac = Mérignhac, Les Lois Et Coutumes De La - Guerre Sur Terre (1903). - Meurer = Meurer, Die Haager Friedenskonferenz, 2 - vols. (1905-1907). - Moore = Moore, A Digest of International Law, 8 - vols., Washington (1906). - Moore, Arbitrations = Moore, History and Digest of the - Arbitrations to which the United - States have been a Party, 6 vols. - (1898). - Nippold = Nippold, Die Zweite Haager - Friedenskonferenz, 2 vols. - (1908-1911). - Nys = Nys, Le Droit International, vol. i. - (1904). - Ortolan = Ortolan, Règles Internationales et - Diplomatie de la Mer, 2 vols., 3rd - ed. (1856). - Perels = Perels, Das Internationale öffentliche - Seerecht der Gegenwart, 2nd ed. - (1903). - Phillimore = Phillimore, Commentaries upon - International Law, 4 vols., 3rd ed. - (1879-1888). - Piedelièvre = Piedelièvre, Précis De Droit - International Public, 2 vols. - (1894-1895). - Pillet = Pillet, Les Lois Actuelles De La Guerre - (1901). - Pistoye et Duverdy = Pistoye et Duverdy, Traité Des Prises - Maritimes, 2 vols. (1854-1859). - Pradier-Fodéré = Pradier-Fodéré, Traité De Droit - International Public, 8 vols. - (1885-1906). - Pufendorf = Pufendorf, De Jure Naturae et Gentium - (1672). - R.G. = Revue Générale De Droit International - Public. - R.I. = Revue De Droit International Et De - Législation Comparée. - Rivier = Rivier, Principes Du Droit Des Gens, 2 - vols. (1896). - Scott, Conferences = Scott, The Hague Peace Conferences of - 1899 and 1907, vol. i. (1909). - Spaight = Spaight, War Rights on Land (1911). - Takahashi = Takahashi, International Law applied to - the Russo-Japanese War (1908). - Taylor = Taylor, A Treatise on International - Public Law (1901). - Testa = Testa, Le Droit Public International - Maritime, traduction du Portugais par - Boutiron (1886). - Twiss = Twiss, The Law of Nations, 2 vols., 2nd - ed. (1884, 1875). - Ullmann = Ullmann, Völkerrecht, 2nd ed. (1908). - U.S. Naval War Code = The Laws and Usages of War at Sea, - published on June 27, 1900, by the - Navy Department, Washington, for the - use of the U. S. Navy and for the - information of all concerned. - Vattel = Vattel, Le Droit Des Gens, 4 books in 2 - vols., nouvelle éd. (Neuchâtel, - 1773). - Walker = Walker, A Manual of Public International - Law (1895). - Walker, History = Walker, A History of the Law of Nations, - vol. i. (1899). - Walker, Science = Walker, The Science of International - Law (1893). - Wehberg, Kommentar = Wehberg, Kommentar zu dem Haager Abkommen - betreffend die friedliche Erledigung - internationaler Streitigkeiten - (1911). - Westlake = Westlake, International Law, 2 vols. - (1904-1907). - Westlake, Chapters = Westlake, Chapters on the Principles of - International Law (1894). - Wharton = Wharton, A Digest of the International - Law of the United States, 3 vols. - (1886). - Wheaton = Wheaton, Elements of International Law, - 8th American ed. by Dana (1866). - Zorn = Zorn, Das Kriegsrecht zu Lande in seiner - neuesten Gestaltung (1906). - Z.V. = Zeitschrift für Völkerrecht und - Bundesstaatsrecht. - - - - -CASES CITED - - -Acteon, the, § 194, p. 243 note 5; § 431, p. 547 note 2 - -Adonis, the, § 386, p. 472 note 7; § 390, p. 477 note 3 - -Africa, the, § 413, p. 531 note 1 - -Alabama, the, § 335, p. 406 - -Alaska Boundary Dispute (1903), § 14, p. 18 - -Alcinous _v._ Nygreu, § 101, p. 137 note 7 - -Alexander, the, § 390, p. 477 note 3 - -Alexis, the, § 34, p. 40 - -Andersen _v._ Marten, § 435, p. 555 note 1 - -André, Major, § 160, p. 198 - -Ann Green, the, § 92, p. 120 note 2 - -Anna, the, § 362, p. 443 - -Anthon _v._ Fisher, § 195, p. 246 note 1 - -Antoine _v._ Morshead, § 101, p. 137 note 3 - -Apollo, the, § 427, p. 545 note 1 - -Aryol, the. _See_ Orel - -Asgill, Captain, § 249, p. 307 - -Askold, the, § 347 (3), p. 422 - -Astrolabe, the, § 186, p. 233 - -Atalanta, the, § 409, p. 522; § 412, p. 527 note 2 - -Aurora, the, § 347 (4), p. 423 - -Awni-Illa, the, § 213, p. 269 - - -Baltica, the, § 88, p. 110 note 2; § 90, p. 116 note 1; § 91, p. 118 -note 2 - -Bellona, the, § 271, p. 332 - -Benito Estenger, the, § 91, p. 118 note 2 - -Bentzen _v._ Boyle, § 90, p. 116 note 4 - -Bermuda, the, § 385, p. 470; § 400, p. 499 note 1; § 400, p. 500 note 1 - -Betsey, the, § 385, p. 469 note 1 - -Bolivia-Peruvian Boundary Dispute (1910), § 16, p. 19 - -Boudeuse, La. _See_ La Boudeuse - -Boussmaker, _ex parte_, § 100_a_, p. 134 note 4; § 101, p. 137 note 7 - -Boussole, the, § 186, p. 233 - -Brandon _v._ Curling, § 101, p. 138 note 2 - -Bundesrath, the, § 400, p. 500; § 401, p. 501 note 1; § 402, p. 502; § -402, p. 503 note 2; § 433, p. 552 - - -Calypso, the, § 384, p. 467 note 3 - -Camille, the, § 349, p. 426 - -Captain W. Menzel, the, § 311, p. 376 note [375 note 4] - -Carolina, the, § 408, p. 519 - -Caroline, the (1808), § 409, p. 522 note 1 - -Caroline, the (1904), § 311, p. 376 note 1 - -Carthage, the, § 403_a_, p. 506 note 1 - -Cesarewitch, the, § 347 (4), p. 423 - -Ceylon, the, § 185, p. 231 note 2 - -Charlotta, the (1810), § 386, p. 472 note 3 - -Charlotta, the (1814), § 101, p. 137 note 7 - -Circassian, the, § 380, p. 463 note 2 - -Columbia, the, § 382, p. 465 note 3; § 390, p. 477 note 3 - -Commercen, the, § 401, p. 501 note 2 - -Cornu _v._ Blackburne, § 195, p. 246 note 1 - -Cumberland, the, § 186, p. 233 note 2 - - -Daifje, the, § 225, p. 283 note 4 - -Danous, the, § 88, p. 112 note 1; § 90, p. 115 note 1 - -De Fortuyn, the, § 181, p. 225 note 1 - -De Jager _v._ Attorney-General, § 100, p. 132 note 3 - -De Jarnett _v._ De Giversville, § 100_a_, p. 134 note 1 - -Dessaix, the, § 194, p. 244 - -De Wahl _v._ Browne, § 100_a_, p. 135 note 1 - -De Wütz _v._ Hendricks, § 352, p. 430 note 2 - -Diana, the (1799), § 189, p. 236 - -Diana, the (1904), § 347 (3), p. 422 - -Discovery, the, § 186, p. 232 - -Doelwijk, the, § 403, p. 505; § 436, p. 556 - -Dogger Bank, § 5, p. 7 note 2; § 11, p. 15 note 1 - -Dorsey _v._ Kyle, § 100_a_, p. 134 note 1 - -Driefontein Consolidated Gold Mines Co. _v._ Janson, § 100_a_, p. 134 -note 3 - -Du Belloix _v._ Lord Waterpark, § 101, p. 137 note 9 - -Duclair, British coal vessels at, § 365, p. 448 - - -El Arish, Capitulation of, § 229, pp. 287-9 - -Elba, the, § 348 (2), p. 424 - -Elisabeth, the, § 189, p. 236 - -Eliza and Katy, the, § 428, p. 545 note 3 - -Elizabeth, the, § 386, p. 472 note 8 - -Elsebe, the, § 425, p. 543 note 2 - -Emilia, § 88, p. 110 note 2 - -Espiègle, L'. _See_ L'Espiègle - -Esposito _v._ Bowden, § 101, p. 137 notes 1, 7, and 8; p. 138 note 1 - -Étoile, L'. _See_ L'Étoile - -Euridice, the, § 349, p. 426 - -Exchange, the, § 390, p. 477 note 3 - - -Fanny, the, § 185, p. 232 note 2; § 424, p. 542 note 2 - -Felicity, the, § 194, p. 243 note 5; § 431, p. 547 note 2 - -Florida, the, § 362, p. 443 - -Försigtigheten, the, § 349, p. 426 - -Fortuna, the, § 386, p. 472 note 4 - -Fox and others, the, § 434, p. 554 note 1 - -Franciska, the, § 370, p. 452 note 2; § 380, p. 462 note 2; § 380, p. -464 note 1; § 381, p. 464 note 2; § 382, p. 465 - -Freden, the, § 360, p. 441 note 1 - -Frederick Moltke, the, § 387, p. 473 note 3 - -Freundschaft, the, § 90, p. 116 note 5 - -Friendship, the, § 408, p. 518; § 412, p. 527 note 2 - -Furtado _v._ Rodgers, § 101, p. 137 note 1; § 101, p. 138 note 2 - - -Gamba _v._ Le Mesurier, § 101, p. 138 note 2 - -Gelderland, the, § 354, p. 433 - -General, the, § 402, p. 502 - -General Armstrong, the, § 361, p. 442 - -General Hamilton, the, § 91, p. 118 note 3; § 389, p. 476 note 1 - -Genoa, Capitulation of, § 226, p. 284 note 1 - -Georgina, the, § 185, p. 231 note 2 - -Gerasimo, the, § 371, p. 453 note 3 - -German contract for cutting trees in French forests, § 282, p. 342 - -Gist _v._ Mason, § 101, p. 136 note 3 - -Gloire, La. _See_ La Gloire - -Goodrich and De Forest _v._ Gordon, § 195, p. 246 note 1 - -Griswold _v._ Boddington, § 101, p. 137 note 8 - -Grossovoi, the, § 347 (3), p. 422 - - -Haimun, the, § 210, p. 262 note 1; § 356, p. 437 - -Hale, Captain Nathan, § 161, p. 199 - -Hanger _v._ Abbot, § 100_a_, p. 135 note 1 - -Hardy, Le. _See_ Le Hardy - -Harmony, the, § 88, p. 110 note 2 - -Henkle _v._ London Exchange Assurance Co., § 101, p. 136 note 3 - -Henrik and Maria, the, § 375, p. 456 note 1 - -Herzog, the, § 402, p. 502; § 433, p. 552 - -Hipsang, the, § 431, p. 548 - -Hoare _v._ Allan, § 101, p. 137 note 10 - -Hobbs _v._ Henning, § 402, p. 503 note 4 - -Hoffnung, the, § 384, p. 467 note 3 - -Hoop, the, § 100_a_, p. 133 note 2; § 101, p. 137 note 1; § 195, p. 246 -note 1 - -Hope, the, § 412, p. 527 note 3 - -Hunter, the, § 427, p. 544 note 1 - -Hurtige Hanne, the, § 386, p. 472 note 5 - -Hussar, the, § 211, p. 263 - - -Icona, the, § 431, p. 548 - -Iltis, the, § 348 (1), p. 424 - -Imina, the, § 399, p. 498 note 1; § 402, p. 503 - -Indian Chief, the, § 90, p. 116 note 2 - -Industrie, the, § 410, p. 525 note 1 - -Inflexible, the, § 223, p. 282 - -Investigator, the, § 186, p. 233 note 2 - -Invincible, the, § 223, p. 282 - -Italy _v._ Peru (Canevaro claim), § 24, p. 31 note 1 - - -Jager. _See_ De Jager - -Jakoga, Major, § 161, p. 199 note 1; § 255, p. 315 - -James Cook, the, § 385, p. 469 note 3 - -Jameson Raid, § 56, p. 62 - -Jan Frederick, the, § 91, p. 118 notes 4 and 6; § 92, p. 120 note 2 - -Jarnett. _See_ De Jarnett - -Jemchug, the, § 347 (4), p. 423 - -Jemmy, the, § 91, p. 118 note 5 - -Joan, Le. _See_ Le Joan - -Johanna Emilie, the, § 88, p. 110 note 2 - -Jonge Klassina, the, § 90, p. 116 note 5 - -Jonge Margaretha, the, § 394, p. 486 note 3 - -Jonge Pieter, the, § 101, p. 137 note 6 - -Juno, the, § 387, p. 473 note 4 - - -Kellner _v._ Le Mesurier, § 101, p. 138 note 2 - -Knight Commander, the, § 431, p. 548 - -Korietz, the, § 320, p. 388; § 348 (2), p. 424; § 361, p. 442 note 3 - -Kow-shing, the, § 89, p. 114 note 1; § 348, p. 424 - - -La Boudeuse, the, § 186, p. 232 - -La Gloire, the, § 225, p. 283 note 4 - -La Paix, the, § 90, p. 117 note 1 - -La Rosina, the, § 225, p. 283 note 3 - -La Santissima Trinidad, the, § 334, p. 405 - -Laura-Louise. _See_ Le Laura-Louise - -Lavabre _v._ Wilson, § 101, p. 136 note 3 - -Le Hardy contre La Voltigeante, § 88, p. 111; § 90, p. 117 note 1 - -Le Joan, the, § 90, p. 117 note 1 - -Le Laura-Louise, the, § 90, p. 117 note 1 - -Lena, the, § 347 (3), p. 422 - -Le Nicolaüs, the, § 90, p. 117 note 1 - -L'Espiègle, the, § 362, p. 443 - -Le Thalia, the, § 90, p. 117 note 1 - -L'Étoile, the, § 186, p. 232 - -Leucade, the, § 194, p. 243 note 5; § 431, p. 547 note 2 - -Lion, the, § 348, p. 424 - -Lisette, the, § 399, p. 498 note 1 - -Ludwig, the, § 194, p. 244 - -Luxor, the, § 404, p. 507; § 437, p. 558 - - -Madison, the, § 409, p. 522 note 2 - -Madonna delle Gracie, § 101, p. 137 note 4 - -Malacca, the, § 84, p. 102 - -Manouba, the, § 413, p. 531 note 1 - -Margaret, the, § 404, p. 507 note 1 - -Maria, the (1799), § 422, p. 540 note 1; § 423, p. 541 note 1; § 425, p. -543 note 1; § 434, p. 554 note 1 - -Maria, the (1805), § 390, p. 477 note 4 - -Maria _v._ Hall, § 100_a_, p. 134 note 2; § 101, p. 137 note 5 - -Mashona, the, § 101, p. 137 note 1 - -Mayer _v._ Reed, § 101, p. 137 note 9 - -Melville _v._ De Wold, § 101, p. 137 note 7 - -Mentor, the, § 272, p. 333 note 1 - -Mercurius, the, § 390, p. 477 note 3 - -Meteor, the, § 334, p. 405 - -Minerva, the, § 362, p. 443 - -Modeste, the, § 360, p. 441 note 1 - -Montara, the, § 89, p. 114 note 2 - - -Nancy, the (1800), § 404, p. 507 note 1 - -Nancy, the (1809), § 380, p. 463 note 2 - -Nancy Court of Appeal, § 172, p. 215 - -Naniwa, the, § 89, p. 114 note 1; § 348, p. 423 - -Neptunus, the (1799), § 384, p. 467 note 3 - -Neptunus, the (1800), § 384, p. 467 note 3 - -Nereide, the, § 185, p. 232 note 2; § 424, p. 542, note 2 - -Neutralitet, the, § 386, p. 472 note 9 - -New York Life Insurance Co. _v._ Buck, § 101, p. 138 note 3 - -New York Life Insurance Co. _v._ Davis, § 101, p. 138 note 3 - -New York Life Insurance Co. _v._ Stathem, § 101, p. 138 note 3 - -New York Life Insurance Co. _v._ Symes, § 101, p. 138 note 3 - -Niagara, the, § 382, p. 465 - -Nigretia, the, § 408, p. 519 note 2 - -North-Eastern Boundary Dispute between Great Britain and the United -States (1831), § 16, p. 19 - -North German Confederation Volunteer Fleet scheme, § 84, p. 101 - -Novara, the, § 186, p. 233 - -Novik, the, § 347 (4), p. 423 - - -Oki, Captain Teisuki, § 161, p. 199 note 1; § 255, p. 315 - -Oldhamia, the, § 206, p. 256 note 1; § 431, p. 548 - -Oleg, the, § 347 (4), p. 423 - -Olinde Rodrigues, the, § 380, p. 463 note 2 - -Orel (or Aryol), the, § 206, p. 256 note 1 - -Orinoco Steamship Co., § 16, p. 19 - -Orozembo, the, § 408, p. 518; § 408, p. 519 - - -Pacifico, Don, § 35, p. 41; § 44, p. 49 - -Paix, La. _See_ La Paix - -Palme, the, § 186, p. 233 - -Panaghia Rhomba, the, § 390, p. 477 note 3 - -Paquette Habana, the, § 187, p. 234 note 1 - -Pascal, the, § 348 (2), p. 424 - -Peterburg, the, § 84, p. 102 - -Peterhoff, the, § 373, p. 454; § 385, p. 470; § 400, p. 500 note 1; § -401, p. 501 - -Phoenix, the, § 90, p. 116 note 4 - -Planche _v._ Fletcher, § 101, p. 136 note 3 - -Portland, the, § 90, p. 116 note 5 - -Postilion, the, § 88, p. 112 note 1; § 90, p. 115 note 1 - -Potts _v._ Bell, § 101, p. 137 note 1; § 101, p. 138 note 2 - -Princesse Marie, the, § 431, p. 548 - - -Quang-nam, the, § 410, p. 525, note 1 - - -Ramillies, § 211, p. 263 - -Rapid, the, § 409, p. 522 - -Ras-el-Tin Fort, § 223, p. 282 - -Recovery, the, § 434, p. 554 note 1 - -Reshitelni, the, § 320, p. 389; § 361, p. 442 note 3 - -Resolution, the, § 186, p. 232 - -Reuss, M. de, § 34, p. 40 - -Richmond, the, § 397, p. 494 note 1 - -Rolla, the, § 370, p. 452 note 2; § 375, p. 456 note 2 - -Rose in Bloom, the, § 387, p. 474 note 2 - -Rosina, La. _See_ La Rosina - - -St. Kilda, the, § 431, p. 548 - -St. Nicholas, the, § 428, p. 545 note 4 - -Samuel, the, § 101, p. 137 note 6 - -Santissima Trinidad, La. _See_ La Santissima Trinidad - -Sarah, the, § 428, p. 545 note 2 - -Sechs Geschwistern, the, § 91, p. 118 note 5 - -Seymour _v._ London and Provincial Marine Insurance Co., § 402, p. 504 -note [503 note 4] - -Shepeler _v._ Durand, § 100_a_, p. 133 note 4 - -Shepherdess, the, § 386, p. 472 note 6 - -Sicilian Sulphur Monopoly, § 34, p. 39 - -Silesian Loan, § 37, p. 44; § 437, p. 557 - -Smolensk, the, § 84, p. 102 - -Society for the Propagation of the Gospel _v._ Town of Newhaven, § 99, -p. 130 note 1 - -Spes and Irene, the, § 386, p. 472 note 10 - -Springbok, the, § 385, p. 470; § 390, p. 477; § 400, p. 500 note 1; § -401, p. 501 - -Stackelberg, Baron de, § 37, p. 43 - -Stephen Hart, the, § 385, p. 470; § 400, p. 499 note 1 - -Stert, the, § 388, p. 474 note 3 - -Sutton _v._ Sutton, § 99, p. 130 note 1 - -Swineherd, the, § 271, p. 332 - -Sybille, the, § 211, p. 263 - - -Talbot, the, § 348 (2), p. 424 - -Temeraire, the, § 223, p. 282 - -Tetardos, the, § 431, p. 548 - -Teutonia, the, § 101, p. 138 note 1 - -Thalia, Le. _See_ Le Thalia. - -Thea, the, § 431, p. 548 - -Thirty Hogsheads of Sugar _v._ Boyle, § 90, p. 116 note 4 - -Trende Sostre, the, § 399, p. 498 note 1 - -Trent, the, § 408, p. 519 note 3; § 431, p. 530 - -Twee Gebroeders, the, § 362, p. 443 - - -Variag, the, § 320, p. 388; § 348 (2), p. 424; § 361, p. 442 note 3 - -Vega, the, § 186, p. 233 - -Venezuelan Boundary Dispute (1900), § 14, p. 18 - -Venus, the (1803), § 225, p. 283 note 3 - -Venus, the (1814), § 88, p. 112 note 1; § 90, p. 116 note 3 - -Victor, the, § 349, p. 427 - -Vigilantia, the, § 91, p. 118 note 2 - -Vorwärts, the, § 194, p. 244 - -Vrouw Judith, the, § 376, p. 458 note 1; § 384, p. 467 note 3; § 387, p. -474 note 1 - -Vrow Houwina, the, § 401, p. 501 - -Vrow Margaretha, the, § 91, p. 118 note 4 - - -Wachuset, the, § 362, p. 443 - -Wahl. _See_ De Wahl - -War Onskan, the, § 432, p. 551 note 3 - -Washburne, § 157, p. 194 - -Wells _v._ Williams, § 100_a_, p. 133 note 3 - -Welvaart van Pillaw, the, § 389 p. 476 note 1 - -William, the, § 400, p. 499 note 1 - -Willison _v._ Paterson, § 101, p. 137 note 2 - - -Yangtsze Insurance Association _v._ Indemnity Mutual Marine Assurance -Company, § 407, p. 516 note 1 - -Young Jacob and Joanna, the, § 187, p. 234 note 2 - - - - -CONTENTS - -OF - -THE SECOND VOLUME - - -PART I - -CHAPTER I--AMICABLE SETTLEMENT OF STATE DIFFERENCES - - I. _State Differences and their Amicable Settlement in General_ - - SECT. PAGE - - 1. Legal and political International Differences 3 - 2. International Law not exclusively concerned with Legal - Differences 4 - 3. Amicable in contradistinction to compulsive settlement of - Differences 4 - - II. _Negotiation_ - - 4. In what Negotiation consists 6 - 5. International Commissions of Inquiry 6 - 6. Effect of Negotiation 9 - - III. _Good Offices and Mediation_ - - 7. Occasions for Good Offices and Mediation 10 - 8. Right and Duty of offering, requesting, and rendering - Good Offices and Mediation 10 - 9. Good Offices in contradistinction to Mediation 11 - 10. Good Offices and Mediation according to the Hague - Arbitration Convention 12 - 11. Value of Good Offices and Mediation 14 - - IV. _Arbitration_ - - 12. Conception of Arbitration 16 - 13. Treaty of Arbitration 16 - 14. Who is to Arbitrate? 17 - 15. On what principles Arbitrators proceed and decide 18 - 16. Binding force of Arbitral Verdict 18 - 17. What differences can be decided by Arbitration 19 - 18. Value of Arbitration 22 - - V. _Arbitration according to the Hague Convention_ - - 19. Arbitral Justice in general 23 - 20. Arbitration Treaty and appointment of Arbitrators 26 - 21. Procedure of and before the Arbitral Tribunal 27 - 22. Arbitral Award 30 - 23. Binding force of Awards 30 - 24. Award binding upon Parties only 31 - 25. Costs of Arbitration 32 - 25_a_. Arbitration by Summary Procedure 32 - -CHAPTER II--COMPULSIVE SETTLEMENT OF STATE DIFFERENCES - - I. _On Compulsive Means of Settlement of State Differences in General_ - - 26. Conception and kinds of Compulsive Means of Settlement 34 - 27. Compulsive Means in contradistinction to War 34 - 28. Compulsive Means in contradistinction to an Ultimatum and - Demonstrations 35 - - II. _Retorsion_ - - 29. Conception and Character of Retorsion 36 - 30. Retorsion, when justified 37 - 31. Retorsion, how exercised 37 - 32. Value of Retorsion 38 - - III. _Reprisals_ - - 33. Conception of Reprisals in contradistinction to Retorsion 38 - 34. Reprisals admissible for all International Delinquencies 39 - 35. Reprisals admissible for International Delinquencies only 40 - 36. Reprisals, by whom performed 41 - 37. Objects of Reprisals 42 - 38. Positive and Negative Reprisals 44 - 39. Reprisals must be proportionate 44 - 40. Embargo 44 - 41. Reprisals to be preceded by Negotiations and to be stopped - when Reparation is made 46 - 42. Reprisals during Peace in contradistinction to Reprisals - during War 46 - 43. Value of Reprisals 46 - - IV. _Pacific Blockade_ - - 44. Development of practice of Pacific Blockade 48 - 45. Admissibility of Pacific Blockade 50 - 46. Pacific Blockade and vessels of third States 51 - 47. Pacific Blockade and vessels of the blockaded State 52 - 48. Manner of Pacific Blockade 52 - 49. Value of Pacific Blockade 53 - - V. _Intervention_ - - 50. Intervention in contradistinction to Participation in a - difference 54 - 51. Mode of Intervention 55 - 52. Time of Intervention 55 - - -PART II--_WAR_ - -CHAPTER I--ON WAR IN GENERAL - - I. _Characteristics of War_ - - 53. War no illegality 59 - 54. Conception of War 60 - 55. War a contention 61 - 56. War a contention between States 62 - 57. War a contention between States through armed forces 63 - 58. War a contention between States for the purpose of - overpowering each other 67 - 59. Civil War 68 - 60. Guerilla War 70 - - II. _Causes, Kinds, and Ends of War_ - - 61. Rules of Warfare independent of Causes of War 72 - 62. Causes of War 73 - 63. Just Causes of War 74 - 64. Causes in contradistinction to Pretexts for War 75 - 65. Different kinds of War 76 - 66. Ends of War 76 - - III. _The Laws of War_ - - 67. Origin of the Laws of War 78 - 68. The latest Development of the Laws of War 79 - 69. Binding force of the Laws of War 83 - - IV. _The Region of War_ - - 70. Region of War in contradistinction to Theatre of War 85 - 71. Particular Region of every War 86 - 72. Exclusion from Region of War through Neutralisation 88 - 73. Asserted exclusion of the Baltic Sea from the Region of - War 90 - - V. _The Belligerents_ - - 74. Qualification to become a Belligerent (_facultas - bellandi_) 90 - 75. Possibility in contradistinction to qualification to - become a Belligerent 91 - 76. Insurgents as a Belligerent Power 92 - 77. Principal and accessory Belligerent Parties 93 - - VI. _The Armed Forces of the Belligerents_ - - 78. Regular Armies and Navies 94 - 79. Non-combatant Members of Armed Forces 95 - 80. Irregular Forces 96 - 81. Levies _en masse_ 97 - 82. Barbarous Forces 98 - 83. Privateers 99 - 84. Converted Merchantmen 100 - 85. The Crews of Merchantmen 104 - 86. Deserters and Traitors 106 - - VII. _Enemy Character_ - - 87. On Enemy Character in general 106 - 88. Enemy Character of Individuals 108 - 89. Enemy Character of Vessels 112 - 90. Enemy Character of Goods 115 - 91. Transfer of Enemy Vessels 117 - 92. Transfer of Goods on Enemy Vessels 119 - -CHAPTER II--THE OUTBREAK OF WAR - - I. _Commencement of War_ - - 93. Commencement of War in General 121 - 94. Declaration of War 123 - 95. Ultimatum 125 - 96. Initiative hostile Acts of War 126 - - II. _Effects of the Outbreak of War_ - - 97. General Effects of the Outbreak of War 128 - 98. Rupture of Diplomatic Intercourse and Consular Activity 129 - 99. Cancellation of Treaties 129 - 100. Precarious position of Belligerents' subjects on Enemy - Territory 131 - 100_a_. _Persona standi in judicio_ on Enemy Territory 133 - 101. Intercourse, especially Trading, between Subjects of - Belligerents 135 - 102. Position of Belligerents' Property in the Enemy State 139 - 102_a_. Effect of the Outbreak of War - on Merchantmen 140 - -CHAPTER III--WARFARE ON LAND - - I. _On Land Warfare in General_ - - 103. Aims and Means of Land Warfare 144 - 104. Lawful and Unlawful Practices of Land Warfare 144 - 105. Objects of the Means of Warfare 145 - 106. Land Warfare in contradistinction to Sea Warfare 145 - - II. _Violence against Enemy Persons_ - - 107. On Violence in general against Enemy Persons 146 - 108. Killing and Wounding of Combatants 146 - 109. Refusal of Quarter 147 - 110. Lawful and Unlawful Means of killing and wounding - Combatants 148 - 111. Explosive Bullets 149 - 112. Expanding (Dum-Dum) Bullets 149 - 113. Projectiles diffusing Asphyxiating or Deleterious Gases 150 - 114. Violence directed from Air-Vessels 150 - 115. Violence against non-combatant Members of Armed Forces 151 - 116. Violence against Private Enemy Persons 151 - 117. Violence against the Head of the Enemy State and against - Officials in Important Positions 153 - - III. _Treatment of Wounded, and Dead Bodies_ - - 118. Origin of Geneva Convention 154 - 119. The Wounded and the Sick 157 - 120. Medical Units and Establishments, and Material 158 - 121. Personnel 159 - 122. Convoys of Evacuation 160 - 123. Distinctive Emblem 161 - 124. Treatment of the Dead 162 - 124_a_. Application of the Geneva Convention, and Prevention - of Abuses 163 - 124_b_. General provisions of the Geneva Convention 164 - - IV. _Captivity_ - - 125. Development of International Law regarding Captivity 165 - 126. Treatment of Prisoners of War 167 - 127. Who may claim to be Prisoners of War 169 - 128. Discipline 169 - 129. Release on Parole 170 - 130. Bureau of Information 171 - 131. Relief Societies 171 - 132. End of Captivity 172 - - V. _Appropriation and Utilisation of Public Enemy Property_ - - 133. Appropriation of all the Enemy Property no longer - admissible 174 - 134. Immoveable Public Property 174 - 135. Immoveable Property of Municipalities, and of Religious, - Charitable, and the like Institutions 175 - 136. Utilisation of Public Buildings 175 - 137. Moveable Public Property 176 - 138. Moveable Property of Municipalities, and of Religious, - Charitable, and the like Institutions 177 - 139. Booty on the Battlefield 177 - - VI. _Appropriation and Utilisation of Private Enemy Property_ - - 140. Immoveable Private Property 179 - 141. Private War Material and Means of Transport 180 - 142. Works of Art and Science, Historical Monuments 180 - 143. Other Private Personal Property 180 - 144. Booty on the Battlefield 181 - 145. Private Enemy Property brought into a Belligerent's - Territory 182 - - VII. _Requisitions and Contributions_ - - 146. War must support War 183 - 147. Requisitions in Kind, and Quartering 185 - 148. Contributions 186 - - VIII. _Destruction of Enemy Property_ - - 149. Wanton destruction prohibited 187 - 150. Destruction for the purpose of Offence and Defence 188 - 151. Destruction in marching, reconnoitring, and conducting - Transport 188 - 152. Destruction of Arms, Ammunition, and Provisions 189 - 153. Destruction of Historical Monuments, Works of Art, and - the like 189 - 154. General Devastation 190 - - IX. _Assault, Siege, and Bombardment_ - - 155. Assault, Siege, and Bombardment, when lawful 191 - 156. Assault, how carried out 193 - 157. Siege, how carried out 193 - 158. Bombardment, how carried out 194 - - X. _Espionage and Treason_ - - 159. Twofold Character of Espionage and Treason 196 - 160. Espionage in contradistinction to Scouting - and Despatch-bearing 197 - 161. Punishment of Espionage 198 - 162. Treason 199 - - XI. _Ruses_ - - 163. Character of Ruses of War 200 - 164. Different kinds of Stratagems 201 - 165. Stratagems in contradistinction to Perfidy 202 - - XII. _Occupation of Enemy Territory_ - - 166. Occupation as an Aim of Warfare 204 - 167. Occupation, when effected 206 - 168. Occupation, when ended 210 - 169. Rights and Duties in General of the Occupant 210 - 170. Rights of the Occupant regarding the Inhabitants 211 - 171. Position of Government Officials and Municipal - Functionaries during Occupation 213 - 172. Position of Courts of Justice during Occupation 214 - -CHAPTER IV--WARFARE ON SEA - - I. _On Sea Warfare in General_ - - 173. Aims and Means of Sea Warfare 216 - 174. Lawful and Unlawful Practices of Sea Warfare 217 - 175. Objects of the Means of Sea Warfare 218 - 176. Development of International Law regarding Private - Property on Sea 218 - 177. Declaration of Paris 220 - 178. The Principle of Appropriation of Private Enemy Vessels - and Enemy Goods thereon 221 - 179. Impending Codification of Law of Sea Warfare 224 - - II. _Attack and Seizure of Enemy Vessels_ - - 180. Importance of Attack and Seizure of Enemy Vessels 225 - 181. Attack, when legitimate 225 - 182. Attack, how effected 226 - 182_a_. Submarine Contact Mines 227 - 183. Duty of giving Quarter 231 - 184. Seizure 231 - 185. Effect of Seizure 231 - 186. Immunity of Vessels charged with Religious, Scientific, - or Philanthropic Mission 232 - 187. Immunity of Fishing-boats and small boats employed in - local Trade 234 - 188. Immunity of Merchantmen at the Outbreak of War on their - Voyage to and from a Belligerent's Port 235 - 189. Vessels in Distress 236 - 190. Immunity of Hospital and Cartel Ships 236 - 191. Immunity of Mail-boats and Mail-bags 236 - - III. _Appropriation, and Destruction of Enemy Merchantmen_ - - 192. Prize Courts 238 - 193. Conduct of Prize to Port of Prize Court 241 - 194. Destruction of Prize 242 - 195. Ransom of Prize 245 - 196. Loss of Prize, especially Recapture 246 - 197. Fate of Prize 247 - 198. Vessels belonging to Subjects of Neutral States, but - sailing under Enemy Flag 248 - 199. Effect of Sale of Enemy Vessels during War 248 - 200. Goods sold by and to Enemy Subjects during War 249 - - IV. _Violence against Enemy Persons_ - - 201. Violence against Combatants 249 - 202. Violence against Non-combatant Members of Naval Forces 250 - 203. Violence against Enemy Individuals not belonging to the - Naval Forces 251 - - V. _Treatment of Wounded and Shipwrecked_ - - 204. Adaptation of Geneva Convention to Sea Warfare 252 - 205. The Wounded, Sick, and Shipwrecked 253 - 205_a_. Treatment of the Dead 254 - 206. Hospital Ships 254 - 206_a_. Hospital Ships in Neutral Ports 256 - 206_b_. Sick-Bays 257 - 207. Distinctive Colour and Emblem of Hospital Ships 258 - 208. Neutral Vessels assisting the Wounded, Sick, or - Shipwrecked 259 - 209. The Religious, Medical, and Hospital Staff 260 - 209_a_. Application of Convention X., and Prevention of - Abuses 260 - 209_b_. General Provisions of Convention X. 261 - - VI. _Espionage, Treason, Ruses_ - - 210. Espionage and Treason 262 - 211. Ruses 262 - - VII. _Requisitions, Contributions, Bombardment_ - - 212. Requisitions and Contributions upon Coast Towns 264 - 213. Bombardment of the Enemy Coast 266 - - VIII. _Interference with Submarine Telegraph Cables_ - - 214. Uncertainty of Rules concerning Interference with - Submarine Telegraph Cables 271 - -CHAPTER V--NON-HOSTILE RELATIONS OF BELLIGERENTS - - I. _On non-hostile Relations in General between Belligerents_ - - 215. _Fides etiam hosti servanda_ 273 - 216. Different kinds of Non-hostile Relations 274 - 217. Licences to Trade 275 - - II. _Passports, Safe-conducts, Safeguards_ - - 218. Passports and Safe-conducts 276 - 219. Safeguards 277 - - III. _Flags of Truce_ - - 220. Meaning of Flags of Truce 278 - 221. Treatment of Unadmitted Flag-bearers 279 - 222. Treatment of Admitted Flag-bearers 279 - 223. Abuse of Flag of Truce 281 - - IV. _Cartels_ - - 224. Definition and Purpose of Cartels 282 - 225. Cartel Ships 283 - - V. _Capitulations_ - - 226. Character and Purpose of Capitulations 284 - 227. Contents of Capitulations 285 - 228. Form of Capitulations 286 - 229. Competence to conclude Capitulations 287 - 230. Violation of Capitulations 289 - - VI. _Armistices_ - - 231. Character and Kinds of Armistices 290 - 232. Suspensions of Arms 291 - 233. General Armistices 291 - 234. Partial Armistices 293 - 235. Competence to conclude Armistices 293 - 236. Form of Armistices 294 - 237. Contents of Armistices 294 - 238. Commencement of Armistices 296 - 239. Violation of Armistices 297 - 240. End of Armistices 299 - -CHAPTER VI--MEANS OF SECURING LEGITIMATE WARFARE - - I. _On Means in General of securing Legitimate Warfare_ - - 241. Legitimate and Illegitimate Warfare 300 - 242. How Legitimate Warfare is on the whole secured 301 - - II. _Complaints, Good Offices and Mediation, Intervention_ - - 243. Complaints lodged with the Enemy 302 - 244. Complaints lodged with Neutrals 303 - 245. Good Offices and Mediation 303 - 246. Intervention on the part of Neutrals 304 - - III. _Reprisals_ - - 247. Reprisals between Belligerents in contradistinction to - Reprisals in time of Peace 305 - 248. Reprisals admissible for every Illegitimate Act of - Warfare 305 - 249. Danger of Arbitrariness in Reprisals 306 - 250. Proposed Restriction of Reprisals 308 - - IV. _Punishment of War Crimes_ - - 251. Conception of War Crimes 309 - 252. Different kinds of War Crimes 310 - 253. Violations of Rules regarding Warfare 310 - 254. Hostilities in Arms by Private Individuals 312 - 255. Espionage and War Treason 313 - 256. Marauding 316 - 257. Mode of Punishment of War Crimes 316 - - V. _Taking of Hostages_ - - 258. Former Practice of taking Hostages 317 - 259. Modern Practice of taking Hostages 317 - - VI. _Compensation_ - - 259_a_. How the Principle of Compensation for Violations of - the Laws of War arose 319 - 259_b_. Compensation for Violations of the Hague Regulations 320 - -CHAPTER VII--END OF WAR, AND POSTLIMINIUM - - I. _On Termination of War in General_ - - 260. War a Temporary Condition 322 - 261. Three Modes of Termination of War 322 - - II. _Simple Cessation of Hostilities_ - - 262. Exceptional Occurrence of simple Cessation of - Hostilities 323 - 263. Effect of Termination of War through simple Cessation of - Hostilities 324 - - III. _Subjugation_ - - 264. Subjugation in contradistinction to Conquest 325 - 265. Subjugation a formal End of War 326 - - IV. _Treaty of Peace_ - - 266. Treaty of Peace the most frequent End of War 327 - 267. Peace Negotiations 328 - 268. Preliminaries of Peace 329 - 269. Form and Parts of Peace Treaties 330 - 270. Competence to conclude Peace 330 - 271. Date of Peace 331 - - V. _Effects of Treaty of Peace_ - - 272. Restoration of Condition of Peace 332 - 273. Principle of _Uti Possidetis_ 334 - 274. Amnesty 334 - 275. Release of Prisoners of War 335 - 276. Revival of Treaties 336 - - VI. _Performance of Treaty of Peace_ - - 277. Treaty of Peace, how to be carried out 337 - 278. Breach of Treaty of Peace 338 - - VII. _Postliminium_ - - 279. Conception of Postliminium 339 - 280. Postliminium according to International Law, in - contradistinction to Postliminium according to - Municipal Law 340 - 281. Revival of the Former Condition of Things 341 - 282. Validity of Legitimate Acts 342 - 283. Invalidity of Illegitimate Acts 343 - 284. No Postliminium after Interregnum 343 - - -PART III--_NEUTRALITY_ - -CHAPTER I--ON NEUTRALITY IN GENERAL - - I. _Development of the Institution of Neutrality_ - - 285. Neutrality not practised in Ancient Times 347 - 286. Neutrality during the Middle Ages 348 - 287. Neutrality during the Seventeenth Century 349 - 288. Progress of Neutrality during the Eighteenth Century 350 - 289. First Armed Neutrality 352 - 290. The French Revolution and the Second Armed Neutrality 354 - 291. Neutrality during the Nineteenth Century 357 - 292. Neutrality in the Twentieth Century 359 - - II. _Characteristics of Neutrality_ - - 293. Conception of Neutrality 361 - 294. Neutrality an Attitude of Impartiality 362 - 295. Neutrality an Attitude creating Rights and Duties 363 - 296. Neutrality an Attitude of States 363 - 297. No Cessation of Intercourse during Neutrality between - Neutrals and Belligerents 365 - 298. Neutrality an Attitude during War (Neutrality in Civil - War) 365 - 299. Neutrality to be recognised by the Belligerents 367 - - III. _Different Kinds of Neutrality_ - - 300. Perpetual Neutrality 368 - 301. General and Partial Neutrality 369 - 302. Voluntary and Conventional Neutrality 369 - 303. Armed Neutrality 369 - 304. Benevolent Neutrality 370 - 305. Perfect and Qualified Neutrality 370 - 306. Some Historical Examples of Qualified Neutrality 371 - - IV. _Commencement and End of Neutrality_ - - 307. Neutrality commences with Knowledge of the War 373 - 308. Commencement of Neutrality in Civil War 374 - 309. Establishment of Neutrality by Declarations 374 - 310. Municipal Neutrality Laws 375 - 311. British Foreign Enlistment Act 375 - 312. End of Neutrality 377 - -CHAPTER II--RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS - - I. _Rights and Duties deriving from Neutrality_ - - 313. Conduct in General of Neutrals and Belligerents 378 - 314. What Rights and Duties of Neutrals and of Belligerents - there are 378 - 315. Rights and Duties of Neutrals contested 379 - 316. Contents of Duty of Impartiality 381 - 317. Duty of Impartiality continuously growing more intense 382 - 317_a_. Neutrality Conventions of the Second Peace Conference 383 - 318. Contents of Duty of Belligerents to treat Neutrals in - accordance with their Impartiality 384 - 319. Contents of Duty not to suppress Intercourse between - Neutrals and the Enemy 385 - - II. _Neutrals and Military Operations_ - - 320. Hostilities by and against Neutrals 386 - 321. Furnishing Troops and Men-of-War to Belligerents 389 - 322. Subjects of Neutrals fighting among Belligerent Forces 390 - 323. Passage of Troops and War Material through Neutral - Territory 391 - 324. Passage of Wounded through Neutral Territory 392 - 325. Passage of Men-of-War 393 - 326. Occupation of Neutral Territory by Belligerents 394 - 327. Prize Courts on Neutral Territory 395 - 328. Belligerent's Prizes in Neutral Ports 395 - - III. _Neutrals and Military Preparations_ - - 329. Depôts and Factories on Neutral Territory 397 - 330. Levy of Troops, and the like 398 - 331. Passage of Bodies of Men intending to Enlist 399 - 332. Organisation of Hostile Expeditions 400 - 333. Use of Neutral Territory as Base of Naval - Operations 400 - 334. Building and Fitting-out of Vessels intended for Naval - Operations 405 - 335. The _Alabama_ Case and the Three Rules of Washington 406 - - IV. _Neutral Asylum to Land Forces and War Material_ - - 336. On Neutral Asylum in General 409 - 337. Neutral Territory and Prisoners of War 410 - 338. Fugitive Soldiers on Neutral Territory 413 - 339. Neutral Territory and Fugitive Troops 413 - 340. Neutral Territory and Non-combatant Members of - Belligerent Forces 415 - 341. Neutral Territory and War Material of Belligerents 415 - - V. _Neutral Asylum to Naval Forces_ - - 342. Asylum to Naval Forces in contradistinction to Asylum to - Land Forces 417 - 343. Neutral Asylum to Naval Forces Optional 417 - 344. Asylum to Naval Forces in Distress 418 - 345. Exterritoriality of Men-of-War during Asylum 419 - 346. Facilities to Men-of-War during Asylum 420 - 347. Abuse of Asylum to be prohibited 420 - 348. Neutral Men-of-War as an Asylum 423 - 348_a_. Neutral Territory and Shipwrecked Soldiers 424 - - VI. _Supplies and Loans to Belligerents_ - - 349. Supply on the part of Neutrals 426 - 350. Supply on the part of Subjects of Neutrals 427 - 351. Loans and Subsidies on the part of Neutrals 430 - 352. Loans and Subsidies on the part of Subjects of - Neutrals 430 - - VII. _Services to Belligerents_ - - 353. Pilotage 432 - 354. Transport on the part of Neutrals 433 - 355. Transport on the part of Neutral Merchantmen and by - neutral rolling stock 434 - 356. Information regarding Military and Naval Operations 434 - - VIII. _Violation of Neutrality_ - - 357. Violation of Neutrality in the narrower and in the wider - sense of the Term 438 - 358. Violation in contradistinction to End of Neutrality 439 - 359. Consequences of Violations of Neutrality 439 - 360. Neutrals not to acquiesce in Violations of Neutrality - committed by a Belligerent 440 - 361. Case of the _General Armstrong_ 442 - 362. Mode of exacting Reparation from Belligerents for - Violations of Neutrality 442 - 363. Negligence on the part of Neutrals 444 - 363_a_. Laying of Submarine Contact Mines by Neutrals 445 - - IX. _Right of Angary_ - - 364. The Obsolete Right of Angary 446 - 365. The Modern Right of Angary 447 - 366. Right of Angary concerning Neutral Rolling Stock 448 - 367. Right of Angary not deriving from Neutrality 449 - -CHAPTER III--BLOCKADE - - I. _Conception of Blockade_ - - 368. Definition of Blockade 450 - 369. Blockade, Strategic and Commercial 452 - 370. Blockade to be Universal 452 - 371. Blockade, Outwards and Inwards 453 - 372. What Places can be Blockaded 453 - 373. Blockade of International Rivers 454 - 374. Justification of Blockade 455 - - II. _Establishment of Blockade_ - - 375. Competence to establish Blockade 456 - 376. Declaration and Notification of Blockade 456 - 377. Length of Time for Egress of Neutral Vessels 459 - 378. End of Blockade 460 - - III. _Effectiveness of Blockade_ - - 379. Effective in contradistinction to Fictitious Blockade 461 - 380. Condition of Effectiveness of Blockade 461 - 381. Amount of Danger which creates Effectiveness 464 - 382. Cessation of Effectiveness 464 - - IV. _Breach of Blockade_ - - 383. Definition of Breach of Blockade 466 - 384. No Breach without Notice of Blockade 466 - 385. The former practice as to what constitutes an Attempt to - break Blockade 468 - 385_a_. What constitutes an Attempt to break Blockade - according to the Declaration of London 470 - 386. When Ingress is not considered Breach of Blockade 472 - 387. When Egress is not considered Breach of Blockade 473 - 388. Passage through Unblockaded Canal no Breach of Blockade 474 - - V. _Consequences of Breach of Blockade_ - - 389. Capture of Blockade-running Vessels 475 - 390. Penalty for Breach of Blockade 476 - -CHAPTER IV--CONTRABAND - - I. _Conception of Contraband_ - - 391. Definition of Contraband of War 480 - 392. Absolute and conditional Contraband, and free Articles 481 - 393. Articles absolutely Contraband 483 - 394. Articles conditionally Contraband 485 - 395. Hostile Destination essential to Contraband 490 - 396. Free Articles 492 - 396_a_. Articles destined for the use of the carrying Vessel, - or to aid the Wounded 493 - 397. Contraband Vessels 494 - - II. _Carriage of Contraband_ - - 398. Carriage of Contraband Penal by the Municipal Law of - Belligerents 495 - 399. Direct Carriage of Contraband 497 - 400. Circuitous Carriage of Contraband 499 - 401. Indirect Carriage of Contraband (Doctrine of Continuous - Transports) 500 - 402. The Case of the _Bundesrath_ 502 - 403. Continental support to the Doctrine of Continuous - Transports 504 - 403_a_. Partial Recognition by the Declaration of London of - the Doctrine of Continuous Voyages 505 - - III. _Consequences of Carriage of Contraband_ - - 404. Capture for Carriage of Contraband 506 - 405. Penalty for Carriage of Contraband according to the - Practice hitherto prevailing 508 - 406. Penalty according to the Declaration of London for - Carriage of Contraband 511 - 406_a_. Seizure of Contraband without Seizure of the Vessel 513 - -CHAPTER V--UNNEUTRAL SERVICE - - I. _The Different Kinds of Unneutral Service_ - - 407. Unneutral Service in general 515 - 408. Carriage of Persons for the Enemy 517 - 409. Transmission of Intelligence to the Enemy 521 - 410. Unneutral Service creating Enemy Character 524 - - II. _Consequences of Unneutral Service_ - - 411. Capture for Unneutral Service 526 - 412. Penalty for Unneutral Service 527 - 413. Seizure of Enemy Persons and Despatches without Seizure - of Vessel 530 - -CHAPTER VI--VISITATION, CAPTURE, AND TRIAL OF NEUTRAL VESSELS - - I. _Visitation_ - - 414. Conception of Right of Visitation 533 - 415. Right of Visitation, by whom, when, and where exercised 534 - 416. Only Private Vessels may be Visited 535 - 417. Vessels under Convoy 535 - 418. No Universal Rules regarding Mode of Visitation 537 - 419. Stopping of Vessels for the Purpose of Visitation 538 - 420. Visit 538 - 421. Search 539 - 422. Consequences of Resistance to Visitation 540 - 423. What constitutes Resistance 541 - 424. Sailing under Enemy Convoy equivalent to Resistance 542 - 425. Resistance by Neutral Convoy 543 - 426. Deficiency of Papers 543 - 427. Spoliation, Defacement, and Concealment of Papers 544 - 428. Double and False Papers 545 - - II. _Capture_ - - 429. Grounds and Mode of Capture 546 - 430. Effect of Capture of Neutral Vessels, and their Conduct - to Port 546 - 431. Destruction of Neutral Prizes 547 - 432. Ransom and Recapture of Neutral Prizes 551 - 433. Release after Capture 551 - - III. _Trial of captured Neutral Vessels_ - - 434. Trial of Captured Vessels a Municipal Matter 553 - 435. Result of Trial 555 - 436. Trial after Conclusion of Peace 555 - 437. Protests and Claims of Neutrals after Trial 557 - -CHAPTER VII--THE INTERNATIONAL PRIZE COURT - - I. _Proposals for International Prize Courts_ - - 438. Early Projects 559 - 439. German Project of 1907 561 - 440. British Project of 1907 562 - 441. Convention XII. of the Second Peace Conference 563 - - II. _Constitution and Competence of the International Prize Court_ - - 442. Personnel 565 - 443. Deciding Tribunal 566 - 444. Administrative Council and International Bureau 569 - 445. Agents, Counsel, Advocates, and Attorneys 569 - 446. Competence 569 - 447. What Law to be applied 571 - - III. _Procedure in the International Prize Court_ - - 448. Entering of Appeal 572 - 449. Pleadings and Discussion 574 - 450. Judgment 575 - 451. Expenses and Costs 576 - - IV. _Action in Damages instead of Appeal_ - - 452. Reason for Action in Damages instead of Appeal 577 - 453. Procedure if Action for Damages is brought 578 - - -APPENDICES - - I. Declaration of Paris of 1856 583 - - II. Declaration of St. Petersburg of 1868 584 - - III. Declaration concerning Expanding Bullets of 1899 585 - - IV. Declaration concerning the Diffusion of Asphyxiating Gases - of 1899 586 - - V. Geneva Convention of 1906 587 - - VI. Final Act of the Second Hague Peace Conference of 1907 591 - - I. Convention for the Pacific Settlement of International - Disputes 592 - II. Convention respecting the Limitation of the Employment - of Force for the Recovery of Contract Debts 601 - III. Convention relative to the Opening of Hostilities 602 - IV. Convention concerning the Laws and Customs of War on - Land 603 - V. Convention respecting the Rights and Duties of Neutral - Powers and Persons in War on Land 609 - VI. Convention relative to the Status of Merchantmen at the - Outbreak of Hostilities 612 - VII. Convention relative to the Conversion of Merchantmen - into Men-of-War 613 - VIII. Convention relative to the Laying of Automatic Submarine - Contact Mines 614 - IX. Convention respecting Bombardment by Naval Forces in - Time of War 616 - X. Convention for the Adaptation of the Principles of the - Geneva Convention to Maritime Warfare 617 - XI. Convention relative to certain Restrictions on the - Exercise of the Right of Capture in Maritime War 621 - XII. Convention concerning the Establishment of an - International Prize Court 622 - XIII. Convention concerning the Rights and Duties of Neutral - Powers in Maritime War 629 - XIV. Declaration concerning the Prohibition of the Discharge - of Projectiles and Explosives from Balloons 632 - XV. Draft Convention concerning the Creation of a Judicial - Arbitration Court 632 - - VII. Declaration of London of 1909 (including the Report of the - Drafting Committee) 637 - - VIII. Additional Protocol, of 1910, to the Hague Convention - concerning the Establishment of an International Prize - Court 665 - - IX. Foreign Enlistment Act, 1870 667 - - X. The Naval Prize Act, 1864 674 - - XI. The Prize Courts Act, 1894 682 - - XII. Naval Prize Bill of 1911 683 - - XIII. Geneva Convention Act, 1911 690 - - -INDEX 691 - - - - -PART I - -SETTLEMENT OF STATE DIFFERENCES - - - - -CHAPTER I - -AMICABLE SETTLEMENT OF STATE DIFFERENCES - - -I - -STATE DIFFERENCES AND THEIR AMICABLE SETTLEMENT IN GENERAL - - Twiss, II. §§ 1-3--Ullmann, §§ 148-150--Bulmerincq in - Holtzendorff, IV. pp. 5-12--Heffter, §§ 105-107--Rivier, II. § - 57--Bonfils, No. 930--Despagnet, No. 469--Pradier-Fodéré, IV. Nos. - 2580-2583--Calvo, III. §§ 1670-1671--Martens, II. §§ - 101-102--Fiore, II. Nos. 1192-1198, and Code, No. 1246--Wagner, - _Zur Lehre von den Streiterledigungsmitteln des Völkerrechts_ - (1900.) - -[Sidenote: Legal and political International Differences.] - -§ 1. International differences can arise from a variety of grounds. -Between the extremes of a simple and comparatively unimportant act of -discourtesy committed by one State against another, on the one hand, -and, on the other, so gross an insult as must necessarily lead to war, -there are many other grounds varying in nature and importance. State -differences are correctly divided into legal and political. Legal -differences arise from acts for which States have to bear -responsibility, be it acts of their own or of their Parliaments, -judicial and administrative officials, armed forces, or individuals -living on their territory.[1] Political differences are the result of a -conflict of political interests. But although this distinction is -certainly theoretically correct and of practical importance, frequently -in practice a sharp line cannot be drawn. For in many cases States -either hide their political interests behind a claim for an alleged -injury, or make a positive, but comparatively insignificant, injury a -pretext for the carrying out of political ends. Nations which have been -for years facing each other armed to the teeth, waiting for a convenient -moment to engage in hostilities, are only too ready to obliterate the -boundary line between legal and political differences. Between such -nations a condition of continuous friction prevails which makes it -difficult, if not impossible, in every case which arises to distinguish -the legal from the political character of the difference. - -[Footnote 1: See above, vol. I. § 149.] - -[Sidenote: International Law not exclusively concerned with Legal -Differences.] - -§ 2. It is often maintained that the Law of Nations is concerned with -legal differences only, political differences being a matter not of law -but of politics. Now it is certainly true that only legal differences -can be settled by a juristic decision of the underlying juristic -question, whatever may be the way in which such decision is arrived at. -But although political differences cannot be the objects of juristic -decision, they can be settled short of war by amicable or compulsive -means. And legal differences, although within the scope of juristic -decision, can be of such kinds as to prevent the parties from submitting -them to such decision, without being of a nature that they cannot be -settled peaceably at all. Moreover, although the distinction between -legal and political differences is certainly correct in theory and of -importance in practice, nevertheless, in practice, a sharp line -frequently cannot be drawn, as has just been pointed out. Therefore the -Law of Nations is not exclusively concerned with legal differences, for -in fact all amicable means of settling legal differences are likewise -means of settling political differences, and so are two of the -compulsive means of settling differences--namely, pacific blockade and -intervention. - -[Sidenote: Amicable in contradistinction to compulsive settlement of -Differences.] - -§ 3. Political and legal differences can be settled either by amicable -or by compulsive means. There are four kinds of amicable means--namely, -negotiation between the parties, good offices of third parties, -mediation, and arbitration.[2] And there are also four kinds of -compulsive means--namely, retorsion, reprisals (including embargo), -blockade, and intervention of third States. No State is allowed to make -use of compulsive means before negotiation has been tried, but there is -no necessity for the good offices or mediation of third States, and -eventually arbitration,[3] to be tried beforehand also. Frequently, -however, States nowadays make use of the so-called Compromise Clause[4] -in their treaties, stipulating thereby that any differences arising -between the contracting parties with regard to matters regulated by, or -to the interpretation of, the respective treaties shall be settled -through the amicable means of arbitration to the exclusion of all -compulsive means. And there are even a few examples of States which have -concluded treaties stipulating that all differences, without exception, -that might arise between them should be amicably settled by -arbitration.[5] These exceptions, however, only confirm the rule that no -international legal duty exists for States to settle their differences -amicably through arbitration, or even to try to settle them in this way, -before they make use of compulsive means. - -[Footnote 2: Some writers (see Hall, § 118, and Heilborn, _System_, p. -404) refuse to treat negotiation, good offices, and mediation as means -of settling differences, because they cannot find that these means are -of any legal value, it being in the choice of the parties whether or not -they agree to make use of them. They forget, however, the enormous -political value of these means, which alone well justifies their -treatment; moreover, there are already some positive legal rules in -existence concerning these means--see Hague Arbitration Treaty, articles -2-7 and 9-36--and others will in time, no doubt, be established.] - -[Footnote 3: Except in the case of contract debts claimed from the -Government of one country by the Government of another country as being -due to its nationals. See Convention II.; above, vol. I. § 135, p. 192; -and below, § 19.] - -[Footnote 4: See above, vol. I. § 553.] - -[Footnote 5: See below, § 17.] - - -II - -NEGOTIATION - - Twiss, II. § 4--Lawrence, § 220--Moore, VII. § 1064--Taylor, §§ - 359-360--Heffter, § 107--Bulmerincq in Holtzendorff, IV. pp. - 13-17--Ullmann, § 151--Bonfils, Nos. 931-932--Despagnet, Nos. 470 - and 477--Pradier-Fodéré, VI. Nos. 2584-2587--Rivier, II. § - 57--Calvo, III. §§ 1672-1680--Martens, II. § 103--Nys, III. pp. - 56-58. - -[Sidenote: In what Negotiation consists.] - -§ 4. The simplest means of settling State differences, and that to which -States always resort before they make use of other means, is -negotiation. It consists in such acts of intercourse between the parties -as are initiated and directed for the purpose of effecting an -understanding and thereby amicably settling the difference that has -arisen between them.[6] Negotiation as a rule begins by a State -complaining of a certain act, or lodging a certain claim with another -State. The next step is a statement from the latter making out its case, -which is handed over to the former. It may be that the parties come at -once to an understanding through this simple exchange of statements. If -not, other acts may follow according to the requirements of the special -case. Thus, for instance, other statements may be exchanged, or a -conference of diplomatic envoys, or even of the heads of the States at -variance, may be arranged for the purpose of discussing the differences -and preparing the basis for an understanding. - -[Footnote 6: See above, vol. I. §§ 477-482, where the international -transaction of negotiation in general is discussed.] - -[Sidenote: International Commissions of Inquiry.] - -§ 5. The contracting Powers of the Hague Convention for the peaceful -settlement of international differences deem it expedient and desirable -that, if the ordinary diplomatic negotiation has failed to settle such -differences as do not involve either honour or vital interests, the -parties should, so far as circumstances allow, institute an -International Commission of Inquiry[7] for the purpose of elucidating -the facts underlying the difference by an impartial and conscientious -investigation. The Convention of 1899 had only six articles (9-14) on -the subject. The Second Conference of 1907, profiting by the experience -gained by the Commission of Inquiry in the Dogger Bank[8] case, the -first and as yet only occasion on which a Commission of Inquiry was -instituted, remodelled the institution, and Convention I. treats of the -subject in twenty-eight articles (9-36). The more important stipulations -are the following:-- - -(1) The Commissions are to be constituted by a special treaty of the -parties, which is to determine the facts to be examined, the manner and -period within which the Commission is to be formed, the extent of the -powers of the Commissioners, the place where the Commission is to meet -and whether it may remove to another place, the languages to be used by -the Commission and parties, and the like (articles 9-10). If the treaty -does not determine the place where the Commission is to sit, it shall -sit at the Hague; if the treaty does not specify the languages to be -used, the question shall be decided by the Commission; and if the treaty -does not stipulate the manner in which the Commission is to be formed, -it shall be formed in the manner determined by articles 45 and 57 of -Convention I. (articles 11-12). The parties may appoint Assessors, -Agents, and Counsel (articles 10, 13, 14). - -(2) The International Bureau of the Permanent Court of Arbitration acts -as Registry for the Commissions which sit at the Hague; but if they sit -elsewhere, a Secretary-General is to be appointed whose office serves as -Registry (articles 15-16). - -(3) The parties may agree upon the rules of procedure to be followed by -the Commission, but if they do not provide such rules themselves, the -rules of procedure, comprised in articles 19-32 are applicable (article -17), and, in any case, the Commission is to settle such details of the -procedure as are either not covered by the treaty of the parties or by -articles 19-32, and is to arrange all the formalities required for -dealing with the evidence (article 18). - -(4) The Report of the Commission is to be signed by all its members; but -if a member refuses to sign, the fact is to be mentioned, and the -validity of the Report is not thereby affected (article 33). The Report -of the Commission is read in open Court, the Agents and Counsel of the -parties being present or duly summoned to attend; a copy of the Report -is furnished to each party (article 34). This Report is absolutely -limited to a statement of the facts, it has in no way the character of -an Arbitral Award, and it leaves to the parties entire freedom as to the -effect to be given to the statement of the facts (article 35). - -(5) Each party pays its own expenses and an equal share of the expenses -of the Commission (article 36). - -[Footnote 7: See Herr, _Die Untersuchungskommissionen der Haager -Friedenskonferenzen_ (1911); Meurer, I. pp. 129-165; Higgins, pp. -167-170; Lémonon, pp. 77-91: Wehberg, _Kommentar_, pp. 21-46; Nippold, -I. pp. 23-35; Scott, _Conferences_, pp. 265-273; Politis in _R.G._ XIX. -(1912), pp. 149-188.] - -[Footnote 8: On October 24, 1904, during the Russo-Japanese war, the -Russian Baltic fleet, which was on its way to the Far East, fired into -the Hull fishing fleet off the Dogger Bank, in the North Sea, whereby -two fishermen were killed and considerable damage was done to several -trawlers. Great Britain demanded from Russia not only an apology and -ample damages, but also severe punishment of the officer responsible for -the outrage. As Russia maintained that the firing was caused by the -approach of some Japanese torpedo-boats, and that she could therefore -not punish the officer in command, the parties agreed upon the -establishment of an International Commission of Inquiry, which, however, -was charged not only to ascertain the facts of the incident but also to -pronounce an opinion concerning the responsibility for the incident and -the degree of blame attaching to the responsible persons. The Commission -consisted of five naval officers of high rank--namely, one British, one -Russian, one American, one French, and one Austrian, who sat at Paris in -February 1905. The report of the Commission states that no torpedo-boats -had been present, that the opening of fire on the part of the Baltic -fleet was not justifiable, that Admiral Rojdestvensky, the commander of -the Baltic fleet, was responsible for the incident, but that these facts -were "not of a nature to cast any discredit upon the military qualities -or the humanity of Admiral Rojdestvensky or of the _personnel_ of his -squadron." In consequence of the last part of this report Great Britain -could not insist upon any punishment to be meted out to the responsible -Russian Admiral, but Russia paid a sum of £65,000 to indemnify the -victims of the incident and the families of the two dead fishermen. See -Martens, _N.R.G._ 2nd Ser. XXXIII. (1906), pp. 641-716, And Mandelstam -in _R.G._ XII. (1905), pp. 161 and 351.] - -[Sidenote: Effect of Negotiation.] - -§ 6. The effect of negotiation can be to make it apparent that the -parties cannot come to an amicable understanding at all. But frequently -the effect is that one of the parties acknowledges the claim of the -other party. Again, sometimes negotiation results in a party, although -it does not acknowledge the opponent's alleged rights, waiving its own -rights for the sake of peace and for the purpose of making friends with -the opponent. And, lastly, the effect of negotiation can be a compromise -between the parties. Frequently the parties, after having come to an -understanding, conclude a treaty in which they embody the terms of the -understanding arrived at through negotiation. The practice of everyday -life shows clearly the great importance of negotiation as a means of -settling international differences. The modern development of -international traffic and transport, the fact that individuals are -constantly travelling on foreign territories, the keen interest taken by -all powerful States in colonial enterprise, and many other factors, make -the daily rise of differences between States unavoidable. Yet the -greater number of such differences are settled through negotiation of -some kind or other. - - -III - -GOOD OFFICES AND MEDIATION - - Maine, pp. 207-228--Phillimore, III. §§ 3-5--Twiss, II. § - 7--Lawrence, § 220--Moore, VII. §§ 1065-1068--Taylor, §§ - 359-360--Wheaton, § 73--Bluntschli, §§ 483-487--Heffter, §§ - 107-108--Bulmerincq in Holtzendorff, IV. pp. 17-30--Ullmann, §§ - 152-153--Bonfils, Nos. 932'1-943'1--Despagnet, Nos. - 471-476--Pradier-Fodéré, VI. Nos. 2588-2593--Mérignhac, I. pp. - 429-447--Rivier, II. § 58--Nys, III. pp. 59-61--Calvo, III. §§ - 1682-1705--Fiore, III. Nos. 1199-1201, and Code, Nos. - 1248-1293--Martens, II. § 103--Holls, _The Peace Conference at the - Hague_ (1900), pp. 176-203--Zamfiresco, _De la médiation_ - (1911)--Politis in _R.G._ XVII. (1910), pp. 136-163. - -[Sidenote: Occasions for Good Offices and Mediation.] - -§ 7. When parties are not inclined to settle their differences by -negotiation, or when they have negotiated without effecting an -understanding, a third State can procure a settlement through its good -offices or its mediation, whether only one or both parties have asked -for the help of the third State or the latter has spontaneously offered -it. There is also possible a collective mediation, several States acting -at the same time as mediators. It is further possible for a mediatorial -Conference or Congress to meet for the purpose of discussing the terms -of an understanding between the conflicting parties. And it must be -especially mentioned that good offices and mediation are not confined to -the time before the differing parties have appealed to arms; they can -also be offered and sought during hostilities for the purpose of -bringing the war to an end. It is during war in particular that good -offices and mediation are of great value, neither of the belligerents as -a rule being inclined to open peace negotiations on his own account. - -[Sidenote: Right and duty of offering, requesting, and rendering Good -Offices and Mediation.] - -§ 8. As a rule, no duty exists for a third State to offer its good -offices or mediation, or to respond to a request of the conflicting -States for such, nor is it, as a rule, the duty of the conflicting -parties themselves to ask or to accept a third State's good offices and -mediation. But by special treaty such duty can be stipulated. Thus, for -instance, by article 8 of the Peace Treaty of Paris of March 30, 1856, -between Austria, France, Great Britain, Prussia, Russia, Sardinia, and -Turkey, it was stipulated that, in case in the future such difference as -threatened peace should arise between Turkey and one or more of the -signatory Powers, the parties should be obliged,[9] before resorting to -arms, to ask for the mediation of the other signatory Powers. Thus, -further, article 12 of the General Act of the Berlin Congo Conference of -1885 stipulates that, in case a serious difference should arise between -some of the signatory Powers as regards the Congo territories, the -parties should, before resorting to arms, be obliged to ask the other -signatory Powers for their mediation. And lately the Hague Conventions -for the peaceful settlement of international differences have laid down -some stipulations respecting the right and duty of good offices and -mediation, which will be found below in § 10. - -[Footnote 9: But Italy did not comply with this stipulation before she -declared war against Turkey in September 1911.] - -[Sidenote: Good Offices in contradistinction to Mediation.] - -§ 9. Diplomatic practice frequently does not distinguish between good -offices and mediation. But although good offices can easily develop into -mediation, they must not be confounded with it. The difference between -them is that, whereas good offices consist in various kinds of action -tending to call negotiations between the conflicting States into -existence, mediation consists in a direct conduct of negotiations -between the differing parties on the basis of proposals made by the -mediator. Good offices seek to induce the conflicting parties, who are -either not at all inclined to negotiate with each other or who have -negotiated without effecting an understanding, to enter or to re-enter -into such negotiations. Good offices can also consist in advice, in -submitting a proposal of one of the parties to the other, and the like, -but they never take part in the negotiations themselves. On the other -hand, the mediator is the middleman who does take part in the -negotiations. He makes certain propositions on the basis of which the -States at variance may come to an understanding. He even conducts the -negotiations himself, always anxious to reconcile the opposing claims -and to appease the feeling of resentment between the parties. All the -efforts of the mediator may often, of course, be useless, the differing -parties being unable or unwilling to consent to an agreement. But if an -understanding is arrived at, the position of the mediator as a party to -the negotiation, although not a participator in the difference, -frequently becomes clearly apparent either by the drafting of a special -act of mediation which is signed by the States at variance and the -mediator, or by the fact that in the convention between the conflicting -States, which stipulates the terms of their understanding, the mediator -is mentioned. - -[Sidenote: Good Offices and Mediation according to the Hague Arbitration -Convention.] - -§ 10. The Hague Convention for the peaceful settlement of international -differences[10] undertakes in articles 2-8 the task of making the -signatory Powers have recourse more frequently than hitherto to good -offices and mediation; it likewise recommends a new and particular form -of mediation. Its rules are the following:-- - -[Footnote 10: See Meurer, I. pp. 104-128; Higgins, p. 167; Barclay, -_Problems_, pp. 191-197; Lémonon, pp. 69-73; Wehberg, _Kommentar_, pp. -10-21; Nippold, I. pp. 21-22; Scott, _Conferences_, pp. 256-265.] - -(1) The contracting Powers agree to have recourse, before they appeal to -arms, as far as circumstances allow, to good offices or mediation -(article 2). And independently of this recourse, they consider it -expedient and desirable that contracting Powers who are strangers to -the dispute should, on their own initiative, offer their good offices or -mediation (article 3). A real legal duty to offer good offices or -mediation is not thereby created; only the expediency and desirability -of such offer are recognised. In regard to the legal duty of conflicting -States to ask for good offices or mediation, it is obvious that, -although literally such duty is agreed upon, the condition "as far as -circumstances allow" makes it more or less illusory, as it is in the -discretion of the parties to judge for themselves whether or not the -circumstances of the special case allow their having recourse to good -offices and mediation. - -(2) The contracting Powers agree that (article 3) a right to offer good -offices or mediation exists for those of them who are strangers to a -dispute, and that this right exists also after the conflicting parties -have appealed to arms. Consequently, every contracting Power, when at -variance with another, be it before or after the outbreak of -hostilities, is in duty bound to receive an offer made for good offices -or mediation, although it need not accept such offer. And it is -especially stipulated that the exercise of the right to offer good -offices or mediation may never be regarded by the conflicting States as -an unfriendly act (article 3). It is, further, stipulated that the -contracting Powers consider it their duty in a serious conflict to -remind the parties of the Permanent Court of Arbitration, and that the -advice to have recourse to this Court may only be considered as an -exercise of good offices (article 48, paragraphs 1 and 2). And, finally, -in case of dispute between two Powers, one of them may always address to -the International Bureau of the Permanent Court of Arbitration a note -containing a declaration that it would be ready to submit the dispute to -arbitration, whereupon the Bureau must at once inform the other Power of -this declaration (article 48, paragraphs 3 and 4). - -(3) Mediation is defined (article 4) as reconciliation of the opposing -claims and appeasement of the feelings of resentment between the -conflicting States, and it is specially emphasised that good offices and -mediation have exclusively the character of advice. - -(4) The acceptance of mediation--and, of course, of good offices, which -is not mentioned--does not (article 7) have the effect of interrupting, -delaying, or hindering mobilisation or other preparatory measures for -war, or of interrupting military operations when war has broken out -before the acceptance of mediation, unless there should be an agreement -to the contrary. - -(5) The functions of the mediator are at an end (article 5) when once it -is stated, either by one of the conflicting parties or by the mediator -himself, that the means of reconciliation proposed by him are not -accepted. - -(6) A new and particular form of mediation is recommended by article 8. -Before appealing to arms the conflicting States choose respectively a -State as umpire, to whom each intrusts the mission of entering into -direct communication with the umpire chosen by the other side for the -purpose of preventing the rupture of pacific relations. The period of -the mandate extends, unless otherwise stipulated, to thirty days, and -during such period the conflicting States cease from all direct -communication on the matter in dispute, which is regarded as referred -exclusively to the mediating umpires, who must use their best efforts to -settle the difference. Should such mediation not succeed in bringing the -conflicting States to an understanding, and should, consequently, a -definite rupture of pacific relations take place, the chosen umpires are -jointly charged with the task of taking advantage of any opportunity to -restore peace. - -[Sidenote: Value of Good Offices and Mediation.] - -§ 11. The value of good offices and mediation for the amicable -settlement of international conflicts, be it before or after the parties -have appealed to arms, cannot be over-estimated. Hostilities have been -frequently prevented through the authority and the skill of mediators, -and furiously raging wars have been brought to an end through good -offices and mediation of third States.[11] Nowadays the importance of -these means of settlement of international differences is even greater -than in the past. The outbreak of war is under the circumstances and -conditions of our times no longer a matter of indifference to all except -the belligerent States, and no State which goes to war knows exactly how -far such war may affect its very existence. If good offices and -mediation are interposed at the right moment, they will in many cases -not fail to effect a settlement of the conflict. The stipulations of the -Hague Convention for the peaceful adjustment of differences have greatly -enhanced the value of good offices and mediation by giving a legal right -to Powers, strangers to the dispute, to offer their good offices and -mediation before and during hostilities. - -[Footnote 11: See the important cases of mediation discussed by Calvo, -III. §§ 1684-1700, and Bonfils, Nos. 936-942. From our own days the case -of the Dogger Bank incident of 1904 may be quoted as an example, for it -was through the mediation of France that Great Britain and Russia agreed -upon the establishment of an International Commission of Inquiry. (See -p. 7, note 2.) And the good offices of the President of the United -States of America were the means of inducing Russia and Japan, in August -1905, to open the negotiations which actually led to the conclusion of -the Peace of Portsmouth on September 5, 1905.] - - -IV - -ARBITRATION - - Grotius, II. c. 23, § 8--Vattel, II. § 329--Hall, § 119--Westlake, - I. pp. 332-356--Lawrence, § 221--Phillimore, III. §§ 3-5--Twiss, - II. § 5--Taylor, §§ 357-358--Wharton, III. § 316--Moore, VII. §§ - 1069-1080--Bluntschli, §§ 488-498--Heffter, § 109--Bulmerincq in - Holtzendorff, IV. pp. 30-58--Ullmann, §§ 154-156--Bonfils, Nos. - 944-969--Despagnet, Nos. 722-741--Pradier-Fodéré, VI. Nos. - 2602-2630--Mérignhac, I. pp. 448-485--Rivier, II. § 59--Calvo, - III. §§ 1706-1806--Fiore, II. Nos. 1202-1215, and Code, Nos. - 1294-1380--Nys, III. pp. 65-80--Martens, II. § 104--Rouard de - Card, _L'arbitrage international_ (1876)--Mérignhac, _Traité - théorique et pratique de l'arbitrage_ (1895)--Moore, _History and - Digest of the Arbitrations to which the United States has been a - Party_, 6 vols. (1898)--Darby, _International Arbitration_, 4th - ed. (1904)--Dumas, _Les sanctions de l'arbitrage international_ - (1905), and in A.J. V. (1911), pp. 934-957--Nippold, Die - _Fortbildung des Verfahrens in völkerrechtlichen Streitigkeiten_ - (1907)--Reinsch in A.J. V. (1911), pp. 604-614--Scott, - _Conferences_, pp. 188-253--Lapradelle et Politis, _Recueil des - arbitrages internationaux_, I. (1798-1855), (1905)--Fried, - _Handbuch der Friedensbewegung_, 2nd ed. (1911), pp. - 135-184--Morris, _International Arbitration and Procedure_ - (1911)--Balch, _International Courts of Arbitration_ (4th ed., - with an introduction and additional notes by Thomas Willing Balch, - 1912). - -[Sidenote: Conception of Arbitration.] - -§ 12. Arbitration is the name for the determination of differences -between States through the verdict of one or more umpires chosen by the -parties. As there is no central political authority above the Sovereign -States, and no such International Court as could exercise jurisdiction -over them, State differences, unlike differences between private -individuals, cannot as a rule be obligatorily settled in courts of -justice. The only way in which a settlement of State differences through -a verdict may be arrived at is by the conflicting States voluntarily -consenting to submit themselves to a verdict of one or more umpires -chosen by themselves for that purpose. - -[Sidenote: Treaty of Arbitration.] - -§ 13. It is, therefore, necessary for such conflicting States as intend -to have the conflict determined by arbitration to conclude a treaty by -which they agree to this course. Such treaty of arbitration involves the -obligation of both parties to submit in good faith to the decision of -the arbitrators. Frequently a treaty of arbitration will be concluded -after the outbreak of a difference, but it also frequently happens that -States concluding treaties stipulate therein by the so-called Compromise -Clause,[12] that any difference arising between the parties respecting -matters regulated by such treaty shall be determined by arbitration. Two -or more States can also conclude a so-called general treaty of -arbitration, or treaty of permanent arbitration, stipulating that all or -certain kinds of differences in future arising between them shall be -settled by this method. Thus article 7 of the Commercial Treaty between -Holland and Portugal[13] of July 5, 1894, contains such a general treaty -of arbitration, as it stipulates arbitration not only for differences -respecting matters of commerce, but for all kinds of differences arising -in the future between the parties, provided these differences do not -concern their independence or autonomy. Until the Hague Peace Conference -of 1899, however, general treaties of arbitration were not numerous. But -public opinion everywhere was aroused in favour of general arbitration -treaties through the success of this conference, with the result that -from 1900 to the present day many general arbitration treaties have been -concluded.[14] - -[Footnote 12: See above, § 3.] - -[Footnote 13: See Martens, _N.R.G._ 2nd Ser. XXII. p. 590.] - -[Footnote 14: See below, § 17.] - -[Sidenote: Who is to arbitrate?] - -§ 14. States which conclude an arbitration treaty have to agree upon the -arbitrators. If they choose a third State as arbitrator, they have to -conclude a treaty (_receptum arbitri_) with such State, by which they -appoint the chosen State and by which such State accepts the -appointment. The appointed State chooses on its own behalf those umpires -who actually serve as arbitrators. It can happen that the conflicting -States choose a head of a third State as arbitrator. But such head never -himself investigates the matter; he chooses one or more individuals, -who make a report and propose a verdict, which he pronounces. And, -further, the conflicting States may agree to entrust the arbitration to -any other individual or to a body of individuals, a so-called -Arbitration Committee or Commission. Thus the arbitration of 1900 in -regard to the Venezuelan Boundary Dispute between Great Britain, -Venezuela, and the United States was conducted by a Commission, sitting -at Paris, consisting of American and English members and the Russian -Professor von Martens as President. And the Alaska Boundary Dispute -between Great Britain and the United States was settled in 1903, through -the award of a Commission, sitting at London, consisting of American and -Canadian members, with Lord Alverstone, Lord Chief Justice of England, -as President. - -[Sidenote: On what principles Arbitrators proceed and decide.] - -§ 15. The treaty of arbitration must stipulate the principles according -to which the arbitrators have to give their verdict. These principles -may be the general rules of International Law, but they may also be the -rules of any Municipal Law chosen by the conflicting States, or rules of -natural equity, or rules specially stipulated in the treaty of -arbitration for the special case.[15] And it can also happen that the -treaty of arbitration stipulates that the arbitrators shall compromise -the conflicting claims of the parties without resorting to special rules -of law. The treaty of arbitration, further, as a rule, stipulates the -procedure to be followed by the arbitrators who are investigating and -determining the difference. If a treaty of arbitration does not lay down -rules of procedure, the arbitrators themselves have to work out such -rules and to communicate them to the parties. - -[Footnote 15: See below, § 335, concerning the "Three rules of -Washington."] - -[Sidenote: Binding force of Arbitral Verdict.] - -§ 16. An arbitral verdict is final if the arbitration treaty does not -stipulate the contrary, and the verdict given by the arbitrators is -binding upon the parties. As, however, no such central authority exists -above the States as could execute the verdict against a State refusing -to submit, it is in such a case the right of the other party to enforce -the arbitral decision by compulsion. Yet it is obvious that an arbitral -verdict is binding only under the condition[16] that the arbitrators -have in every way fulfilled their duty as umpires and have been able to -find their verdict in perfect independence. Should they have been bribed -or not followed their instructions, should their verdict have been given -under the influence of coercion of any kind, or should one of the -parties have intentionally and maliciously led the arbitrators into an -essential material error, the arbitral verdict would have no binding -force whatever. Thus the award given in 1831 by the King of Holland in -the North-Eastern Boundary Dispute between Great Britain and the United -States of America was not considered binding by the parties because the -arbitrator had transgressed his powers.[17] For the same reason, Bolivia -refused in 1910 to submit to the award of the President of Argentina in -her boundary dispute with Peru.[18] And in October 1910, the Permanent -Court of Arbitration at the Hague, deciding the case of the United -States of America against the United States of Venezuela concerning the -claims of the Orinoco Steamship Company, annulled,[19] with regard to -certain points, a previous arbitration award given by Mr. Barge. - -[Footnote 16: See Donker Curtius and Nys in _R.I._ 2nd Ser. XII. (1910), -pp. 5-34 and 595-641.] - -[Footnote 17: See Moore, VII. § 1082, and Moore, _Arbitrations_, I. pp. -81-161.] - -[Footnote 18: See Fiore in _R.G._ XVII. (1910), pp. 225-256.] - -[Footnote 19: See Martens, _N.R.G._ 3rd Ser. IV. (1911), p. 79.] - -[Sidenote: What differences can be decided by Arbitration.] - -§ 17. It is often maintained that every possible difference between -States could not be determined by arbitration, and, consequently, -efforts are made to distinguish those groups of State differences which -are determinable by arbitration from others. Now although all States may -never consent to have all possible differences decided by arbitration, -theoretically there is no reason for a distinction between differences -decidable and undecidable through arbitration. For there can be no doubt -that, the consent of the parties once given, every possible difference -might be settled through arbitration, either by the verdict being based -on rules of International Law, or rules of natural equity, or by -opposing claims being compromised. But, differing from the theoretical -question as to what differences are and are not determinable by -arbitration, is the question as to what kind of State differences -_ought_ always to be settled in this manner. The latter question has -been answered by article 38 (formerly 16) of the Hague Convention for -the peaceful adjustment of international differences, the contracting -Powers therein recognising arbitration as the most efficacious, and at -the same time the most equitable, means of determining differences of a -judicial character in general, and in especial differences regarding the -interpretation or application of international treaties. But future -experience must decide whether the signatory Powers will in practice -always act according to this distinction. - -However this may be, when, in 1903, Great Britain and France, following -the suggestion of this article 38 (formerly 16), concluded a treaty in -which they agreed to settle by arbitration all such differences of a -legal nature as do not affect their vital interests, their independence, -or their honour, many other States followed the lead. Great Britain, in -the same and the following years, entered into such arbitration treaties -with Spain, Italy, Germany, Sweden, Norway, Portugal, Switzerland, -Austria-Hungary, Holland, Denmark, the United States of America, -Colombia, and Brazil. All these agreements were concluded for five -years only, but those which have since expired have all been renewed for -another period of five years. - -Yet there is a flaw in all these treaties, because the decision as to -whether a difference is of a legal nature or not, is left to the -discretion of the parties. Cases have happened in which one of the -parties has claimed to have a difference settled by arbitration on -account of its legal nature, whereas the other party has denied the -legal nature of the difference and, therefore, refused to go to -arbitration. For this reason the arbitration treaties signed on August -3, 1911, between the United States of America and Great Britain and -between the United States of America and France are epoch making, since -article 3 provides that, in cases where the parties disagree as to -whether or not a difference is subject to arbitration under the treaty -concerned, the question shall be submitted to a joint High Commission of -Inquiry; and that, if all, or all but one, of the members of such -Commission decide the question in the affirmative, the case shall be -settled by arbitration. Article 3 has, however, been struck out by the -American Senate, with the consequence that these treaties have lost -their intrinsic value, even should they be ratified. - -It should be mentioned that, whereas most arbitration treaties limit -arbitration in one or more ways, exempting cases which concern the -independence, the honour, or the vital interests of the parties, -Argentina[20] and Chili in 1902, Denmark and Holland in 1903, Denmark -and Holland in 1905, Denmark and Portugal in 1907, Argentina and Italy -in 1907, the Central American Republics of Costa Rica, Guatemala, -Honduras, Nicaragua, and San Salvador in 1907, Italy and Holland in -1907 entered into general arbitration treaties according to which all -differences without any exception shall be settled by arbitration.[21] - -[Footnote 20: Earlier than this, on July 23, 1898--see Martens, _N.R.G._ -2nd Ser. XXIX. p. 137--Argentina and Italy, and on November 9, 1899--see -Martens, _N.R.G._ 2nd Ser. XXXII. (1905), p. 404--Argentina and Paraguay -had concluded treaties according to which all differences without -exception shall be settled by arbitration. See also above, § 3, -concerning the Compromise Clause.] - -[Footnote 21: A list of all the arbitration treaties which have been -entered into by the several States since the First Hague Peace -Conference of 1899, is to be found in Fried, _op. cit._ p. 185.] - -[Sidenote: Value of Arbitration.] - -§ 18. There can be no doubt that arbitration is, and every day becomes -more and more, of great importance. History proves that in antiquity and -during the Middle Ages arbitration was occasionally[22] made use of as a -peaceable means of settling international differences. But, although an -International Law made its appearance in modern times, during the -sixteenth, seventeenth, and eighteenth centuries very few cases of -arbitration occurred. It was not until the end of the eighteenth century -that arbitration was frequently made use of. There are 177 cases from -1794 to the end of 1900.[23] This number shows that the inclination of -States to agree to arbitration has increased, and there can be no doubt -that arbitration has a great future. States and the public opinion of -the whole world become more and more convinced that there are a good -many international differences which may well be determined by -arbitration without any danger whatever to the national existence, -independence, dignity, and prosperity of the States concerned. A net of -so-called Peace Societies has spread over the whole world, and their -members unceasingly work for the promotion of arbitration. The -Parliaments of several countries have repeatedly given their vote in -favour of arbitration; and the Hague Peace Conference of 1899 created a -Permanent Court of Arbitration, a step by which a new epoch of the -development of International Law was inaugurated. It is certain that -arbitration will gradually increase its range, although the time is by -no means in sight when all international differences will find their -settlement by arbitration. - -[Footnote 22: See examples in Calvo, III. §§ 1707-1712, and in Nys, _Les -origines du droit international_ (1894), pp. 52-61.] - -[Footnote 23: See La Fontaine's _Histoire sommaire et chronologique des -arbitrages internationaux_ in _R.I._ 2nd Ser. IV. pp. 349, 558, 623. See -also Scott, _Conferences_, pp. 188-252.] - -The novel institution of the Permanent Court of Arbitration at the Hague -stands at present in the cross-fire of impatient pacifists and cynical -pessimists. Because a number of wars have been fought since the -establishment of the Permanent Court, impatient pacifists are in despair -and consider the institution of the Court of Arbitration a failure, -whereas cynical pessimists triumphantly point to the fact that the -millennium would seem to be as far distant as ever. The calm observer of -the facts who possesses insight in the process of historical -development, has no cause to despair, for, compared with some -generations ago, arbitration is an established force which daily gains -more power and influence. And when once a real International Court[24] -of justice is established side by side with the Permanent Court of -Arbitration, the chances of arbitration will be greatly increased. - -[Footnote 24: See above, vol. I. § 476_b_.] - - -V - -ARBITRATION ACCORDING TO THE HAGUE CONVENTION - - Ullmann, §§ 155-156--Bonfils, Nos. 953'1-955'1--Despagnet, Nos. - 742-746_bis_--Mérignhac, I. pp. 486-539--Holls, _The Peace - Conference at the Hague_ (1900)--Martens, _La conférence de la - paix à la Haye_ (1900)--Mérignhac, _La conférence internationale - de la paix_ (1900)--Fried, _Die zweite Haager Konferenz_ - (1908)--Meurer, I. pp. 299-372--Scott, _Conferences_, pp. - 286-385--Higgins, pp. 164-179--Lémonon, pp. 188-219--Nippold, I. - pp. 36-231--Wehberg, _Kommentar_, pp. 46-164. - -[Sidenote: Arbitral Justice in general.] - -§ 19. Of the 97 articles of the Hague Convention for the peaceful -adjustment of international differences, no fewer than 44--namely, -articles 37-90--deal with arbitration in three chapters, headed "On -Arbitral Justice," "On the Permanent Court of Arbitration," and "On -Arbitral Procedure." The first chapter, articles 37-40, contains rules -on arbitral justice in general, which, however, with one exception, are -not of a legal but of a merely doctrinal character. Thus the definition -in article 37, first paragraph, "International arbitration has for its -object the determination of controversies between States by judges of -their own choice and upon the basis of respect for law," is as doctrinal -as the assertion of article 38: "In questions of a judicial character, -and especially in questions regarding the interpretation or application -of International Treaties or Conventions, arbitration is recognised by -the contracting Powers as the most efficacious and at the same time the -most equitable method of deciding controversies which have not been -settled by diplomatic methods. Consequently it would be desirable that, -in disputes regarding the above-mentioned questions, the contracting -Powers should, if the case arise, have recourse to arbitration, in so -far as circumstances permit." And the provision of article 39, that an -agreement of arbitration may be made respecting disputes already in -existence or arising in the future and may relate to every kind of -controversy or solely to controversies of a particular character, is as -doctrinal as the reservation of article 40, which runs: "Independently -of existing general or special treaties imposing the obligation to have -recourse to arbitration on the part of any of the contracting Powers, -these Powers reserve to themselves the right to conclude, either before -the ratification of the present Convention or afterwards, new general or -special agreements with a view to extending obligatory arbitration to -all cases which they consider possible to submit to it." The only rule -of legal character is that of article 37 (second paragraph), enacting -the already existing customary rule of International Law, that "the -agreement of arbitration implies the obligation to submit in good faith -to the arbitral sentence." - -On the signatory Powers no obligation whatever to submit any difference -to arbitration is imposed. Even differences of a judicial character, and -especially those regarding the interpretation or application of -treaties, for the settlement of which the signatory Powers, in article -38, acknowledge arbitration as the most efficacious and at the same time -the most equitable method, need not necessarily be submitted to -arbitration. - -Yet the principle of compulsory arbitration for a limited number of -international differences was by no means negatived by the Hague Peace -Conferences, especially not by the Second Conference. - -The principle found, firstly, indirect recognition by the Convention -respecting the Limitation of the Employment of Force for the Recovery of -Contract Debts.[25] Since article I of this Convention stipulates that -recourse to the employment of force for the recovery of contract debts -claimed from the Government of one country by the Government of another -country as being due to its nationals is not allowed unless the debtor -State refuses arbitration, compulsory arbitration has in this instance -been victorious. - -[Footnote 25: See above, vol. I. § 135, p. 192, where the so-called -Drago doctrine is likewise discussed.] - -Secondly, although it was not possible to agree upon some stipulation -embodying compulsory arbitration for a number of differences in -Convention I., the principle itself was fully recognised, and the Final -Act of the Second Peace Conference includes, therefore, the Declaration -that the Conference "is unanimous (1) in admitting the principle of -compulsory arbitration; (2) in declaring that certain disputes, in -particular those relating to the interpretation and application of -international agreements, may be submitted to compulsory arbitration -without any restriction." - -The above shows reasonable grounds for the hope and expectation that one -of the future Peace Conferences will find a way out of the difficulty -and come to an agreement stipulating compulsory arbitration for a -limited number of international differences.[26] - -[Footnote 26: See Scott, _Conferences_, pp. 319-385, where the -proceedings of both the First and Second Peace Conferences concerning -compulsory arbitration are sketched in a masterly and very lucid style.] - -[Sidenote: Arbitration Treaty and appointment of Arbitrators.] - -§ 20. According to article 52 the conflicting States which resort to -arbitration shall sign a special Act, the _Compromis_, in which is -clearly defined: the subject of the dispute; the time allowed for -appointing the arbitrators; the form, order, and time in which the -communications referred to in article 63 of Convention I. must be made; -the amount of the sum which each party must deposit in advance to defray -the expenses; the manner of appointing arbitrators (if there be -occasion); any special powers which may eventually belong to the -Tribunal, where it shall meet, the languages to be used, and any special -conditions upon which the parties may agree. Should, however, the -conflicting States prefer it, the Permanent Court at the Hague is -competent to draw up and settle the _Compromis_, and the Court is -likewise in some other cases competent to settle the _Compromis_ -(articles 53-54). The parties may agree to have recourse to the -Permanent Court of Arbitration which was instituted by the Hague -Convention and regarding which details have been given above, Vol. I., -§§ 472-476, but they may also assign the arbitration to one or several -arbitrators chosen by them either from the members of the Permanent -Court of Arbitration or elsewhere (article 55). If they choose a head of -a State as arbitrator, the whole of the arbitral procedure is to be -determined by him (article 56). If they choose several arbitrators, an -umpire is to preside, but in case they have not chosen an umpire, the -arbitrators are to elect one of their own number as president (article -57). If the _Compromis_ is settled by a Commission, as contemplated by -article 54 of Convention I., and in default of an agreement to the -contrary, the Commission itself shall form the Arbitration Tribunal -(article 58). In case of death, resignation, or disability of one of the -arbitrators from any cause, his place is to be filled in accordance with -the method of his appointment (article 59). The place of session of the -arbitrators is to be determined by the parties; but if they fail to do -it, the place of session is to be the Hague, and the place of session -may not be changed by the arbitrators without the consent of the -parties; the Tribunal may only sit in the territory of a third State -with the latter's consent (article 60). The International Bureau of the -Court at the Hague is authorised to put its offices and its staff at the -disposal of the contracting Powers in case the parties have preferred to -bring their dispute before arbitrators other than the Permanent Court of -Arbitration (article 47). - -[Sidenote: Procedure of and before the Arbitral Tribunal.] - -§ 21. The parties may agree upon such rules of arbitral procedure as -they like. If they fail to stipulate special rules of procedure, the -following rules are valid, whether the parties have brought their case -before the Permanent Court of Arbitration or have chosen other -arbitrators (article 51):-- - -(1) The parties may appoint counsel or advocates for the defence of -their rights before the tribunal. They may also appoint delegates or -special agents to attend the tribunal for the purpose of serving as -intermediaries between them and the tribunal. The members of the -Permanent Court, however, may not act as agents, counsel, or advocates -except on behalf of the Power which has appointed them members of the -Court (article 62). - -(2) The tribunal selects the languages for its own use and for use -before it, unless the _Compromis_ has specified the languages to be -employed (article 61). - -(3) As a rule the arbitral procedure is divided into the two distinct -phases of written pleadings and oral discussions. The written pleadings -consist of the communication by the respective agents to the members of -the tribunal and to the opposite party of cases, counter-cases, and, if -necessary, replies; the parties must annex thereto all papers and -documents relied on in the case. This communication is to be made either -directly or through the intermediary of the International Bureau, in the -order and within the time fixed by the _Compromis_ (article 63). A duly -certified copy of every document produced by one party must be -communicated to the other party (article 64). Unless special -circumstances arise, the tribunal does not meet until the pleadings are -closed (article 65). - -(4) Upon the written pleadings follows the oral discussion in Court; it -consists of the oral development of the pleas of the parties (article -63, last paragraph). The discussions are under the direction of the -president of the tribunal, and are public only if it be so decided by -the tribunal with the consent of the parties. Minutes with regard to the -discussion are to be drawn up by secretaries appointed by the president, -and only these official minutes, which are signed by the president and -one of the secretaries, are authentic (article 66). During the -discussion in Court the agents and counsel of the parties are authorised -to present to the tribunal orally all the arguments they may think -expedient in support of their case. They are likewise authorised to -raise objections and to make incidental motions, but the decisions of -the tribunal on these objections and motions are final and cannot form -the subject of any further discussion (articles 70, 71). Every member of -the tribunal may put questions to the agents and counsel of the parties -and demand explanations from them on doubtful points, but neither such -questions nor other remarks made by members of the tribunal may be -regarded as expressions of opinion by the tribunal in general or the -respective member in particular (article 72). The tribunal may always -require from the agents of the parties all necessary explanations and -the production of all acts, and in case of refusal the tribunal takes -note of it in the minutes (articles 69). - -When the competence of the tribunal is doubted on one or more points, -the tribunal itself is authorised to decide whether it is or is not -competent, by means of interpretation of the _Compromis_ as well as the -other papers and documents which may be adduced in the matter, and by -means of the application of the principles of law (article 73). - -During the discussion in Court--article 67 says, "After the close of the -pleadings"--the tribunal is competent to refuse admittance to all such -fresh acts and documents as one party may desire to submit to the -tribunal without the consent of the other party (article 67). -Consequently, the tribunal must admit fresh acts and documents when both -parties agree to their submission. On the other hand, the tribunal is -always competent to take into consideration fresh papers and documents -to which its attention is drawn by the agents or counsel of the parties, -and in such cases the tribunal may require production of the papers and -documents, but it is at the same time obliged to make them known to the -other party (article 68). - -The parties must supply the tribunal, within the widest limits they may -think practicable, with all the information required for deciding the -dispute (article 75). For the service of all notices by the tribunal in -the territory of a third contracting Power, the tribunal applies direct -to the Government of such Power. The same rule is valid in the case of -steps being necessary in order to procure evidence on the spot. The -requests for this purpose are to be executed by the Power concerned with -the means at its disposal according to its Municipal Law; they may not -be rejected unless the Power concerned considers them of such a nature -as to impair its own sovereign rights or its safety. Instead, however, -of making a direct application to a third Power, the tribunal is always -entitled to have recourse to the intermediary of the Power on whose -territory it sits (article 76). - -As soon as the agents and counsel of the parties have submitted all -explanations and evidence in support of their case, the president -declares the discussion closed (article 77). - -[Sidenote: Arbitral Award.] - -§ 22. The arbitral award is given after a deliberation which has taken -place behind closed doors, and the proceedings remain secret (article -78). The members of the tribunal vote, and the majority of the votes -makes the decision of the tribunal. The decision, accompanied by a -statement of the considerations upon which it is based, is to be drawn -up in writing, to recite the names of the arbitrators, and to be signed -by the president and the registrar or the secretary acting as the -registrar (article 79). The verdict is read out at a public meeting of -the tribunal, the agents and counsel of the parties being present or -having been duly summoned to attend (article 80). - -[Sidenote: Binding force of Awards.] - -§ 23. The award, when duly pronounced and notified to the agents of the -parties, decides the dispute finally and without appeal (article 81). -Any dispute arising between the parties as to the interpretation or -execution of the award must, in default of an agreement to the -contrary, be submitted to the tribunal which pronounced it (article 82). -The parties may, however, beforehand stipulate in the _Compromis_ the -possibility of an appeal. In such case, and the _Compromis_ failing to -stipulate the contrary, the demand for a rehearing of the case must be -addressed to the tribunal which pronounced the award. The demand for a -rehearing of the case may only be made on the ground of the discovery of -some new fact such as may exercise a decisive influence on the award, -and which at the time when the discussion was closed was unknown to the -tribunal as well as to the appealing party. Proceedings for a rehearing -may only be opened after a decision of the tribunal expressly stating -the existence of a new fact of the character described, and declaring -the demand admissible on this ground. The treaty of arbitration must -stipulate the period of time within which the demand for a rehearing -must be made (article 83).-- - -The Hague Convention contains no stipulation whatever with regard to the -question whether the award is binding under all circumstances and -conditions, or whether it is only binding when the tribunal has in every -way fulfilled its duty and has been able to find its verdict in perfect -independence. But it is obvious that the award has no binding force -whatever if the tribunal has been bribed or has not followed the -parties' instructions given by the treaty of agreement; if the award was -given under the influence of undue coercion; or, lastly, if one of the -parties has intentionally and maliciously led the tribunal into an -essential material error. (See above, § 16). - -[Sidenote: Award binding upon Parties only.] - -§ 24. The award[27] is binding only upon the parties to the proceedings. -But when there is a question of interpreting a convention to which -other States than the States at variance are parties, the conflicting -States have to inform all the contracting Powers of such convention in -good time. Each of these States has a right to intervene in the case -before the tribunal, and, if one or more avail themselves of this right, -the interpretation contained in the award is as binding upon them as -upon the conflicting parties (article 84). - -[Footnote 27: The awards hitherto given are enumerated above, vol. I. § -476, p. 521, but the case of Italy _v._ Peru (Canevaro claim, May 3, -1912) must now be added.] - -[Sidenote: Costs of Arbitration.] - -§ 25. Each party pays its own expenses and an equal share of those of -the tribunal[28] (article 85). - -[Footnote 28: See details in Wehberg, _Kommentar_, pp. 155-158.] - -[Sidenote: Arbitration by Summary Procedure.] - -§ 25_a_. With a view to facilitating the working of arbitration in -disputes of minor importance admitting an abbreviated procedure, the -contracting Powers propose the following rules for a summary procedure -exclusively in writing:-- - -Each of the conflicting parties appoints an arbitrator, and these -arbitrators need not necessarily be members of the Permanent Court of -Arbitration. The two arbitrators thus appointed choose a third as -umpire, who need not be a member of the Permanent Court either. But if -they cannot agree upon an umpire, each of them proposes two candidates -taken from the general list of the Permanent Court of Arbitration -exclusive of such members as are either appointed by the conflicting -States or are their nationals, and it is to be determined by lot which -of the candidates shall be the umpire. This umpire presides over the -tribunal which gives its decisions by a majority of votes (article 87). -In the absence of an agreement concerning the matter, the tribunal -settles the time within which the two parties must submit their -respective cases to it (article 88). Each party is represented by an -agent who serves as intermediary between the tribunal and his party -(article 89). The proceedings are conducted exclusively in writing. Each -party, however, is entitled to ask that witnesses and experts should be -called, and the tribunal has the right to demand oral explanations from -the agents as well as from the experts and witnesses whose appearance in -Court it may consider useful (article 90). Articles 52 to 85 of -Convention I. apply so far as they are not inconsistent with the rules -laid down in articles 87 to 90 (article 80). - - - - -CHAPTER II - -COMPULSIVE SETTLEMENT OF STATE DIFFERENCES - - -I - -ON COMPULSIVE MEANS OF SETTLEMENT OF STATE DIFFERENCES IN GENERAL - - Lawrence, § 136--Westlake, II. p. 6--Phillimore, III. § - 7--Pradier-Fodéré, VI. No. 2632--Despagnet, No. 483--Fiore, II. - No. 1225, and Code, Nos. 1381-1385--Taylor, § 431--Nys, III. pp. - 83-94. - -[Sidenote: Conception and kinds of Compulsive Means of Settlement.] - -§ 26. Compulsive means of settlement of differences are measures -containing a certain amount of compulsion taken by a State for the -purpose of making another State consent to such settlement of a -difference as is required by the former. There are four different kinds -of such means in use--namely, retorsion, reprisals (including embargo), -pacific blockade, and intervention. But it must be mentioned that, -whereas every amicable means of settling differences might find -application in every kind of difference, not every compulsive means is -applicable in every difference. For the application of retorsion is -confined to political, and that of reprisals to legal differences. - -[Sidenote: Compulsive Means in contradistinction to War.] - -§ 27. War is very often enumerated among the compulsive means of -settling international differences. This is in a sense correct, for a -State might make war for no other purpose than that of compelling -another State to settle a difference in the way required before war was -declared. Nevertheless, the characteristics of compulsive means of -settling international differences make it a necessity to draw a sharp -line between these means and war. It is, firstly, characteristic of -compulsive means that, although they frequently consist of harmful -measures, they are neither by the conflicting nor by other States -considered as acts of war, and consequently all relations of peace, such -as diplomatic and commercial intercourse, the execution of treaties, and -the like, remain undisturbed. Compulsive means are in theory and -practice considered peaceable, although not amicable, means of settling -international differences. It is, further, characteristic of compulsive -means that they are even at their worst confined to the application of -certain harmful measures only, whereas belligerents in war may apply any -amount and any kinds of force, with the exception only of those methods -forbidden by International Law. And, thirdly, it is characteristic of -compulsive means that their application must cease as soon as their -purpose is realised by the compelled State declaring its readiness to -settle the difference in the way requested by the compelling State; -whereas, war once broken out, a belligerent is not obliged to lay down -arms if and when the other belligerent is ready to comply with the -request made before the war. As war is the _ultima ratio_ between -States, the victorious belligerent is not legally prevented from -imposing upon the defeated any conditions he likes. - -[Sidenote: Compulsive Means in contradistinction to an Ultimatum and -Demonstrations.] - -§ 28. The above-described characteristics of compulsive means for the -settlement of international differences make it necessary to mention the -distinction between such means and an _ultimatum_. The latter is the -technical term for a written communication by one State to another which -ends amicable negotiations respecting a difference, and formulates, for -the last time and categorically, the demands to be fulfilled if other -measures are to be averted. An _ultimatum_ is, theoretically at least, -not a compulsion, although it can practically exercise the function of -a compulsion, and although compulsive means, or even war, can be -threatened through the same communication in the event of a refusal to -comply with the demand made.[29] And the same is valid with regard to -withdrawal of diplomatic agents, to military and naval demonstrations, -and the like, which some publicists[30] enumerate among the compulsive -means of settlement of international differences. Although these steps -may contrive, indirectly, the settlement of differences, yet they do not -contain in themselves any compulsion. - -[Footnote 29: See Pradier-Fodéré, VI. No. 2649, and below, § 95.] - -[Footnote 30: See Taylor, §§ 431, 433, 441; Moore, VII. §§ 1089, 1091, -1099; Pradier-Fodéré, VI. No. 2633.] - - -II - -RETORSION - - Vattel, II. § 341--Hall, § 120--Westlake, II. p. 6--Phillimore, - III. § 7--Twiss II. § 10--Taylor, § 435--Wharton, III. § - 318--Moore, VII. § 1090--Wheaton, § 290--Bluntschli, § - 505--Heffter, § 110--Bulmerincq in Holtzendorff, IV. pp. - 59-71--Ullmann, § 159--Bonfils, Nos. 972-974--Despagnet, Nos. - 484-486--Pradier-Fodéré, VI. Nos. 2634-2636--Rivier, II. § - 60--Calvo, III. § 1807--Fiore, II. Nos. 1226-1227, and Code, Nos. - 1386-1390--Martens, II § 105. - -[Sidenote: Conception and Character of Retorsion.] - -§ 29. Retorsion is the technical term for the retaliation of -discourteous or unkind or unfair and inequitable acts by acts of the -same or a similar kind. Retorsion has nothing to do with international -delinquencies, as it is not a means of compulsion in the case of legal -differences, but only in the case of certain political differences. The -act which calls for retaliation is not an illegal act; on the contrary, -it is an act that is within the competence of the doer.[31] But a State -can commit many legislative, administrative, or judicial acts which, -although they are not internationally illegal, contain a discourtesy or -unfriendliness to another State or are unfair and inequitable. If the -State against which such acts are directed considers itself wronged -thereby, a political difference is created which might be settled by -retorsion. - -[Footnote 31: For this reason--see Heilborn, _System_, p. 352, and -Wagner, _Zur Lehre von den Streiterledigungsmitteln des Völkerrechts_ -(1900), pp. 53-60--it is correctly maintained that retorsion, in -contradistinction to reprisals, is not of legal, but only of political -importance. Nevertheless, a system of the Law of Nations must not omit -the matter of retorsion altogether, because retorsion is in practice an -important means of settling political differences.] - -[Sidenote: Retorsion, when justified.] - -§ 30. The question when retorsion is and when it is not justified is not -one of law, and is difficult to answer. The difficulty arises from the -fact that retorsion is a means of settling such differences as are -created, not by internationally illegal, but by discourteous or -unfriendly or unfair and inequitable acts of one State against another, -and that naturally the conceptions of discourtesy, unfriendliness, and -unfairness cannot be defined very precisely. It depends, therefore, -largely upon the circumstances and conditions of the special cases -whether a State will or will not consider itself justified in making use -of retorsion. In practice States have frequently made use of retorsion -in cases of unfair treatment of their citizens abroad through rigorous -passport regulations, exclusion of foreigners from certain professions, -the levy of exorbitant protectionist or fiscal duties; further, in cases -of refusal of the usual mutual judicial assistance, refusal of -admittance of foreign ships to harbours, and in similar cases. - -[Sidenote: Retorsion, how exercised.] - -§ 31. The essence of retorsion consists in retaliation for a noxious act -by an act of the same kind. But a State in making use of retorsion is by -no means confined to acts of the same kind as those complained of, acts -of a similar kind being equally admissible. However, acts of retorsion -are confined to acts which are not internationally illegal. And, -further, as retorsion is made use of only for the purpose of compelling -a State to alter its discourteous, unfriendly, or unfair behaviour, all -acts of retorsion ought at once to cease when such State changes its -behaviour. - -[Sidenote: Value of Retorsion.] - -§ 32. The value of retorsion as a means of settling certain -international differences consists in its compulsory force, which has -great power in regulating the intercourse of States. It is a commonplace -of human nature, and by experience constantly confirmed, that evil-doers -are checked by retaliation, and that those who are inclined to commit a -wrong against others are often prevented by the fear of it. Through the -high tide of Chauvinism, Protectionism, and unfriendly feelings against -foreign nations, States are often tempted to legislative, -administrative, and judicial acts against other States which, although -not internationally illegal, nevertheless endanger friendly relations -and intercourse within the Family of Nations. The certainty of -retaliation is the only force which can make States resist the -temptation. - - -III - -REPRISALS - - Grotius, III. c. 2--Vattel, II. §§ 342-354--Bynkershoek, - _Quaestiones jur. publ._ I. c. 24--Hall, § 120--Lawrence, §§ - 136-137--Westlake, II. pp. 7-11--Twiss, II. §§ 11-22--Moore, VII. - §§ 1095, 1096-1098--Taylor, §§ 436-437--Wharton, III. §§ - 318-320--Wheaton, §§ 291-293--Bluntschli, §§ 500-504--Heffter, §§ - 111-112--Bulmerincq in Holtzendorff, IV. pp. 72-116--Ullmann, § - 160--Bonfils, Nos. 975-985--Despagnet, Nos. - 487-495--Pradier-Fodéré, VI. Nos. 2637-2647--Rivier, II. § - 60--Nys, III. pp. 84-91--Calvo, III. §§ 1808-1831--Fiore, II. Nos. - 1228-1230, and Code, Nos. 1391-1399--Martens, II. § 105--Lafargue, - _Les représailles en temps de paix_ (1899)--Ducrocq, _Représailles - en temps de paix_ (1901), pp. 5-57, 175-232--Westlake in _The Law - Quarterly Review_, XXV. (1909), pp. 127-137. - -[Sidenote: Conception of Reprisals in contradistinction to Retorsion.] - -§ 33. Reprisals is the term applied to such injurious and otherwise -internationally illegal acts of one State against another as are -exceptionally permitted for the purpose of compelling the latter to -consent to a satisfactory settlement of a difference created by its own -international delinquency. Whereas retorsion consists in retaliation of -discourteous, unfriendly, unfair, and inequitable acts by acts of the -same or a similar kind, and has nothing to do with international -delinquencies, reprisals are acts, otherwise illegal, performed by a -State for the purpose of obtaining justice for an international -delinquency by taking the law into its own hands. It is, of course, -possible that a State retaliates in consequence of an illegal act -committed against itself by the performance of an act of a similar kind. -Such retaliation would be a retorsion in the ordinary sense of the term, -but it would not be retorsion in the technical meaning of the term as -used by those writers on International Law who correctly distinguish -between retorsion and reprisals. - -[Sidenote: Reprisals admissible for all International Delinquencies.] - -§ 34. Reprisals are admissible not only, as some writers[32] maintain, -in case of denial or delay of justice, or of any other internationally -interdicted ill-treatment of foreign citizens, but in every case of an -international delinquency for which the injured State cannot get -reparation through negotiation,[33] be it ill-treatment of its subjects -abroad through denial or delay of justice or otherwise, or be it -non-compliance with treaty obligations, violation of the dignity of a -foreign State, violation of foreign territorial supremacy, or any other -internationally illegal act. - -[Footnote 32: See, for instance, Twiss, II. § 19.] - -[Footnote 33: As regards reprisals for the non-payment of -contract-debts, see below, § 41.] - -Thus, to give an example, Great Britain, in the case of the Sicilian -Sulphur Monopoly, performed acts of reprisal against the Two Sicilies in -1840 for a violation of a treaty. By the treaty of commerce of 1816 -between the Two Sicilies and Great Britain certain commercial advantages -were secured to Great Britain. When, in 1838, the Neapolitan Government -granted a Sulphur Monopoly to a company of French and other foreign -merchants, Great Britain protested against this violation of her treaty -rights, demanded the revocation of the monopoly, and, after the -Neapolitan Government had declined to comply with this demand, laid an -_embargo_ on Sicilian ships in the harbour of Malta and ordered her -fleet in the Mediterranean to seize Sicilian ships by way of reprisal. A -number of vessels were captured, but were restored after the Sicilies -had, through the mediation of France, agreed to withdraw the grant of -the Sulphur Monopoly. - -Again, when in 1908 de Castro, the President of Venezuela, dismissed M. -de Reuss, the Dutch Minister Resident at Caracas, Holland considered -this step a violation of her dignity and sent cruisers into Venezuelan -waters with the intention of resorting to reprisals. These cruisers -captured the Venezuelan coast-guard ship _Alexis_ outside Puerto -Cabello, and another Venezuelan public vessel, both of which, however, -were restored in 1909, when de Castro was deposed, and the new President -opened negotiations with Holland and settled the conflict. - -[Sidenote: Reprisals admissible for International Delinquencies only.] - -§ 35. Reprisals are admissible in the case of international -delinquencies only and exclusively. As internationally injurious -acts on the part of administrative and judicial officials, armed forces, -and private individuals are not _ipso facto_ international -delinquencies, no reprisals are admissible in the case of such -acts if the responsible State complies with the requirements of its -vicarious responsibility.[34] Should, however, a State refuse to comply -with these requirements, its vicarious responsibility would turn into -original responsibility, and thereby an international delinquency would -be created for which reprisals are indeed admissible. - -[Footnote 34: See above, vol. I. §§ 149 and 150.] - -The reprisals ordered by Great Britain in the case of Don Pacifico are -an illustrative example of unjustified reprisals, because no -international delinquency was committed. In 1847 a riotous mob, aided by -Greek soldiers and gendarmes, broke into and plundered the house of Don -Pacifico, a native of Gibraltar and an English subject living at Athens. -Great Britain claimed damages from Greece without previous recourse by -Don Pacifico to the Greek Courts. Greece refused to comply with the -British claim, maintaining correctly that Don Pacifico ought to -institute an action for damages against the rioters before the Greek -Courts. Great Britain continued to press her claim, and finally in 1850 -blockaded the Greek coast and ordered, by way of reprisal, the capture -of Greek vessels. The conflict was eventually settled by Greece paying -£150 to Don Pacifico. It is generally recognised that England had no -right to act as she did in this case. She could have claimed damages -directly from the Greek Government only after the Greek Courts had -denied satisfaction to Don Pacifico.[35] - -[Footnote 35: See above, vol. I. § 167. The case is reported with all -its details in Martens, _Causes Célèbres_, V. pp. 395-531.] - -[Sidenote: Reprisals, by whom performed.] - -§ 36. Acts of reprisal may nowadays be performed only by State organs -such as armed forces, or men-of-war, or administrative officials, in -compliance with a special order of their State. But in former times -private individuals used to perform acts of reprisal. Such private acts -of reprisal seem to have been in vogue in antiquity, for there existed a -law in Athens according to which the relatives of an Athenian murdered -abroad had, in case the foreign State refused punishment or extradition -of the murderer, the right to seize and to bring before the Athenian -Courts three citizens of such foreign State (so-called [Greek: -androlêpsia]). During the Middle Ages, and even in modern times to the -end of the eighteenth century, States used to grant so-called "Letters -of Marque" to such of their subjects as had been injured abroad either -by a foreign State itself or its citizens without being able to get -redress. These Letters of Marque authorised the bearer to acts of -self-help against the State concerned, its citizens and their property, -for the purpose of obtaining satisfaction for the wrong sustained. In -later times, however, States themselves also performed acts of reprisal. -Thereby acts of reprisal on the part of private individuals fell more -and more into disuse, and finally disappeared totally with the end of -the eighteenth century. The distinction between general and special -reprisals, which used formerly to be drawn, is based on the fact that in -former times a State could either authorise a single private individual -to perform an act of reprisal (_special_ reprisals), or command its -armed forces to perform all kinds of such acts (_general_ reprisals). -The term "General Reprisals" is by Great Britain nowadays used for the -authorisation of the British fleet to seize in time of war all enemy -ships and goods. Phillimore (III. § 10) cites the following Order in -Council of March 27, 1854: "Her Majesty having determined to afford -active assistance to her ally, His Highness the Sultan of the Ottoman -Empire, for the protection of his dominions against the encroachments -and unprovoked aggression of His Imperial Majesty the Emperor of All the -Russias, Her Majesty is therefore pleased, by and with the advice of Her -Privy Council, to order, and it is hereby ordered, that general -reprisals be granted against the ships, vessels, and goods of the -Emperor of All the Russias, and of his subjects, or others inhabiting -within any of his countries, territories or dominions, so that Her -Majesty's fleets may lawfully seize all ships, vessels, and goods," &c. - -[Sidenote: Objects of Reprisals.] - -§ 37. An act of reprisal may be performed against anything and -everything that belongs or is due to the delinquent State or its -citizens. Ships sailing under its flag may be seized, treaties concluded -with it may be suspended, a part of its territory may be militarily -occupied, goods belonging to it or to its citizens may be seized, and -the like. Thus in 1895 Great Britain ordered a fleet to land forces at -Corinto and to occupy the custom-house and other Government buildings as -an act of reprisal against Nicaragua; again, in 1901 France ordered a -fleet to seize the island of Mitylene as an act of reprisal against -Turkey; and in 1908 Holland ordered a squadron to seize two public -Venezuelan vessels as an act of reprisal against Venezuela.[36] The -persons of the officials and even of the private citizens of the -delinquent State are not excluded from the possible objects of -reprisals. Thus, when in 1740 the Empress Anne of Russia arrested -without just cause the Baron de Stackelberg, a natural-born Russian -subject, who had, however, become naturalised in Prussia by entering the -latter's service, Frederick II. of Prussia seized by way of reprisal two -Russian subjects and detained them until Stackelberg was liberated. But -it must be emphasised that the only act of reprisal admissible with -regard to foreign officials or citizens is arrest; they must not be -treated like criminals, but like hostages, and under no condition or -circumstance may they be executed or subjected to punishment of any -kind. - -[Footnote 36: See above, § 34.] - -The rule that anything and everything belonging to the delinquent State -may be made the object of reprisals has, however, exceptions; for -instance, individuals enjoying the privilege of exterritoriality while -abroad, such as heads of States and diplomatic envoys, may not be made -the object of reprisals, although this has occasionally been done in -practice.[37] In regard to another exception--namely, public debts of -such State as intends performing reprisals--unanimity does not exist -either in theory or in practice. When Frederick II. of Prussia in 1752, -by way of negative reprisals for an alleged injustice of British Prize -Courts against Prussian subjects, refused the payment of the Silesian -loan due to English creditors, Great Britain, in addition to denying the -question that there was at all a just cause for reprisals, maintained -that public debts may not be made the object of reprisals. English -jurists and others, as, for instance, Vattel (II. § 344), consent to -this, but German writers dissent.[38] - -[Footnote 37: See the case reported in Martens, _Causes Célèbres_, I. p. -35.] - -[Footnote 38: See Phillimore, III. § 22, in contradistinction to -Heffter, § 111, note 5. The case is reported with all its details in -Martens, _Causes Célèbres_, II. pp. 97-168. The dispute was settled in -1756--see below, § 437--through Great Britain paying an indemnity of -£20,000.] - -[Sidenote: Positive and Negative Reprisals.] - -§ 38. Reprisals can be positive or negative. One speaks of positive -reprisals when such acts are performed as would under ordinary -circumstances involve an international delinquency. On the other hand, -negative reprisals consist of refusals to perform such acts as are under -ordinary circumstances obligatory; when, for instance, the fulfilment of -a treaty obligation or the payment of a debt is refused. - -[Sidenote: Reprisals must be proportionate.] - -§ 39. Reprisals, be they positive or negative, must be in proportion to -the wrong done and to the amount of compulsion necessary to get -reparation. For instance, a State would not be justified in arresting by -way of reprisal thousands of foreign subjects living on its territory -whose home State had injured it through a denial of justice to one of -its subjects living abroad. But it would in such case be justified in -ordering its own Courts to deny justice to all subjects of such foreign -State, or in ordering its fleet to seize several vessels sailing under -the latter State's flag, or in suspending its commercial treaty with -such State. - -[Sidenote: Embargo.] - -§ 40. A kind of reprisal, which is called _Embargo_, must be specially -mentioned. This term of Spanish origin means detention, but in -International Law it has the technical meaning of detention of ships in -port. Now, as by way of reprisal all acts, otherwise illegal, may be -performed, there is no doubt that ships of the delinquent State may be -prevented from leaving the ports of the injured State for the purpose of -compelling the delinquent State to make reparation for the wrong -done.[39] - -[Footnote 39: Thus in 1840--see above, § 34--Great Britain laid an -embargo on Sicilian ships.] - -The matter would not need special mention were it not for the fact that -_embargo_ by way of reprisal is to be distinguished from detention of -ships for other reasons. According to a now obsolete[40] rule of -International Law, conflicting States could, when war was breaking out -or impending, lay an _embargo_ on, and appropriate each other's -merchantmen. Another kind of _embargo_ is the so-called _arrêt de -prince_[41]--that is, a detention of foreign ships for the purpose of -preventing them from spreading news of political importance. And there -is, thirdly, an _embargo_ arising out of the so-called _jus -angariæ_--that is, the right of a belligerent State to seize and make -use of neutral property in case of necessity, under the obligation to -compensate the neutral owner of such property. States have in the -past[42] made use of this kind of _embargo_ when they had not enough -ships for the necessary transport of troops, ammunition, and the like. - -[Footnote 40: See, however, below, § 102_a_ and article 1 of Convention -VI., which only stipulates that it is _desirable_ that enemy vessels in -the port of a belligerent at the outbreak of war should be allowed to -depart freely; see also article 2 of Convention VI.] - -[Footnote 41: See Steck, _Versuch über Handels-und Schiffahrts-Verträge_ -(1782), p. 355; Caumont, _Dictionnaire universel de droit maritime_ -(1867), pp. 247-265; Calvo, III. § 1277; Pradier-Fodéré, V. p. 719; -Holtzendorff, IV. pp. 98-104.] - -[Footnote 42: See below, § 364.] - -These kinds of international _embargo_ must not be confounded with the -so-called _civil embargo_ of English Municipal Law[43]--namely, the -order of the Sovereign to English ships not to leave English ports. - -[Footnote 43: See Phillimore, III. § 26.] - -[Sidenote: Reprisals to be preceded by Negotiations and to be stopped -when Reparation is made.] - -§ 41. Like all other compulsive means of settling international -differences, reprisals are admissible only after negotiations have been -conducted in vain for the purpose of obtaining reparation from the -delinquent State. In former times, when States used to authorise private -individuals to perform special reprisals, treaties of commerce and peace -frequently stipulated for a certain period of time, for instance three -or four months, to elapse after an application for redress before the -grant of Letters of Marque by the injured State.[44] Although with the -disappearance of special reprisals this is now antiquated, a reasonable -time for the performance of a reparation must even nowadays be given. On -the other hand, reprisals must at once cease when the delinquent State -makes the necessary reparation. Individuals arrested must be set free, -goods and ships seized must be handed back, occupied territory must be -evacuated, suspended treaties must again be put into force, and the -like. - -[Footnote 44: See Phillimore, III. § 14.] - -It must be specially mentioned that in the case of recovery of contract -debts claimed from the Government of one country by the Government of -another country as being due to its nationals, reprisals by means of -armed forces can, according to article 1 of Convention II., only be -resorted to in case the debtor State refuses to go to arbitration. - -[Sidenote: Reprisals during Peace in contradistinction to Reprisals -during War.] - -§ 42. Reprisals in time of peace must not be confounded with reprisals -between belligerents. Whereas the former are resorted to for the purpose -of settling a conflict without going to war, the latter[45] are -retaliations to force an enemy guilty of a certain act of illegitimate -warfare to comply with the laws of war. - -[Footnote 45: See below, § 247.] - -[Sidenote: Value of Reprisals.] - -§ 43. The value of reprisals as a means of settling international -differences is analogous to the value of retorsion. States will have -recourse to reprisals for such international delinquencies as they think -insufficiently important for a declaration of war, but too important to -be entirely overlooked. That reprisals are rather a rough means for the -settlement of differences, and that the institution of reprisals can -give and has in the past given occasion to abuse in case of a difference -between a powerful and a weak State, cannot be denied. On the other -hand, as there is no Court and no central authority above the Sovereign -States which could compel a delinquent State to give reparation, the -institution of reprisals can scarcely be abolished. The influence in the -future of the existence of a Permanent Court of Arbitration remains to -be seen. If all the States would become parties to the Hague Convention -for the peaceful adjustment of international differences, and if they -would have recourse to the Permanent Court of Arbitration at the Hague -in all cases of an alleged international delinquency which affects -neither their national honour nor their vital interests and -independence, acts of reprisal would almost disappear. - - -IV - -PACIFIC BLOCKADE - - Hall, § 121--Lawrence, § 138--Westlake, II. pp. 11-18--Taylor, § - 444--Moore, VII. § 1097--Bluntschli, §§ 506-507--Heffter, § - 112--Bulmerincq in Holtzendorff, IV. pp. 116-127--Ullmann, § - 162--Bonfils, Nos. 986-994--Despagnet, Nos. - 496-498--Pradier-Fodéré, V. Nos. 2483-2489, VI. No. 2648--Rivier, - II. § 60--Nys, III. pp. 91-94--Calvo, III. §§ 1832-1859--Fiore, - II. No. 1231, and Code, Nos. 1404-1414--Martens, II. 105--Holland, - _Studies_, pp. 151-167--Deane, _The Law of Blockade_ (1870), pp. - 45-48--Fauchille, _Du blocus maritime_ (1882), pp. 37-67--Falcke, - _Die Hauptperioden der sogenannten Friedensblockade_ (1891), and - in the _Zeitschrift für Internationales Recht_, XIX. (1909), pp. - 63-175--Barès, _Le blocus pacifique_ (1898)--Ducrocq, - _Représailles en temps de paix_ (1901), pp. 58-174--Hogan, - _Pacific Blockade_ (1908)--Söderquist, _Le Blocus Maritime_ - (1908)--Staudacher, _Die Friedensblockade_ (1909)--Westlake in - _The Law Quarterly Review_, XXV. (1909), pp. 13-23. - -[Sidenote: Development of practice of Pacific Blockade.] - -§ 44. Before the nineteenth century blockade was only known as a measure -between belligerents in time of war. It was not until the second quarter -of the nineteenth century that the first case occurred of a so-called -pacific blockade--that is, a blockade during time of peace--as a -compulsive means of settling international differences; and all such -cases are either cases of intervention or of reprisals.[46] The first -case, one of intervention, happened in 1827, when, during the Greek -insurrection, Great Britain, France, and Russia intervened in the -interest of the independence of Greece and blockaded those parts of the -Greek coast which were occupied by Turkish troops. Although this -blockade led to the battle of Navarino, in which the Turkish fleet was -destroyed, the Powers maintained, nevertheless, that they were not at -war with Turkey. In 1831, France blockaded the Tagus as an act of -reprisal for the purpose of exacting redress from Portugal for injuries -sustained by French subjects. Great Britain and France, exercising -intervention for the purpose of making Holland consent to the -independence of revolting Belgium, blockaded in 1833 the coast of -Holland. In 1838, France blockaded the ports of Mexico as an act of -reprisal, but Mexico declared war against France in answer to this -pacific blockade. Likewise as an act of reprisal, and in the same year, -France blockaded the ports of Argentina; and in 1845, conjointly with -Great Britain, France blockaded the ports of Argentina a second time. In -1850, in the course of her differences with Greece on account of the -case of Don Pacifico,[47] Great Britain blockaded the Greek ports, but -for Greek vessels only. Another case of intervention was the pacific -blockade instituted in 1860 by Sardinia, in aid of an insurrection -against the then Sicilian ports of Messina and Gaeta, but the following -year saw the conversion of the pacific blockade into a war blockade. In -1862 Great Britain by way of reprisal for the plundering of a wrecked -British merchantman, blockaded the Brazilian port of Rio de Janeiro. The -blockade of the island of Formosa by France during her differences with -China in 1884 and that of the port of Menam by France during her -differences with Siam in 1893 are likewise cases of reprisals. On the -other hand, cases of intervention are the blockade of the Greek coast in -1886 by Great Britain, Austria-Hungary, Germany, Italy, and Russia, for -the purpose of preventing Greece from making war against Turkey; and -further, the blockade of the island of Crete in 1897 by the united -Powers. The last case occurred in 1902, when Great Britain, Germany, -and Italy blockaded, by way of reprisal, the coast of Venezuela.[48] - -[Footnote 46: A blockade instituted by a State against such portions of -its own territory as are in revolt is not a blockade for the purpose of -settling international differences. It has, therefore, in itself nothing -to do with the Law of Nations, but is a matter of internal police. I -cannot, therefore, agree with Holland, who, in his _Studies in -International Law_, p. 138, treats it as a pacific blockade _sensu -generali_. Of course, necessity of self-preservation only can justify a -State that has blockaded one of its own ports in preventing the egress -and ingress of _foreign_ vessels. And the question might arise whether -compensation ought not to be paid for losses sustained by foreign -vessels so detained.] - -[Footnote 47: See above, § 35.] - -[Footnote 48: This blockade, although ostensibly a war blockade for the -purpose of preventing the ingress of foreign vessels, was nevertheless -essentially a pacific blockade. See Holland, in _The Law Quarterly -Review_, XIX. (1903), p. 133; Parliamentary Papers, Venezuela, No. 1 -(Venezuela), Correspondence respecting the Affairs of Venezuela.] - -[Sidenote: Admissibility of Pacific Blockade.] - -§ 45. No unanimity exists among international lawyers with regard to the -question whether or not pacific blockades are admissible according to -the principles of the Law of Nations. There is no doubt that the theory -of the Law of Nations forbids the seizure and sequestration of vessels -other than those of the blockaded State caught in an attempt to break a -pacific blockade. For even those writers who maintain the admissibility -of pacific blockade assert that vessels of third States cannot be -seized. What is controverted is the question whether according to -International Law the coast of a State may be blockaded at all in time -of peace. From the first recorded instance to the last, several -writers[49] of authority have negatived the question. On the other hand, -many writers have answered the question in the affirmative, differing -among themselves regarding the one point only whether or not vessels -sailing under the flag of third States could be prevented from entering -or leaving pacifically blockaded ports. The Institute of International -Law in 1887 carefully studied, and at its meeting in Heidelberg -discussed, the question, and finally voted a declaration[50] in favour -of the admissibility of pacific blockades. Thus the most influential -body of theorists has approved what had been established before by -practice. There ought to be no doubt that the numerous cases of pacific -blockade which have occurred during the nineteenth century have, through -tacit consent of the members of the Family of Nations, established the -admissibility of pacific blockades for the settlement of political as -well as of legal international differences. - -[Footnote 49: The leader of these writers is Hautefeuille, _Des Droits -et des Devoirs des Nations Neutres_ (2nd ed. 1858, pp. 272-288).] - -[Footnote 50: See _Annuaire_, IX. (1887), pp. 275-301.] - -[Sidenote: Pacific Blockade and vessels of third States.] - -§ 46. It has already been stated that those writers who admit the -legality of pacific blockades are unanimous regarding the fact that no -right exists for the blockading State to seize and sequestrate such -ships of third States as try to break a pacific blockade. Apart from -this, no unanimity exists with regard to the question of the relation -between a pacific blockade and ships of third States. Some German -writers[51] maintain that such ships have to respect the blockade, and -that the blockading State has a right to stop such ships of third States -as try to break a pacific blockade. The vast majority of writers, -however, deny such right. There is, in fact, no rule of International -Law which could establish such a right, as pacific in contradistinction -to belligerent blockade is a mere matter between the conflicting -parties. The declaration of the Institute of International Law in favour -of pacific blockade contains, therefore, the condition: "Les navires de -pavillons neutres peuvent entrer librement malgré le blocus." - -[Footnote 51: See Heffter, § 112; Perels, § 30.] - -The practice of pacific blockade has varied with regard to ships of -third States. Before 1850 ships of third States were expected to respect -a pacific blockade, and such ships of these States as tried to break it -were seized, but were restored at the termination of the blockade, yet -without any compensation. When in 1850 Great Britain, and likewise when -in 1886 Great Britain, Austria, Germany, Italy, and Russia blockaded the -Greek ports, these ports were only closed for Greek ships, and others -were allowed to pass through. And the same was the case during the -blockade of Crete in 1897. On the other hand, in 1894, France, during a -conflict with China, blockaded the island of Formosa and tried to -enforce the blockade against ships of third States. But Great Britain -declared that a pacific blockade could not be enforced against ships of -third States, whereupon France had to drop her intended establishment of -a pacific blockade and had to consider herself at war with China. And -when in 1902 Great Britain, Germany, and Italy instituted a blockade -against Venezuela, they declared it a war blockade[52] because they -intended to enforce it against vessels of third States. - -[Footnote 52: That this blockade was essentially a pacific blockade I -have already stated above, p. 50, note 1.] - -[Sidenote: Pacific Blockade and vessels of the blockaded State.] - -§ 47. Theory and practice seem nowadays to agree upon the rule that the -ships of a pacifically blockaded State trying to break the blockade may -be seized and sequestrated. But they may not be condemned and -confiscated, as they have to be restored at the termination of the -blockade. Thus, although the Powers which had instituted a blockade -against Venezuela in 1902 declared it a war blockade, all Venezuelan -public and private ships seized were restored after the blockade was -raised. - -[Sidenote: Manner of Pacific Blockade.] - -§ 48. Pacific blockade is a measure of such enormous consequences that -it can be justified only after the failure of preceding negotiations for -the purpose of settling the questions in dispute. And further, as -blockade, being a violation of the territorial supremacy of the -blockaded State, is _prima facie_ of a hostile character, it is -necessary for such State as intends in time of peace to blockade another -State to notify its intention to the latter and to fix the day and hour -for the establishment of the blockade. And, thirdly, although the -Declaration of Paris of 1856 enacting that a blockade to be binding must -be effective concerns blockades in time of war only, there can be no -doubt that pacific blockades ought to be likewise effective. The -declaration of the Institute of International Law in favour of pacific -blockade contains, therefore, the condition: "Le blocus pacifique doit -être déclaré et notifié officiellement, et maintenu par une force -suffisante." - -[Sidenote: Value of Pacific Blockade.] - -§ 49. As the establishment of a pacific blockade has in various -instances not prevented the outbreak of hostilities, the value of a -pacific blockade as a means of non-hostile settlement of international -differences is doubted and considered uncertain by many writers. But -others agree, and I think they are right, that the institution of -pacific blockade is of great value, be it as an act of reprisal or of -intervention. Every measure which is suitable and calculated to prevent -the outbreak of war must be welcomed, and experience shows that pacific -blockade is, although not universally successful, a measure of this -kind. That it can give, and has in the past given, occasion for abuse in -case of a difference between a strong and a weak Power is no argument -against it, as the same is valid with regard to reprisals and -intervention in general, and even to war. And although it is naturally a -measure which will scarcely be made use of in case of a difference -between two powerful naval States, it might nevertheless find -application with success against a powerful naval State if exercised by -the united navies of several Powers.[53] - -[Footnote 53: The following is the full text of the declaration of the -Institute of International Law referred to above, § 45: - - "L'établissement d'un blocus en dehors de l'état de guerre ne doit - être considéré comme permis par le droit de gens que sous les - conditions suivantes: - - "1. Les navires de pavillon étranger peuvent entrer librement - malgré le blocus. - - "2. Le blocus pacifique doit être déclaré et notifié - officiellement et maintenu par une force suffisante. - - "3. Les navires de la puissance bloquée qui ne respectent pas un - pareil blocus, peuvent être séquestrés. Le blocus ayant cessé, ils - doivent être restitués avec leurs cargaisons à leurs - propriétaires, mais sans dédommagement à aucun titre."] - - -V - -INTERVENTION - - See the literature quoted above in vol. I. at the commencement of - § 134. - -[Sidenote: Intervention in contradistinction to Participation in a -difference.] - -§ 50. Intervention as a means of settling international differences is -only a special kind of intervention in general, which has already been -discussed.[54] It consists in the dictatorial interference of a third -State in a difference between two States for the purpose of settling the -difference in the way demanded by the intervening State. This -dictatorial interference takes place for the purpose of exercising a -compulsion upon one or both of the parties in conflict, and must be -distinguished from such attitude of a State as makes it a party to the -very conflict. If two States are in conflict and a third State joins one -of them out of friendship or from any other motive, such third State -does not exercise an intervention as a means of settling international -differences, but becomes a party to the conflict. If, for instance, an -alliance exists between one of two States in conflict and a third, and -if eventually, as war has broken out in consequence of the conflict, -such third State comes to the help of its ally, no intervention in the -technical sense of the term takes place. A State intervening in a -dispute between two other States does not become a party to their -dispute, but is the author of a new imbroglio, because such third State -dictatorially requests those other States to settle their difference in -a way to which both, or at any rate one of them, objects. An -intervention, for instance, takes place when, although two States in -conflict have made up their minds to fight it out in war, a third State -dictatorially requests them to settle their dispute through arbitration. - -[Footnote 54: See above, vol. I. §§ 134-138.] - -Intervention, in the form of dictatorial interference, must, further, be -distinguished from such efforts of a State as are directed to induce the -States in conflict to settle their difference amicably by proffering its -good offices or mediation, or by giving friendly advice. It is, -therefore, incorrect when some jurists[55] speak of good offices and the -like as an "amicable" in contradistinction to a "hostile" intervention. - -[Footnote 55: Thus, for instance, Rivier, II. § 58. See also above, vol. -I. § 134.] - -[Sidenote: Mode of Intervention.] - -§ 51. Intervention in a difference between two States is exercised -through a communication of the intervening State to one or both of the -conflicting States with a dictatorial request for the settlement of the -conflict in a certain way, for instance by arbitration or by the -acceptance of certain terms. An intervention can take place either on -the part of one State alone or of several States collectively. If the -parties comply with the request of the intervening State or States, the -intervention is terminated. If, however, one or both of the parties fail -to comply with the request, the intervening State will either withdraw -its intervention or proceed to the performance of acts more stringent -than a mere request, such as pacific blockade, military occupation, and -the like. Even war can be declared for the purpose of an intervention. -Of special importance are the collective interventions exercised by -several great Powers in the interest of the balance of power and of -humanity.[56] - -[Footnote 56: See above, vol. I. §§ 136 and 137.] - -[Sidenote: Time of Intervention.] - -§ 52. An intervention in a difference between two States can take place -at any time from the moment a conflict arises till the moment it is -settled, and even immediately after the settlement. In many cases -interventions have taken place before the outbreak of war between two -States for the purpose of preventing war; in other cases third States -have intervened during a war which had broken out in consequence of a -conflict. Interventions have, further, taken place immediately after the -peaceable settlement of a difference, or after the termination of war by -a treaty of peace or by conquest, on the grounds that the conditions of -the settlement or the treaty of peace were against the interests of the -intervening State, or because the latter would not consent to the -annexation of the conquered State by the victor.[57] - -[Footnote 57: With regard to the question of the right of intervention, -the admissibility of intervention in default of a right, and to all -other details concerning intervention, the reader must be referred -above, vol. I. §§ 135-138.] - - - - -PART II - -WAR - - - - -CHAPTER I - -ON WAR IN GENERAL - - -I - -CHARACTERISTICS OF WAR - - Grotius, I. c. 1, § 2--Vattel, III. §§ 1-4, 69-72--Hall, §§ - 15-18--Westlake, II. pp. 1-6--Lawrence, § 135--Lorimer, II. pp. - 18-28--Manning, pp. 131-133--Phillimore, III. § 49--Twiss, II. §§ - 22-29--Taylor, §§ 449-451--Wheaton, § 295--Bluntschli, §§ - 510-514--Heffter, §§ 113-114--Lueder in Holtzendorff, IV. pp. - 175-198--Klüber, §§ 235-237--G. F. Martens, II. § 263--Ullmann, § - 165--Bonfils, Nos. 1000-1001--Despagnet, Nos. - 499-505--Pradier-Fodéré, VI. Nos. 2650-2660--Rivier, II. § - 61--Nys, III. pp. 95-117--Calvo, IV. §§ 1860-1864--Fiore, III. - Nos. 1232-1268--Martens, II. § 106--Westlake, _Chapters_, pp. - 258-264--Heilborn, _System_, pp. 321-332--Rettich, _Zur Theorie - und Geschichte des Rechts zum Kriege_ (1888), pp. 3-140--Wiesse, - _Le Droit international appliqué aux guerres civiles_ - (1898)--Rougier, _Les guerres civiles et le droit des gens_ - (1903)--Higgins, _War and the Private Citizen_ (1912), pp. 3-72. - -[Sidenote: War no illegality.] - -§ 53. As within the boundaries of the modern State an armed contention -between two or more citizens is illegal, public opinion has become -convinced that armed contests between citizens are inconsistent with -Municipal Law. Influenced by this fact, impatient pacifists, as well as -those innumerable individuals who cannot grasp the idea of a law between -Sovereign States, frequently consider war and law inconsistent. They -quote the fact that wars are frequently waged by States as a proof -against the very existence of an International Law. It is not difficult -to show the absurdity of this opinion. As States are Sovereign, and as -consequently no central authority can exist above them able to enforce -compliance with its demands, war cannot, under the existing conditions -and circumstances of the Family of Nations, always be avoided. -International Law recognises this fact, but at the same time provides -regulations with which belligerents have to comply. Although with the -outbreak of war peaceable relations between the belligerents cease, -there remain certain mutual legal obligations and duties. Thus war is -not inconsistent with, but a condition regulated by, International Law. -The latter at present cannot and does not object to States which are in -conflict waging war upon each other instead of peaceably settling their -difference. But if they choose to go to war they have to comply with the -rules laid down by International Law regarding the conduct of war and -the relations between belligerents and neutral States. That -International Law, if it could forbid war altogether, would be a more -perfect law than it is at present there is no doubt. Yet eternal peace -is an impossibility in the conditions and circumstances under which -mankind at present live and will have to live for a long time to come, -although eternal peace is certainly an ideal of civilisation which will -slowly and gradually be realised. - -[Sidenote: Conception of War.] - -§ 54. War is the contention between two or more States through their -armed forces for the purpose of overpowering each other and imposing -such conditions of peace as the victor pleases. War is a fact -recognised, and with regard to many points regulated, but not -established, by International Law. Those writers[58] who define war as -the legal remedy of self-help to obtain satisfaction for a wrong -sustained from another State, forget that wars have often been waged by -both parties engaged for political reasons only; they confound a -possible but not at all necessary cause of war with the conception of -war. A State may be driven into war because it cannot otherwise get -reparation for an international delinquency, and such State may then -maintain that it exercises by war nothing else than legally recognised -self-help. But when States are driven into or deliberately wage war for -political reasons, no legally recognised act of self-help is in such -case performed by the war. And the same laws of war are valid, whether -wars are waged on account of legal or of political differences. - -[Footnote 58: See, for instance, Vattel, III. § 1; Phillimore, III. § -49; Twiss, II. § 26; Bluntschli, § 510; Bulmerincq, § 92.] - -[Sidenote: War a contention.] - -§ 55. In any case, it is universally recognised that war is a -_contention_, which means, _a violent struggle through the application -of armed force_. For a war to be in existence, two or more States must -actually have their armed forces fighting against each other, although -the commencement of a war may date back to its declaration or some other -unilateral initiative act. Unilateral acts of force performed by one -State against another without a previous declaration of war may be a -cause of the outbreak of war, but are not war in themselves, as long as -they are not answered by similar hostile acts by the other side, or at -least by a declaration of the other side that it considers the -particular acts as acts of war. Thus it comes about that acts of force -performed by one State against another by way of reprisal or during a -pacific blockade in the case of an intervention are not necessarily -initiative acts of war. And even acts of force illegally performed by -one State against another, such, for instance, as occupation of a part -of its territory, are not acts of war so long as they are not met with -acts of force from the other side, or at least with a declaration from -the latter that it considers the particular acts as acts of war. Thus, -when Louis XIV. of France, after the Peace of Nimeguen, instituted the -so-called Chambers of Reunion and in 1680 and 1681 seized the territory -of the then Free Town of Strassburg and other parts of the German -Empire without the latter's offering armed resistance, these acts of -force, although doubtless illegal, were not acts of war. - -[Sidenote: War a contention between States.] - -§ 56. To be considered war, the contention must be going on _between -States_. In the Middle Ages wars were known between private individuals, -so-called private wars, and wars between corporations, as the Hansa for -instance, and between States. But such wars have totally disappeared in -modern times. It may, of course, happen that a contention arises between -the armed forces of a State and a body of armed individuals, but such -contention[59] is not war. Thus the contention between the Raiders under -Dr. Jameson and the former South African Republic in January 1896 was -not war. Nor is a contention with insurgents or with pirates a war. And -a so-called civil war[60] need not be from the beginning nor become at -all a war in the technical sense of the term according to International -Law. On the other hand, to an armed contention between a suzerain and -its vassal[61] State the character of war ought not to be denied, for -both parties are States, although the fact that the vassal makes war -against the suzerain may, from the standpoint of Constitutional Law, be -considered rebellion. And likewise an armed contention between a full -Sovereign State and a State under the suzerainty of another State, as, -for instance, the contention between Servia and Bulgaria[62] in 1885, is -war. Again, an armed contention between one or more member-States of a -Federal State and the latter ought to be considered as war in the -technical sense of the term, according to International Law, although, -according to the constitution of Federal States, war between the -member-States as well as between any member-State and the Federal State -itself is illegal, and recourse to arms by a member-State may therefore -correctly, from the standpoint of the constitution, be called rebellion. -Thus the War of Secession within the United States between the Northern -and the Southern member-States in 1861-1865 was real war. - -[Footnote 59: Some publicists maintain, however, that a contention -between a State and the armed forces of a party fighting for public -rights must be considered as war. See, for instance, Bluntschli, § 113, -and Fiore, III. § 1265.] - -[Footnote 60: See below, § 59.] - -[Footnote 61: See below, § 75.] - -[Footnote 62: Bulgaria was at that time still a vassal State under -Turkish suzerainty.] - -[Sidenote: War a contention between States through armed forces.] - -§ 57. It must be emphasised that war nowadays is a contention of States -_through their armed forces_. Those private subjects of the belligerents -who do not directly or indirectly belong to the armed forces do not take -part in the armed contention: they do not attack and defend, and no -attack is therefore made upon them. This fact is the result of an -evolution of practices totally different from those in vogue in former -times. During antiquity and the greater part of the Middle Ages war was -a contention between the whole of the populations of the belligerent -States. In time of war every subject of one belligerent, whether an -armed and fighting individual or not, whether man or woman, adult or -infant, could be killed or enslaved by the other belligerent at will. -But gradually a milder and more discriminative practice grew up, and -nowadays the life and liberty of such private subjects of belligerents -as do not directly or indirectly belong to their armed forces are safe, -as is also, with certain exceptions, their private property. - -This is a generally admitted fact. But opinions disagree as to the -general position of such private subjects in time of war. The majority -of the European continental writers for the last three generations have -propagated the doctrine that no relation of enmity exists between -belligerents and such private subjects, or between the private subjects -of the respective belligerents. This doctrine goes back to Rousseau, -_Contrat Social_, I. c. 4. In 1801, on the occasion of the opening of -the French Prize Court, the famous lawyer and statesman Portalis adopted -Rousseau's[63] doctrine by declaring that war is a relation between -States and not between individuals, and that consequently the subjects -of the belligerents are only enemies as soldiers, not as citizens. And -although this new doctrine did not, as Hall (§ 18) shows, spread at -once, it has since the second half of the nineteenth century been -proclaimed on the European continent by the majority of writers. British -and American-English writers, however, have never adopted this doctrine, -but have always maintained that the relation of enmity between the -belligerents extends also to their private citizens. - -[Footnote 63: See Lassudrie-Duchêne, _Jean Jacques Rousseau et le droit -des gens_ (1906).] - -I think, if the facts of war are taken into consideration without -prejudice, there ought to be no doubt that the British and American view -is correct.[64] It is impossible to sever the citizens from their State, -and the outbreak of war between two States cannot but make their -citizens enemies. But the point is unworthy of dispute, because it is -only one of terms without any material consequences.[65] For, apart from -the terminology, the parties agree in substance upon the rules of the -Law of Nations regarding such private subjects as do not directly or -indirectly belong to the armed forces.[66] Nobody doubts that such -private individuals are safe as regards their life and liberty, provided -they behave peacefully and loyally; and that, with certain exceptions, -their private property must not be touched. On the other hand, nobody -doubts that, according to a generally recognised custom of modern -warfare, the belligerent who has occupied a part or the whole of his -opponent's territory, and who treats such private individuals leniently -according to the rules of International Law, may punish them for any -hostile act, since they do not enjoy the privileges of members of armed -forces. Although, on the one hand, International Law by no means -forbids, and, as a law between States, is not competent to forbid, -private individuals to take up arms against an enemy, it gives, on the -other hand, the right to the enemy to treat hostilities committed by -private[67] individuals as acts of illegitimate warfare. A belligerent -is under a duty to respect the life and liberty of private enemy -individuals, but he can carry out this duty under the condition only -that these private individuals abstain from hostilities against himself. -Through military occupation in war such private individuals fall under -the authority[68] of the occupant, and he may therefore demand that they -comply with his orders regarding the safety of his forces. The position -of private enemy individuals is made known to them through the -proclamations which the commander-in-chief of an army occupying the -territory usually publishes. Thus General Sir Redvers Buller, when -entering the territory of the South African Republic in 1900, published -the following proclamation: - -"The troops of Queen Victoria are now passing through the Transvaal. Her -Majesty does not make war on individuals, but is, on the contrary, -anxious to spare them as far as may be possible the horrors of war. The -quarrel England has is with the Government, not with the people, of the -Transvaal. Provided they remain neutral, no attempt will be made to -interfere with persons living near the line of march; every possible -protection will be given them, and any of their property that it may be -necessary to take will be paid for. But, on the other hand, those who -are thus allowed to remain near the line of march must respect and -maintain their neutrality, and the residents of any locality will be -held responsible, both in their persons and property, if any damage is -done to railway or telegraph, or any violence done to any member of the -British forces in the vicinity of their home." - -[Footnote 64: See Boidin, pp. 32-44.] - -[Footnote 65: But many continental writers constantly make use of -Rousseau's _dictum_ in order to defend untenable positions. See -Oppenheim, _Die Zukunft des Völkerrechts_ (1911), pp. 59-61.] - -[Footnote 66: See Breton, _Les non-belligérants: Leurs devoirs, leurs -droits, et la question des otages_ (1904).] - -[Footnote 67: See below, § 254.] - -[Footnote 68: The first edition of this work was wrong in stating that -through military occupation private enemy individuals fall under the -_territorial supremacy_ of the occupant. Since military occupation by no -means vests sovereignty in the occupant, but only actual authority, this -authority may not be called _territorial supremacy_.] - -It must be emphasised that this position of private individuals of the -hostile States renders it inevitable that commanders of armies which -have occupied hostile territory should consider and mark as criminals -all such private individuals of the enemy as commit hostile acts, -although such individuals may act from patriotic motives and may be -highly praised for their acts by their compatriots. The high-sounding -and well-meant words of Baron Lambermont, one of the Belgian delegates -at the Conference of Brussels of 1874--"Il y a des choses qui se font à -la guerre, qui se feront toujours, et que l'on doit bien accepter. Mais -il s'agit ici de les convertir en lois, en prescriptions positives et -internationales. Si les citoyens doivent être conduits au supplice pour -avoir tenté de défendre leur pays au péril de leur vie, il ne faut pas -qu'ils trouvent inscrits sur le poteau au pied duquel ils seront fusilés -l'article d'un traité signé par leur propre gouvernement qui d'avance -les condamnait à mort"--have no _raison d'être_ in face of the fact that -according to a generally recognised customary rule of International Law -hostile acts on the part of private individuals are not acts of -legitimate warfare, and the offenders may be treated and punished as -war-criminals. Even those writers[69] who object to the term "criminals" -do not deny that such hostile acts by private individuals, in -contradistinction to hostile acts by members of the armed forces, may be -severely punished. The controversy whether or not such acts may be -styled "crimes" is again only one of terminology; materially the rule is -not at all controverted.[70] - -[Footnote 69: See, for instance, Hall, § 18, p. 74, and Westlake, -_Chapters_, p. 262.] - -[Footnote 70: It is of value to quote articles 20-26 of the -_Instructions for the Government of Armies of the United States in the -Field_, which the War Department of the United States published in 1863 -during the War of Secession with the Southern member-States: - -(20) "Public war is a state of armed hostility between sovereign nations -or governments. It is a law and requisite of civil existence that men -live in political, continuous societies, forming organised units, called -States or nations, whose constituents bear, enjoy, and suffer, advance -and retrograde together, in peace and in war." - -(21) "The citizen or native of a hostile country is thus an enemy as one -of the constituents of the hostile State or nation, and as such is -subjected to the hardships of war." - -(22) "Nevertheless, as civilisation has advanced during the last -centuries, so has likewise advanced, especially in war on land, the -distinction between the private individual belonging to a hostile -country and the hostile country itself, with its men in arms. The -principle has been more and more acknowledged that the unarmed citizen -is to be spared in person, property, and honour as much as the -exigencies of war will admit." - -(23) "Private citizens are no longer murdered, enslaved, or carried off -to distant parts, and the inoffensive individual is as little disturbed -in his private relations as the commander of the hostile troops can -afford to grant in the overruling demands of a vigorous war." - -(24) "The almost universal rule in remote times was ... that the private -individual of the hostile country is destined to suffer every privation -of liberty and protection and every disruption of family ties. -Protection was ... the exception." - -(25) "In modern regular wars ... protection of the inoffensive citizens -of the hostile country is the rule; privation and disturbance of private -relations are the exceptions." - -(26) "Commanding generals may cause the magistrates and civil officers -of the hostile country to take the oath of temporary allegiance or an -oath of fidelity to their own victorious Government or rulers, and they -may expel every one who declines to do so. But, whether they do so or -not, the people and their civil officers owe strict obedience to them as -long as they hold sway over the district or country, at the peril of -their lives."] - -[Sidenote: War a contention between States for the purpose of -overpowering each other.] - -§ 58. The last, and not the least important, characteristic of war is -its purpose. It is a contention between States for the purpose of -overpowering each other. This purpose of war is not to be confounded -with the ends[71] of war, for, whatever the ends of war may be, they can -only be realised by one belligerent overpowering the other. Such a -defeat as compels the vanquished to comply with any demand the victor -may choose to make is the purpose of war. Therefore war calls into -existence the display of the greatest possible power and force on the -part of the belligerents, rouses the passion of the nations in conflict -to the highest possible degree, and endangers the welfare, the honour, -and eventually the very existence of both belligerents. Nobody can -predict with certainty the result of a war however insignificant one -side may seem to be. Every war is a risk and a venture. Every State -which goes to war knows beforehand what is at stake, and it would never -go to war were it not for its firm, though very often illusory, -conviction of its superiority in strength over its opponent. Victory is -necessary in order to overpower the enemy; and it is this necessity -which justifies all the indescribable horrors of war, the enormous -sacrifice of human life and health, and the unavoidable destruction of -property and devastation of territory. Apart from special restrictions -imposed by the Law of Nations upon belligerents, all kinds and all -degrees of force may be, and eventually must be, made use of in war in -the interest and under the compulsion of its purpose, and in spite of -their cruelty and the utter misery they entail. As war is a struggle for -existence between States, no amount of individual suffering and misery -can be regarded; the national existence and independence of the -struggling State is a higher consideration than any individual -well-being. - -[Footnote 71: See below, § 66.] - -[Sidenote: Civil War.] - -§ 59. The characteristics of war as developed above must help to decide -the question whether so-called civil wars are war in the technical -meaning of the term. It has already been stated above (in § 56) that an -armed contention between member-States of a Federal State and the latter -and between a suzerain and its vassal ought to be considered as war -because both parties are real States, although the Federal State as well -as the suzerain may correctly designate it as a rebellion. Such armed -contentions may be called civil wars in a wider sense of the term. In -the proper sense of the term a civil war exists when two opposing -parties within a State have recourse to arms for the purpose of -obtaining power in the State, or when a large portion of the population -of a State rises in arms against the legitimate Government. As war is an -armed contention between _States_, such a civil war need not be from the -beginning, nor become at all, war in the technical sense of the term. -But it may become war through the recognition of each of the contending -parties or of the insurgents as the case may be, as a belligerent -Power.[72] Through this recognition a body of individuals receives an -international position in so far as it is for some parts and in some -points treated as though it were a subject[73] of International Law. -Such recognition may be granted by the very State within the boundaries -of which the civil war broke out, and then other States will in most -cases, although they need not, likewise recognise a state of war as -existing and bear the duties of neutrality. But it may happen that other -States recognise insurgents as a belligerent Power before the State on -whose territory the insurrection broke out so recognises them. In such -case the insurrection is war in the eyes of these other States, but not -in the eyes of the legitimate Government.[74] Be that as it may, it must -be specially observed that, although a civil war becomes war in the -technical sense of the term by recognition, this recognition has a -lasting effect only when the insurgents succeed in getting their -independence established through the defeat of the legitimate Government -and a consequent treaty of peace which recognises their independence. -Nothing, however, prevents the State concerned, after the defeat of the -insurgents and reconquest of the territory which they had occupied, from -treating them as rebels according to the Criminal Law of the land, for -the character of a belligerent Power received through recognition is -lost _ipso facto_ by their defeat and the re-occupation by the -legitimate Government of the territory occupied by them. - -[Footnote 72: See below, §§ 76 and 298.] - -[Footnote 73: See above, vol. I. § 63.] - -[Footnote 74: See below, § 298.] - -[Sidenote: Guerilla War.] - -§ 60. The characteristics of war as developed above are also decisive -for the answer to the question whether so-called guerilla war is real -war in the technical sense of the term. Such guerilla war must not be -confounded with guerilla tactics during a war. It happens during war -that the commanders send small bodies of soldiers wearing their uniform -to the rear of the enemy for the purpose of destroying bridges and -railways, cutting off communications and supplies, attacking convoys, -intercepting despatches, and the like. This is in every way legal, and -the members of such bodies, when captured, enjoy the treatment due to -enemy soldiers. It happens, further, that hitherto private individuals -who did not take part in the armed contention take up arms and devote -themselves mainly to similar tactics. According to the former rules of -International Law such individuals, when captured, under no condition -enjoyed the treatment due to enemy soldiers, but could be treated as -criminals and punished with death. According to article 1 of the -Regulations concerning war on land adopted by the Hague Conferences of -1899 and 1907 such guerilla fighters enjoy the treatment of soldiers -under the four conditions that they (1) do not act individually, but -form a body commanded by a person responsible for his subordinates, (2) -have a fixed distinctive emblem recognisable at a distance, (3) carry -arms openly, and (4) conduct their operations in accordance with the -laws of war.[75] - -[Footnote 75: See also article 2 of the Hague Regulations.] - -On the other hand, one speaks of guerilla war or petty war when, after -the defeat and the capture of the main part of the enemy forces, the -occupation of the enemy territory, and the downfall of the enemy -Government, the routed remnants of the defeated army carry on the -contention by mere guerilla tactics. Although hopeless of success in the -end, such petty war can go on for a long time thus preventing the -establishment of a state of peace in spite of the fact that regular war -is over and the task of the army of occupation is no longer regular -warfare. Now the question whether such guerilla war is real war in the -strict sense of the term in International Law must, I think, be answered -in the negative, for two reasons. First, there are no longer the forces -of two States in the field, because the defeated belligerent State has -ceased to exist through the military occupation of its territory, the -downfall of its established Government, the capture of the main part and -the routing of the remnant of its forces. And, secondly, there is no -longer in progress a contention between armed forces. For although the -guerilla bands are still fighting when attacked, or when attacking small -bodies of enemy soldiers, they try to avoid a pitched battle, and -content themselves with the constant harassing of the victorious army, -the destroying of bridges and railways, cutting off communications and -supplies, attacking convoys, and the like, always in the hope that some -event or events may occur which will induce the victorious army to -withdraw from the conquered territory. But if guerilla war is not real -war, it is obvious that in strict law the victor need no longer treat -the guerilla bands as a belligerent Power and the captured members of -those bands as soldiers. It is, however, not advisable that the victor -should cease such treatment as long as those bands are under responsible -commanders and observe themselves the laws and usages of war. For I can -see no advantage or reason why, although in strict law it could be done, -those bands should be treated as criminals. Such treatment would only -call for acts of revenge on their part, without in the least -accelerating the pacification of the country. And it is, after all, to -be taken into consideration that those bands act not out of criminal but -patriotic motives. With patience and firmness the victor will succeed in -pacifying these bands without recourse to methods of harshness. - - -II - -CAUSES, KINDS, AND ENDS OF WAR - - Grotius, I. c. 3; II. c. 1; III. c. 3--Pufendorf, VIII. c. 6, § - 9--Vattel, III. §§ 2, 5, 24-50, 183-187--Lorimer, II. pp. - 29-48--Phillimore, III. §§ 33-48--Twiss, II. §§ 26-30--Halleck, I. - pp. 488-519--Taylor, §§ 452-454--Wheaton, §§ 295-296--Bluntschli, - §§ 515-521--Heffter, § 113--Lueder in Holtzendorff, IV. pp. - 221-236--Klüber, §§ 41, 235, 237--G. F. Martens, §§ - 265-266--Ullmann, § 166--Bonfils, Nos. 1002-1005--Despagnet, No. - 506--Pradier-Fodéré, VI. Nos. 2661-2670--Rivier, II. p. 219--Nys, - III. pp. 106-114--Calvo, IV. §§ 1866-1896--Fichte, _Ueber den - Begriff des wahrhaften Krieges_ (1815)--Rettich, _Zur Theorie und - Geschichte des Rechts zum Kriege_ (1888), pp. 141-292--Peyronnard, - _Des causes de la guerre_ (1901). - -[Sidenote: Rules of Warfare independent of Causes of War.] - -§ 61. Whatever may be the cause of a war that has broken out, and -whether or no the cause be a so-called just cause, the same rules of -International Law are valid as to what must not be done, may be done, -and must be done by the belligerents themselves in making war against -each other, and as between the belligerents and neutral States. This -being the case, the question as to the causes of war is of minor -importance for the Law of Nations, although not for international -ethics. The matter need not be discussed at all in a treatise on -International Law were it not for the fact that many writers maintain -that there are rules of International Law in existence which determine -and define just causes of war. It must, however, be emphasised that this -is by no means the case. All such rules laid down by writers on -International Law as recognise certain causes as just and others as -unjust are rules of writers, but not rules of International Law based on -international custom or international treaties. - -[Sidenote: Causes of War.] - -§ 62. The causes of war are innumerable. They are involved in the fact -that the development of mankind is indissolubly connected with the -national development of States. The millions of individuals who as a -body are called mankind do not face one another individually and -severally, but in groups as races, nations, and States. With the welfare -of the races, nations, and States to which they belong the welfare of -individuals is more or less identified. And it is the development of -races, nations, and States that carries with it the causes of war. A -constant increase of population must in the end force upon a State the -necessity of acquiring more territory, and if such territory cannot be -acquired by peaceable means, acquisition by conquest alone remains. At -certain periods of history the principle of nationality and the desire -for national unity gain such a power over the hearts and minds of the -individuals belonging to the same race or nation, but living within the -boundaries of several different States, that wars break out for the -cause of national unity and independence. And jealous rivalry between -two or more States, the awakening of national ambition, the craving for -rich colonies, the desire of a land-locked State for a sea coast, the -endeavour of a hitherto minor State to become a world-Power, the -ambition of dynasties or of great politicians to extend and enlarge -their influence beyond the boundaries of their own State, and -innumerable other factors, have been at work ever since history was -first recorded in creating causes of war, and these factors likewise -play their part in our own times. Although one must hope that the time -will come when war will entirely disappear, there is no possibility of -seeing this hope realised in the near future. The first necessities of -the disappearance of war are that the surface of the earth should be -shared between States of the same standard of civilisation, and that the -moral ideas of the governing classes in all the States of the world -should undergo such an alteration and progressive development as would -create the conviction that decisions of international courts of justice -and awards of arbitrators are alone adequate means for the settlement of -international disputes and international political aims. So long as -these first necessities are not realised, war will as heretofore remain -the _ultima ratio_ of international politics. - -[Sidenote: Just Causes of War.] - -§ 63. However this may be, it often depends largely upon the standpoint -from which they are viewed whether or no causes of war are to be called -just causes. A war may be just or unjust from the standpoint of both -belligerents, or just from the standpoint of one and utterly unjust from -the standpoint of the other. The assertion that whereas all wars waged -for political causes are unjust, all wars waged for international -delinquencies are just, if there be no other way of getting reparation -and satisfaction, is certainly incorrect because too sweeping. The evils -of war are so great that, even when caused by an international -delinquency,[76] war cannot be justified if the delinquency be -comparatively unimportant and trifling. And, on the other hand, under -certain circumstances and conditions many political causes of war may -correctly be called just causes. Only such individuals as lack insight -into history and human nature can, for instance, defend the opinion that -a war is unjust which has been caused by the desire for national unity -or by the desire to maintain the balance of power which under the -present conditions and circumstances is the basis of all International -Law. Necessity for a war implies its justification, whatever may be the -cause. In the past many wars have undoubtedly been waged which were -unjust from whatever standpoint they may be viewed. Yet the number of -wars diminishes gradually every year, and the majority of the European -wars since the downfall of Napoleon I. were wars that were, from the -standpoint of at any rate one of the belligerents, necessary and -therefore just wars. - -[Footnote 76: See above, vol. I. §§ 151-156.] - -[Sidenote: Causes in contradistinction to Pretexts for War.] - -§ 64. Be that as it may, causes of war must not be confounded with -pretexts for war. A State which makes war against another will never -confess that there is no just cause for war, and it will therefore, when -it has made up its mind to make war for political reasons, always look -out for a so-called just cause. Thus frequently the apparent reason of a -war is only a pretext behind which the real cause is concealed. If two -States are convinced that war between them is inevitable, and if -consequently they face each other armed to the teeth, they will find at -the suitable time many a so-called just cause plausible and calculated -to serve as a pretext for the outbreak of the war which was planned and -resolved upon long ago. The skill of politics and diplomacy are nowhere -more needed than on the occasion of a State's conviction that it must go -to war for one reason or another. Public opinion at home and abroad is -often not ripe to appreciate the reason and not prepared for the scheme -of the leading politicians, whose task it is to realise their plans with -the aid of pretexts which appear as the cause of war, whereas the real -cause does not become apparent for some time. - -[Sidenote: Different kinds of War.] - -§ 65. Such writers on International Law as lay great stress upon the -causes of war in general and upon the distinction between just causes -and others, also lay great stress upon the distinction between different -kinds of war. But as the rules of the Law of Nations are the same[77] -for the different kinds of war that may be distinguished, this -distinction is in most cases of no importance. Apart from that, there is -no unanimity respecting the kinds of war, and it is apparent that, just -as the causes of war are innumerable, so innumerable kinds of war can be -distinguished. Thus one speaks of offensive and defensive, or religious, -political, dynastic, national, civil wars; of wars of unity, -independence, conquest, intervention, revenge, and of many other kinds. -As the very name which each different kind of war bears always explains -its character no further details are necessary respecting kinds of war. - -[Footnote 77: See above, § 61.] - -[Sidenote: Ends of War.] - -§ 66. The cause or causes of a war determine at its inception the ends -of such war. The ends of war must not be confounded with the purpose of -war.[78] Whereas the purpose of war is always the same--namely, the -overpowering and utter defeat of the opponent--the ends of war may be -different in each case. Ends of war are those objects for the -realisation of which a war is made.[79] In the beginning of the war its -ends are determined by its cause or causes, as already said. But these -ends may undergo alteration, or at least modification, with the progress -and development of the war. No moral or legal duty exists for a -belligerent to stop the war when his opponent is ready to concede the -object for which war was made. If war has once broken out the very -national existence of the belligerents is more or less at stake. The -risk the belligerents run, the exertion they make, the blood and wealth -they sacrifice, the reputation they gain or lose through the changing -fortune and chances of war--all these and many other factors work or may -work together to influence the ends of a war so that eventually there is -scarcely any longer a relation between them and the causes of the war. -If war really were, as some writers maintain,[80] the legal remedy of -self-help to obtain satisfaction for a wrong sustained from another -State, no such alteration of the ends of war could take place without at -once setting in the wrong such belligerent as changes the ends for which -the war was initiated. But history shows that nothing of the kind is -really the case, and the existing rules of International Law by no means -forbid such alteration or modification of the ends of a war. This -alteration or modification of the ends is the result of an alteration or -modification of circumstances created during the progress of war through -the factors previously mentioned; it could not be otherwise, and there -is no moral, legal, or political reason why it should be otherwise. And -the natural jealousy between the members of the Family of Nations, their -conflicting interests in many points, and the necessity of a balance of -power, are factors of sufficient strength to check the political dangers -which such alteration of the ends of a war may eventually involve. - -[Footnote 78: Ends of war must likewise not be confounded with aims of -land and sea warfare; see below, §§ 103 and 173.] - -[Footnote 79: See Bluntschli, § 536; Lueder in Holtzendorff, IV. p. 364; -Rivier, II. p. 219.] - -[Footnote 80: See above, § 54.] - - -III - -THE LAWS OF WAR - - Hall, § 17--Westlake, _Chapters_, pp. 232-235--Maine, pp. - 122-159--Phillimore, III. § 50--Taylor, § 470--Walker, _History_, - I. §§ 106-108--Heffter, § 119--Lueder in Holtzendorff, IV. pp. - 253-333--Ullmann, §§ 167 and 170--Bonfils, Nos. - 1006-1013--Despagnet, Nos. 508-510--Pradier-Fodéré, VIII. Nos. - 3212-3213--Rivier, II. pp. 238-242--Nys, III. pp. 160-164--Calvo, - IV. §§ 1897-1898--Fiore, III. Nos. 1244-1260--Martens, II. § - 107--Longuet, p. 12--Bordwell, pp. 100-196--Spaight, pp. - 1-19--_Kriegsbrauch_, p. 2--_Land Warfare_, §§ 1-7--Holland, - _Studies_, pp. 40-96. - -[Sidenote: Origin of the Laws of War.] - -§ 67. Laws of War are the rules of the Law of Nations respecting -warfare. The roots of the present Laws of War are to be traced back to -practices of belligerents which arose and grew gradually during the -latter part of the Middle Ages. The unsparing cruelty of the war -practices during the greater part of the Middle Ages began gradually to -be modified through the influence of Christianity and chivalry. And -although these practices were cruel enough during the fifteenth, -sixteenth, and seventeenth centuries, they were mild compared with those -of still earlier times. Decided progress was made during the eighteenth, -and again during the nineteenth century, after the close of the -Napoleonic wars, especially in the years from 1850 to 1900. The laws of -war evolved in this way: isolated milder practices became by-and-by -usages, so-called _usus in bello_, manner of warfare, _Kriegs-Manier_, -and these usages through custom and treaties turned into legal rules. -And this evolution is constantly going on, for, besides the recognised -Laws of War, there are usages in existence which have a tendency to -become gradually legal rules of warfare. The whole growth of the laws -and usages of war is determined by three principles. There is, first, -the principle that a belligerent should be justified in applying any -amount and any kind of force which is necessary for the realisation of -the purpose of war--namely, the overpowering of the opponent. There is, -secondly, the principle of humanity at work, which says that all such -kinds and degrees of violence as are not necessary for the overpowering -of the opponent should not be permitted to a belligerent. And, thirdly -and lastly, there is at work the principle of chivalry which arose in -the Middle Ages and introduced a certain amount of fairness in offence -and defence, and a certain mutual respect. And, in contradistinction to -the savage cruelty of former times, belligerents have in modern times -come to the conviction that the realisation of the purpose of war is in -no way hampered by indulgence shown to the wounded, the prisoners, and -the private individuals who do not take part in the fighting. Thus the -influence of the principle of humanity has been and is still enormous -upon the practice of warfare. And the methods of warfare, although by -the nature of war to a certain degree cruel and unsparing, become less -cruel and more humane every day. But it must be emphasised that the -whole evolution of the laws and usages of war could not have taken place -but for the institution of standing armies, which dates from the -fifteenth century. The humanising of the practices of war would have -been impossible without the discipline of standing armies; and the -important distinction between members of armed forces and private -individuals could not have arisen without the existence of standing -armies. - -[Sidenote: The latest Development of the Laws of War.] - -§ 68. The latest and the most important development of the Laws of War -was produced through general treaties concluded between the majority of -States since the beginning of the second part of the nineteenth century. -The following are the treaties concerned:-- - -(1) The Declaration of Paris of April 16, 1856, respecting warfare on -sea. It abolishes privateering, recognises the principles that the -neutral flag covers enemy goods and that neutral goods under an enemy -flag cannot be seized, and enacts the rule that a blockade in order to -be binding must be effective. The Declaration is signed by seven States, -but eighteen others acceded in course of time. - -(2) The Geneva Convention of August 22, 1864, for the amelioration of -the condition of wounded soldiers in armies in the field, which -originally was signed by only nine States, but to which in course of -time all the civilised States--except Costa-Rica, Lichtenstein, and -Monaco!--have acceded. A treaty containing a number of additional -articles to the Convention was signed at Geneva on October 20, 1868, but -was never ratified. A new Geneva Convention was signed on July 6, 1906, -by thirty-five States, and several others have already acceded. There is -no doubt that the whole civilised world will soon be a party to this new -Geneva Convention. The principles of the Geneva Convention were adapted -to maritime warfare by Conventions (see below, No. 8) of the First and -Second Hague Peace Conferences. - -(3) The Declaration of St. Petersburg of December 11, 1868, respecting -the prohibition of the use in war of projectiles under 400 grammes (14 -ounces) which are either explosive or charged with inflammable -substances. It is signed by seventeen States. - -(4) The Convention enacting "Regulations respecting the Laws of War on -Land," agreed upon at the First Peace Conference of 1899. - -The history of this Convention may be traced back to the _Instructions -for the Government of Armies of the United States in the Field_ which -the United States published on April 14, 1863, during the War of -Secession. These instructions, which were drafted by Professor Francis -Lieber, of the Columbia College of New York, represent the first -endeavour to codify the Laws of War, and they are even nowadays of great -value and importance. In 1874 an International Conference, invited by -the Emperor Alexander II. of Russia, met at Brussels for the purpose of -discussing a draft code of the Laws of War on Land as prepared by -Russia. The body of the articles agreed upon at this Conference, and -known as the "Brussels Declarations," have, however, never become law, -as ratification was never given by the Powers. But the Brussels -Declarations were made the basis of deliberations on the part of the -Institute of International Law, which at its meeting at Oxford in 1880 -adopted a Manual[81] of the Laws of War consisting of a body of 86 rules -under the title _Les Lois de la Guerre sur Terre_, and a copy of this -draft code was sent to all the Governments of Europe and America. It -was, however, not until the Hague Peace Conference of 1899 that the -Powers reassembled to discuss again the codification of the Laws of War. -At this Conference the Brussels Declarations were taken as the basis of -the deliberations; but although the bulk of its articles was taken over, -several important modifications were introduced in the Convention, which -was finally agreed upon and ratified, only a few Powers abstaining from -ratification. - -[Footnote 81: See _Annuaire_, V. pp. 157-174.] - -The Second Peace Conference of 1907 has revised this Convention, and its -place is now taken by Convention IV. of the Second Peace Conference. The -Convention,[82] as the preamble expressly states, does not aim at -giving a complete code of the Laws of War on Land, and cases beyond its -scope still remain the subject of customary rules and usages. Further, -it does not create universal International Law, as article 2 of the -Convention expressly stipulates that the Regulations shall be binding -upon the contracting Powers only in case of war between two or more of -them, and shall cease to be binding in case a non-contracting Power -takes part in the war. But, in spite of this express stipulation, there -can be no doubt that in time the Regulations will become universal -International Law. For all the Powers represented at the Second Peace -Conference signed the Convention, except China, Spain, and Nicaragua, -although some States made certain reservations. Nicaragua has since -acceded, and it is certain that the outstanding States will in time also -accede. - -[Footnote 82: For brevity's sake the Hague Convention enacting -Regulations regarding the laws and customs of war on land will be -referred to in the following pages as the _Hague Regulations_. It is, -however, of importance to observe that the Hague Regulations, although -they are intended to be binding upon the belligerents, are only the -basis upon which the signatory Powers have to frame instructions for -their forces. Article 1 declares: "The high contracting parties shall -issue instructions to their armed land forces, which shall be in -conformity with the Regulations respecting the Laws of War on Land -annexed to the present Convention." The British War Office, therefore, -published in 1912, a guide, _Land Warfare: an Exposition of the Laws and -Usages of War on Land for the Guidance of Officers of His Majesty's -Army_, written by order of His Majesty's Secretary of War by Colonel -Edmonds and Professor Oppenheim, in which the Hague Regulations are -systematically set out; their full text is published in Appendix 6 of -the guide. But it should be mentioned that the British War Office had -already in 1903 published a manual, drafted with great precision and -clearness by Professor Holland, for the information of the British -forces, comprising "The Laws and Customs of War on Land, as defined by -the Hague Convention of 1899." See also Holland, _The Laws of War on -Land (Written and Unwritten)_, Oxford, 1908.] - -(5) The Declaration concerning expanding (dumdum) bullets; see below, § -112. - -(6) The Declaration concerning projectiles and explosives launched from -balloons; see below, § 114. - -(7) The Declaration concerning projectiles diffusing asphyxiating or -deleterious gases; see below, § 113. - -(8) The Convention for the adaptation to sea warfare of the principles -of the Geneva Convention, produced by the First and revised by the -Second Peace Conference. - -(9) The Convention of 1907 concerning the opening of hostilities (Second -Peace Conference). - -(10) The Convention of 1907 concerning the status of enemy merchantmen -at the outbreak of hostilities (Second Peace Conference). - -(11) The Convention of 1907 concerning the conversion of merchantmen -into men-of-war (Second Peace Conference). - -(12) The Convention of 1907 concerning the laying of automatic submarine -contact mines (Second Peace Conference). - -(13) The Convention of 1907 concerning bombardment by naval forces in -time of war (Second Peace Conference). - -(14) The Convention of 1907 concerning certain restrictions on the -exercise of the right of capture in maritime war (Second Peace -Conference). - -(15) The two Conventions of 1907 concerning the rights and duties of -neutral Powers and persons in land warfare and in sea warfare (Second -Peace Conference). - -(16) The Declaration of London of February 26, 1909, concerning the Laws -of Naval War, which was signed at the Conference of London by Great -Britain, Germany, the United States of America, Austria-Hungary, Spain, -France, Italy, Japan, Holland, and Russia, but is not yet ratified. This -Declaration enacts rules concerning blockade, contraband, unneutral -service, destruction of neutral prizes, transfer of vessels to a neutral -flag, enemy character, convoy, and resistance to search.[83] - -[Footnote 83: The United States of America (see above, vol. I. § 32), -published on June 27, 1900, a body of rules for the use of her navy -under the title _The Laws and Usages of War on Sea_--the so-called -"United States Naval War Code." This code, although withdrawn on -February 4, 1904, will undoubtedly be the starting-point of a movement -for a Naval War Code to be generally agreed upon by the Powers. See -below, § 179.] - -[Sidenote: Binding force of the Laws of War.] - -§ 69. As soon as usages of warfare have by custom or treaty evolved into -laws of war, they are binding upon belligerents under all circumstances -and conditions, except in the case of reprisals[84] as retaliation -against a belligerent for illegitimate acts of warfare by the members of -his armed forces or his other subjects. In accordance with the German -proverb, _Kriegsraeson geht vor Kriegsmanier_ (_necessity in war -overrules the manner of warfare_), many German authors[85] and the -Swiss-Belgian Rivier[86] maintain that the laws of war lose their -binding force in case of extreme necessity. Such case of extreme -necessity is said to have arisen when violation of the laws of war alone -offers either a means of escape from extreme danger or the realisation -of the purpose of war--namely, the overpowering of the opponent. This -alleged exception to the binding force of the Laws of War, is, however, -not at all generally accepted by German writers, for instance, -Bluntschli does not mention it. English, American, French, and Italian -writers do not, so far as I am aware, acknowledge it. The protest of -Westlake,[87] therefore, against such an exception is the more -justified, as a great danger would be involved by its admission. - -[Footnote 84: See below, § 248.] - -[Footnote 85: See, for instance, Lueder in Holtzendorff, IV. pp. -254-257; Ullmann, § 170; Meurer, II. pp. 7-15. Liszt, who in former -editions agreed with these writers, deserts their ranks in the sixth -edition (§ 24, IV. 3), and correctly takes the other side. See also Nys, -III. p. 202, and Holland, _War_, § 2, where the older literature is -quoted.] - -[Footnote 86: See Rivier, II. p. 242.] - -[Footnote 87: See Westlake, II. pp. 115-117, and Westlake, _Chapters_, -p. 238.] - -The proverb dates very far back in the history of warfare. It originated -and found recognition in those times when warfare was not regulated by -laws of war--that is universally binding customs and international -treaties, but only by usages (_Manier, i.e. Brauch_), and it says that -necessity in war overrules usages of warfare. In our days, however, -warfare is no longer regulated by usages only, but to a greater extent -by laws, firm rules recognised either by international treaties or by -universal custom.[88] These conventional and customary rules cannot be -overruled by necessity, unless they are framed in such a way as not to -apply to a case of necessity in self-preservation. Thus, for instance, -the rules that poisoned arms and poison are forbidden, and that it is -not allowed treacherously to kill or wound individuals belonging to the -hostile army, do not lose their binding force even if escape from -extreme danger or the realisation of the purpose of war would result -from an act of this kind. Article 22 of the Hague Rules stipulates -distinctly that the right of belligerents to adopt means of injuring the -enemy is not unlimited, and this rule does not lose its binding force in -a case of necessity. What may be ignored in case of military necessity -are not the laws of war, but only the usages of war. _Kriegsraeson geht -vor Kriegsmanier_, but not _vor Kriegsrecht_! - -[Footnote 88: Concerning the distinction between usage and custom, see -above, vol. I. § 17.] - - -IV - -THE REGION OF WAR - - Taylor, §§ 471 and 498--Heffter, § 118--Lueder in Holtzendorff, - IV. pp. 362-364--Klüber, § 242--Liszt, § 40, I.--Ullmann, § - 174--Pradier-Fodéré, VI. No. 2733, and VIII. Nos. - 3104-3106--Rivier, II. pp. 216-219--Boeck, Nos. 214-230--Longuet, - §§ 18-25--Perels, § 33--Rettich, _Zur Theorie und Geschichte des - Rechts zum Kriege_ (1888), pp. 174-213. - -[Sidenote: Region of War in contradistinction to Theatre of War.] - -§ 70. Region of war is that part of the surface of the earth in which -the belligerents may prepare and execute hostilities against each other. -In this meaning region of war ought[89] to be distinguished from theatre -of war. The latter is that part of a territory or the Open Sea on which -hostilities actually take place. Legally no part of the earth which is -not region of war may be made the theatre of war, but not every section -of the whole region of war is necessarily theatre of war. Thus, in the -war between Great Britain and the two South African Republics the whole -of the territory of the British Empire and the Open Sea, as well as the -territory of the Republics, was the region of war, but the theatre of -war was in South Africa only. On the other hand, in a war between Great -Britain and another great naval Power it might well happen that the -region of war is in many of its sections made the theatre of war. - -[Footnote 89: This distinction, although of considerable importance, -does not appear to have been made by any other publicist.] - -[Sidenote: Particular Region of every War.] - -§ 71. The region of war depends upon the belligerents. For this reason -every war has its particular region, so far at any rate as territorial -region is concerned. For besides the Open Sea[90] and all such -territories as are as yet not occupied by any State, which are always -within the region of war, the particular region of every war is the -whole of the territories and territorial waters of the belligerents. It -must, however, be specially observed that any part of the globe which is -permanently neutralised,[91] is always exempt from the region of war. - -[Footnote 90: See above, vol. I. § 256.] - -[Footnote 91: See below, § 72.] - -Since colonies are a part of the territory of the mother country, they -fall within the region of war in the case of a war between the mother -country and another State, whatever their position may be within the -colonial empire they belong to. Thus in a war between Great Britain and -France the whole of Australia, of Canada, of India, and so on, would be -included with the British Islands as region of war. And, further, as -States under the suzerainty of another State are internationally in -several respects considered to be a portion of the latter's -territory,[92] they fall within the region of war in case of war between -the suzerain and another Power. Again, such parts of the territory of a -State as are under the _condominium_ or under the administration of -another State[93] fall within the region of war in case of war between -one of the _condomini_ and another Power and in case of war between the -administrating State and another State. Thus, in a war between Great -Britain and another Power, Cyprus would fall within the region of war; -and the Soudan, which is in the _condominium_ of England and Egypt, -would likewise do so. On the other hand, Cyprus would not fall within -the region of war in the case of war between Turkey and another Power, -Great Britain excepted. - -[Footnote 92: See above, vol. I. §§ 91 and 169.] - -[Footnote 93: See above, vol. I. § 171.] - -Although as a rule the territories of both belligerents, together with -the Open Sea, fall within the region of war, and neutral territories do -not, exceptions to the rule may occur:-- - -(1) A belligerent can deliberately treat certain territories which -legally fall within the region of war, as well as parts of the Open Sea, -as though they were not parts of the region of war, provided that such -territories on their part fulfil the duties incumbent upon neutrals. -Thus during the Turco-Italian War in 1911 and 1912, Italy treated Crete -and Egypt as though they were not parts of the region of war.[94] - -(2) Cases are possible in which a part or the whole of the territory of -a neutral State falls within the region of war. These cases arise in -wars in which such neutral territories are the very objects of the war, -as Korea, which was at that time an independent State, and the Chinese -province of Manchuria[95] were in the Russo-Japanese War of 1904 and -1905. Such a case may also occur if an army of one of the belligerents -crosses the frontier of a neutral State, but is not at once disarmed -and interned, and is, therefore, able at any moment to recross the -frontier and attack the other belligerent.[96] Since necessity of -self-preservation can compel the latter on his part also to cross the -neutral frontier and pursue and attack the enemy on neutral territory, -the part of such neutral territory concerned would for this reason -become part of the region of war. - -[Footnote 94: There is no doubt that this attitude of Italy is explained -by the fact that Egypt, although legally under Turkish suzerainty, is -actually under British occupation, and that Crete is forcibly kept by -the Powers under Turkish suzerainty.] - -[Footnote 95: See below, § 320.] - -[Footnote 96: See below, § 339.] - -[Sidenote: Exclusion from region of war through neutralisation.] - -§ 72. Although the Open Sea in its whole extent and the whole of the -territories of the belligerents are as a rule within the region of war, -certain parts can be excluded through neutralisation. Such -neutralisation can take place permanently through a general treaty of -the Powers or temporarily through a special treaty of the belligerents. -At present no part of the Open Sea is neutralised, as the neutralisation -of the Black Sea was abolished[97] in 1871. But the following are some -important instances[98] of permanent neutralisation of parts of -territories:-- - -(1) The former Sardinian, but since 1860 French, provinces of Chablais -and Faucigny[99] are permanently neutralised through article 92 of the -Act of the Vienna Congress, 1815. - -(2) The Ionian Islands through article 2 of the Treaty of London of -November 14, 1863, are permanently neutralised since they merged in the -kingdom of Greece. But this neutralisation was restricted[100] to the -islands of Corfu and Paxo only by article 2 of the treaty of London of -March 24, 1864. - -(3) The Suez Canal is permanently neutralised[101] since 1888. - -(4) The Straits of Magellan[102] are permanently neutralised through -article 5 of the boundary treaty of Buenos Ayres of July 23, 1881. But -this treaty is not a general treaty of the Powers, since it is concluded -between Argentina and Chili only. - -(5) The Panama[103] Canal is permanently neutralised through article 3 -of the Hay-Pauncefote treaty of November 18, 1901. But this treaty is -not a general treaty of the Powers either, being concluded between only -Great Britain and the United States. - -(6) A piece of territory along the frontier between Sweden and Norway is -neutralised by the Convention of Stockholm of October 26, 1905, which -includes rules concerning a neutral zone.[104] But this is a -neutralisation agreed upon between Sweden and Norway only, no third -Power has anything to do with it, and even the contracting Powers -stipulate--see article 1, last paragraph--that the neutralisation shall -not be valid in the case of a war against a common enemy. - -[Footnote 97: See above, vol. I. §§ 181 and 256.] - -[Footnote 98: The matter is thoroughly treated in Rettich, _Zur Theorie -und Geschichte des Rechtes zum Kriege_ (1888), pp. 174-213, where also -the neutralisation of some so-called international rivers, especially -the Danube, Congo, and Niger, is discussed.] - -[Footnote 99: See above, vol. I. § 207.] - -[Footnote 100: See Martens, _N.R.G._ XVIII. p. 63.] - -[Footnote 101: See above, vol. I. § 183.] - -[Footnote 102: See Martens, _N.R.G._ 2nd Ser. XII. p. 491, and above, -vol. I. § 195, p. 267, note 2, and § 568, p. 592, note 2.] - -[Footnote 103: See above, vol. I. § 184.] - -[Footnote 104: See Martens, _N.R.G._ 2nd Ser. XXXIV. (1907), p. 703.] - -As regards temporary neutralisation, it is possible for parts of the -territories of belligerents and certain parts of the Open Sea to become -neutralised through a treaty of the belligerents for the time of a -particular war only. Thus, when in 1870 war broke out between France and -Germany, the commander of the French man-of-war[105] _Dupleix_ arranged -with the commander of the German man-of-war _Hertha_--both stationed in -the Japanese and Chinese waters--that they should, through their -embassies in Yokohama, propose to their respective Governments the -neutralisation of the Japanese and Chinese waters for the time of the -war. Germany consented, but France refused the neutralisation. Again, at -the commencement of the Turco-Italian War in 1911, Turkey proposed the -neutralisation of the Red Sea, but Italy refused to agree to it. - -[Footnote 105: See Perels, § 33, p. 160, note 2.] - -[Sidenote: Asserted exclusion of the Baltic Sea from the Region of War.] - -§ 73. That there is at present no part of the Open Sea neutralised is -universally recognised, and this applies to the Baltic Sea, which is -admittedly part of the Open Sea. Some writers,[106] however, maintain -that the littoral States of the Baltic have a right to forbid all -hostilities within the Baltic in case of a war between other States than -themselves, and could thereby neutralise the Baltic without the consent -and even against the will of the belligerents. This opinion is based on -the fact that during the eighteenth century the littoral States of the -Baltic claimed that right in several conventions, but it appears -untenable, because it is opposed to the universally recognised principle -of the freedom of the Open Sea. As no State has territorial supremacy -over parts of the Open Sea, I cannot see how such a right of the -littoral States of the Baltic could be justified.[107] - -[Footnote 106: See Perels, pp. 160-163, who discusses the question at -some length and answers it in the affirmative.] - -[Footnote 107: See Rivier, II. p. 218; Bonfils, § 504; Nys, I. pp. -448-450.] - - -V - -THE BELLIGERENTS - - Vattel, III. § 4--Phillimore, III. §§ 92-93--Taylor, §§ - 458-460--Wheaton, § 294--Bluntschli, §§ 511-514--Heffter, §§ - 114-117--Lueder in Holtzendorff, IV. pp. 237-248--Klüber, § - 236--G. F. Martens, II. § 264--Gareis, § 83--Liszt, § 39, - II.--Ullmann, §§ 168-169--Pradier-Fodéré, VI. Nos. - 2656-2660--Rivier, II. pp. 207-216--Nys. III. pp. 114-118--Calvo, - IV. §§ 2004-2038--Martens, II. § 108--Heilborn, _System_, pp. - 333-335. - -[Sidenote: Qualification to become a Belligerent (_facultas bellandi_).] - -§ 74. As the Law of Nations recognises the status of war and its effects -as regards rights and duties between the two or more belligerents on the -one hand, and, on the other, between the belligerents and neutral -States, the question arises what kind of States are legally qualified -to make war and to become thereby belligerents. Publicists who discuss -this question at all speak mostly of a _right_ of States to make war, a -_jus belli_. But if this so-called right is examined, it turns out to be -no right at all, as there is no corresponding duty in those against whom -the right is said to exist.[108] A State which makes war against another -exercises one of its natural functions, and the only question is whether -such State is or is not legally qualified to exercise such function. -Now, according to the Law of Nations full-Sovereign States alone possess -the legal qualification to become belligerents; half-and part-Sovereign -States are not legally qualified to become belligerents. Since -neutralised States, as Switzerland, Belgium, and Luxemburg, are -full-Sovereign States, they are legally qualified to become -belligerents, although their neutralisation binds them not to make use -of their qualification except for defence. If they become belligerents -because they are attacked, they do not lose their character as -neutralised States, but if they become belligerents for offensive -purposes they _ipso facto_ lose this character. - -[Footnote 108: See Heilborn, _System_, p. 333.] - -[Sidenote: Possibility in contradistinction to qualification to become a -Belligerent.] - -§ 75. Such States as do not possess the legal qualification to become -belligerents are by law prohibited from offensive or defensive warfare. -But the possession of armed forces makes it possible for them in fact to -enter into war and to become belligerents. History records instances -enough of such States having actually made war. Thus in 1876 Servia and -Montenegro, although at that time vassal States under Turkish -suzerainty, declared war against Turkey, and in March 1877, peace was -concluded between Turkey and Servia.[109] And when in April 1877 war -broke out between Russia and Turkey, the then Turkish vassal State -Roumania joined Russia, and Servia declared war anew against Turkey in -December 1877. Further in November 1885 a war was waged between Servia, -which had become a full-Sovereign State, and Bulgaria, which was at the -time still a vassal State under Turkish suzerainty; the war lasted -actually only a fortnight, but the formal treaty of peace was not signed -until March 3, 1886, at Bukarest.[110] And although Turkey is a party to -this treaty, Bulgaria appears as a party thereto independently and on -its own behalf. - -[Footnote 109: See Martens, _N.R.G._ 2nd Ser. IV. pp. 12, 14, 172.] - -[Footnote 110: See Martens, _N.R.G._ 2nd Ser. IV. p. 284.] - -Whenever a case arises in which a State lacking the legal qualification -to make war nevertheless actually makes war, such State is a -belligerent, the contention is real war and all the rules of -International Law respecting warfare apply to it.[111] Therefore, an -armed contention between the suzerain and the vassal, between a -full-Sovereign State and a vassal State under the suzerainty of another -State, and, lastly, between a Federal State and one or more of its -members, is war[112] in the technical sense of the term according to the -Law of Nations. - -[Footnote 111: This is quite apparent through the fact that Bulgaria by -accession became a party to the Geneva Convention at a time when she was -still a vassal State under Turkish suzerainty.] - -[Footnote 112: See above, § 56, and Baty, _International Law in South -Africa_ (1900), pp. 66-68.] - -[Sidenote: Insurgents as a Belligerent Power.] - -§ 76. The distinction between legal qualification and actual power to -make war explains the fact that insurgents may become a belligerent -Power. It is a customary rule of the Law of Nations that any State may -recognise insurgents as a belligerent Power, provided (1) they are in -possession of a certain part of the territory of the legitimate -Government; (2) they have set up a Government of their own; and (3) they -conduct their armed contention with the legitimate Government according -to the laws and usages of war.[113] Such insurgents in fact, although -not in law, form a State-like community, and practically they are making -war, although their contention is by International Law not considered as -war in the technical sense of the term as long as they have not received -recognition as a belligerent Power. - -[Footnote 113: See above, § 59. See also Rougier, _Les guerres civiles_, -&c. (1903), pp. 372-447, and Westlake, I. pp. 50-57. The Institute of -International Law, at its meeting at Neuchatel in 1900, adopted a body -of nine articles concerning the rights and duties of foreign States in -case of an insurrection; articles 4-9 deal with the recognition of the -belligerency of insurgents. See _Annuaire_, XVIII. p. 227.] - -[Sidenote: Principal and accessory Belligerent Parties.] - -§ 77. War occurs usually between two States, one belligerent party being -on each side. But there are cases in which there are on one or on both -sides several parties, and in some of such cases principal and accessory -belligerent parties are to be distinguished. - -Principal belligerent parties are those parties to a war who wage it on -the basis of a treaty of alliance, whether such treaty was concluded -before or during the war. On the other hand, accessory belligerent -parties are such States as provide help and succour only in a limited -way to a principal belligerent party at war with another State; for -instance, by paying subsidies, sending a certain number of troops or -men-of-war to take part in the contention, granting a coaling station to -the men-of-war of the principal party, allowing the latter's troops a -passage through their territory, and the like. Such accessory party -becomes a belligerent through rendering help. - -The matter need hardly be mentioned at all were it not for the fact that -the question was formerly discussed by publicists whether or not it -involved a violation of neutrality on the part of a neutral State in -case it fulfilled in time of war a treaty concluded in time of peace, by -the terms of which it had to grant a coaling station, the passage of -troops through its territory, and the like, to one of the belligerents. -This question is identical with the question, to be treated below in § -305, whether a qualified neutrality, in contradistinction to a perfect -neutrality, is admissible. Since the answer to this question is in the -negative, such State as fulfils a treaty obligation of this kind in time -of war may be considered by the other side an accessory belligerent -party to the war, and all doubt in the matter ought now to be removed -since article 2 of Convention V. of the Second Peace Conference[114] -categorically enacts that "belligerents are forbidden to move across the -territory of a neutral Power troops or convoys either of munitions of -war or of supplies." - -[Footnote 114: See also article 3 of Convention V.] - - -VI - -THE ARMED FORCES OF THE BELLIGERENTS - - Vattel, III. §§ 223-231--Hall, §§ 177-179, 181--Lawrence, §§ - 148-150--Westlake, II. pp. 60-63--Manning, pp. - 206-210--Phillimore, III. § 94--Twiss, II. § 45--Halleck, I. pp. - 555-562--Taylor, §§ 471-476--Moore, VII. § 1109--Wheaton, §§ - 356-358--Bluntschli, §§ 569-572--Heffter, §§ 124-124A--Lueder in - Holtzendorff, IV. pp. 371-385--Klüber, 267--G. F. Martens, II. § - 271--Gareis, § 83--Ullmann, § 175--Liszt, § 40, II.--Bonfils, Nos. - 1088-1098--Despagnet, Nos. 520-523--Pradier-Fodéré, VI. Nos. - 2721-2732, and VIII. Nos. 3091-3102--Nys, III. pp. - 155-202--Rivier, II. pp. 242-259--Calvo, IV. §§ 2044-2065--Fiore, - III. Nos. 1303-1316, and Code, Nos. 1455-1475--Martens, II. § - 112--Longuet, §§ 26-36--Pillet, pp. 35-59--_Kriegsbrauch_, pp. - 4-8--Perels, § 34--Boeck, Nos. 209-213--Dupuis, Nos. - 74-91--Lawrence, _War_, pp. 195-218--Zorn, pp. 36-73--Bordwell, - pp. 228-236--_Land Warfare_, § 17-38--Meurer, II. §§ - 11-20--Spaight, pp. 34-72--Ariga, pp. 74-91--Takahashi, pp. 89-93. - -[Sidenote: Regular Armies and Navies.] - -§ 78. The chief part of the armed forces of the belligerents are their -regular armies and navies. What kinds of forces constitute a regular -army and a regular navy is not for International Law to determine, but a -matter of Municipal Law exclusively. Whether or not so-called Militia -and Volunteer corps belong to armies rests entirely with the Municipal -Law of the belligerents. There are several States whose armies consist -of Militia and Volunteer Corps exclusively, no standing army being -provided for. The Hague Regulations expressly stipulate in article 1 -that in countries where Militia or Volunteer Corps constitute the army -or form part of it they are included under the denomination "Army." It -is likewise irrelevant to consider the composition of a regular army, -whether it is based on conscription or not, whether natives only or -foreigners also are enrolled, and the like. - -[Sidenote: Non-combatant Members of Armed Forces.] - -§ 79. In the main, armed forces consist of combatants, but no army in -the field consists of combatants exclusively, as there are always -several kinds of other individuals, such as couriers, aeronauts, -doctors, farriers, veterinary surgeons, chaplains, nurses, official and -voluntary ambulance men, contractors, canteen-caterers, newspaper -correspondents,[115] civil servants, diplomatists, and foreign military -attachés[116] in the suite of the Commander-in-Chief. - -[Footnote 115: See Rey in _R.G._ XVII. (1910), pp. 73-102, and Higgins, -_War and the Private Citizen_ (1912), pp. 91-114.] - -[Footnote 116: See Rey in _R.G._ XVII. (1910), pp. 63-73.] - -Writers on the Law of Nations do not agree as regards the position of -such individuals; they are not mere private individuals, but, on the -other hand, are certainly not combatants, although they may--as, for -instance, couriers, doctors, farriers, and veterinary surgeons--have the -character of soldiers. They may correctly be said to belong _indirectly_ -to the armed forces. Article 3 of the Hague Regulations expressly -stipulates that the armed forces of the belligerents may consist of -combatants and non-combatants, and that both in case of capture must be -treated as prisoners of war, provided[117] they produce a certificate of -identification from the military authorities of the army they are -accompanying. However, when one speaks of armed forces generally, -combatants only are in consideration. - -[Footnote 117: See below, § 127.] - -[Sidenote: Irregular Forces.] - -§ 80. Very often the armed forces of belligerents consist throughout the -war of their regular armies only, but, on the other hand, it happens -frequently that irregular forces take part in the war. Of such irregular -forces there are two different kinds to be distinguished--first, such as -are authorised by the belligerents; and, secondly, such as are acting on -their own initiative and their own account without special -authorisation. Formerly it was a recognised rule of International Law -that only the members of authorised irregular forces enjoyed the -privileges due to the members of the armed forces of belligerents, -whereas members of unauthorised irregular forces were considered to be -war criminals and could be shot when captured. During the Franco-German -war in 1870 the Germans acted throughout according to this rule with -regard to the so-called "Franctireurs," requesting the production of a -special authorisation from the French Government from every irregular -combatant they captured, failing which he was shot. But according to -article 1 of the Hague Regulations this rule is now obsolete, and its -place is taken by the rule that irregulars enjoy the privileges due to -members of the armed forces of the belligerents, although they do not -act under authorisation, provided (1) that they are commanded by a -person responsible for his subordinates, (2) that they have a fixed -distinctive emblem recognisable at a distance,[118] (3) that they carry -arms openly,[119] and (4) that they conduct their operations in -accordance with the laws and customs of war. It must, however, be -emphasised that this rule applies only to irregulars fighting in bodies, -however small. Such individuals as take up arms or commit hostile acts -singly and severally are still liable to be treated as war criminals, -and shot.[120] - -[Footnote 118: The distance at which the emblem should be visible is -undetermined. See _Land Warfare_, § 23, where it is pointed out that it -is reasonable to expect that the silhouette of an irregular combatant in -the position of standing against the skyline should be at once -distinguishable from the outline of a peaceable inhabitant, and this by -the naked eye of ordinary individuals, at a distance at which the form -of an individual can be determined.--See Ariga, p. 87, concerning 120 -irregulars who were treated as criminals and shot by the Japanese after -the occupation of Vladimirowka on the island of Sakhaline.] - -[Footnote 119: See _Land Warfare_, § 26; individuals whose sole arm is a -pistol, hand-grenade, a dagger concealed about the person, or a -sword-stick, are not such as carry their arms openly.] - -[Footnote 120: See below, § 254.] - -[Sidenote: Levies _en masse_.] - -§ 81. It sometimes happens during war that on the approach of the enemy -a belligerent calls the whole population of the country to arms and thus -makes them a part, although a more or less irregular part, of his armed -forces. Provided they receive some organisation and comply with the laws -and usages of war, the combatants who take part in such a levy _en -masse_ organised by the State enjoy the privileges due to members of -armed forces. - -It sometimes happens, further, during wars, that a levy _en masse_ takes -place spontaneously without organisation by a belligerent, and the -question arises whether or not those who take part in such levies _en -masse_ belong to the armed forces of the belligerents, and therefore -enjoy the privileges due to members of such forces. Article 2 of the -Hague Regulations stipulates that the population of a territory not yet -occupied who, on the enemy's approach, spontaneously take up arms to -resist the invading enemy, without having time to organise themselves -under responsible commanders and to procure fixed distinctive emblems -recognisable at a distance, shall nevertheless enjoy the privileges due -to armed forces, provided that they carry arms openly and act otherwise -in conformity with the laws and usages of war. But this case is totally -different from a levy _en masse_ of the population of a territory -already invaded by the enemy, for the purpose of freeing the country -from the invader. The stipulation of the Hague Regulations quoted above -does not cover this case, in which, therefore, the old customary rule of -International Law is valid, that those taking part in such a levy _en -masse_, if captured, are liable to be shot.[121] - -[Footnote 121: See below, § 254. Article 85 of the American -_Instructions for the Government of Armies in the Field_ of 1863 has -enacted this rule as follows: "War rebels are persons within an occupied -territory who rise in arms against the occupying or conquering army, or -against the authorities established by the same. If captured, they may -suffer death, whether they rise singly, in small or large bands, and -whether called upon to do so by their own, but expelled Government or -not...."] - -It is of particular importance not to confound invasion with occupation -in this matter. Article 2 distinctly speaks of the _approach_ of the -enemy, and thereby sanctions only such a levy _en masse_ as takes place -in territory not yet _invaded_ by the enemy. Once the territory is -invaded, although the invasion has not yet ripened into occupation,[122] -a levy _en masse_ is no longer legitimate. But, of course, the term -_territory_, as used by article 2, is not intended to mean[123] the -whole extent of the State of a belligerent, but refers only to such -parts of it as are not yet invaded. For this reason, if a town is -already invaded, but not a neighbouring town, the inhabitants of the -latter may, on the approach of the enemy, legitimately rise _en masse_. -And it matters not whether the individuals taking part in the levy _en -masse_ are acting in immediate combination with a regular army or -separately from it.[124] - -[Footnote 122: Concerning the difference between invasion and -occupation, see below, § 167.] - -[Footnote 123: See _Land Warfare_, §§ 31-32.] - -[Footnote 124: See _Land Warfare_, § 34.] - -[Sidenote: Barbarous Forces.] - -§ 82. As International Law grew up amongst the States of Christendom, -and as the circle of the members of the Family of Nations includes only -civilised, although not necessarily Christian, States, all writers on -International Law agree that in wars between themselves the members of -the Family of Nations should not make use of barbarous forces--that is, -troops consisting of individuals belonging to savage tribes and -barbarous races. But it can hardly be maintained that a rule of this -kind has customarily grown up in practice, nor has it been stipulated by -treaties, and the Hague Regulations overlook this point. This being the -fact, it is difficult to say whether the members of such barbarous -forces, if employed in a war between members of the Family of Nations, -would enjoy the privileges due to members of armed forces generally. I -see no reason why they should not, provided such barbarous forces would -or could comply with the laws and usages of war prevalent according to -International Law. But the very fact that they are barbarians makes it -probable that they could or would not do so, and then it would be -unreasonable to grant them the privileges generally due to members of -armed forces, and it would be necessary to treat them according to -discretion.[125] But it must be specially observed that the employment -of barbarous forces must not be confounded with the enrolling of -coloured individuals into the regular army and the employment of -regiments consisting of disciplined coloured soldiers. There is no -reason whatever why, for instance, the members of a regiment eventually -formed by the United States of America out of negroes bred and educated -in America, or why members of Indian regiments under English commanders, -if employed in wars between members of the Family of Nations, should not -enjoy the privileges due to the members of armed forces according to -International Law. - -[Footnote 125: As regards the limited use made of armed natives as -scouts, and the like, on the part of the British commanders during the -South-African War, see _The Times' History of the War in South Africa_, -pp. 249-251. The Boers refused quarter to any such armed natives as fell -into their hands.] - -[Sidenote: Privateers.] - -§ 83. Formerly privateers were a generally recognised part of the armed -forces of the belligerents, private vessels being commissioned by the -belligerents through Letters of Marque to carry on hostilities at sea, -and particularly to capture enemy merchantmen.[126] From the fifteenth -century, when privateering began to grow up, down to the eighteenth -century, belligerents used to grant such Letters of Marque to private -ships owned by their subjects and by the subjects of neutral States. But -during the eighteenth century the practice grew up that belligerents -granted Letters of Marque to private ships of their own subjects -only.[127] However, privateering was abolished by the Declaration of -Paris in 1856 as between the signatory Powers and others who joined it -later. And although privateering would still be legal as between other -Powers, it will in future scarcely be made use of. In all the wars that -occurred after 1856 between such Powers, no Letters of Marque were -granted to private ships.[128] - -[Footnote 126: See Martens, _Essai concernant les armateurs, les prises, -et surtout les reprises_ (1795).] - -[Footnote 127: Many publicists maintain that nowadays a privateer -commissioned by another State than that of which he is a subject is -liable to be treated as a pirate when captured. With this, however, I -cannot agree; see above, vol. I. § 273, Hall, § 81, and below, § 330.] - -[Footnote 128: See below, § 177. It is confidently to be hoped that the -great progress made by the abolition of privateering through the -Declaration of Paris will never be undone. But it is of importance to -note the fact that up to the present day endeavours have been made on -the part of freelances to win public opinion for a retrograde step. See, -for instance, Munro-Butler Johnstone, _Handbook of Maritime Rights; and -the Declaration of Paris Considered_ (1876), and Gibson Bowles, _The -Declaration of Paris of 1856_ (1900); see also Perels, pp. 177-179. The -Declaration of Paris being a law-making treaty which does not provide -the right of the several signatory Powers to give notice of withdrawal, -a signatory Power is not at liberty to give such notice, although Mr. -Gibson Bowles (_op. cit._ pp. 169-179) asserts that this could be done. -See above, vol. I. § 12.] - -[Sidenote: Converted Merchantmen.] - -§ 84. A case which happened in 1870, soon after the outbreak of the -Franco-German war, gave occasion for the question whether converted -merchantmen could be considered a part of the armed naval forces of a -belligerent. As the North-German Confederation owned only a few -men-of-war, the creation of a volunteer fleet was intended. The King of -Prussia, as President of the Confederation, invited the owners of -private German vessels to make them a part of the German navy under the -following conditions: Every ship should be assessed as to her value, and -10 per cent. of such value should at once be paid in cash to the owner -as a price for the charter of the ship. The owner should engage the crew -himself, but the latter should become for the time of the war members of -the German navy, wear the German naval uniform, and the ship should sail -under the German war flag and be armed and adapted for her purpose by -the German naval authorities. Should the ship be captured or destroyed -by the enemy, the assessed value should be paid to her owners in full; -but should it be restored after the war undamaged, the owner should -retain the 10 per cent. received as charter price. All such vessels -should only try to capture or destroy French men-of-war, and if -successful the owner should receive a sum between £1500 and £7500 as -premium. The French Government considered this scheme a disguised -evasion of the Declaration of Paris which abolished privateering, and -requested the intervention of Great Britain. The British Government -brought the case before the Law Officers of the Crown, who declared the -German scheme to be substantially different from the revival of -privateering, and consequently the British Government refused to object -to it. The scheme, however, was never put into practice.[129] - -[Footnote 129: See Perels, § 34; Hall, § 182; Boeck, No. 211; Dupuis, -Nos. 81-84.] - -Now, in spite of the opinion of the British Law Officers, writers on -International Law differ as to the legality of the above scheme; but, on -the other hand, they are unanimous that not every scheme for a voluntary -fleet is to be rejected. Russia,[130] in fact, since 1877, has possessed -a voluntary fleet. France[131] has made arrangements with certain -steamship companies according to which their mail-boats have to be -constructed on plans approved by the Government, have to be commanded by -officers of the French navy, and have to be incorporated in the French -navy at the outbreak of war. Great Britain from 1887 onwards has entered -into agreements with several powerful British steamship companies for -the purpose of securing their vessels at the outbreak of hostilities; -and the United States of America in 1892 made similar arrangements with -the American Line.[132] - -[Footnote 130: See Dupuis, No. 85.] - -[Footnote 131: See Dupuis, No. 86.] - -[Footnote 132: See Lawrence, § 201, and Dupuis, Nos. 87-88. On the whole -question see Pradier-Fodéré, VIII. Nos. 3102-3103.] - -Matters were brought to a climax in 1904, during the Russo-Japanese War, -through the cases of the _Peterburg_ and the _Smolensk_.[133] On July 4 -and 6 of that year, these vessels, which belonged to the Russian -volunteer fleet in the Black Sea, were allowed to pass the Bosphorus and -the Dardanelles, which are closed[134] to men-of-war of all nations, -because they were flying the Russian commercial flag. They likewise -passed the Suez Canal under their commercial flag, but after leaving -Suez they converted themselves into men-of-war by hoisting the Russian -war flag, and began to exercise over neutral merchantmen all rights of -supervision which belligerents can claim for their cruisers in time of -war. On July 13 the _Peterburg_ captured the British P. & O. steamer -_Malacca_ for alleged carriage of contraband, and put a prize-crew on -board for the purpose of navigating her to Libau. But the British -Government protested; the _Malacca_ was released at Algiers on her way -to Libau on July 27, and Russia agreed that the _Peterburg_ and the -_Smolensk_ should no longer act as cruisers, and that all neutral -vessels captured by them should be released. - -[Footnote 133: See the details of the career of these vessels in -Lawrence, _War_, pp. 205 _seq._] - -[Footnote 134: See above, vol. I. § 197.] - -This case was the cause of the question of the conversion of merchantmen -into men-of-war being taken up by the Second Peace Conference in 1907, -which produced Convention VII. on the matter.[135] This Convention, -which is signed by all the States represented at the Conference except -the United States of America, China, San Domingo, Nicaragua, and -Uruguay--but Nicaragua acceded later--comprises twelve articles; its -more important stipulations are the following: No converted vessel can -have the status of a warship unless she is placed under the direct -authority, immediate control, and responsibility of the Power whose flag -she flies (article 1). Such a vessel must, therefore, bear the external -marks which distinguish the warships of her nationality (article 2); the -commander must be in the service of the State concerned, must be duly -commissioned, and his name must figure on the list of the officers of -the military fleet (article 3); and the crew must be subject to the -rules of military discipline (article 4). A converted vessel must -observe the laws and usages of war (article 5) and her conversion must -as soon as possible be announced by the belligerent concerned in the -list of the ships of his military fleet (article 6). - -[Footnote 135: See Wilson in _A.J._ II. (1908), pp. 271-275; Lémonon, -pp. 607-622; Higgins, pp. 312-321; Dupuis, Nos. 48-58; Nippold, II. pp. -73-84; Scott, _Conferences_, pp. 568-576; Higgins, _War and the Private -Citizen_ (1912), pp. 115-168.] - -The opinion, which largely prevails, that through this admittance of the -conversion of merchantmen into men-of-war privateering has been revived, -is absolutely unfounded, for the rules stipulated by Convention VII. in -no way abrogate the rule of the Declaration of Paris that privateering -is and remains abolished. But the Convention does not give satisfaction -in so far as it does not settle the questions where the conversion of a -vessel may be performed, and whether it is permitted to reconvert, -before the termination of the war, into a merchantman a vessel which -during the war had been converted into a warship. The fact is, the -Powers could not come to an agreement on these two points, the one party -claiming that conversion could only be performed within a harbour of the -converting Power, or an enemy harbour occupied by it, the other party -defending the claim to convert likewise on the High Seas. One must look -to the future for a compromise that will settle this vexed controversy. -It is, however, important to notice the fact that the preamble of -Convention VII. states expressly that the question of the place where a -conversion may be performed remains open. Those Powers which claim that -conversions[136] must not take place on the High Seas are not, -therefore, prevented from refusing to acknowledge the public character -of any vessel which had been converted on the High Seas, and from -upholding their view that a converted vessel may not alternately claim -the character and the privileges of a belligerent man-of-war and a -merchantman. - -[Footnote 136: Concerning the question whether an enemy merchantman, -captured on the High Seas, may at once be converted into a warship, see -below, p. 231, _note_ 2.] - -[Sidenote: The Crews of Merchantmen.] - -§ 85. In a sense the crews of merchantmen owned by subjects of the -belligerents belong to the latter's armed forces. For those vessels are -liable to be seized by enemy men-of-war, and if attacked for that -purpose they may defend themselves, may return the attack, and -eventually seize the attacking men-of-war. The crews of merchantmen -become in such cases combatants, and enjoy all the privileges of the -members of armed forces. But unless attacked they must not commit -hostilities, and if they do so they are liable to be treated as -criminals just as are private individuals who commit hostilities in land -warfare. Some writers[137] assert that, although merchantmen of the -belligerents are not competent to exercise the right of visit, search, -and capture towards neutral vessels, they may attack enemy -vessels--merchantmen as well as public vessels--not merely in -self-defence but even without having been previously attacked, and that, -consequently, the crews must in such case enjoy the privileges due to -members of the armed forces. But this opinion is absolutely without -foundation nowadays,[138] even in former times it was not generally -recognised.[139] - -[Footnote 137: See Wheaton, § 357; Taylor, § 496; Walker, p. 135, and -_Science_, p. 268.] - -[Footnote 138: See below, § 181, and Hall, § 183.] - -[Footnote 139: See Vattel, III. § 226, and G. F. Martens, II. § 289.] - -It should be mentioned in regard to the fate of the crews of captured -merchantmen that a distinction is to be made according as to whether or -no a vessel has defended herself against a legitimate attack. In the -first case the members of the crew become prisoners of war, for by -legitimately taking part in the fighting they have become members of the -armed forces of the enemy.[140] In the second case, articles 5 to 7 of -Convention XI. of the Second Peace Conference enact the following -rules:[141]-- - -(1) Such members of the crew as are subjects of neutral States may not -be made prisoners of war. - -(2) The captain and the officers who are subjects of neutral States may -only be made prisoners if they refuse to give a promise in writing not -to serve on an enemy ship while the war lasts. - -(3) The captain, officers, and such members of the crew who are enemy -subjects may only be made prisoners if they refuse to give a written -promise not to engage, while hostilities last, in any service connected -with the operations of war. - -(4) The names of all the individuals retaining their liberty under -parole must be notified by the captor to the enemy, and the latter is -forbidden knowingly to employ the individuals concerned in any service -prohibited by the parole. - -[Footnote 140: This follows indirectly from article 8 of Convention XI.] - -[Footnote 141: See below, § 201.] - -[Sidenote: Deserters and Traitors.] - -§ 86. The privileges of members of armed forces cannot be claimed by -members of the armed forces of a belligerent who go over to the forces -of the enemy and are afterwards captured by the former. They may be, and -always are, treated as criminals. And the like is valid with regard to -such treasonable subjects of a belligerent as, without having been -members of his armed forces, are fighting in the armed forces of the -enemy. Even if they appear under the protection of a flag of truce, -deserters and traitors may be seized and punished.[142] - -[Footnote 142: See below, § 222; Hall, § 190; _Land Warfare_, § 36.] - - -VII - -ENEMY CHARACTER - - Grotius, III. c. 4, §§ 6 and 7--Bynkershoek, _Quaestiones juris - publici_, I. c. 3 _in fine_--Hall, §§ 167-175--Lawrence, §§ - 151-159--Westlake, II. pp. 140-154--Phillimore, III. §§ - 82-86--Twiss, II. §§ 152-162--Taylor, §§ 468 and 517--Walker, §§ - 39-43--Wharton, III. §§ 352-353--Wheaton, §§ 324-341--Moore, VII. - §§ 1185-1194--Geffcken in Holtzendorff, IV. pp. 581-588--Ullmann, - § 192--Nys, III. pp. 150-154--Pradier-Fodéré, VIII. Nos. - 3166-3175--Bonfils, Nos. 1343-1349'1--Despagnet, Nos. 650-653 - _quinto_--Calvo, IV. §§ 1932-1952--Fiore, III. Nos. 1432-1436, and - Code, Nos. 1701-1709--Boeck, Nos. 156-190--Dupuis, Nos. 92-129, - and _Guerre_, Nos. 59-73--Lémonon, pp. 426-467--Higgins, p. - 593--Nippold, II. pp. 40-54--Scott, _Conferences_, pp. - 541-555--Frankenbach, _Die Rechtsstellung von neutralen - Staatsangehörigen in kriegführenden Staaten_ (1910)--Baty in _The - Journal of the Society of Comparative Legislation_, New Series, - IX. Part I. (1908), pp. 157-166, and Westlake, _ibidem_, Part II. - (1909), pp. 265-268--Oppenheim in _The Law Quarterly Review_, XXV. - (1909), pp. 372-383. - -[Sidenote: On Enemy Character in general.] - -§ 87. Since the belligerents, for the realisation of the purpose of war, -are entitled to many kinds of measures against enemy persons and enemy -property, the question must be settled as to what persons and what -property are vested with enemy character. Now it is, generally speaking, -correct to say that, whereas the subjects of the belligerents and the -property of such subjects bear enemy character, the subjects of neutral -States and the property of such subjects do not bear enemy character. -This rule has, however, important exceptions. For under certain -circumstances and conditions enemy persons and property of enemy -subjects may not bear, and, on the other hand, subjects of neutral -States and their property may bear, enemy character. And it is even -possible that a subject of a belligerent may for some parts bear enemy -character as between himself and his home State. - -The matter of enemy character is, however, to a great extent in an -unsettled condition, since on many points connected with it there are no -universally recognised rules of International Law in existence. British -and American Courts have worked out a body of precise and clear rules on -the subject, but the practice of other countries, and especially of -France, follows different lines. The Second Peace Conference of 1907 -produced three articles on the matter--16, 17, and 18--in Convention V., -accepted by all the signatory Powers, except Great Britain which, upon -signing the Convention, entered a reservation against these three -articles, and although these articles are only of minor importance, they -have to be taken into consideration. On the other hand, the as yet -unratified Declaration of London comprises a number of rules which, -apart from two points, offer a common basis for the practice of all -maritime States. At the first glance it would seem that only the four -articles--57 to 60--of Chapter VI. headed "Enemy Character," treat of -the subject under survey, but a closer examination shows that article -46, dealing with a certain kind of unneutral service, articles 55 and -56, dealing with transfer to a neutral flag, and, lastly, article 63, -dealing with forcible resistance to the right of visitation, are also -concerned with enemy character. In spite of these stipulations, which -are accepted by all the Powers concerned, there remain two important -points unsettled, since neither the Second Hague Peace Conference of -1907 nor the Naval Conference of London of 1908-9 succeeded in agreeing -upon a compromise concerning the old controversy as to whether -nationality exclusively, or domicile also, should determine the neutral -or enemy character of individuals and their goods, and further, whether -or not neutral vessels acquire enemy character by embarking in time of -war, with permission of the enemy, upon such trade with the latter as -was closed to them in time of peace (Rule of 1756). According to article -7 of Convention XII. of the Second Hague Peace Conference, concerning -the establishment of an International Prize Court, likewise not yet -ratified, this Court would in time have to evolve a uniform practice of -all the maritime States on these two points. - -For the consideration of enemy character in detail, it is convenient to -distinguish between individuals, vessels, goods, the transfer of enemy -vessels, and the transfer of enemy goods on enemy vessels. - -[Sidenote: Enemy Character of Individuals.] - -§ 88. The general rule with regard to individuals is that subjects of -the belligerents bear enemy character, whereas subjects of neutral -States do not. In this sense article 16 of Convention V. stipulates: -"The nationals of a State which is not taking part in the war are -considered to be neutral." These neutral individuals can, however, lose -their neutral and acquire enemy character in several cases, just as -subjects of the belligerents can in other cases lose their enemy -character:-- - -(1) Since relations of peace obtain between either of the belligerents -and neutral States, the subjects of the latter can, by way of trade and -otherwise, render many kinds of service to either belligerent without -thereby losing their neutral character. On the other hand, if they enter -the armed forces of a belligerent, or if they commit other acts in his -favour, or commit hostile acts against a belligerent, they acquire -enemy character (article 17 of Convention V.). All measures that are -allowed during war against enemy subjects are likewise allowed against -such subjects of neutral Powers as have thus acquired enemy character. -For instance, during the late South African War hundreds of subjects of -neutral States, who were fighting in the ranks of the Boers, were -captured by Great Britain and retained as prisoners until the end of the -struggle. Such individuals must not, however, be more severely treated -than enemy subjects, and, in especial, no punitive measures are allowed -against them (article 17 of Convention V.). And article 18(_a_) of -Convention V. stipulates expressly that subjects of neutral States not -inhabiting the territory of the enemy or any territory militarily -occupied by him do not acquire enemy character by furnishing supplies or -making loans to the enemy, provided the supplies do not come from the -enemy territory or any territory occupied by him.[143] - -[Footnote 143: Since Great Britain has entered a reservation against -articles 16, 17, and 18 of Convention V. she is not bound by them. It -is, however, of importance to state that articles 16, 17, and -18(_a_)--not 18(_b_)!--enact only such rules as were always customarily -recognised, _unless such an interpretation is to be put upon article 16 -as prevents a belligerent from considering subjects of neutral States -inhabiting the enemy country as bearing enemy character_. The matter is -different with regard to article 18(_b_), which creates an entirely new -rule, for nobody has hitherto doubted that the members of the police -force and the administrative officials of the enemy bear enemy character -whether or no they are subjects of the enemy State.] - -Article 18(_b_) of Convention V. stipulates that such subjects of -neutral States as render services to the enemy in matters of police and -administration, likewise do not acquire enemy character. This -stipulation must, however, be read with caution. It can only mean that -such individuals do not lose their neutral character to a greater degree -than other subjects of neutral States resident on enemy territory; it -cannot mean that they are in every way to be considered and treated -like subjects of neutral States not residing on enemy territory. - -However that may be, it must be specially observed, that the acts by -which subjects of neutral States lose their neutral and acquire enemy -character need not necessarily be committed after the outbreak of war. -Such individuals can, even before the outbreak of war, identify -themselves to such a degree with a foreign State that, with the outbreak -of war against that State, enemy character devolves upon them _ipso -facto_ unless they at once sever their connection with such State. This, -for instance, is the case when a foreign subject in time of peace -enlists in the armed forces of a State and continues to serve after the -outbreak of war. - -(2) From the time when International Law made its appearance down to our -own no difference has been made by a belligerent in the treatment -accorded to subjects of the enemy and subjects of neutral States -inhabiting the enemy country. Thus Grotius (III. c. 4, §§ 6 and 7) -teaches that foreigners must share the fate of the population living on -enemy territory, and Bynkershoek[144] distinctly teaches that foreigners -residing in enemy country bear enemy character. English[145] and -American practice assert, therefore, that foreigners, whether subjects -of the belligerents or of neutral States, acquire enemy character by -being domiciled (_i.e._ resident) in enemy country, because they have -thereby identified themselves with the enemy population and contribute, -by paying taxes and the like, to the support of the enemy Government. -For this reason, all measures which may legitimately be taken against -the civil population of the enemy territory, may likewise be taken -against them, unless they withdraw from the country or are expelled -therefrom. It must, however, be remembered that they acquire enemy -character _in a sense_ and _to a certain degree_ only, for their enemy -character is not as intensive as that of enemy subjects resident on -enemy territory. Such of them as are subjects of neutral States do not, -therefore, lose the protection of their home State against arbitrary -treatment inconsistent with the laws of war; and such of them as are -subjects of the other belligerent are handed over to the protection of -the Embassy of a neutral Power. However that may be, they are not exempt -from requisitions and contributions; from the restrictions which an -occupant imposes upon the population in the interest of the safety of -his troops and his military operations; from punishments for hostile -acts committed against the occupant; or from being taken into captivity, -if exceptionally necessary. - -[Footnote 144: _Quaestiones juris publici_, I. c. 3 _in fine_.] - -[Footnote 145: See the _Harmony_ (1800), 2 C. Rob. 322; the _Johanna -Emilie_, otherwise _Emilia_ (1854), Spinks, 12; the _Baltica_ (1857), 11 -Moore, P.C. 141.] - -This treatment of foreigners resident on occupied enemy territory is -generally recognised as legitimate by theory[146] and practice. The -proposal of Germany, made at the Second Peace Conference, to agree upon -rules which would have stipulated a more favourable treatment of -subjects of neutral States resident on occupied enemy territory was, -therefore, rejected. Not even France supported the German proposals, -although according to the French conception foreigners residing in enemy -country do not acquire enemy character, and therefore the German -proposals were only a logical consequence of the French conception. This -French conception of enemy character dates from the judgment of the -_Conseil des Prises_ in the case of _Le Hardy contre La -Voltigeante_[147] (1802), which laid down the rule that neutral subjects -residing in enemy country do not lose their neutral character, and enemy -subjects residing in neutral countries do not lose their enemy -character. But it must be emphasised that this French conception of -enemy character has been developed, not with regard to the treatment of -foreigners whom an occupant finds resident on occupied enemy territory, -but with regard to the exercise of the right of capture of enemy vessels -and goods in warfare at sea. France did not make an attempt to draw the -logical consequences from this conception and, therefore, to mete out to -foreigners resident on occupied enemy territory a treatment different -from that of enemy subjects resident there. - -[Footnote 146: See Albrecht, _Requisitionen von neutralem -Privateigenthum_, &c. (1912), pp. 13-15.] - -[Footnote 147: 1 Pistoye et Duverdy (1859), 321.] - -(3) Since enemy subjects who reside in neutral countries, or are allowed -to remain resident on the territory of the other belligerent, have to a -great extent identified themselves with the local population and are not -under the territorial supremacy of the enemy, they lose their enemy -character according to English and American practice,[148] but according -to French practice they do not, a difference of practice which bears -upon many points, especially upon the character of goods.[149] - -[Footnote 148: See the _Postilion_ (1779), Hay & Marriot, 245; the -_Danous_ (1802), 4 C. Rob. 255, note; the _Venus_ (1814), 8 Cranch, -253.] - -[Footnote 149: See below, § 90.] - -[Sidenote: Enemy Character of Vessels.] - -§ 89. The general rule with regard to vessels is that their character is -determined by their flag. Whatever may be the nationality of the owner -of a vessel--whether he be a subject of a neutral State, or of either -belligerent--she bears enemy character, if she be sailing under the -enemy flag. For this reason, the vessel of an enemy owner which sails -under a neutral flag does as little bear enemy character as the vessel -of the subject of a neutral State sailing under the flag of another -neutral State. But the flag is the deciding factor only when the vessel -is legitimately sailing under it. Should it be found that a vessel -sailing under the flag of a certain neutral State has, according to the -Municipal Law of such State, no right to fly the flag she shows, the -real character of the vessel must be determined in order to decide -whether or no she bears enemy character. On the other hand, it makes no -difference that the owner be the subject of a neutral non-littoral State -without a maritime flag and that the vessel is, therefore, compelled to -fly the flag of a maritime State: if the flag the vessel flies be the -enemy flag, she bears enemy character. - -The general rule that the flag is the deciding factor has exceptions, -and it is convenient to expound the matter according to the rules of the -Declaration of London, although it is not yet ratified. The general rule -is laid down by article 57 of the Declaration which enacts that, subject -to the provisions respecting transfer to another flag, the character of -a vessel is determined by the flag she is entitled to fly. Nevertheless, -there are two exceptions to this rule:-- - -(1) According to article 46 of the Declaration[150] a neutral -merchantman acquires enemy character by taking a direct part in the -hostilities, by being in the exclusive employment of the enemy -government, and by being at the time exclusively intended either for the -transport of troops or for the transmission of intelligence for the -enemy. And it must be emphasised that the act by which a neutral -merchantman acquires enemy character need not necessarily be committed -_after_ the outbreak of war, for she can, even _before_ the outbreak of -war, to such a degree identify herself with a foreign State that, with -the outbreak of war against such State, enemy character devolves upon -her _ipso facto_, unless she severs her connexion with the State -concerned. This is, for instance, the case of a foreign merchantman -which in time of peace has been hired by a State for the transport of -troops or of war material, and is carrying out her contract in spite of -the outbreak of war.[151] - -(2) According to article 63 of the Declaration a neutral merchantman -acquires enemy character _ipso facto_ by forcibly resisting the -legitimate exercise of the right of visitation and capture on the part -of a belligerent cruiser (see details below, § 422). - -(3) According to British practice--adopted by America and -Japan[152]--neutral merchantmen likewise acquire enemy character by -violating the so-called rule of 1756,[153] in case they engage in time -of war in a trade which the enemy prior to the war reserved exclusively -for merchantmen sailing under his own flag. The Declaration of London -has neither rejected nor accepted this rule of 1756, for article 57 -stipulates expressly that the case where a neutral vessel is engaged in -a trade which is closed in time of peace, remains unsettled. It would, -therefore, according to article 7 of Convention XII. of the Second Peace -Conference, be the task of the proposed International Prize Court to -settle this point. - -Of whatever kind may be the case of the acquisition of enemy character -on the part of a neutral vessel, the following four rules apply to all -cases of such neutral vessels as have acquired enemy character:--(_a_) -all enemy goods on board may now be confiscated, although when they were -first shipped the vessels concerned were neutral; (_b_) all goods on -board will now be presumed to be enemy goods, and the owners of neutral -goods will have to prove the neutral character of the latter; (_c_) the -stipulations of articles 48 and 49 of the Declaration of London -concerning the sinking of neutral prizes do not apply, because these -vessels are now enemy vessels; (_d_) no appeal may be brought from the -national prize courts to the International Prize Court, except with -regard to the one question only, whether the vessel concerned has been -justly considered to have acquired enemy character (see article 4 of -Convention XII. of the Second Hague Peace Conference, concerning the -establishment of an International Prize Court). - -[Footnote 150: See below, § 410.] - -[Footnote 151: The case of the _Kow-shing_ ought here to be mentioned, -although it has now lost its former importance:-- - -On July 14, 1894, the _Kow-shing_, a British ship, was hired at Shanghai -by the Chinese Government to serve as a transport for eleven hundred -Chinese soldiers and also for arms and ammunition from Tien-tsin to -Korea. She was met on July 25 near the island of Phung-do, in Korean -waters, by the Japanese fleet; she was signalled to stop, was visited by -some prize officers, and, as it was apparent that she was a transport -for Chinese soldiers, she was ordered to follow the Japanese cruiser, -_Naniwa_. But although the British captain of the vessel was ready to -comply with these orders, the Chinese on board would not allow it. -Thereupon the Japanese opened fire and sank the vessel. As formerly -hostilities could be commenced without a previous declaration of war the -action of the Japanese was in accordance with the rules of International -Law existing at the time. But in consequence of Convention III. of the -Second Peace Conference which requires a declaration of war before the -opening of hostilities, such action nowadays would not be justifiable. -See Hall, § 168*; Takahashi, pp. 27-51; Holland, _Studies_, pp. -126-128.] - -[Footnote 152: See the case of the _Montara_ in Takahashi, p. 633.] - -[Footnote 153: See below, § 289, and Higgins, _War and the Private -Citizen_ (1912), pp. 169-192.] - -[Sidenote: Enemy Character of Goods.] - -§ 90. It is an old customary rule that all goods found on board an enemy -merchantman are presumed to be enemy goods unless the contrary is proved -by the neutral owners concerned. It is, further, generally recognised -that the enemy character of goods depends upon the enemy character of -their owners. As, however, no universally recognised rules exist as to -the enemy character of individuals, there are likewise no universally -recognised rules in existence as to the enemy character of goods. - -(1) Since, according to British and American practice, domicile in enemy -country makes an individual bear enemy character, all goods belonging to -individuals domiciled in enemy country are enemy goods, and all goods -belonging to individuals not resident in enemy country are not, as a -rule, enemy goods. For this reason, goods belonging to enemy subjects -residing in neutral countries[154] do not, but goods belonging to -subjects of neutral States residing in enemy country[155] do bear enemy -character, although they may be the goods of a foreign consul appointed -and residing in enemy country.[156] Further, the goods of such subjects -of the belligerents as are domiciled on each other's territory and are -allowed to remain there after the outbreak of war, acquire enemy -character in the eyes of the belligerent whose subjects they are, but -lose their enemy character in the eyes of the belligerent on whose -territory they are allowed to remain.[157] Again, the produce of an -estate on enemy territory belonging to a subject of a neutral State who -resides abroad, does bear enemy character, for "_Nothing[158] can be -more decided and fixed than the principle ... that the possession of the -soil does impress upon the owner the character of the country, as far as -the produce of that plantation is concerned ... whatever the local -residence of the owner may be_." Lastly, all such property of a subject -of a neutral State residing abroad but having a house of trade within -the enemy country as is concerned in the commercial transactions of such -house of trade,[159] likewise bears enemy character, because the owner -of these goods has a "commercial domicile" in enemy country. - -(2) On the other hand, according to French practice, the nationality of -the owner of the goods is exclusively the deciding factor, and it does -not matter where he resides. Hence only such goods on enemy merchantmen -bear enemy character as belong to subjects of the enemy, whether those -subjects are residing on enemy or neutral territory; and all such goods -on enemy merchantmen as belong to subjects of neutral States do not -bear enemy character, whether those subjects reside on neutral or enemy -country.[160] - -(3) The Declaration of London does not purport to decide the -controversy, since the Powers represented at the Naval Conference of -London could not agree. Whereas Holland, Spain, and Japan approved of -the British and American practice, Austria-Hungary, Italy, Germany, and -Russia sided with France. For this reason, the Declaration, by articles -58 and 59, only enacts that the enemy character of goods on enemy -vessels is determined by the enemy character of their owner, and that -all goods on enemy vessels are presumed to be enemy goods unless the -contrary is proved. But the chief question, namely, what is the factor -that decides the enemy character of an owner, is deliberately left -unanswered. It would, therefore, according to article 7 of Convention -XII., be for the proposed International Prize Court to settle it. - -[Footnote 154: The _Postilion_ (1779), Hay & Marriot, 245; the _Danous_ -(1802), 4 C. Rob. 255, note.] - -[Footnote 155: The _Baltica_ (1857), 11 Moore, P.C. 141.] - -[Footnote 156: The _Indian Chief_ (1801), 3 C. Rob. 12.] - -[Footnote 157: The _Venus_ (1814), 8 Cranch, 253.] - -[Footnote 158: From the judgment of Sir William Scott in the case of the -_Phoenix_ (1803), 5 C. Rob. 41; see also _Thirty Hogsheads of Sugar_ v. -_Boyle_ (_Bentzen_ v. _Boyle_) (1815), 9 Cranch, 191.] - -[Footnote 159: The _Portland_ (1800), 3 C. Rob. 41; the _Jonge Klassina_ -(1803), 5 C. Rob. 297; the _Freundschaft_ (1819), 4 Wheaton, 105.] - -[Footnote 160: See the French cases of:--_Le Hardy contre La -Voltigeante_ (1802) and _La Paix_ (1803), 1 Pistoye et Duverdy, pp. 321 -and 486; _Le Joan_ (1871), _Le Nicolaüs_ (1871), _Le Thalia_ (1871); _Le -Laura-Louise_ (1871), Barboux, pp. 101, 108, 116, 119.] - -[Sidenote: Transfer of Enemy Vessels.] - -§ 91. The question of the transfer of enemy vessels to subjects of -neutral States, either shortly before or during the war, must be -regarded as forming part of the larger question of enemy character, for -the point to be decided is whether such transfer[161] divests these -vessels of their enemy character. It is obvious that, if this point is -answered in the affirmative, the owners of enemy vessels can evade the -danger of having their property seized and confiscated by selling their -vessels to subjects of neutral States. Before the Declaration of London, -which is, however, not yet ratified, the maritime Powers had not agreed -upon common rules concerning this subject. According to French[162] -practice no transfer of enemy vessels to neutrals could be recognised, -and a vessel thus transferred retained enemy character; but this -concerned only transfer after the outbreak of war, any legitimate -transfer anterior to the outbreak of war did give neutral character to a -vessel. According to British and American practice, on the other hand, -neutral vessels could well be transferred to a neutral flag before or -after the outbreak of war and lose thereby their enemy character, -provided that the transfer took place _bona fide_,[163] was not effected -either in a blockaded port[164] or while the vessel was _in -transitu_,[165] the vendor did not retain an interest in the vessel or -did not stipulate a right to recover or repurchase the vessel after the -conclusion of the war,[166] and the transfer was not made _in transitu_ -in contemplation of war.[167] - -The Declaration of London offers clear and decisive rules concerning the -transfer of enemy vessels, making a distinction between the transfer to -a neutral flag _before_ and _after_ the outbreak of hostilities: - -(1) According to article 55 of the Declaration, the transfer of an enemy -vessel to a neutral flag, if effected _before_ the outbreak of -hostilities, is _valid_, unless the captor is able to prove that the -transfer was made in order to avoid capture. However, if the bill of -sale is not on board the transferred vessel, and if the transfer was -effected less than sixty days before the outbreak of hostilities, the -transfer is presumed to be void, unless the vessel can prove that such -transfer was not effected in order to avoid capture. To provide -commerce with a guarantee that a transfer should not easily be treated -as void on the ground that it was effected for the purpose of evading -capture, it is stipulated that, in case the transfer was effected more -than thirty days before the outbreak of hostilities, there is an -absolute presumption of its validity, provided the transfer was -unconditional, complete, and in conformity with the laws of the -countries concerned, and further, provided that neither the control of, -nor the profits arising from, the employment of the vessels remain in -the same hands as before the transfer. But even in this case a vessel is -suspect if the transfer took place less than sixty days before the -outbreak of hostilities, and if her bill of sale is not on board. Hence -she may be seized and brought into a port of a prize court for -investigation, and she cannot claim damages for the capture, even if the -Court releases her. - -(2) According to article 56 of the Declaration, the transfer of an enemy -vessel to a neutral flag, if effected _after_ the outbreak of -hostilities, is _void_ unless the vessel can prove that the transfer was -not made in order to avoid capture. And such proof is excluded, and an -absolute presumption is established that the transfer is void, if the -transfer has been made in a blockaded port or while the vessel was _in -transitu_, further, if a right to repurchase or recover the vessel is -reserved to the vendor, and lastly, if the requirements of the Municipal -Law governing the right to fly the flag under which the vessel is -sailing have not been fulfilled. - -[Footnote 161: See Holland, _Prize Law_, § 19; Hall, § 171; Twiss, II. -§§ 162-163; Phillimore, III. § 386; Boeck, Nos. 178-180; Bonfils, Nos. -1344-1349'1; Dupuis, Nos. 117-129, and _Guerre_, Nos. 62-66.] - -[Footnote 162: See Dupuis, No. 97.] - -[Footnote 163: The _Vigilantia_ (1798), 1 C. Rob. 1; the _Baltica_ -(1857), 11 Moore, P.C. 141; the _Benito Estenger_ (1899), 176 United -States, 568.] - -[Footnote 164: The _General Hamilton_ (1805), 6 C. Rob. 61.] - -[Footnote 165: The moment a vessel transferred _in transitu_ reaches a -port where the new owner takes possession of her, the voyage of the -vessel is considered to have terminated. The _Vrow Margaretha_ (1799), 1 -C. Rob. 336; the _Jan Frederick_ (1804), 5 C. Rob. 128.] - -[Footnote 166: The _Sechs Geschwistern_ (1801), 4 C. Rob. 100; the -_Jemmy_ (1801), 4 C. Rob. 31.] - -[Footnote 167: The _Jan Frederick_ (1804), 5 C. Rob. 128.] - -[Sidenote: Transfer of Goods on Enemy Vessels.] - -§ 92. The subject of the transfer of enemy goods on enemy vessels must -likewise be considered as forming part of the larger subject of enemy -character, for the question is here also whether such a transfer divests -these goods of their enemy character. And concerning this question[168] -there was likewise no unanimous practice in existence among the maritime -States before the agreement on the Declaration of London. British and -American practice refused to recognise a sale _in transitu_ under any -circumstances or conditions, if the vessel concerned was captured before -the neutral buyer had actually taken possession of the transferred -goods.[169] On the other hand, French practice recognised such a sale -_in transitu_, provided it could be proved that the transaction was made -_bona fide_.[170] - -The Declaration of London now stipulates, by article 60, that enemy -goods on board an enemy vessel retain their enemy character until they -reach their destination, notwithstanding any transfer effected after the -outbreak of hostilities while the goods are _in transitu_. Hence if such -enemy vessel is captured before having reached her destination, goods -consigned to enemy subjects may be confiscated, although they have been -sold _in transitu_ to subjects of neutral States. A special rule is -provided for the case of the enemy consignee of goods on board an enemy -vessel becoming bankrupt while the goods are _in transitu_. In a number -of countries[171] an unpaid vendor has, in the event of the bankruptcy -of the buyer, a recognised legal right to recover such goods as have -already become the property of the buyer, but have not yet reached him -(right of stoppage _in transitu_). For this reason, article 60 of the -Declaration stipulates in the second paragraph, that if, prior to the -capture, the neutral consignor exercises, on the bankruptcy of the enemy -consignee, his right of stoppage _in transitu_, the goods regain their -neutral character and may not therefore be confiscated. - -[Footnote 168: See Hall, § 172; Twiss, II. §§ 162 and 163; Phillimore, -III. §§ 387 and 388; Dupuis, No. 1421, and _Guerre_, Nos. 68-73; Boeck, -Nos. 182 and 183.] - -[Footnote 169: The _Jan Frederick_ (1804), 5 C. Rob. 128; the _Ann -Green_ (1812), I Gallison, 274.] - -[Footnote 170: See Boeck, No. 162; Dupuis, No. 142.] - -[Footnote 171: Great Britain is one of them, see Section 44 of the Sale -of Goods Act, 1893 (56 & 57 Vict. c. 71).] - - - - -CHAPTER II - -THE OUTBREAK OF WAR - - -I - -COMMENCEMENT OF WAR - - Grotius, c. 3, 5-14--Bynkershoek, _Quaestiones juris publici_, I. - c. 2--Vattel, III. §§ 51-65--Hall, § 123--Westlake, II. pp. 18-26, - and 267--Lawrence, § 140--Manning, pp. 161-163--Phillimore, III. - §§ 51-56--Twiss, II. §§ 31-40--Halleck, I. pp. 521-526--Taylor, §§ - 455-456--Moore, VII. §§ 1106-1108--Walker, § 37--Wharton, III. §§ - 333-335--Wheaton, § 297--Bluntschli, §§ 521-528--Heffter, § - 120--Lueder in Holtzendorff, IV. pp. 332-347--Gareis, § 80--Liszt, - § 39, V.--Ullmann, § 171--Bonfils, Nos. 1027-1031'2--Despagnet, - Nos. 513-516--Pradier-Fodéré, VI. Nos. 2671-2693--Nys, III. pp. - 118-133--Rivier, II. pp. 220-228--Calvo, IV. §§ 1899-1911--Fiore, - III. Nos. 1272-1276, and Code, 1422-1428--Martens, II. § - 109--Longuet, §§ 1-7, 15-16--Mérignhac, pp. 29-41--Pillet, pp. - 61-72--Lawrence, _War_, pp. 26-44--Barclay, pp. 53-58--Boidin, pp. - 116-121--Bordwell, pp. 198-200--Higgins, pp. 202-205--Holland, - _War_, § 16--Lémonon, pp. 309-406--Nippold, II. pp. 6-10--Scott, - _Conferences_, pp. 516-522--Spaight, pp. 20-33--Ariga, §§ - 11-12--Takahashi, pp. 1-25--_Land Warfare_, §§ 8-10--Holland, - _Studies_, p. 115--Sainte-Croix, _La Déclaration de guerre et ses - effets immédiats_ (1892)--Bruyas, _De la déclaration de guerre_, - etc. (1899)--Tambaro, _L'inizio della guerra et la 3'a convenzione - dell' Aja del 1907_ (1911)--Maurel, _De la déclaration de guerre_ - (1907)--Soughimoura, _De la Déclaration de Guerre_ (1912)--Brocher - in _R.I._ IV. (1872), p. 400; Férand-Giraud in _R.I._ XVII. - (1885), p. 19; Nagaoka in _R.I._ 2nd Ser. VI. p. 475--Rolin in - _Annuaire_, XX. (1904), pp. 64-70--Ebren and Martens in _R.G._ XI. - (1904), pp. 133 and 148--Dupuis in _R.G._ XIII. (1906), pp. - 725-735--Stowell in _A.J._ II. (1908), pp. 50-62. - -[Sidenote: Commencement of War in General.] - -§ 93. According to the former practice of the States a condition of war -could _de facto_ arise either through a declaration of war; or through a -proclamation and manifesto of a State that it considered itself at war -with another State; or through the committal by one State of certain -hostile acts of force against another State. History presents many -instances of wars commenced in one of these three ways. Although -Grotius (III. c. 3, § 5) laid down the rule that a declaration of war -is necessary for its commencement, the practice of the States shows that -this rule was not accepted, and many wars have taken place between the -time of Grotius and our own without a previous[172] declaration of war. -Indeed many writers,[173] following the example of Grotius, have always -asserted the existence of a rule that a declaration is necessary for the -commencement of war, but it cannot be denied that until the Second Peace -Conference of 1907 such a rule was neither sanctioned by custom nor by a -general treaty of the Powers. Moreover many writers[174] distinctly -approved of the practice of the Powers. This does not mean that in -former times a State would have been justified in opening hostilities -without any preceding conflict. There was, and can be, no greater -violation of the Law of Nations than for a State to begin hostilities in -time of peace without previous controversy and without having -endeavoured to settle the conflict by negotiation.[175] But if -negotiation had been tried without success, a State did not act -treacherously in case it resorted to hostilities without a declaration -of war, especially after diplomatic intercourse had been broken off. The -rule, adopted by the First Peace Conference of 1899--see article 2 of -the Conventions for the peaceful settlement of international differences -of 1899 and 1907--which stipulates that, _as far as circumstances -allow_, before the appeal to arms recourse must be had to the good -offices or mediation of friendly Powers, did not essentially alter -matters, for the formula _as far as circumstances_ _allow_ leaves -practically everything to the discretion of the Power bent on making -war. - -The outbreak of war between Russia and Japan in 1904 through Japanese -torpedo boats attacking Russian men-of-war at Port Arthur before a -formal declaration of war, caused a movement for the establishment of -some written rules concerning the commencement of war. The Institute of -International Law, at its meeting at Ghent in 1906, adopted three -principles[176] according to which war should not be commenced without -either a declaration of war or an ultimatum, and in either case a -certain delay sufficient to ensure against treacherous surprise must be -allowed before the belligerent can have recourse to actual hostilities. -The Second Peace Conference at the Hague in 1907 took the matter up and -produced the Convention (III.) relative to the commencement of -hostilities which comprises four articles and has been signed by all the -Powers represented at the Conference, except China and Nicaragua, both -of which, however, acceded later. - -[Footnote 172: See Maurice, _Hostilities without Declaration of War_ -(1883).] - -[Footnote 173: See, for instance, Vattel, III. § 51; Calvo, IV. § 1907; -Bluntschli, § 571; Fiore, III. No. 1274; Heffter, § 120.] - -[Footnote 174: See, for instance, Bynkershoek, _Quaestiones juris -publici_, I. c. 2; Klüber, § 238; G. F. Martens, § 267; Twiss, II. § 35: -Phillimore, III. §§ 51-55; Hall, § 123; Ullmann (first edition), § 145; -Gareis, § 80.] - -[Footnote 175: See above, § 3, where the rule is quoted that no State is -allowed to make use of compulsive means of settling differences before -negotiation has been tried.] - -[Footnote 176: See _Annuaire_, XXI. (1906), p. 283.] - -[Sidenote: Declaration of War.] - -§ 94. According to article 1 of Convention III. hostilities must not -commence without a previous and unequivocal warning, and one of the -forms which this warning may take is a declaration of war stating the -reasons why the Power concerned has recourse to arms. - -A declaration of war is a communication of one State to another that the -condition of peace between them has come to an end and a condition of -war has taken its place. In former times declarations of war used to -take place under greater or lesser solemnities, but during the last few -centuries all these formalities have vanished, and a declaration of war -nowadays may take place through a simple communication. The only two -conditions with which, according to article 1, declarations of war must -comply are, that they must be unmistakable, and that they must state -the reason for the resort to arms. No delay between the declaration and -the actual commencement of hostilities is stipulated, and it is, -therefore, possible for a Power to open hostilities immediately after -the communication of the declaration of war to the enemy. All the more -is it necessary to emphasise that there could be no greater violation of -the Law of Nations than that which would be committed by a State which -sent a declaration to another without previously having tried to settle -the difference concerned by negotiation. - -However this may be, the question as to the way in which the -communication of the declaration of war is to be made requires -attention. Since there is nowhere a rule expressly formulated according -to which the declaration must be communicated in writing, it might be -asserted that communication by any means, be it by a written document, -by telegraph or by telephone message, or by direct word of mouth, is -admissible. I believe that such an assertion cannot be supported. The -essential importance of the declaration of war and the fact that -according to article 1 of Convention III. it must be unmistakable and -must state the reason for the resort to arms, would seem to require a -written document which is to be handed over to the other party by an -envoy. Further, the fact that article 2 of Convention III. expressly -enacts that the notification of the outbreak of war to neutrals _may -even be made by telegraph_, points the same way, for the conclusion is -justified that the declaration of war stipulated as necessary by article -I may _not_ be made by telegraph. And if a telegraph message is -inadmissible, much more are telephone messages and communications by -word of mouth. Moreover, the practice of the States throughout the last -centuries has been to hand in a written declaration of war, when any -declaration has been made. - -Particular attention must be paid to the fact that, in case of a -declaration of war, the war, as between the belligerents, is considered -to have commenced with the date of its declaration, although actual -hostilities may not have been commenced until a much later date. On the -other hand, as regards relations between the belligerents and neutrals, -a war is not considered to have commenced until its outbreak has either -been notified to the neutrals or has otherwise become unmistakably known -to them. For this reason, article 2 of Convention III. enacts that the -belligerents must at once after the outbreak of war notify[177] the -neutrals, even if only by telegraph, and that the state of war shall not -take effect with regard to neutrals until after they have received -notification, unless it be established beyond doubt that they were in -fact aware of the condition of war. - -[Footnote 177: See below, § 307.] - -[Sidenote: Ultimatum.] - -§ 95. The second form which the unequivocal warning, stipulated by -article 1 of Convention III. as necessary before the commencement of -hostilities, may take is an ultimatum with a conditional declaration of -war. - -Ultimatum[178] is the technical term for a written communication of one -State to another which ends amicable negotiations respecting a -difference, and formulates, for the last time and categorically, the -demands to be fulfilled if other measures are to be averted. An -ultimatum may be simple or qualified. It is _simple_ in case it does not -include an indication of the measures contemplated by the Power sending -it; such measures may be acts of retorsion or reprisals, or hostilities. -It is _qualified_ if it includes an indication of the measures -contemplated by the Power sending it, for instance a pacific blockade, -occupation of a certain territory, or war. Now the ultimatum stipulated -by article 1 of Convention III. must be a qualified one, for it must be -so worded that the recipient can have no doubt about the commencement of -war in case he does not comply with the demands of the ultimatum. For -this reason, if a State has sent a simple ultimatum to another, or a -qualified ultimatum threatening a measure other than war, it is not, in -case of non-compliance, justified in at once commencing hostilities -without a previous declaration of war. For this reason, Italy sent a -declaration of war to Turkey in 1911, although an ultimatum threatening -the occupation of Tripoli had preceded it. - -Nothing is enacted by article 1 of Convention III. concerning the -minimum length of time which an ultimatum must grant before the -commencement of hostilities; this period may, therefore, be only very -short, as, for instance, a number of hours. All the more is it necessary -here likewise to emphasise that there could be no greater violation of -the Law of Nations than that which would be committed by a State which -sent an ultimatum without previously having tried to settle the -difference concerned by negotiation. - -It must be specially observed that the state of war following an -ultimatum must likewise be notified to neutrals, for article 2 of -Convention III. applies to this case also. And it must further be -observed that, for the same reason as in the case of a declaration of -war, an ultimatum containing a conditional declaration of war must be -communicated to the other party by a written document. - -[Footnote 178: See above, § 28.] - -[Sidenote: Initiative hostile Acts of War.] - -§ 96. There is no doubt that, in consequence of Convention III. of the -Second Peace Conference, the recourse to hostilities without a previous -declaration of war or qualified ultimatum is forbidden. But the fact -must not be overlooked that a war can nevertheless break out without -these preliminaries. Thus a State might deliberately order hostilities -to be commenced without a previous declaration of war or qualified -ultimatum. Further, the armed forces of two States having a grievance -against one another might engage in hostilities without having been -authorised thereto and without the respective Governments ordering them -to desist from further hostilities. Again, acts of force by way of -reprisals or during a pacific blockade or an intervention might be -forcibly resisted by the other party, hostilities breaking out in this -way. - -It is certain that States which deliberately order the commencement of -hostilities without a previous declaration of war or qualified -ultimatum, commit an international delinquency, but they are -nevertheless engaged in war. Further, it is certain that States which -allow themselves to be dragged into a condition of war through -unauthorised hostile acts of their armed forces, commit an international -delinquency, but they are nevertheless engaged in war. Again, war is -actually in existence if the other party forcibly resists acts of force -undertaken by a State by way of reprisals, or during a pacific blockade -or an intervention. Now in all these and similar cases, although war has -broken out without a previous declaration or qualified ultimatum, all -the laws of warfare must find application, for a war is still war in the -eyes of International Law even though it has been illegally commenced, -or has automatically arisen from acts of force which were not intended -to be acts of war. - -However that may be, article 2 of Convention III. also applies to wars -which have broken out without a previous declaration or qualified -ultimatum, and the belligerents must without delay send a notification -to neutral Powers so that these may be compelled to fulfil the duties of -neutrality. But, of course, neutral Powers must in this case likewise, -even without notification, fulfil the duties of neutrality if they are -unmistakably aware of the outbreak of war. - - -II - -EFFECTS OF THE OUTBREAK OF WAR - - Vattel, III. § 63--Hall, §§ 124-126--Westlake, II. pp. - 29-32--Lawrence, §§ 143-146--Manning, pp. 163-165--Phillimore, - III. §§ 67-91--Twiss, II. §§ 41-61--Halleck, I. pp. 526-552, and - II. pp. 124-140--Taylor, §§ 461-468--Walker, §§ 44-50--Wharton, - III. §§ 336-337A--Wheaton, §§ 298-319--Moore, V. § 779, and VII. - §§ 1135-1142--Heffter, §§ 121-123--Lueder in Holtzendorff, IV. pp. - 347-363--Gareis, § 81--Liszt, § 39, V.--Ullmann, § 173--Bonfils, - Nos. 1044-1065--Despagnet, Nos. 517-519--Pradier-Fodéré, VI. Nos. - 2694-2720--Nys, III. pp. 134-150--Rivier, II. pp. 228-237--Calvo, - IV. §§ 1911-1931--Fiore, III. Nos. 1290-1301, and Code, Nos. - 1439-1445--Martens, II. § 109--Longuet, §§ 8-15--Mérignhac, pp. - 72-84--Pillet, pp. 42-59--Bordwell, pp. 200-211--Spaight, pp. - 25-33--Ariga, §§ 13-15--Takahashi, pp. 26-88--Lawrence, _War_, pp. - 45-55--Sainte-Croix, _La Déclaration de guerre et ses effets - immédiats_ (1892), pp. 166-207--Meyer, _De l'interdiction du - commerce entre les belligérants_ (1902)--Jaconnet, _La guerre et - les traités_ (1909)--Politis in _Annuaire_ XXIII. (1910), pp. - 251-282, and XXIV. (1911), pp. 200-223. - -[Sidenote: General Effects of the Outbreak of War.] - -§ 97. When war breaks out, even if it be limited to only two members of -the Family of Nations, nevertheless the whole Family of Nations is -thereby affected, since the rights and duties of neutrality devolve upon -such States as are not parties to the war. And the subjects of neutral -States may feel the consequences of the outbreak of war in many ways. -War is not only a calamity to the commerce and industry of the whole -world, but also involves the alteration of the legal position of neutral -merchantmen on the Open Sea, and of the subjects of neutral States -within the boundaries of the belligerents. For the belligerents have the -right of visit, search, and eventually capture of neutral merchantmen on -the Open Sea, and foreigners who remain within the boundaries of the -belligerents, although subjects of neutral Powers, acquire in a degree -and to a certain extent enemy character.[179] However, the outbreak of -war tells chiefly and directly upon the relations between the -belligerents and their subjects. Yet it would not be correct to maintain -that all legal relations between the parties thereto and between their -subjects disappear with the outbreak of war. War is not a condition of -anarchy, indifferent or hostile to law, but a condition recognised and -ruled by International Law, although it involves a rupture of peaceful -relations between the belligerents. - -[Footnote 179: See above, § 88.] - -[Sidenote: Rupture of Diplomatic Intercourse and Consular Activity.] - -§ 98. The outbreak of war causes at once the rupture of diplomatic -intercourse between the belligerents, if such rupture has not already -taken place. The respective diplomatic envoys are recalled and ask for -their passports, or receive them without any previous request, but they -enjoy their privileges of inviolability and exterritoriality for the -period of time requisite for leaving the country. Consular activity -likewise comes to an end through the outbreak of war.[180] - -[Footnote 180: See above, vol. I. §§ 413 and 436.] - -[Sidenote: Cancellation of Treaties.] - -§ 99. The doctrine was formerly held, and a few writers[181] maintain it -even now, that the outbreak of war _ipso facto_ cancels all treaties -previously concluded between the belligerents, such treaties only -excepted as have been concluded especially for the case of war. The vast -majority of modern writers on International Law have abandoned this -standpoint,[182] and the opinion is pretty general that war by no means -annuls every treaty. But unanimity as to what treaties are or are not -cancelled by war does not exist. Neither does a uniform practice of the -States exist, cases having occurred in which States have expressly -declared[183] that they considered all treaties annulled through war. -Thus the whole question remains as yet unsettled. Nevertheless a -majority of writers agree on the following points:-- - -(1) The outbreak of war cancels all political treaties between the -belligerents which have not been concluded for the purpose of setting up -a permanent condition of things, for instance, treaties of alliance. - -(2) On the other hand, it is obvious that such treaties as have been -especially concluded for the case of war are not annulled, such as -treaties in regard to the neutralisation of certain parts of the -territories of the belligerents. - -(3) Such political and other treaties as have been concluded for the -purpose of setting up a permanent[184] condition of things are not _ipso -facto_ annulled by the outbreak of war, but nothing prevents the -victorious party from imposing upon the other party in the treaty of -peace any alterations in, or even the dissolution of, such treaties. - -(4) Such non-political treaties as do not intend to set up a permanent -condition of things, as treaties of commerce for example, are not _ipso -facto_ annulled, but the parties may annul them or suspend them -according to discretion. - -(5) So-called law-making[185] treaties, as the Declaration of Paris for -example, are not cancelled by the outbreak of war. The same is valid in -regard to all treaties to which a multitude of States are parties, as -the International Postal Union for example, but the belligerents may -suspend them, as far as they themselves are concerned, in case the -necessities of war compel them to do so.[186] - -[Footnote 181: See, for instance, Phillimore, III. § 530, and Twiss, I. -§ 252, in contradistinction to Hall, § 125.] - -[Footnote 182: See Jaconnet, _op. cit._ pp. 113-128.] - -[Footnote 183: As, for instance, Spain in 1898, at the outbreak of the -war with the United States of America, see Moore, V. pp. 375-380.] - -[Footnote 184: Thus American and English Courts--see the cases of the -_Society for the Propagation of the Gospel_ v. _Town of Newhaven_ -(1823), 8 Wheaton 464, and _Sutton_ v. _Sutton_ (1830), 1 Russel & -Mylne, 663--have declared that article IX. of the treaty of Nov. 19, -1794, between Great Britain and the United States was not annulled by -the outbreak of war in 1812. See Moore, V. § 779 and Westlake, II. p. -30; see also the foreign cases discussed by Jaconnet, _op. cit._ pp. -168-179.] - -[Footnote 185: See above, vol. I. §§ 18, 492, 555-568_b_.] - -[Footnote 186: The Institute of International Law is studying the whole -question of the effect of war on treaties; see Politis, _l.c._, and -especially _Annuaire_, XXIV. (1911), pp. 201-213, and 220-221.] - -[Sidenote: Precarious position of Belligerents' subjects on Enemy -Territory.] - -§ 100. The outbreak of war affects likewise such subjects of the -belligerents as are at the time within the enemy's territory. In former -times they could at once be detained as prisoners of war, and many -States, therefore, concluded in time of peace special treaties for the -time of war expressly stipulating a specified period during which their -subjects should be allowed to leave each other's territory -unmolested.[187] Through the influence of such treaties, which became -pretty general during the eighteenth century, it became an international -practice that, as a rule, enemy subjects must be allowed to withdraw -within a reasonable period, and no instance of the former rule has -occurred during the nineteenth[188] century. Although some[189] writers -even nowadays maintain that according to strict law the old rule is -still in force, it may safely[190] be maintained that there is now a -customary rule of International Law, according to which all such -subjects of the enemy as have not according to the Municipal Law of -their country to join the armed forces of the enemy must be allowed a -reasonable period for withdrawal. On the other hand, such enemy subjects -as are active or reserve officers, or reservists, and the like, may be -prevented from leaving the country and detained as prisoners of war, -for the principle of self-preservation must justify belligerents in -refusing to furnish each other with resources which increase their means -of offence and defence.[191] However that may be, a belligerent need not -allow[192] enemy subjects to remain on his territory, although this is -frequently done. Thus, during the Crimean War Russian subjects in Great -Britain and France were allowed to remain there, as were likewise -Russians in Japan and Japanese in Russia during the Russo-Japanese War, -and Turks in Italy during the Turco-Italian War. On the other hand, -France expelled all Germans during the Franco-German war in 1870; the -former South African Republics expelled most British subjects when war -broke out in 1899; Russia, although during the Russo-Japanese War she -allowed Japanese subjects to remain in other parts of her territory, -expelled them from her provinces in the Far East; and in May 1912, eight -months after the outbreak of the Turko-Italian War, Turkey decreed the -expulsion of all Italians, certain classes excepted. In case a -belligerent allows the residence of enemy subjects on his territory, he -can, of course, give the permission under certain conditions only, such -as an oath to abstain from all hostile acts or a promise not to leave a -certain region, and the like. And it must be especially observed that an -enemy subject who is allowed to stay in the country after the outbreak -of war must not, in case the forces of his home State militarily occupy -the part of the country inhabited by him, join these forces or assist -them in any way. If, nevertheless, he does so, he is liable to be -punished for treason[193] by the local Sovereign after the withdrawal of -the enemy forces. - -[Footnote 187: See a list of such treaties in Hall, § 126, p. 107, note -1.] - -[Footnote 188: With regard to the 10,000 Englishmen who were arrested in -France by Napoleon at the outbreak of war with England in 1803 and kept -as prisoners of war for many years, it must be borne in mind that -Napoleon did not claim a right to make such civilians prisoners of war -as were at the outbreak of war on French soil. He justified his act as -one of reprisals, considering it a violation of the Law of Nations on -the part of England to begin hostilities by capturing two French -merchantmen in the Bay of Audierne without a formal declaration of war. -See Alison, _History of Europe_, V. p. 277, and Bonfils, No. 1052.] - -[Footnote 189: See Twiss, II. § 50; Rivier, II. p. 320; Liszt, § 39, V.; -Holland, _Letters upon War and Neutrality_ (1909), p. 39.] - -[Footnote 190: See _Land Warfare_, § 12.] - -[Footnote 191: See _Land Warfare_, § 13.] - -[Footnote 192: See above, vol. I. § 324.] - -[Footnote 193: See above, vol. I. § 317, p. 394, where the case of _De -Jager_ v. _Attorney General_ is discussed.] - -[Sidenote: _Persona standi in judicio_ on Enemy Territory.] - -§ 100_a_. Formerly the rule prevailed everywhere that an enemy subject -has no _persona standi in judicio_ and is, therefore, _ipso facto_ by -the outbreak of war, prevented from either taking or defending -proceedings in the Courts. This rule dates from the time when war was -considered such a condition between belligerents as justified the -committing of hostilities on the part of all subjects of the one -belligerent against all subjects of the other, and, further, the killing -of all enemy subjects irrespective of sex and age, and, at any rate, the -confiscation of all private enemy property. War in those times used to -put enemy subjects entirely _ex lege_, and it was only a logical -consequence from this principle that enemy subjects could not sustain -_persona standi in judicio_. Since the rule that enemy subjects are -entirely _ex lege_ has everywhere vanished, the rule that they may not -take or defend proceedings in the Courts has in many countries, such as -Austria-Hungary, Germany, Holland, and Italy, likewise vanished. But in -Great Britain and the United States of America[194] enemy subjects are -still prevented from taking and defending legal proceedings,[195] -although there are six exceptions to the general rule. Firstly, enemy -subjects who do not bear enemy character because they are resident in -neutral country or have a licence to trade or are allowed[196] to remain -in the country of a belligerent, are therefore permitted to sue and be -sued in British and American Courts. Secondly, if during time of peace a -defendant obtains an opportunity to plead, and if subsequently war -breaks out with the country of the plaintiff, the defendant may not -plead that the plaintiff is prevented from suing.[197] Thirdly, if a -contract was entered into and executed before the war, and if an absent -enemy subject has property within the boundaries of a belligerent, he -may be sued.[198] Fourthly, a prisoner of war[199] may sue during war on -a contract for wages. Fifthly, if the parties, being desirous to obtain -a decision on the merits of the case, waive the objection, enemy -subjects may sue and be sued.[200] Lastly, a petition on the part of a -creditor who is an enemy subject, to prove a debt under a commission of -bankruptcy must be admitted[201] although the dividend will not be paid -till after the conclusion of peace. - -[Footnote 194: In strict law also in France.] - -[Footnote 195: The leading case is the _Hoop_ (1799), 1 C. Rob. 196.] - -[Footnote 196: _Wells_ v. _Williams_ (1698), 1 Lord Raymond, 282.] - -[Footnote 197: _Shepeler_ v. _Durand_ (1854), 14 P.C. 582.] - -[Footnote 198: _Dorsey_ v. _Kyle_ (1869), 3 Maryland, 512. It would seem -that the American Courts are inclined to drop the rule that an enemy -subject cannot be sued; see _De Jarnett_ v. _De Giversville_ (1874), 56 -Missouri, 440.] - -[Footnote 199: _Maria_ v. _Hall_ (1800), 2 B. & P. 236.] - -[Footnote 200: _Driefontein Consolidated Gold Mines Co._ v. _Janson_ -(1910), 2 Q.B. 419; App. Cas. (1902), 484.] - -[Footnote 201: _Ex parte Boussmaker_ (1806), 13 Vesey Jun. 71.] - -It is asserted that, in consequence of article 23 (_h_) of the Hague -Regulations concerning land warfare enacting the injunction "to declare -extinguished, suspended, or unenforceable in a Court of Law the rights -and rights of action of the nationals of the adverse party," Great -Britain and the United States are compelled to abolish their rule that -enemy subjects may not sue. But the interpretation of article 23 (_h_) -is controversial, Great Britain and the United States of America--in -contradistinction to Germany and France--maintaining that the article -has nothing to do with their Municipal Law but concerns the conduct of -armies in occupied enemy territory.[202] - -[Footnote 202: It is impossible here to discuss the details of this -controversy which the third Peace Conference must settle. See above, -vol. I. § 554, No. 10; Politis in _R.G._ XVIII. (1911), pp. 249-259, and -the literature there quoted; Kohler in _Z.V._ V. (1911), pp. 384-393; -Holland in _The Law Quarterly Review_, XXVIII. (1912), pp. 94-98; -Charteris in _The Juridical Review_, XXIII. (1911), pp. 307-323; -Oppenheim, _Die Zukunft des Völkerrechts_ (1911), pp. 30-32.] - -However this may be, it must be especially observed that, according to -British and American law, claims arising out of contracts concluded -before the war do not become extinguished through the outbreak of war, -but are only suspended during war, and the Statute of Limitations does -not, according to American[203] practice at any rate, run during war. - -[Footnote 203: _Hanger_ v. _Abbot_ (1867), 6 Wallace, 532. The point is -not settled in English law, for the _obiter dictum_ in _De Wahl_ v. -_Browne_ (1856), 25 L.J. (N.S.) Ex. 343, "It may be that the effect -would ultimately be to bar the action by reason of the Statute of -Limitations is no answer...", is not decisive, although Anson, -_Principles of the English Law of Contract_ (11th ed. 1906), p. 122, and -other writers accept it as decisive.] - -[Sidenote: Intercourse, especially Trading, between Subjects of -Belligerents.] - -§ 101. Following Bynkershoek,[204] all British and American writers and -cases, and also some French[205] and German[206] writers assert the -existence of a rule of International Law that all intercourse, and -especially trading, is _ipso facto_ by the outbreak of war prohibited -between the subjects of the belligerents, unless it is permitted under -the customs of war, as, for instance, ransom bills, or is allowed under -special licences, and that all contracts concluded between the subjects -of the belligerents before the outbreak of war become extinct or -suspended. On the other hand, most German, French, and Italian writers -deny the existence of such a rule, but assert the existence of another -according to which belligerents are empowered to prohibit by special -orders all trade between their own and enemy subjects. - -[Footnote 204: _Quaestiones juris publici_, I. c. 3: "_quamvis autem -nulla specialis sit commerciorum prohibitio ipsa tamen jure belli -commercia sunt vetita_."] - -[Footnote 205: For instance, Pillet, p. 74, and Mérignhac, p. 57.] - -[Footnote 206: For instance, Geffcken in his note 4 to Heffter, p. 265.] - -These assertions are remnants of the time when the distinction[207] -between International and Municipal Law was not, or not clearly, drawn. -International Law, being a law for the conduct of States only and -exclusively, has nothing to do directly with the conduct of private -individuals, and both assertions are, therefore, nowadays untenable. -Their place must be taken by the statement that, States being sovereign -and the outbreak of war bringing the peaceful relations between -belligerents to an end, it is within the competence of every State to -enact by its Municipal Law such rules as it pleases concerning -intercourse, and especially trading, between its own and enemy subjects. -And if we look at the Municipal Laws of the several countries, we find -that they have to be divided into two groups. To the one group belong -those States--such as Austria-Hungary, Germany, Holland, and -Italy--whose Governments are empowered by their Municipal Laws to -prohibit by special order all trading with enemy subjects at the -outbreak of war. In these countries trade with enemy subjects is -permitted to continue after the outbreak of war unless special -prohibitive orders are issued. To the other group belong those -States--such as Great Britain, the United States of America, and, unless -_desuetudo_[208] has made an alteration, France--whose Municipal Laws -declare trade and intercourse with enemy subjects _ipso facto_ by the -outbreak of war prohibited, but empowers the Governments to allow by -special licences all or certain kinds of such trade. - -[Footnote 207: See above, vol. I. § 20.] - -[Footnote 208: See Meyer, _op. cit._ p. 91.] - -As regards the law of Great Britain[209] and the United States of -America, it has been, since the end of the eighteenth century, an -absolutely settled[210] rule of the Common Law that, certain cases -excepted, all trading with alien enemies is _ipso facto_ by the outbreak -of war illegal unless it is allowed by special licences of the Crown. -From the general principle asserted in the leading cases,[211] the -Courts have drawn the following more important consequences:-- - -(1) All contracts, entered into _during_ a war,[212] with alien enemies -without a special licence are illegal, invalid, and can never be -enforced, unless the contract was one entered into in case of -necessity,[213] or in order to supply[214] an invading English army or -the English fleet, or by prisoners[215] of war concerning personal -services and requirements. - -(2) Trading with the enemy does not become legal by the fact that goods -coming from the enemy country to Great Britain, or going from Great -Britain to the enemy country, are sent to their destination through a -neutral country.[216] - -(3) As regards contracts entered into _before_[217] the outbreak of war, -a distinction must be drawn:--(_a_) Executory contracts are avoided, -both parties being released from performance. (_b_) Contracts executed -before the outbreak of war and not requiring to be acted upon during the -war are suspended until after the conclusion of peace. (_c_) Executed -contracts which require acting upon during the war are dissolved. - -(4) Partnerships[218] with alien enemies are dissolved. - -(5) No interest runs on debts[219] or mortgages.[220] - -(6) A contract of affreightment[221] must not be fulfilled; therefore -English ships must not load or unload goods in an enemy port. - -(7) Contracts of insurance of enemy vessels and goods are so to be -construed as to contain a proviso that the assurance shall not cover any -loss occurring during a war between the country of the assurer and the -country of the assured.[222] - -(8) A life insurance policy,[223] entered into before the outbreak of -war conditioning the payment of yearly premiums on pain of forfeiture of -the policy, is forfeited _ipso facto_ by the outbreak of war because the -payment of the premium is now prohibited. After the conclusion of peace, -however, the insured may claim the equitable value of the policy -arising, at the time of the outbreak of war, from the premiums actually -paid. - -[Footnote 209: See besides the English and American text-books quoted -above at the commencement of § 97, Pennant, Chadwick, and Gregory in -_The Law Quarterly Review_, XVIII. (1902), pp. 289-296, XX. (1904), pp. -167-185, XXV. (1909), pp. 297-316; Bentwich, _The Law of Private -Property in War_ (1907), pp. 46-61; Phillipson, _The Effect of War on -Contracts_ (1909); Latifi, _Effects of War on Property_ (1909), pp. -50-58.] - -[Footnote 210: Whereas the Admiralty Court did at all times, the Common -Law Courts did not during the eighteenth century hold trading with enemy -subjects to be illegal, at any rate not in so far as insurance of enemy -vessels and goods against capture on the part of English cruisers was -concerned; see _Henkle_ v. _London Exchange Assurance Co._ (1749), 1 -Vesey Sen. 320; _Planche_ v. _Fletcher_ (1779), 1 Dougl. 251; _Lavabre_ -v. _Wilson_ (1779), 1 Dougl. 284; _Gist_ v. _Mason_ (1786), 1 T.R. 84.] - -[Footnote 211: Besides the Admiralty case of the _Hoop_ (1799), 1 C. -Rob. 196, the following are the leading cases:--_Potts_ v. _Bell_ -(1800), 8 D. & E. 548; _Furtado_ v. _Rodgers_ (1802), 3 P. & B. 191; -_Esposito_ v. _Bowden_ (1857), 7 E. & B. 763; the _Mashona_ (1900), 10 -_Cape Times_ Law Reports, 170.] - -[Footnote 212: _Willison_ v. _Paterson_ (1817), 7 Taunt, 439.] - -[Footnote 213: _Antoine_ v. _Morshead_ (1815), 6 Taunt, 237.] - -[Footnote 214: The _Madonna delle Gracie_ (1802), 4 C. Rob. 195.] - -[Footnote 215: _Maria_ v. _Hall_ (1800), 2 B. & P. 236.] - -[Footnote 216: The _Jonge Pieter_ (1801), 4 C. Rob. 79. But if the goods -have been bought by the subject of a neutral State _bona fide_ by -himself and are afterwards shipped through neutral country to the enemy, -it is not a case of trading with the enemy; see the _Samuel_ (1802), 4 -C. Rob. 284, note.] - -[Footnote 217: _Melville_ v. _De Wold_ (1855), 4 E. & B. 844; _Esposito_ -v. _Bowden_ (1857), 7 E. & B. 763; _Ex parte Boussmaker_ (1806), 13 Ves. -Jun. 71; _Alcinous_ v. _Nygreu_ (1854), 4 E. & B. 217; the _Charlotta_ -(1814), 1 Dodson, 390.] - -[Footnote 218: _Griswold_ v. _Boddington_ (1819), 16 Johnson, 438; -_Esposito_ v. _Bowden_ (1857), 7 E. & B. 763.] - -[Footnote 219: _Du Belloix_ v. _Lord Waterpark_ (1822), 1 Dowl. & R. 16; -_Mayer_ v. _Reed_ (1867), 37 Gallison, 482.] - -[Footnote 220: _Hoare_ v. _Allan_ (1789), 2 Dallas, 102.] - -[Footnote 221: _Esposito_ v. _Bowden_ (1857), 7 E. & B. 763. See also -the _Teutonia_ (1870), L. R. 4 Privy Council, 171.] - -[Footnote 222: _Brandon_ v. _Curling_ (1803), 4 East, 410; but see also -_Potts_ v. _Bell_ (1800), 8 D. & E. 548; _Furtado_ v. _Rodgers_ (1802), -3 P. & B. 191; _Kellner_ v. _Le Mesurier_ (1803), 4 East, 396; _Gamba_ -v. _Le Mesurier_ (1803), 4 East, 407.] - -[Footnote 223: _New York Life Insurance Co._ v. _Stathem_, v. _Symes_, -and v. _Buck_ (1876), 93 United States, 24; _New York Life Insurance -Co._ v. _Davis_ (1877), 95 United States, 425.] - -It must be specially observed that, if the continental interpretation of -article 23 (_h_) of the Hague Regulations--see above, § 100_a_--were not -contradicted by Great Britain and the United States of America, both -countries would be compelled to alter their Municipal Laws in so far as -these declare such contracts as have been entered into with alien -enemies before the outbreak of war dissolved, void, or suspended. -Article 23 (_h_) distinctly enacts that it is forbidden to declare -extinguished or suspended the rights of the nationals of the adverse -party. Since, however, as stated above in § 100_a_, Great Britain and -the United States of America uphold a different interpretation, this -article does not concern their Municipal Laws respecting trading with -alien enemies. - -[Sidenote: Position of Belligerents' Property in the Enemy State.] - -§ 102. In former times all private and public enemy property, immoveable -or moveable, on each other's territory could be confiscated by the -belligerents at the outbreak of war, as could also enemy debts; and the -treaties[224] concluded between many States with regard to the -withdrawal of each other's subjects at the outbreak of war stipulated -likewise the unrestrained withdrawal of the private property of their -subjects. Through the influence of such treaties as well as of Municipal -Laws and Decrees enacting the same, an international usage and practice -grew up that belligerents should neither confiscate private enemy -property nor annul enemy debts on their territory. The last case of -confiscation of private property is that of 1793 at the outbreak of war -between France and Great Britain. No case of confiscation occurred -during the nineteenth century, and although several writers maintain -that according to strict law the old rule, in contradistinction to the -usage which they do not deny, is still valid, it may safely be -maintained that it is obsolete, and that there is now a customary rule -of International Law in existence prohibiting the confiscation of -private enemy property and the annulment of enemy debts on the territory -of a belligerent. This rule, however, does not prevent a belligerent -from seizing public enemy property on his territory, such as funds, -ammunition, provisions, rolling stock of enemy state-railways, and other -valuables; from preventing the withdrawal of private enemy property -which may be made use of by the enemy[225] for military operations, such -as arms and munitions; from seizing and making use of rolling stock -belonging to private enemy railway companies, other means of transport -of persons or goods which are private enemy property, and, further, all -appliances for the transmission of news, although they are private enemy -property, provided all these articles are restored and indemnities are -paid for them after the conclusion of peace;[226] and from suspending, -as a measure of self preservation, the payment of large enemy debts till -after the conclusion of peace in order to prevent the increase of -resources of the enemy. - -[Footnote 224: See above, § 100; Moore, VII. § 1196; Scott, -_Conferences_, pp. 559-563.] - -[Footnote 225: The indulgence granted to enemy merchantmen in Russian -and Japanese ports at the outbreak of the war in 1904, to leave those -ports unmolested within a certain period of time, was conditional upon -there being no contraband in the cargoes. See Lawrence, _War_, p. 52.] - -[Footnote 226: As the seizure of all these articles is, according to -article 53 of the Hague Regulations, permissible in occupied enemy -country, provided they are restored and indemnities paid after the -conclusion of peace, seizure must likewise--under the same -conditions--be permissible in case these articles are on the territory -of a belligerent. As regards rolling stock belonging to private enemy -railway companies, see Nowacki, _Die Eisenbahnen im Kriege_ (1906), § -15.] - -[Sidenote: Effect of the Outbreak of War on Merchantmen.] - -§ 102_a_. In former times International Law empowered States at the -outbreak of war to lay an embargo upon all enemy merchantmen in their -harbours in order to confiscate them. And enemy merchantmen on the sea -could at the outbreak of war be captured and confiscated although they -did not even know of the outbreak of war. As regards enemy merchantmen -in the harbours of the belligerents, it became, from the outbreak of the -Crimean War in 1854, a usage, if not a custom, that no embargo[227] -could be laid on them for the purpose of confiscating them, and that a -reasonable time must be granted them to depart unmolested; but no rule -was in existence until the Second Peace Conference of 1907 which -prescribed immunity from confiscation for such enemy merchantmen at sea -as did not know of the outbreak of war. This Conference took the matter -into consideration, and produced a Convention (VI.) relative to the -status of enemy merchantmen at the outbreak of hostilities[228] which is -signed by all the Powers represented at the Conference, except the -United States of America,[229] China, and Nicaragua; but Nicaragua -acceded later. In coming to an agreement on the subject, two facts had -to be taken into consideration. There is, firstly, the fact that in all -maritime countries numerous merchantmen are now built from special -designs in order that they may quickly, at the outbreak of or during -war, be converted into cruisers; it would therefore be folly on the part -of a belligerent to grant any lenient treatment to such vessels. There -is, secondly, the fact, that a belligerent fleet cannot nowadays remain -effective for long without being accompanied by a train of colliers, -transport vessels, and repairing vessels; it is, therefore, of the -greatest importance for a belligerent to have as many merchantmen as -possible at his disposal for the purpose of making use of them for such -assistance to the fleet. For this reason, Convention VI. represents a -compromise, and it distinguishes between vessels in the harbours of the -belligerents and vessels on the sea. Its provisions are the following:-- - -[Footnote 227: See above, § 40.] - -[Footnote 228: See Lémonon, pp. 647-661; Higgins, pp. 300-307; Nippold, -II. pp. 146-153; Scott, _Conferences_, pp. 556-568; Dupuis, _Guerre_, -Nos. 74-81; Scott in _A.J._ II. (1908), pp. 260-269.] - -[Footnote 229: The United States of America refused to sign the -Convention because she considers its stipulations retrogressive as they -are less liberal than the practice which has prevailed since 1854. But -circumstances have changed since that time, and the two facts explained -in the text would seem to have compelled the maritime Powers to adopt -rules somewhat less liberal. This was the more necessary since no -agreement could be arrived at concerning the question of the locality in -which belligerents should be allowed to convert merchantmen into -cruisers.] - -(1) Article 1 of the Convention enacts that, in case an enemy -merchantman is at the beginning of the war in the port of a belligerent, -it is _desirable_ that she should be allowed freely to depart, either -immediately or after a sufficient term of grace, and, after being -furnished with a passport, to proceed either direct to her port of -destination or to such other port as may be determined. It is obvious -that, since only the desirability of free departure of such vessels is -stipulated, a belligerent is not compelled to grant free departure; -nevertheless there must be grave reasons for not acting in accordance -with what is considered desirable by article 1. And it must be specially -observed that a belligerent may make a distinction in the treatment of -several enemy vessels in his harbours, and may grant free departure to -one or more of them, and refuse it to others, according to his -discretion. - -(2) The former usage that enemy merchantmen in the harbours of the -belligerents at the outbreak of war may not be confiscated, has been -made a _binding rule_ by article 2 which enacts that such vessels as -were not allowed to leave, or were by _force majeure_ prevented from -leaving during the term of grace, may not be confiscated, but may only -be detained under the obligation that they shall be restored, without -indemnity, after the conclusion of peace, or they may be requisitioned -on condition of indemnities to be paid to the owners. - -(3) Enemy merchantmen which have left their last port of departure -before the outbreak of war and which, while ignorant of the outbreak of -war, are met at sea by cruisers of the belligerents, may, according to -article 3, be captured, but they may not be confiscated, for they must -be restored after the war is ended, although no indemnities need be -paid. Indemnities are only to be paid in case the vessels have been -requisitioned or destroyed, for a belligerent is empowered to -requisition or destroy such vessels provided he takes care to preserve -the ship papers and makes arrangements for the safety of the persons on -board. - -It is obvious that, in case such vessels are not ignorant of the -outbreak of war--having, for instance, received the news by wireless -telegraphy--they may not any longer claim the privileges stipulated by -article 3. And this article stipulates expressly that after having -touched a port of their own or of a neutral country, such vessels are no -longer privileged. - -(4) Enemy goods on board such enemy merchantmen as are in the harbour -of a belligerent at the outbreak of war or at sea and are in ignorance -of the outbreak of war are, according to article 4, privileged to the -same extent as the vessels concerned. - -(5) Enemy merchantmen whose construction indicates that they are -intended to be converted into cruisers may be seized and confiscated in -the harbours of the belligerents, as well as at sea, although ignorant -of the outbreak of war, for article 5 stipulates expressly that -Convention VI. does not affect such vessels. - - - - -CHAPTER III - -WARFARE ON LAND - - -I - -ON LAND WARFARE IN GENERAL - - Vattel, III. §§ 136-138--Hall, §§ 184-185--Phillimore, III. § - 94--Taylor, § 469--Wheaton, § 342--Bluntschli, §§ - 534-535--Heffter, § 125--Lueder in Holtzendorff, IV. pp. - 388-389--Gareis, § 84--Bonfils, Nos. 1066-1067--Pradier-Fodéré, - VI. Nos. 2734-2741--Longuet, § 41--Mérignhac, p. 146--Pillet, pp. - 85-89--_Kriegsbrauch_, p. 9--_Land Warfare_, § 39--Holland, _War_, - Nos. 1-15. - -[Sidenote: Aims and Means of Land Warfare.] - -§ 103. The purpose of war, namely, the overpowering of the enemy, is -served in land warfare through two aims[230]--firstly, defeat of the -enemy armed forces on land, and, secondly, occupation and administration -of the enemy territory. The chief means by which belligerents try to -realise those aims, and which are always conclusively decisive, are the -different sorts of force applied against enemy persons. But besides such -violence against enemy persons there are other means which are not at -all unimportant, although they play a secondary part only. Such means -are: appropriation, utilisation, and destruction of enemy property; -siege; bombardment; assault; espionage; utilisation of treason; ruses. -All these means of warfare on land must be discussed in this chapter, as -must also occupation of enemy territory. - -[Footnote 230: Aims of land warfare must not be confounded with ends of -war; see above, § 66.] - -[Sidenote: Lawful and Unlawful Practices of Land Warfare.] - -§ 104. But--to use the words of article 22 of the Hague -Regulations--"the belligerents have not an unlimited right as to the -means they adopt for injuring the enemy." For not all possible practices -of injuring the enemy in offence and defence are lawful, certain -practices being prohibited under all circumstances and conditions, and -other practices being allowed only under certain circumstances and -conditions, or only with certain restrictions. The principles of -chivalry and of humanity have been at work[231] for many hundreds of -years to create these restrictions, and their work is not yet at an end. -However, apart from these restrictions, all kinds and degrees of force -and many other practices may be made use of in war. - -[Footnote 231: See above, § 67.] - -[Sidenote: Objects of the Means of Warfare.] - -§ 105. In a sense all means of warfare are directed against one object -only--namely, the enemy State, which is to be overpowered by all -legitimate means. Apart from this, the means of land warfare are -directed against several objects.[232] Such objects are chiefly the -members of the armed forces of the enemy, but likewise, although in a -lesser degree, other enemy persons; further, private and public -property, fortresses, and roads. Indeed, apart from certain -restrictions, everything may eventually be the object of a means of -warfare, provided the means are legitimate in themselves and are capable -of fostering the realisation of the purpose of war. - -[Footnote 232: See Oppenheim, _Die Objekte des Verbrechens_ (1894), pp. -64-146, where the relation of human actions with their objects is fully -discussed.] - -[Sidenote: Land Warfare in contradistinction to Sea Warfare.] - -§ 106. Land warfare must be distinguished from sea warfare chiefly for -two reasons. Firstly, their circumstances and conditions differ widely -from each other, and, therefore, their means and practices also differ. -Secondly, the law-making Conventions which deal with warfare rarely deal -with land and sea warfare at the same time, but mostly treat them -separately, for whereas some Conventions deal exclusively with warfare -on sea, the Hague Regulations (Convention IV.) deal exclusively with -warfare on land. - - -II - -VIOLENCE AGAINST ENEMY PERSONS - - Grotius, III. c. 4--Vattel, III. §§ 139-159--Hall, §§ 128, 129, - 185--Westlake, II. pp. 72-76--Lawrence, §§ 161, 163, - 166-169--Maine, pp. 123-148--Manning, pp. 196-205--Phillimore, - III. §§ 94-95--Halleck, II. pp. 14-18--Moore, VII. §§ 1111, 1119, - 1122, 1124--Taylor, §§ 477-480--Walker, § 50--Wheaton, §§ - 343-345--Bluntschli, §§ 557-563--Heffter, § 126--Lueder in - Holtzendorff, IV. pp. 390-394--Gareis, § 85--Klüber, § 244--Liszt, - § 40, III.--G. F. Martens, II. § 272--Ullmann, § 176--Bonfils, - Nos. 1068-1071, 1099, 1141--Despagnet, Nos. - 525-527--Pradier-Fodéré, VI. Nos. 2742-2758--Rivier, II. pp. - 260-265--Nys, III. pp. 206-209--Calvo, IV. 2098-2105--Fiore, III. - Nos. 1317-1320, 1342-1348, and Code, Nos. 1476-1483--Martens, II. - § 110--Longuet, §§ 42-49--Mérignhac, pp. 146-165--Pillet, pp. - 85-95--Holland, _War_, pp. 70-76--Zorn, pp. 127-161--Bordwell, pp. - 278-283--Meurer, II. §§ 30-31--Spaight, pp. - 73-156--_Kriegsbrauch_, pp. 9-11--_Land Warfare_, §§ 39-53. - -[Sidenote: On Violence in general against Enemy Persons.] - -§ 107. As war is a contention between States for the purpose of -overpowering each other, violence consisting of different sorts of force -applied against enemy persons is the chief and decisive means of -warfare. These different sorts of force are used against combatants as -well as non-combatants, but with discrimination and differentiation. The -purpose of the application of violence against combatants is their -disablement so that they can no longer take part in the fighting. And -this purpose may be realised through either killing or wounding them, or -making them prisoners. As regards non-combatant members of armed forces, -private enemy persons showing no hostile conduct, and officials in -important positions, only minor means of force may as a rule be applied, -since they do not take part in the armed contention of the belligerents. - -[Sidenote: Killing and Wounding of Combatants.] - -§ 108. Every combatant may be killed or wounded, whether a private -soldier or an officer, or even the monarch or a member of his family. -Some publicists[233] assert that it is a usage of warfare not to aim at -a sovereign or a member of his family. Be that as it may, there is in -strict law[234] no rule preventing the killing and wounding of such -illustrious persons. But combatants may only be killed or wounded if -they are able and willing to fight or to resist capture. Therefore, such -combatants as are disabled by sickness or wounds may not be killed. -Further, such combatants as lay down arms and surrender or do not resist -being made prisoners may neither be killed nor wounded, but must be -given quarter. These rules are universally recognised, and are now -expressly enacted by article 23 (_c_) of the Hague Regulations, although -the fury of battle frequently makes individual fighters[235] forget and -neglect them. - -[Footnote 233: See Klüber, § 245; G. F. Martens, II. § 278; Heffter, § -126.] - -[Footnote 234: Says Vattel, III. § 159: "Mais ce n'est point une loi de -la guerre d'épargner en toute rencontre la personne du roi ennemi; et on -n'y est obligé que quand on a la facilité de le faire prisonnier." The -example of Charles XII. of Sweden (quoted by Vattel), who was -intentionally fired at by the defenders of the fortress of Thorn, -besieged by him, and who said that the defenders were within their -right, ought to settle the point.] - -[Footnote 235: See Baty, _International Law in South Africa_ (1900), pp. -84-85.] - -[Sidenote: Refusal of Quarter.] - -§ 109. However, the rule that quarter must be given has its exceptions. -Although it has of late been a customary rule of International Law, and -although the Hague Regulations now expressly stipulate by article 23 -(_d_) that belligerents are prohibited from declaring that no quarter -will be given, quarter may nevertheless be refused[236] by way of -reprisal for violations of the rules of warfare committed by the other -side; and, further, in case of imperative necessity, when the granting -of quarter would so encumber a force with prisoners that its own -security would thereby be vitally imperilled.[237] But it must be -emphasised that the mere fact that numerous prisoners cannot safely be -guarded and fed by the captors[238] does not furnish an exceptional -case to the rule, provided that no vital danger to the captors is -therein involved. And it must likewise be emphasised that the former -rule is now obsolete according to which quarter could be refused to the -garrison of a fortress carried by assault, to the defenders of an -unfortified place against an attack of artillery, and to the weak -garrison who obstinately and uselessly persevered in defending a -fortified place against overwhelming enemy forces. - -[Footnote 236: See Pradier-Fodéré, VII. Nos. 2800-2801, who opposes this -principle but discusses the subject in a very detailed way.] - -[Footnote 237: See Payrat, _Le Prisonnier de Guerre_ (1910), pp. -191-220, and _Land Warfare_, § 80.] - -[Footnote 238: Accordingly, the Boers frequently during the South -African War set free British soldiers whom they had captured.] - -[Sidenote: Lawful and Unlawful Means of killing and wounding -Combatants.] - -§ 110. Apart from such means as are expressly prohibited by treaties or -custom, all means of killing and wounding that exist or may be invented -are lawful. And it matters not whether the means used are directed -against single individuals, as swords and rifles, or against large -bodies of individuals, as, for instance, shrapnel, Gatlings, and mines. -On the other hand, all means are unlawful that render death inevitable -or that needlessly aggravate the sufferings of wounded combatants. A -customary rule of International Law, now expressly enacted by article 23 -(_e_) of the Hague Regulations, prohibits, therefore, the employment of -poison and of such arms, projectiles, and material as cause unnecessary -injury. Accordingly: wells, pumps, rivers, and the like from which the -enemy draws drinking water must not be poisoned; poisoned weapons must -not be made use of; rifles must not be loaded with bits of glass, -irregularly shaped iron, nails, and the like; cannons must not be loaded -with chain shot, crossbar shot, red-hot balls, and the like. Another -customary rule, now likewise enacted by article 23 (_b_) of the Hague -Regulations, prohibits any treacherous way of killing and wounding -combatants. Accordingly: no assassin must be hired and no assassination -of combatants be committed; a price may not be put on the head of an -enemy individual; proscription and outlawing are prohibited; no -treacherous request for quarter must be made; no treacherous simulation -of sickness or wounds is permitted. - -[Sidenote: Explosive Bullets.] - -§ 111. In 1868 a conference met at St. Petersburg for the examination of -a proposition made by Russia with regard to the use of explosive -projectiles in war. The representatives of seventeen Powers--namely, -Great Britain, Russia, Austria-Hungary, Bavaria, Belgium, Denmark, -France, Greece, Holland, Italy, Persia, Portugal, Prussia and the North -German Confederation, Sweden-Norway, Switzerland, Turkey and Württemberg -(Brazil acceded later) signed on December 11, 1868, the so-called -Declaration of St. Petersburg,[239] which stipulates that the signatory -Powers, and those who should accede later, renounce in case of war -between themselves the employment, by their military and naval troops, -of any projectile of a weight below 400 grammes (14 ounces) which is -either explosive or charged with fulminating or inflammable substances. -This engagement is obligatory only upon the contracting Powers, and it -ceases to be obligatory in case a non-contracting Power takes part in a -war between any of the contracting Powers. - -[Footnote 239: See above, vol. I. § 562, and Martens, _N.R.G._ XVIII. p. -474.] - -[Sidenote: Expanding (Dum-Dum) Bullets.] - -§ 112. As Great Britain had introduced bullets manufactured at the -Indian arsenal of Dum-Dum, near Calcutta, the hard jacket of which did -not quite cover the core and which therefore easily expanded and -flattened in the human body, the First Hague Peace Conference adopted a -declaration signed on July 29, 1899, by fifteen Powers--namely, Belgium, -Denmark, Spain, Mexico, France, Greece, Montenegro, Holland, Persia, -Roumania, Russia, Siam, Sweden-Norway, Turkey, and Bulgaria--stipulating -that the contracting Powers should abstain, in case of war between two -or more of them, from the use of bullets which expand or flatten easily -in the human body, such as bullets with hard envelopes which do not -entirely cover the core or are pierced with incisions. Austria-Hungary, -China, Germany, Italy, Nicaragua, Portugal, Japan, Luxemburg, Servia, -Switzerland, and Great Britain acceded later. - -[Sidenote: Projectiles diffusing Asphyxiating or Deleterious Gases.] - -§ 113. The First Hague Peace Conference also adopted a Declaration, -signed on July 29, 1899, by sixteen States--namely, Belgium, Denmark, -Spain, Mexico, France, Greece, Montenegro, Holland, Persia, Portugal, -Roumania, Russia, Siam, Sweden-Norway, Turkey and Bulgaria--stipulating -that the signatory Powers should in a war between two or more of them -abstain from the use of projectiles the sole object of which is the -diffusion of asphyxiating or deleterious gases. Austria-Hungary, China, -Germany, Italy, Japan, Luxemburg, Nicaragua, Servia, Switzerland, and -Great Britain acceded later. - -[Sidenote: Violence directed from Air-Vessels.] - -§ 114. The First Hague Peace Conference adopted likewise a Declaration, -signed on July 29, 1899, prohibiting _for a term of five years_ the -launching of projectiles or explosives from balloons or other kinds of -aerial vessels. The Second Peace Conference, on October 18, 1907, -renewed this Declaration _up to the close of the Third Peace -Conference_, but out of twenty-seven States which signed the Declaration -only seven--namely, Great Britain, the United States of America, China, -Holland, Bolivia, Salvador, Haiti (Nicaragua acceded later)--ratified -it, and Germany, France, Italy, Japan, Russia--not to mention smaller -Powers--did not even sign it. There is, therefore, no doubt that the -Third Peace Conference will not renew the Declaration. Although it is -very much to be regretted, the fact must be taken into consideration -that in future violence directed from air-vessels will play a great part -in war. For this reason, the question as to the conditions under which -such violence is admissible, is of importance,[240] but it is as yet -impossible to give a satisfactory answer. The Institute of International -Law, at its meeting at Madrid in 1911, adopted the principle[241] that -_aerial warfare must not comprise greater danger to the person and the -property of the peaceful population than land or sea warfare_. However -this may be, there can be no doubt that the general principles laid down -in the Declaration of St. Petersburg of 1868, in the two Declarations, -adopted by the First Peace Conference, concerning expanding bullets and -projectiles diffusing asphyxiating or deleterious gases, in the Hague -rules concerning land warfare, and the like, must find application as -regards violence directed from air vessels. - -[Footnote 240: See, besides the literature quoted above, vol. I. p. 237, -note 1, Mérignhac, pp. 198-209; Bonfils, Nos. 1440'4-1440'21; Despagnet, -No. 721 _bis_; Meyer, _Die Luftschiffahrt in kriegsrechtlicher -Beleuchtung_ (1909); Philet, _La guerre aérienne_ (1910); Nys, -Fauchille, and Bar in _Annuaire_, XIX. (1902), pp. 58-114, XXIV. (1911), -pp. 23-126; Fauchille in _R.G._ VIII. (1901), pp. 414-485.] - -[Footnote 241: See _Annuaire_, XXIV. (1911), p. 346.] - -[Sidenote: Violence against non-combatant Members of Armed Forces.] - -§ 115. It will be remembered from above, § 79, that numerous individuals -belong to armed forces without being combatants. Now, since and in so -far as these non-combatant members of armed forces do not take part in -the fighting, they may not directly be attacked and killed or wounded. -However, they are exposed to all injuries indirectly resulting from the -operations of warfare. And, with the exception of the personnel[242] -engaged in the interest of the wounded, such as doctors, chaplains, -persons employed in military hospitals, official ambulance men, who, -according to articles 9 and 10 of the Geneva Convention, are specially -privileged, such non-combatant members of armed forces may certainly be -made prisoners, since the assistance they give to the fighting forces -may be of great importance. - -[Footnote 242: See below, § 121.] - -[Sidenote: Violence against Private Enemy Persons.] - -§ 116. Whereas in former[243] times private enemy persons of either sex -could be killed or otherwise badly treated according to discretion, and -whereas in especial the inhabitants of fortified places taken by assault -used to be abandoned to the mercy of the assailants, in the eighteenth -century it became a universally recognised customary rule of the Law of -Nations that private enemy individuals should not be killed or attacked. -In so far as they do not take part in the fighting, they may not be -directly attacked and killed or wounded. They are, however, like -non-combatant members of the armed forces, exposed to all injuries -indirectly resulting from the operations of warfare. Thus, for instance, -when a town is bombarded and thousands of inhabitants are thereby -killed, or when a train carrying private individuals as well as soldiers -is wrecked by a mine, no violation of the rule prohibiting attack on -private enemy persons has taken place. - -[Footnote 243: See Grotius, III. c. 4, §§ VI. and IX.] - -As regards captivity, the rule is that private enemy persons may not be -made prisoners of war. But this rule has exceptions conditioned by the -carrying out of certain military operations, the safety of the armed -forces, and the order and tranquillity of occupied enemy territory. -Thus, for instance, influential enemy citizens who try to incite their -fellow-citizens to take up arms may be arrested and deported into -captivity. And even the whole population of a province may be imprisoned -in case a levy _en masse_ is threatening.[244] - -[Footnote 244: Civilians who render assistance to the enemy as drivers, -or as labourers to construct fortifications or siege works, or in a -similar way, if captured while they are so engaged, may not be detained -as prisoners of war, whether they render these services voluntarily or -are requisitioned or hired. See _Land Warfare_, § 58 note (_a_).] - -Apart from captivity, restrictions of all sorts may be imposed upon, and -means of force may be applied against, private enemy persons for many -purposes. Such purposes are:--the keeping of order and tranquillity on -occupied enemy territory; the prevention of any hostile conduct, -especially conspiracies; the prevention of intercourse with and -assistance to the enemy forces; the securing of the fulfilment of -commands and requests of the military authorities, such as those for the -provision of drivers, hostages, farriers; the securing of compliance -with requisitions and contributions, of the execution of public works -necessary for military operations, such as the building of -fortifications, roads, bridges, soldiers' quarters, and the like. What -kind of violent means may be applied for these purposes is in the -discretion of the respective military authorities, who on their part -will act according to expediency and the rules of martial law -established by the belligerents. But there is no doubt that, if -necessary, capital punishment and imprisonment[245] are lawful means for -these purposes. The essence of the position of private individuals in -modern warfare with regard to violence against them finds expression in -article 46 of the Hague Regulations, which lays down the rule that -"family honours and rights, individual lives and private property, as -well as religious convictions and liberty, must be respected." - -[Footnote 245: That in case of general devastation the peaceful -population may be detained in so-called concentration camps, there is no -doubt; see below, § 154. And there is likewise no doubt that hostages -may be taken from the peaceful population; see below, § 170, p. 213, and -§ 259, p. 319, note 2.] - -[Sidenote: Violence against the Head of the Enemy State and against -Officials in Important Positions.] - -§ 117. The head of the enemy State and officials in important posts, in -case they do not belong to the armed forces, occupy, so far as their -liability to direct attack, death, or wounds is concerned, a position -similar to that of private enemy persons. But they are so important to -the enemy State, and they may be so useful to the enemy and so dangerous -to the invading forces, that they may certainly be made prisoners of -war. If a belligerent succeeds in obtaining possession of the head of -the enemy State or its Cabinet Ministers, he will certainly remove them -into captivity. And he may do the same with diplomatic agents and other -officials of importance, because by weakening the enemy Government he -may thereby influence the enemy to agree to terms of peace. - - -III - -TREATMENT OF WOUNDED, AND DEAD BODIES - - Hall, § 130--Lawrence, § 165--Maine, pp. 156-159--Manning, p. - 205--Phillimore, III. § 95--Halleck, II. pp. 36-39--Moore, VII. § - 1134--Taylor, §§ 527-528--Bluntschli, §§ 586-592--Lueder in - Holtzendorff, IV. pp. 289-319, 398-421--Liszt, § 40, V.--Ullmann, - § 178 and in _R.G._ IV. (1897), pp. 437-447--Bonfils, Nos. - 1108-1118'7--Despagnet, Nos. 551-553--Pradier-Fodéré, VI. No. - 2794, VII. Nos. 2849-2881--Rivier, II. pp. 268-273--Nys, III. pp. - 526-536--Calvo, IV. §§ 2161-2165--Fiore, III. Nos. 1363-1372, and - Code, Nos. 1589-1604--Martens, II. § 114--Longuet, §§ - 85-90--Mérignhac, pp. 114-142--Pillet, pp. - 165-192--_Kriegsbrauch_, p. 26--_Land Warfare_, §§ 174-220--Zorn, - p. 122--Bordwell, pp. 249-277--Spaight, pp. 419-460--Higgins, pp. - 35-38--Holland, _Studies_, pp. 61-65--Holland, _War_, Nos. - 41-69--Güret, _Zur Geschichte der internationalen und freiwilligen - Krankenpflege_ (1873)--Lueder, _Die Genfer Convention_ - (1876)--Moynier, _La croix rouge, son passé et son avenir_ (1882); - _La revision de la Convention de Genève_ (1898); _La fondation de - la croix rouge_ (1903)--Buzzati, _De l'emploi abusif ... de la - croix rouge_ (1890)--Triepel, _Die neuesten Fortschritte auf dem - Gebiet des Kriegsrechts_ (1894), pp. 1-41--Müller, - _Entstehungsgeschichte des rothen Kreuzes und der Genfer - Konvention_ (1897)--Münzel, _Untersuchungen über die Genfer - Konvention_ (1901)--Roszkoroski in _R.I._ 2nd Ser. IV. (1902), pp. - 199, 299, 442--Gillot, _La revision de la Convention de Genève, - etc._ (1902)--Meurer, _Die Genfer Konvention und ihre Reform_ - (1906)--Delpech in _R.G._ XIII. (1906), pp. 629-724--Macpherson in - _Z.V._ V. (1911), pp. 253-277. - -[Sidenote: Origin of Geneva Convention.] - -§ 118. Although[246] since the seventeenth century several hundreds of -special treaties have been concluded between different States regarding -the tending of each other's wounded and the exemption of army surgeons -from captivity, no general rule of the Law of Nations on these points -was in existence until the second half of the nineteenth century other -than one prohibiting the killing, mutilation, or ill-treatment of the -wounded. A change for the better was initiated by Jean Henry Dunant, a -Swiss citizen from Geneva, who was an eye-witness of the battle of -Solferino in 1859, where many thousands of wounded died who could, under -more favourable circumstances, have been saved. When he published, in -1861 and 1863, his pamphlet, _Un Souvenir de Solférino_, the Geneva -_Société d'utilité publique_, under the presidency of Gustave Moynier, -created an agitation in favour of better arrangements for the tending of -the wounded on the battlefield, and convoked an international congress -at Geneva in 1863, where thirty-six representatives of nearly all the -European States met and discussed the matter. In 1864 the Bundesrath, -the Government of the Federal State of Switzerland, took the matter in -hand officially, and invited all European and several American States to -send official representatives to a Congress at Geneva for the purpose of -discussing and concluding an international treaty regarding the wounded. -This Congress met in 1864, and sixteen States were represented. Its -result was the international "Convention[247] for the Amelioration of -the Condition of Soldiers wounded in Armies in the Field," commonly -called "Geneva Convention," signed on August 22, 1864. By-and-by States -other than the original signatories joined the Convention, and finally -the whole body of the civilised States of the world, with the exception -of Costa Rica, Monaco, and Lichtenstein, became parties. That the rules -of the Convention were in no wise perfect, and needed to be supplemented -regarding many points, soon became apparent. A second International -Congress met at the invitation of Switzerland in 1868 at Geneva, where -additional articles[248] to the original Convention were discussed and -signed. These additional articles have, however, never been ratified. -The First Hague Peace Conference in 1899 unanimously formulated the wish -that Switzerland should shortly take steps for the assemblage of another -international congress in order to revise the Geneva Convention. This -Congress assembled in June 1906, thirty-five States having sent -representatives, and on July 6, 1906, a new Geneva Convention[249] was -signed by Great Britain, Germany, Argentina, Austria-Hungary, Belgium, -Bulgaria, Chili, China, Congo Free State, Korea, Denmark, Spain, the -United States of America, Brazil, Mexico, France, Greece, Guatemala, -Honduras, Italy, Japan, Luxemburg, Montenegro, Norway, Holland, Peru, -Persia, Portugal, Roumania, Russia, Servia, Siam, Sweden, Switzerland, -and Uruguay. Most of these States have already ratified, and Colombia, -Costa-Rica, Cuba, Nicaragua, Salvador, Turkey, and Venezuela, which were -not represented at the Congress, acceded later. There is no doubt that -in time all the civilised Powers will become parties. - -[Footnote 246: See Macpherson, _loc. cit._ p. 254.] - -[Footnote 247: See Martens, _N.R.G._ XVIII. p. 607, and above, vol. I. § -560.] - -[Footnote 248: See Martens, _N.R.G._ XVIII. p. 61.] - -[Footnote 249: See Martens, _N.R.G._ 3rd. Ser. II. (1910), p. 620, and -_Treaty Series_, 1907, No. 15.] - -The new Convention consists of thirty-three articles instead of the ten -articles of the old Convention, and provides rules for the treatment of -the wounded and the dead; further rules concerning military hospitals -and mobile medical units; the personnel engaged in the interest of the -wounded including army chaplains; the material belonging to mobile -medical units, military hospitals, and voluntary aid societies; the -convoys of evacuation; the distinctive emblem; the carrying out of the -Convention; and the prevention of abuses and infractions. - -In the final protocol the Conference expresses the desire that, in order -to arrive at a unanimous interpretation of the Convention, the parties -should, so far as the cases and the circumstances permit, submit to -Hague Court Arbitration any differences which _in time of peace_ might -arise between them concerning the interpretation of the Convention, but -Great Britain and Japan refused to become parties to this. - -[Sidenote: The Wounded and the Sick.] - -§ 119. According to articles 1-5 of the Geneva Convention,[250] the sick -and wounded persons belonging, or officially attached, to armies must be -respected and taken care of, without distinction of nationality, by the -belligerent in whose power they may be. Should, however, a belligerent -necessarily be compelled to abandon such sick and wounded persons to the -enemy, he must, so far as military exigencies permit, leave behind with -them a portion of his medical personnel to take care of them, and the -necessary material. The sick and wounded who have fallen into the hands -of the enemy are prisoners of war, but belligerents may exchange or -release them, or even hand them over to a neutral State which has to -intern them until after the conclusion of peace. After each engagement -the commander in possession of the field must have search made for the -wounded and must take measures to protect them against pillage and -maltreatment. A nominal roll of all wounded and sick who have been -collected must be sent as early as possible to the authorities of the -country or army to which they belong, and the belligerents must keep -each other mutually informed of any internments and changes as well as -of admissions into hospital. It is specially stipulated by article 5 -that, if a military authority finds it necessary to appeal to the -charitable zeal of the inhabitants to collect and take care of, under -his direction, the wounded and sick of armies, he can grant to those -who have responded to his appeal special protection and certain -immunities. - -[Footnote 250: The stipulations of the Geneva Convention are for the -most part of a technical military character, and it is, therefore, -impossible in a general treatise of International Law to enter into any -details. Readers who take a deeper interest in the matter must be -referred to the most valuable article by Macpherson in _Z.V._ V. (1911), -pp. 253-277.] - -[Sidenote: Medical Units and Establishments, and Material.] - -§ 120. In order that the wounded and sick may receive proper treatment, -mobile medical units as well as the fixed establishments of the medical -service must be respected and protected by the belligerents, but this -protection ceases if these units and establishments are made use of to -commit acts harmful to the enemy, for instance, to shelter combatants, -to carry on espionage, to conceal arms and ammunition (articles 6 and -7). But article 8 expressly enacts that the units and establishments do -not forego protection:--(_a_) in case the personnel is armed and use -their arms for their own defence or for the defence of the wounded and -sick under their charge; (_b_) in case, in default of armed orderlies, -units or establishments are guarded by pickets or by sentinels furnished -with authority in due form; (_c_) in case weapons and cartridges, taken -from the wounded and not yet handed over to the proper department, are -found in units or establishments. - -As regards the _material_, a distinction is drawn between the treatment -of the material of mobile medical units, of fixed medical -establishments, and of material belonging to Voluntary Aid Societies. - -(_a_) Mobile medical units which fall into the hands of the enemy must -not be deprived of their material, including their teams, whatever may -be the means of transport and whoever may be the drivers employed -(article 14). The competent military authority is, however, permitted to -make use of the material in captured medical units for the treatment of -the wounded and the sick at hand, provided it is restored under the same -conditions, and so far as possible at the same time, as laid down for -the release of the medical personnel by article 12. - -(_b_) The buildings and material of fixed medical establishments which, -because the locality where they are is militarily occupied, fall into -the hands of the enemy, remain, according to article 15, "subject to the -laws of war," that means they remain entirely in the power of the -captor, but they may not be diverted from their medical purpose so long -as they are necessary for the proper treatment of the wounded and the -sick. Should, however, urgent military necessity demand it, a commander -may dispose of them, provided he makes previous arrangements for the -welfare of the wounded and sick found in the fixed establishments. - -(_c_) The material of Voluntary Aid Societies, which are duly -recognised, is, according to article 16, considered private property and -must, therefore, be respected as such under all circumstances, although -it may be requisitioned. - -[Sidenote: Personnel.] - -§ 121. The personnel engaged exclusively in the collection, transport, -and treatment of the wounded and sick, as well as in the administration -of mobile medical units and establishments, the chaplains attached to -armies, and, lastly, pickets and sentinels guarding medical units and -establishments, must, according to article 9, under all circumstances be -respected and protected. If they fall into the hands of the enemy they -must not be treated as prisoners of war. According to article 12, -however, they are not free to act or move without let or hindrance, for, -if their assistance is indispensable, they may be called upon by the -captor to carry on their duties to the wounded and the sick. But when -their assistance is no longer indispensable, they must be sent back to -their army or to their country at such time and by such route as may be -compatible with military exigencies, and they must be allowed to take -with them such effects, instruments, arms, and horses as are their -private property. So long as they are detained by the enemy he must, -according to article 13, grant them the same allowances and the same pay -as are due to the personnel holding the same rank in his own army. - -The personnel of Voluntary Aid Societies employed in the medical units -and establishments is, according to article 10, privileged to the same -extent as the official personnel, provided that the Voluntary Aid -Society concerned is duly recognised and authorised by its Government -and that the personnel of the Society is subject to military law and -regulations. Each State must notify to the other, either in time of -peace or at the commencement, or during the course, of hostilities, but -in every case before actually employing them, the names of societies -which it has authorised to render assistance to the regular medical -service of its armies. A recognised Voluntary Aid Society of a _neutral_ -country cannot, according to article 11, afford the assistance of its -personnel and units to a belligerent unless it has previously received -the consent of its own Government and of the belligerent concerned. And -a belligerent who accepts such assistance from a Voluntary Aid Society -of a neutral country is bound, before making any use of it, to notify -the fact to the enemy. - -[Sidenote: Convoys of Evacuation.] - -§ 122. Convoys used for evacuating the wounded and sick must, as regards -their personnel and material, be treated in the same way as mobile -medical units, but subject to the following special provisions enacted -by article 17:-- - -A belligerent intercepting a convoy may, if military exigencies demand, -break it up, provided he takes charge of the sick and wounded who are in -it. In this case, the obligation to send back the medical personnel, -provided for in article 12, must be extended to the whole of the -military personnel detailed for the transport or the protection of the -convoy and furnished with an authority in due form to that effect. - -The obligation to restore the medical material, provided for in article -14, must apply to railway trains and boats used in internal navigation, -which are specially arranged for evacuation, as well as to the material -belonging to the medical service for fitting up ordinary vehicles, -trains, and boats. Military vehicles, other than those of the medical -service, however, may be captured with their teams; and the civilian -personnel and the various means of transport obtained by requisition, -including railway material and boats used for convoys, are subject to -the general rules of International Law concerning war. - -[Sidenote: Distinctive Emblem.] - -§ 123. According to article 18 the Swiss heraldic device of the red -cross on a white ground, formed by reversing the federal colours, is -adopted as the emblem and distinctive sign of the medical service of -armies, but there is no objection to the adoption of another emblem on -the part of such non-Christian States as object to the cross on -religious grounds. Thus Turkey has substituted a red crescent, and -Persia a red sun for the cross.[251] The following are the rules -concerning the use of this emblem:-- - -(1) The emblem must be shown on the flags and the armlets (_brassards_) -as well as on all the material belonging to the medical service, but the -emblem cannot be recognised unless it is used with the permission of the -competent military authority (article 19). - -(2) Medical units and establishments must hoist the red cross flag -accompanied by the national flag of the belligerent concerned (article -21), but medical units which have fallen into the hands of the enemy -must not, so long as they are in that situation, fly any other flag than -that of the red cross. The medical units belonging to neutral countries -which have, in accordance with article 11, been admitted to afford their -services, must fly, along with the red cross flag, the national flag of -the belligerent to whose army they are attached (article 22). - -(3) All the personnel must, according to article 20, wear, fixed to the -left arm, an armlet (_brassard_) with a red cross on a white ground, -delivered and stamped by the competent military authority and -accompanied by a certificate of identity in the case of persons who are -attached to the medical service and armies without wearing the military -uniform. - -(4) The employment of the red cross on a white ground and the words "Red -Cross" or "Geneva Cross" must not, according to article 23, be used, -either in time of peace or in time of war, except to indicate the -protected medical units, establishments, personnel, and material. - -[Footnote 251: See below, § 207.] - -[Sidenote: Treatment of the Dead.] - -§ 124. According to a customary rule of the Law of Nations belligerents -have the right to demand from one another that dead soldiers shall not -be disgracefully treated, especially not mutilated, and shall be, so far -as possible, collected and buried[252] or cremated on the battlefield by -the victor. The Geneva Convention does not stipulate any rule concerning -the collection and burial or cremation of the dead, but article 3 enacts -that after each engagement the commander in possession of the field must -take measures to ensure protection of the dead against pillage and -maltreatment, and that a careful examination of the bodies, in order to -see that life is really extinct, must be made before the dead are buried -or cremated. Each belligerent must send as soon as possible to the -authorities of the country or army to which they belong the military -identification marks or tokens found on the dead (article 4). Pieces of -equipment found upon the dead of the enemy are public enemy property and -may, therefore, be appropriated as booty[253] by the victor. On the -other hand, letters, money, jewellery, and such other articles of value -found upon the dead on the battlefield, or on those who die in the -medical units or fixed establishments, as are apparently private -property, are not booty, but must, according to article 4 of the Geneva -Convention and article 14 of the Hague rules concerning warfare on land, -be collected and handed over to the Bureau of Information[254] -concerning the prisoners of war, which has to transmit them to the -persons interested through the channel of the authorities of their own -country. - -[Footnote 252: See Grotius, II. c. 19, §§ 1 and 3. Regarding a valuable -suggestion of Ullmann's concerning sanitary measures for the purpose of -avoiding epidemics, see above, vol. I. p. 621, note 1.] - -[Footnote 253: See below, § 139.] - -[Footnote 254: See below, § 130.] - -[Sidenote: Application of the Geneva Convention, and Prevention of -Abuses.] - -§ 124_a_. The provisions of the Geneva Convention are only binding in -the case of war between two or more of the contracting parties, they -cease to be binding from the moment when one of the belligerent Powers -is not a party (article 24). The commanders-in-chief of the belligerent -armies must, in accordance with the instructions of their Governments -and in conformity with the general principles of the Geneva Convention, -arrange the details for carrying out the articles of the Geneva -Convention, as well as for cases not provided for in these articles -(article 25). The contracting parties must take the necessary measures -to instruct their troops, especially the personnel protected by the -Geneva Convention, in the provisions of the Convention, and to bring -these provisions to the notice of the civil population (article 26). In -countries whose legislation is not at the time of the signing of the -Convention adequate for the purpose, the contracting parties must adopt -such measures as may be necessary to prevent, at all times, the -employment of the emblem or the name of "Red Cross" or "Geneva Cross" -by private individuals or by Societies other than those which are -entitled to do so according to the Geneva Convention, and in particular -for commercial purposes as a trade mark or trading mark (article 27). -The contracting Governments must likewise adopt measures necessary for -the repression in time of war of individual acts of pillage and -maltreatment of the wounded and sick, as well as for the punishment of -the improper use of the Red Cross flag and armlet (_brassard_) by -officers and soldiers or private individuals not protected by the Geneva -Convention. They must, at the latest within five years from the -ratification of the Geneva Convention, communicate to one another -through the Swiss Federal Council, the provisions concerning these -measures of repression (article 28).[255] - -[Footnote 255: By reason of the uncertainties of parliamentary -proceedings, Great Britain, in signing and ratifying the Geneva -Convention, entered a reservation against articles 23, 27, and 28, but -by the Geneva Convention Act, 1911 (1 & 2 Geo. V. ch. 20), Great Britain -is now able to carry out the stipulations of these three articles.] - -[Sidenote: General provisions of the Geneva Convention.] - -§ 124_b_. The Geneva Convention comes into force for each contracting -Power six months after the date of the deposit of its ratification -(article 30). The new Geneva Convention replaces the old of 1864, but -the old Geneva Convention remains in force between such of its -contracting parties as do not become parties to the new Convention of -1906 (article 31). Such of the Powers as signed the old Convention of -1864, but did not sign the new Convention of December 31, 1906, are free -to accede to it at any time later by means of a written notification to -the Swiss Federal Council. Other Powers may likewise notify their -accession at any time to the Swiss Federal Council, but their accession -only takes effect in case, within a period of one year from such -notification, no objection to the accession reaches the Swiss Federal -Council from any of the previous contracting Powers (article 32). Each -of the contracting Powers is at liberty at any time to denounce the -Geneva Convention by a written notification to the Swiss Federal -Council, which must immediately indicate it to all the other contracting -Powers (article 33). The denunciation, however, does not take effect -until one year after it has come to the notice of the Swiss Federal -Council, and a denunciation only affects such Power as has notified it. - - -IV - -CAPTIVITY - - Grotius, III. c. 14--Bynkershoek, _Quaest. jur. publ._ I. c. - 3--Vattel, III. §§ 148-154--Hall, §§ 131-134--Westlake, II. pp. - 63-68--Lawrence, § 164--Maine, pp. 160-167--Manning, pp. - 210-222--Phillimore, III. § 95--Twiss, II. § 177--Halleck, II. pp. - 19-30--Taylor, §§ 519-524--Moore, VII. §§ 1127-1133--Wharton, III. - §§ 348-348D--Wheaton, § 344--Bluntschli, §§ 593-626--Heffter, §§ - 127-129--Lueder in Holtzendorff, IV. pp. 423-445--Ullmann, § - 177--Bonfils, Nos. 1119-1140--Despagnet, Nos. - 544-550--Pradier-Fodéré, VII. Nos. 2796-2842, and VIII. No. - 3208--Rivier, II. pp. 273-279--Nys, III. pp. 537-553--Calvo, IV. - §§ 2133-2157--Fiore, III. Nos. 1355-1362, and Code, Nos. - 1567-1588--Martens, II. § 113--Longuet, §§ 77-83--Mérignhac, pp. - 87-113--Pillet, pp. 145-164--_Kriegsbrauch_, pp. 11-18--Zorn, pp. - 73-123--Bordwell, pp. 237-248--_Land Warfare_, §§ 54-116--Spaight, - pp. 260-320--Holland, _War_, Nos. 24-40--Eichelmann, _Über die - Kriegsgefangenschaft_ (1878)--Romberg, _Des belligérants et des - prisonniers de guerre_ (1894)--Triepel, _Die neuesten Fortschritte - auf dem Gebiet des Kriegsrechts_ (1894), pp. 41-55--Holls, _The - Peace Conference at the Hague_ (1900), pp. 145-151--Cros, - _Condition et traitement des prisonniers de guerre_ - (1900)--Beinhauer, _Die Kriegsgefangenschaft_ (1910)--Payrat, _Le - prisonnier de guerre dans la guerre continentale_ (1910). - -[Sidenote: Development of International Law regarding Captivity.] - -§ 125. During antiquity, prisoners of war could be killed, and they were -very often at once actually butchered or offered as sacrifices to the -gods. If they were spared, they were as a rule made slaves and only -exceptionally liberated. But belligerents also exchanged their prisoners -or liberated them for ransom. During the first part of the Middle Ages -prisoners of war could likewise be killed or made slaves. Under the -influence of Christianity, however, their fate in time became mitigated. -Although they were often most cruelly treated during the second part of -the Middle Ages, they were not as a rule killed and, with the -disappearance of slavery in Europe, they were no longer enslaved. By the -time modern International Law gradually came into existence, killing and -enslaving prisoners of war had disappeared, but they were still often -treated as criminals and as objects of personal revenge. They were not -considered in the power of the State by whose forces they were captured, -but in the power of those very forces or of the individual soldiers that -had made the capture. And it was considered lawful on the part of -captors to make as much profit as possible out of their prisoners by way -of ransom, provided no exchange of prisoners took place. So general was -this practice that a more or less definite scale of ransom became usual. -Thus, Grotius (III. c. 14, § 9) mentions that in his time the ransom of -a private was the amount of his one month's pay. And since the pecuniary -value of a prisoner as regards ransom rose in proportion with his -fortune and his position in life and in the enemy army, it became usual -for prisoners of rank and note not to belong to the capturing forces but -to the Sovereign, who had, however, to recompense the captors. During -the seventeenth century, the custom that prisoners were considered in -the power of their captors died away. They were now considered to be in -the power of the Sovereign by whose forces they were captured. But rules -of the Law of Nations regarding their proper treatment were hardly in -existence. The practice of liberating prisoners in exchange, or for -ransom only, continued. Special cartels were often concluded at the -outbreak of or during a war for the purpose of stipulating a scale of -ransom according to which either belligerent could redeem his soldiers -and officers from captivity. The last[256] instance of such cartels is -that between England and France in 1780, stipulating the ransom for -members of the naval and military forces of both belligerents. - -[Footnote 256: See Hall, § 134, p. 428, note 1.] - -It was not until the eighteenth century, with its general tendencies to -mitigate the cruel practices of warfare, that matters changed for the -better. The conviction in time became general that captivity should only -be the means of preventing prisoners from returning to their corps and -taking up arms again, and should, as a matter of principle, be -distinguished from imprisonment as a punishment for crimes. The Treaty -of Friendship[257] concluded in 1785 between Prussia and the United -States of America was probably the first to stipulate (article 24) the -proper treatment of prisoners of war, prohibiting confinement in convict -prisons and the use of irons, and insisting upon their confinement in a -healthy place, where they may have exercise, and where they may be kept -and fed as troops. During the nineteenth century the principle that -prisoners of war should be treated by their captor in a manner analogous -to that meted out to his own troops became generally recognised, and the -Hague Regulations have now, by articles 4 to 20, enacted exhaustive -rules regarding captivity. - -[Footnote 257: See Martens, _N.R._ IV. p. 37.] - -[Sidenote: Treatment of Prisoners of War.] - -§ 126. According to articles 4-7 and 16-19 of the Hague Regulations -prisoners of war are not in the power of the individuals or corps who -capture them, but in the power of the Government of the captor. They -must be humanely treated. All their personal belongings remain their -property, with the exception of arms, horses, and military papers, which -are booty;[258] and in practice[259] personal belongings are understood -to include military uniform, clothing, and kit required for personal -use, although technically they are Government property. They may only be -imprisoned as an unavoidable matter of safety, and only while the -circumstances which necessitate the measure continue to exist. They may, -therefore, be detained in a town, fortress, camp, or any other locality, -and they may be bound not to go beyond a certain fixed boundary. But -they may not be kept in convict prisons. Except in the case of officers, -their labour may be utilised by the Government according to their rank -and aptitude, but their tasks must not be excessive and must have -nothing to do with military operations. Work done by them for the State -must be paid for in accordance with tariffs in force for soldiers of the -national army employed on similar tasks, or, in case there are no such -tariffs in force, at rates proportional to the work executed. But -prisoners of war may also be authorised to work for other branches of -the public service or for private persons under conditions of employment -to be settled by the military authorities, and they may likewise be -authorised to work on their own account. All wages they receive go -towards improving their position, and a balance must be paid to them at -the time of their release, after deducting the cost of their -maintenance. But whether they earn wages or not, the Government is bound -under all circumstances to maintain them, and provide quarters, food, -and clothing for them on the same footing as for its own troops. Officer -prisoners must receive the same pay as officers of corresponding rank in -the country where they are detained, the amount to be repaid by their -Government after the conclusion of peace. All prisoners of war must -enjoy every latitude in the exercise of their religion, including -attendance at their own church service, provided only they comply with -the regulations for order issued by the military authorities. If a -prisoner wants to make a will, it must be received by the authorities or -drawn up on the same conditions as for soldiers of the national army. -And the same rules are valid regarding death certificates and the burial -of prisoners of war, and due regard must be paid to their grade and -rank. Letters, money orders, valuables, and postal parcels destined for -or despatched by prisoners of war must enjoy free postage, and gifts and -relief in kind for prisoners of war must be admitted free from all -custom and other duties as well as payments for carriage by Government -railways (article 16). - -[Footnote 258: See below, § 144.] - -[Footnote 259: See _Land Warfare_, § 69.] - -[Sidenote: Who may claim to be Prisoners of War.] - -§ 127. Every individual who is deprived of his liberty not for a crime -but for military reasons has a claim to be treated as a prisoner of war. -Article 13 of the Hague Regulations expressly enacts that -non-combatant[260] members of armed forces, such as newspaper -correspondents, reporters, sutlers, contractors, who are captured and -detained, may claim to be treated as prisoners of war, provided they can -produce a certificate from the military authorities of the army they -were accompanying. But although the Hague Regulations do not contain -anything regarding the treatment of private enemy individuals and enemy -officials whom a belligerent thinks it necessary[261] to make prisoners -of war, it is evident that they may claim all privileges of such -prisoners. Such individuals are not convicts; they are taken into -captivity for military reasons, and they are therefore prisoners of war. - -[Footnote 260: See above, § 79.] - -[Footnote 261: See above, §§ 116 and 117.] - -[Sidenote: Discipline.] - -§ 128. Articles 8 and 9 of the Hague Regulations lay down the discipline -to be observed in the case of prisoners of war in the following -way:--Every prisoner who, if questioned, does not declare his true name -and rank is liable to a curtailment of the advantages accorded to -prisoners of his class. All prisoners are subject to the laws, -regulations, and orders in force in the army of the belligerent that -keeps them in captivity. Any act of insubordination on the part of -prisoners may be punished in accordance with these laws,[262] but apart -from these laws, all kinds of severe measures are admissible to prevent -a repetition of such acts. Escaped prisoners, who, after having rejoined -their national army, are again taken prisoners, are not liable to any -punishment for their flight. But if they are recaptured before they -succeed in rejoining their army, or before they have quitted the -territory occupied by the capturing forces, they are liable to -disciplinary punishment. - -[Footnote 262: Concerning the question whether after conclusion of peace -such prisoners as are undergoing a term of imprisonment for offences -against discipline may be detained, see below, § 275.] - -[Sidenote: Release on Parole.] - -§ 129. Articles 10 to 12 of the Hague Regulations deal with release on -parole in the following manner:--No belligerent is obliged to assent to -a prisoner's request to be released on parole, and no prisoner may be -forced to accept such release. But if the laws of his country authorise -him to do so, and if he acquiesces, any prisoner may be released on -parole. In such case he is in honour bound scrupulously to fulfil the -engagement he has contracted, both as regards his own Government and the -Government that released him. And his own Government is formally bound -neither to request, nor to accept, from him any service incompatible -with the parole given. Any prisoner released on parole and recaptured -bearing arms against the belligerent who released him, or against such -belligerent's allies, forfeits the privilege to be treated as a prisoner -of war, and may be tried by court-martial. The Hague Regulations do not -lay down the punishment for such breach of parole, but according to a -customary rule of International Law the punishment may be capital. - -[Sidenote: Bureau of Information.] - -§ 130. According to articles 14 and 16 of the Hague Regulations every -belligerent[263] must institute on the commencement of war a Bureau of -Information relative to his prisoners of war. This Bureau is intended to -answer all inquiries about prisoners. It must be furnished by all the -services concerned with all the necessary information to enable it to -make out and keep up to date a separate return for each prisoner, and it -must, therefore, be kept informed of internments and changes as well as -of admissions into hospital, of deaths, releases on parole, exchanges, -and escapes. It must state in its return for each prisoner the -regimental number, surname and name, age, place of origin, rank, unit, -wounds, date and place of capture, of internment, of the wounds -received, date of death, and any observations of a special character. -This separate return must, after conclusion of peace, be sent to the -Government of the other belligerent. - -[Footnote 263: And likewise such neutral States as receive and detain -members of the armed forces of the belligerents; see article 14.] - -The Bureau must likewise receive and collect all objects of personal -use, valuables, letters, and the like, found on battlefields[264] or -left by prisoners who have been released on parole, or exchanged, or who -have escaped, or died in hospital or ambulances, and must transmit these -articles to those interested. The Bureau must enjoy the privilege of -free postage. - -[Footnote 264: See above, § 124.] - -[Sidenote: Relief Societies.] - -§ 131. A new and valuable rule, taken from the Brussels Declaration, is -that of article 15 of the Hague Regulations making it a duty of every -belligerent to grant facilities to Relief Societies to serve as -intermediaries for charity to prisoners of war. The condition of the -admission of such societies and their agents is that the former are -regularly constituted in accordance with the law of their country. -Delegates of such societies may be admitted to the places of internment -for the distribution of relief, as also to the halting-places of -repatriated prisoners, through a personal permit of the military -authorities, provided they give an engagement in writing that they will -comply with all regulations by the authorities for order and police. - -[Sidenote: End of Captivity.] - -§ 132. Captivity can come to an end through different modes. Apart from -release on parole, which has already been mentioned, captivity comes to -an end--(1) through simple release without parole; (2) through -successful flight; (3) through liberation by the invading enemy to whose -army the respective prisoners belong; (4) through exchange for prisoners -taken by the enemy; (5) through prisoners[265] being brought into -neutral territory by captors who take refuge there; and, lastly (6), -through the war coming to an end. Release of prisoners for ransom is no -longer practised, except in the case of the crew of a captured -merchantman released on a ransom bill.[266] It ought, however, to be -observed that the practice of ransoming prisoners might be revived if -convenient, provided the ransom is to be paid not to the individual -captor but to the belligerent whose forces made the capture. - -[Footnote 265: See below, § 337.] - -[Footnote 266: See below, § 195.] - -As regards the end of captivity through the war coming to an end, a -distinction must be made according to the different modes of ending war. -If the war ends by peace being concluded, captivity comes to an end at -once[267] with the conclusion of peace, and, as article 20 of the Hague -Regulations expressly enacts, the repatriation of prisoners must be -effected as speedily as possible. If, however, the war ends through -conquest and annexation of the vanquished State, captivity comes to an -end as soon as peace is established. It ought to end with annexation, -and it will in most cases do so. But as guerilla war may well go on -after conquest and annexation, and thus prevent a condition of peace -from being established, although real warfare is over, it is necessary -not to confound annexation with peace.[268] The point is of interest -regarding such prisoners only as are subjects of neutral States. For -other prisoners become through annexation subjects of the State that -keeps them in captivity, and such State is, therefore, as far as -International Law is concerned, unrestricted in taking any measure it -likes with regard to them. It can repatriate them, and it will in most -cases do so. But if it thinks that they might endanger its hold over the -conquered territory, it might likewise prevent their repatriation for -any definite or indefinite period.[269] - -[Footnote 267: That, nevertheless, the prisoners remain under the -discipline of the captor until they have been handed over to the -authorities of their home State, will be shown below, § 275.] - -[Footnote 268: See above, § 60.] - -[Footnote 269: Thus, after the South African War, Great Britain refused -to repatriate those prisoners of war who were not prepared to take the -oath of allegiance.] - - -V - -APPROPRIATION AND UTILISATION OF PUBLIC ENEMY PROPERTY - - Grotius, III. c. 5--Vattel, III. §§ 73, 160-164--Hall, §§ - 136-138--Westlake, II. pp. 102-107--Lawrence, § 171--Maine, pp. - 192-206--Manning, pp. 179-183--Twiss, II. §§ 62-71--Halleck, II. - pp. 58-68--Moore, VII. § 1148--Taylor, §§ 529-536--Wharton, III. § - 340--Wheaton, §§ 346, 352-354--Bluntschli, §§ 644-651A--Heffter, - §§ 130-136--Lueder in Holtzendorff, IV. pp. 488-500--G. F. - Martens, II. §§ 279-280--Ullmann, § 183--Bonfils, Nos. - 1176-1193--Despagnet, Nos. 592-596--Pradier-Fodéré, VII. Nos. - 2989-3018--Rivier, II. pp. 306-314--Nys, III. pp. 296-308--Calvo, - IV. §§ 2199-2214--Fiore, III. Nos. 1389, 1392, 1393, 1470, and - Code, Nos. 1557-1560--Martens, II. § 120--Longuet, § - 96--Mérignhac, pp. 299-316--Pillet, pp. 319-340--_Kriegsbrauch_, - pp. 57-60--Holland, _War_, No. 113--_Land Warfare_, §§ - 426-432--Meurer, II. §§ 65-69--Spaight, pp. 410-418--Zorn, pp. - 243-270--Rouard de Card, _La guerre continentale et la propriété_ - (1877)--Bluntschli, _Das Beuterecht im Krieg, und das - Seebeuterecht insbesondere_ (1878)--Depambour, _Des effets de - l'occupation en temps de guerre sur la propriété et la jouissance - des biens publics et particuliers_ (1900)--Wehberg, _Das - Beuterecht im Land und Seekrieg_ (1909; an English translation - appeared in 1911 under the title _Capture in War on Land and - Sea_)--Latifi, _Effects of War on Property_ (1909). - -[Sidenote: Appropriation of all the Enemy Property no longer -admissible.] - -§ 133. Under a former rule of International Law belligerents could -appropriate all public and private[270] enemy property they found on -enemy territory. This rule is now obsolete. Its place is taken by -several rules, since distinctions are to be made between moveable and -immoveable property, public and private property, and, further, between -different kinds of private and public property. These rules must be -discussed _seriatim_. - -[Footnote 270: It is impossible for a treatise to go into historical -details, and to show the gradual disappearance of the old rule. But it -is of importance to state the fact, that even during the nineteenth -century--see, for instance, G. F. Martens, II. § 280; Twiss, II. § 64; -Hall, § 139--it was asserted that in strict law all private enemy -moveable property was as much booty as public property, although the -growth of a usage was recognised which under certain conditions exempted -it from appropriation. In the face of articles 46 and 47 of the Hague -Regulations these assertions have no longer any basis, and all the -text-books of the nineteenth century are now antiquated with regard to -this matter.] - -[Sidenote: Immoveable Public Property.] - -§ 134. Appropriation of public immoveables is not lawful so long as the -territory on which they are has not become State property of the -occupant through annexation. During mere military occupation of the -enemy territory, a belligerent may not sell or otherwise alienate public -enemy land and buildings, but only appropriate the produce of them. -Article 55 of the Hague Regulations expressly enacts that a belligerent -occupying enemy territory shall only be regarded as administrator and -usufructuary of the public buildings, real property, forests, and -agricultural works belonging to the hostile State and situated on the -occupied territory; that he must protect the stock and plant, and that -he must administer them according to the rules of usufruct. He may, -therefore, sell the crop from public land, cut timber in the public -forests and sell it, may let public land and buildings for the time of -his occupation, and the like. He is, however, only usufructuary, and he -is, therefore, prohibited from exercising his right in a wasteful or -negligent way that would decrease the value of the stock and plant. -Thus, for instance, he must not cut down a whole forest unless the -necessities of war compel him. - -[Sidenote: Immoveable Property of Municipalities, and of Religious, -Charitable, and the like Institutions.] - -§ 135. It must, however, be observed that the produce of such public -immoveables only as belong to the State itself may be appropriated, but -not the produce of those belonging to municipalities or of those which, -although they belong to the hostile State, are permanently set aside for -religious purposes, for the maintenance of charitable and educational -institutions, and for the benefit of art and science. Article 56 of the -Hague Regulations expressly enacts that such property is to be treated -as private property. - -[Sidenote: Utilisation of Public Buildings.] - -§ 136. So far as the necessities of war demand, a belligerent may make -use of public enemy buildings for all kinds of purposes. Troops must be -housed, horses stabled, the sick and wounded nursed. Public buildings -may in the first instance, therefore, be made use of for such purposes, -although they may thereby be considerably damaged. And it matters not -whether the buildings belong to the enemy State or to municipalities, -whether they are regularly destined for ordinary governmental and -municipal purposes, or for religious, educational, scientific, and the -like purposes. Thus, churches may be converted into hospitals, schools -into barracks, buildings used for scientific research into stables. But -it must be observed that such utilisation of public buildings as damages -them is justified only if it is necessary. A belligerent who turned a -picture gallery into stables without being compelled thereto would -certainly commit a violation of the Law of Nations. - -[Sidenote: Moveable Public Property.] - -§ 137. Moveable public enemy property may certainly be appropriated by a -belligerent provided that it can directly or indirectly be useful for -military operations. Article 53 of the Hague Regulations unmistakably -enacts that a belligerent occupying hostile territory may take -possession of the cash, funds, realisable securities, depôts of arms, -means of transport, stores, supplies, appliances on land or at sea or in -the air adapted for the transmission of news or for the transport of -persons or goods, and of all other moveable property of the hostile -State which may be used for military operations. Thus, a belligerent is -entitled to seize not only the money and funds of the hostile State on -the one hand, and, on the other, munitions of war, depôts of arms, -stores and supplies, but also the rolling-stock of public railways[271] -and other means of transport and everything and anything he can directly -or indirectly make use of for military operations. He may, for -instance, seize a quantity of cloth for the purpose of clothing his -soldiers. - -[Footnote 271: See Nowacki, _Die Eisenbahnen im Kriege_ (1906), §§ 15 -and 19. Some writers--see, for instance, Bonfils, No. 1185, and Wehberg, -_op. cit._ p. 22--maintain that such rolling stock may not be -appropriated, but may only be made use of during war and must be -restored after the conclusion of peace. The assertion that article 53, -second paragraph, is to be interpreted in that sense, is unfounded, for -restoration is there stipulated for such means of transport and the like -as are _private_ property.] - -[Sidenote: Moveable Property of Municipalities, and of Religious, -Charitable, and the like Institutions.] - -§ 138. But exceptions similar to those regarding the usufruct of public -immoveables are valid in the case of the appropriation of public -moveables. Article 56 of the Hague Regulations enumerates the property -of municipalities, of religious, charitable, educational institutions, -and of those of science and art. Thus the moveable property of churches, -hospitals, schools, universities, museums, picture galleries, even when -belonging to the hostile State, is exempt from appropriation by a -belligerent. As regards archives, they are no doubt institutions for -science, but a belligerent may nevertheless seize such State papers -deposited therein as are of importance to him in connection with the -war. The last instances of the former practice are presented by Napoleon -I., who seized works of art during his numerous wars and had them taken -to the galleries of Paris. But they had to be restored to their former -owners in 1815. - -[Sidenote: Booty on the Battlefield.] - -§ 139. The case of moveable enemy property found by an invading -belligerent on enemy territory is different from the case of moveable -enemy property on the battlefield. According to a former rule of the Law -of Nations all enemy property, public or private, which a belligerent -could get hold of on the battlefield was booty and could be -appropriated. Although some modern publicists[272] who wrote before the -Hague Peace Conference of 1899 teach the validity of this rule, it is -obvious from articles 4 and 14 of the Hague Regulations that it is now -obsolete as regards _private_[273] enemy property except military -papers, arms, horses, and the like. But as regards _public_ enemy -property this customary rule is still valid. Thus weapons, munition, -and valuable pieces of equipment which are found upon the dead, the -wounded, and the prisoners, whether they are public or private property, -may be seized, as may also the war-chest and State papers in possession -of a captured commander, enemy horses, batteries, carts, and everything -else that is of value. To whom the booty ultimately belongs is not for -International but for Municipal Law[274] to determine, since -International Law simply states that public enemy property on the -battlefield can be appropriated by belligerents. And it must be -specially observed that the restriction of article 53 of the Hague -Regulations according to which only such moveable property may be -appropriated as can be used for the operations of war, does not find -application in the case of moveable property found on the battlefield, -for article 53 speaks of "an army of occupation" only. Such property may -be appropriated, whether it can be used for military operations or not; -the mere fact that it was seized on the battlefield entitles a -belligerent to appropriate it. - -[Footnote 272: See, for instance, Halleck, II. p. 73, and Heffter, § -135.] - -[Footnote 273: See above, § 124, and below, § 144.] - -[Footnote 274: According to British law all booty belongs to the Crown. -See Twiss, II. §§ 64 and 71.] - - -VI - -APPROPRIATION AND UTILISATION OF PRIVATE ENEMY PROPERTY - - Grotius, III. c. 5--Vattel, III. §§ 73, 160-164--Hall, §§ 139, - 141-144--Lawrence, §§ 172-175--Maine, pp. 192-206--Manning, pp. - 179-183--Twiss, II. §§ 62-71--Halleck, II. pp. 73-75--Moore, VII. - §§ 1121, 1151, 1152, 1155--Taylor, §§ 529, 532, 537--Wharton, III. - § 338--Wheaton, § 355--Bluntschli, §§ 652, 656-659--Heffter, §§ - 130-136--Lueder in Holtzendorff, IV. pp. 488-500--G.F. Martens, - II. §§ 279-280--Ullmann, § 183--Bonfils, Nos. - 1194-1206--Despagnet, Nos. 597-604--Pradier-Fodéré, VII. Nos. - 3032-3047--Rivier, II. pp. 318-329--Nys, III. pp. 296-308--Calvo, - IV. §§ 2220-2229--Fiore, III. Nos. 1391, 1392, 1472, and Code, - Nos. 1530-1531--Martens, II. § 120--Longuet, §§ 97-98--Mérignhac, - pp. 263-268--Pillet, pp. 319-340--_Kriegsbrauch_, pp. 53-56--Zorn, - pp. 270-283--Meurer, II. § 64--Spaight, pp. 188-196--Holland, - _War_, Nos. 106-107--_Land Warfare_, §§ 407-415--Bentwich, _The - Law of Private Property in War_ (1907)--See also the monographs of - Rouard de Card, Bluntschli, Depambour, Wehberg, and Latifi, quoted - above at the commencement of § 133. - -[Sidenote: Immoveable Private Property.] - -§ 140. Immoveable private enemy property may under no circumstances or -conditions be appropriated by an invading belligerent. Should he -confiscate and sell private land or buildings, the buyer would acquire -no right[275] whatever to the property. Article 46 of the Hague -Regulations expressly enacts that "private property may not be -confiscated." But confiscation differs from the temporary use of private -land and buildings for all kinds of purposes demanded by the necessities -of war. What has been said above in § 136 with regard to utilisation of -public buildings finds equal application[276] to private buildings. If -necessary they may be converted into hospitals, barracks, and stables -without indemnification of the proprietors, and they may also be -converted into fortifications. A humane belligerent will not drive the -wretched inhabitants into the street if he can help it. But under the -pressure of necessity he may be obliged to do this, and he is certainly -not prohibited from doing it. - -[Footnote 275: See below, § 283.] - -[Footnote 276: The Hague Regulations do not mention this; they simply -enact in article 46 that private property must be "respected," and may -not be confiscated.] - -[Sidenote: Private War Material and Means of Transport.] - -§ 141. All kinds of private moveable property which can serve as war -material, such as arms, ammunition, cloth for uniforms, leather for -boots, saddles, and also all appliances, whether on land or at sea or in -the air, which are adapted for the transmission of news or for the -transportation of persons and goods, such as railway rolling-stock,[277] -ships, telegraphs, telephones, carts, and horses, may be seized and made -use of for military purposes by an invading belligerent, but they must -be restored at the conclusion of peace, and indemnities must be paid for -them. This is expressly enacted by article 53 of the Hague Regulations. -It is evident that the seizure of such material must be duly -acknowledged by receipt, although article 53 does not say so; for -otherwise how could indemnities be paid after the conclusion of peace? -As regards the question who is to pay the indemnities, Holland (_War_, -No. 113) correctly maintains that "the Treaty of Peace must settle upon -whom the burden of making compensation is ultimately to fall." - -[Footnote 277: See Nowacki, _Die Eisenbahnen im Kriege_ (1906), § 15.] - -[Sidenote: Works of Art and Science, Historical Monuments.] - -§ 142. On the other hand, works of art and science, and historical -monuments may not under any circumstances or conditions be appropriated -or made use of for military operations. Article 56 of the Hague -Regulations enacts categorically that "all seizure" of such works and -monuments is prohibited. Therefore, although the metal of which a statue -is cast may be of the greatest value for cannons, it must not be -touched. - -[Sidenote: Other Private Personal Property.] - -§ 143. Private personal property which does not consist of war material -or means of transport serviceable to military operations may not as a -rule be seized.[278] Articles 46 and 47 of the Hague Regulations -expressly stipulate that "private property may not be confiscated," and -"pillage is formally prohibited." But it must be emphasised that these -rules have in a sense exceptions, demanded and justified by the -necessities of war. Men and horses must be fed, men must protect -themselves against the weather. If there is no time for ordinary -requisitions[279] to provide food, forage, clothing, and fuel, or if the -inhabitants of a locality have fled so that ordinary requisitions cannot -be made, a belligerent must take these articles wherever he can get -them, and he is justified[280] in so doing. And it must further be -emphasised that quartering[281] of soldiers who, together with their -horses, must be well fed by the inhabitants of the houses concerned, is -likewise lawful, although it may be ruinous to the private individuals -upon whom they are quartered. - -[Footnote 278: See above, § 133, note.] - -[Footnote 279: See below, § 147.] - -[Footnote 280: The Hague Regulations do not mention this case.] - -[Footnote 281: See below, § 147.] - -[Sidenote: Booty on the Battlefield.] - -§ 144. Private enemy property on the battlefield is no longer in every -case an object of booty.[282] Arms, horses, and military papers may -indeed be appropriated,[283] even if they are private property, as may -also private means of transport, such as carts and other vehicles which -an enemy has made use of. But letters, cash, jewellery, and other -articles of value found upon the dead, wounded, and prisoners must, -according to article 14 of the Hague Regulations and article 4 of the -Geneva Convention, be handed over to the Bureau of Information regarding -prisoners of war, which must transmit them to those interested. Through -article 14 of the Hague Regulations and article 4 of the Geneva -Convention it becomes apparent that nowadays private enemy property, -except military papers, arms, horses, and the like, is no longer booty, -although, individual soldiers often take as much spoil as they can get. -It is impossible for the commanders to bring the offender to justice in -every case.[284] - -[Footnote 282: See above, § 139.] - -[Footnote 283: See above, § 139, and article 4 of the Hague Regulations. -This article only mentions arms, horses, and military papers, but -saddles, stirrups, and the like go with horses, as ammunition goes with -arms, and these may for this reason likewise be appropriated; see _Land -Warfare_, § 69, note (_e_).] - -[Footnote 284: It is of interest to state the fact that, during the -Russo-Japanese War, Japan carried out to the letter the stipulation of -article 14 of the Hague Regulations. Through the intermediary of the -French Embassies in Tokio and St. Petersburg, all valuables found on the -Russian dead and seized by the Japanese were handed over to the Russian -Government.] - -[Sidenote: Private Enemy Property brought into a Belligerent's -Territory.] - -§ 145. The case of private property found by a belligerent on enemy -territory differs from the case of such property brought during time of -war into the territory of a belligerent. That private enemy property on -a belligerent's territory at the time of the outbreak of war may not be -confiscated has already been stated above in § 102. Taking this fact -into consideration, as well as the other fact that private property -found on enemy territory is nowadays likewise as a rule exempt from -confiscation, there can be no doubt that private enemy property brought -into a belligerent's territory during time of war may not, as a rule, be -confiscated.[285] On the other hand, a belligerent may prohibit the -withdrawal of those articles of property which can be made use of by the -enemy for military purposes, such as arms, ammunition, provisions, and -the like. And in analogy with article 53 of the Hague Regulations there -can be no doubt that a belligerent may seize such articles and make use -of them for military purposes, provided that he restores them at the -conclusion of peace and pays indemnities for them. - -[Footnote 285: The case of enemy merchantmen seized in a belligerent's -territorial waters is, of course, an exception.] - - -VII - -REQUISITIONS AND CONTRIBUTIONS - - Vattel, III. § 165--Hall, § 140-140*--Lawrence, § 180--Westlake, - II. pp. 96-102--Maine, p. 200--Twiss, II. § 64--Halleck, II. pp. - 68-69--Taylor, §§ 538-539--Moore, VII. § 1146--Bluntschli, §§ - 653-655--Heffter, § 131--Lueder in Holtzendorff, IV. pp. - 500-510--Ullmann, § 183--Bonfils, Nos. 1207-1226--Despagnet, Nos. - 587-590--Pradier-Fodéré, VII. Nos. 3048-3064--Rivier, II. pp. - 323-327--Nys, III. pp. 368-432--Calvo, IV. §§ 2231-2284--Fiore, - III. Nos. 1394, 1473-1476--Martens, II. § 120--Longuet, §§ - 110-114--Mérignhac, pp. 272-298--Pillet, pp. 215-235--Zorn, pp. - 283-315--_Kriegsbrauch_, pp. 61-63--Holland, _War_, Nos. - 111-112--Bordwell, pp. 314-324--Meurer, II. §§ 56-60--Spaight, pp. - 381-408--Ariga, §§ 116-122--_Land Warfare_, §§ 416-425--Thomas, - _Des réquisitions militaires_ (1884)--Keller, _Requisition und - Kontribution_ (1898)--Pont, _Les réquisitions militaires du temps - de guerre_ (1905)--Albrecht, _Requisitionen von neutralem - Privateigentum, etc._ (1912), pp. 1-24:--Risley in the _Journal of - the Society of Comparative Legislation_, new series, vol. II. - (1900), pp. 214-223. - -[Sidenote: War must support War.] - -§ 146. Requisitions and contributions in war are the outcome of the -eternal principle that war must support war.[286] This means that every -belligerent may make his enemy pay as far as possible for the -continuation of the war. But this principle, though it is as old as war -and will only die with war itself, has not the same effect in modern -times on the actions of belligerents as it formerly had. For thousands -of years belligerents used to appropriate all private and public enemy -property they could obtain, and, when modern International Law grew up, -this practice found legal sanction. But after the end of the seventeenth -century this practice grew milder under the influence of the experience -that the provisioning of armies in enemy territory became more or less -impossible when the inhabitants were treated according to the old -principle. Although belligerents retained in strict law the right to -appropriate all private besides all public property, it became usual to -abstain from enforcing such right, and in lieu thereof to impose -contributions of cash and requisitions in kind upon the inhabitants of -the invaded country.[287] And when this usage developed, no belligerent -ever thought of paying in cash for requisitions, or giving a receipt for -them. But in the nineteenth century another practice became usual. -Commanders then often gave a receipt for contributions and requisitions, -in order to avoid abuse and to prevent further demands for fresh -contributions and requisitions by succeeding commanders without -knowledge of the former impositions. And there are instances of cases -during the nineteenth century on record in which belligerents actually -paid in cash for all requisitions they made. The usual practice at the -end of the nineteenth century was that commanders always gave a receipt -for contributions, and that they either paid in cash for requisitions or -acknowledged them by receipt, so that the respective inhabitants could -be indemnified by their own Government after conclusion of peace. -However, no restriction whatever was imposed upon commanders with regard -to the amount of contributions and requisitions, and with regard to the -proportion between the resources of a country and the burden imposed. -The Hague Regulations have now settled the matter of contributions and -requisitions in a progressive way by enacting rules which put the whole -matter on a new basis. That war must support war remains a principle -under these regulations also. But they are widely influenced by the -demand that the enemy State as such, and not the private enemy -individuals, should be made to support the war, and that only so far as -the necessities of war demand it should contributions and requisitions -be imposed. Although certain public moveable property and the produce -of public immoveables may be appropriated as heretofore, requisitions -must be paid for in cash or, if this is impossible, acknowledged by -receipt. - -[Footnote 286: Concerning the controversy as to the justification of -Requisitions and Contributions, see Albrecht, _op. cit._ pp. 18-21.] - -[Footnote 287: An excellent sketch of the historical development of the -practice of requisitions and contributions is given by Keller, -_Requisition und Kontribution_ (1898), pp. 5-26.] - -[Sidenote: Requisitions in Kind, and Quartering.] - -§ 147. Requisition is the name for the demand for the supply of all -kinds of articles necessary for an army, such as provisions for men and -horses, clothing, or means of transport. Requisition of certain services -may also be made, but they will be treated below in § 170 together with -occupation, requisitions in kind only being within the scope of this -section. Now, what articles may be demanded by an army cannot once for -all be laid down, as they depend upon the actual need of an army. -According to article 52 of the Hague Regulations, requisitions may be -made from municipalities as well as from inhabitants, but they may be -made so far only as they are really necessary for the army. They may not -be made by individual soldiers or officers, but only by the commander in -the locality. All requisitions must be paid for in cash, and if this is -impossible, they must be acknowledged by receipt, and the payment of the -amount must be made as soon as possible. The principle that requisitions -must be paid for by the enemy is thereby absolutely recognised, but, of -course, commanders-in-chief may levy contributions--see below, § 148--in -case they do not possess cash for the payment of requisitions. However -this may be, by the rule that requisitions must always be paid for, it -again becomes apparent and beyond all doubt that henceforth private -enemy property is as a rule exempt from appropriation by an invading -army. - -A special kind of requisition is the quartering[288] of soldiers in the -houses of private inhabitants of enemy territory, by which each -inhabitant is required to supply lodging and food for a certain number -of soldiers, and sometimes also stabling and forage for horses. -Although the Hague Regulations do not specially mention quartering, -article 52 is nevertheless to be applied to it, since quartering is -nothing else than a special kind of requisition. If cash cannot be paid -at once for quartering, every inhabitant concerned must get a receipt -for it, stating the number of soldiers quartered and the number of days -they were catered for, and the payment of the amount must be made as -soon as possible. - -[Footnote 288: See above, § 143.] - -But it must be specially observed, that neither in the case of ordinary -requisitions nor in the case of quartering of troops is a commander -compelled to pay the prices asked by the inhabitants concerned. On the -contrary, he may fix the prices himself, although it is expected that -the prices paid shall be fair. - -[Sidenote: Contributions.] - -§ 148. Contribution is a payment in ready money demanded either from -municipalities or from inhabitants, whether enemy subjects or foreign -residents. Whereas formerly no general rules concerning contributions -existed, articles 49 and 51 of the Hague Regulations now enact that -contributions may not be demanded extortionately, but exclusively[289] -for the needs of the army, in order, for instance, to pay for -requisitions or for the administration of the locality in question. They -may be imposed by a written order of a commander-in-chief only, in -contradistinction to requisitions which may be imposed by a mere -commander in a locality. They may not be imposed indiscriminately on the -inhabitants, but must so far as possible be assessed upon such -inhabitants in compliance with the rules in force of the respective -enemy Government regarding the assessment of taxes. And, finally, for -every individual contribution a receipt must be given. It is apparent -that these rules of the Hague Regulations try to exclude all -arbitrariness and despotism on the part of an invading enemy with regard -to contributions, and that they try to secure to the individual -contributors as well as to contributing municipalities the possibility -of being indemnified afterwards by their own Government, thus shifting, -so far as possible, the burden of supporting the war from private -individuals and municipalities to the State proper.[290] - -[Footnote 289: As regards contributions as a penalty, see article 50 of -the Hague Regulations. See also Keller, _op. cit._ pp. 60-62.] - -[Footnote 290: It is strange to observe that _Kriegsbrauch_, pp. 61-63, -does not mention the Hague Regulations at all.] - - -VIII - -DESTRUCTION OF ENEMY PROPERTY - - Grotius, III. c. 5, §§ 1-3; c. 12--Vattel, III. §§ 166-168--Hall, - § 186--Lawrence, § 206--Manning, p. 186--Twiss, II. §§ - 65-69--Halleck, II. pp. 63, 64, 71, 74--Taylor, §§ - 481-482--Wharton, III. § 349--Moore, VII. § 1113--Wheaton, §§ - 347-351--Bluntschli, §§ 649, 651, 662, 663--Heffter, § 125--Lueder - in Holtzendorff, IV. pp. 482-485--Klüber, § 262--G. F. Martens, - II. § 280--Ullmann, § 176--Bonfils, Nos. 1078, - 1178-1180--Pradier-Fodéré, VI. Nos. 2770-2774--Rivier, II. pp. - 265-268--Nys, III. pp. 220-223--Calvo, IV. §§ 2215-2222--Fiore, - III. Nos. 1383-1388, and Code, Nos. 1525-1529--Martens, II. § - 110--Longuet, §§ 99, 100--Mérignhac, pp. 266-268--_Kriegsbrauch_, - pp. 52-56--Holland, _War_, Nos. 3 and 76 (_g_)--Bordwell, p. - 84--Spaight, pp. 129-140--_Land Warfare_, §§ 414, 422, 426, 427, - 434. - -[Sidenote: Wanton destruction prohibited.] - -§ 149. In former times invading armies frequently used to fire and -destroy all enemy property they could not make use of or carry away. -Afterwards, when the practice of warfare grew milder, belligerents in -strict law retained the right to destroy enemy property according to -discretion, although they did not, as a rule, any longer make use of -such right. Nowadays, however, this right is obsolete. For in the -nineteenth century it became a universally recognised rule of -International Law that all useless and wanton destruction of enemy -property, be it public or private, is absolutely prohibited. And this -rule has now been expressly enacted by article 23 (_g_) of the Hague -Regulations, where it is categorically enacted that "to destroy ... -enemy's property, unless such destruction ... be imperatively demanded -by the necessities of war, is prohibited." - -[Sidenote: Destruction for the purpose of Offence and Defence.] - -§ 150. All destruction of and damage to enemy property for the purpose -of offence and defence is _necessary_ destruction and damage, and -therefore lawful. It is not only permissible to destroy and damage all -kinds of enemy property on the battlefield during battle, but also in -preparation for battle or siege. To strengthen a defensive position a -house may be destroyed or damaged. To cover the retreat of an army a -village on the battlefield may be fired. The district around an enemy -fortress held by a belligerent may be razed, and, therefore, all private -and public buildings, all vegetation may be destroyed, and all bridges -blown up within a certain area. If a farm, a village, or even a town is -not to be abandoned but prepared for defence, it may be necessary to -damage in many ways or entirely destroy private and public property. -Further, if and where a bombardment is lawful, all destruction of -property involved in it becomes likewise lawful. When a belligerent -force obtains possession of an enemy factory for ammunition or -provisions for the enemy troops, if it is not certain that they can hold -it against an attack, they may at least destroy the plant, if not the -buildings. Or if a force occupies an enemy fortress, they may raze the -fortifications. Even a force intrenching themselves on a battlefield may -be obliged to resort to the destruction of many kinds of property. - -[Sidenote: Destruction in marching, reconnoitring, and conducting -Transport.] - -§ 151. Destruction of enemy property in marching troops, conducting -military transport, and in reconnoitring, is likewise lawful if -unavoidable. A reconnoitring party need not keep on the road if they can -better serve their purpose by riding across the tilled fields. And -troops may be marched and transport may be conducted over crops when -necessary. A humane commander will not unnecessarily allow his troops -and transport to march and ride over tilled fields and crops. But if the -purpose of war necessitates it he is justified in so doing. - -[Sidenote: Destruction of Arms, Ammunition, and Provisions.] - -§ 152. Whatever enemy property a belligerent may appropriate he may -likewise destroy. To prevent the enemy from making use of them a -retreating force may destroy arms, ammunition, provisions, and the like, -which they have taken from the enemy or requisitioned and cannot carry -away. But it must be specially observed that they may not destroy -provisions in the possession of private enemy inhabitants in order to -prevent the enemy from making use of them in the future.[291] - -[Footnote 291: Nor is a commander allowed to requisition such provisions -in order to have them destroyed, for article 52 of the Hague Regulations -expressly enacts that requisitions are only admissible for the -necessities of the army.] - -[Sidenote: Destruction of Historical Monuments, Works of Art, and the -like.] - -§ 153. All destruction of and damage to historical monuments, works of -art and science, buildings for charitable, educational, and -religious[292] purposes are specially prohibited by article 56 of the -Hague Regulations which enacts that the perpetrators of such acts must -be prosecuted (_poursuivie_), that is court-martialed. But it must be -emphasised that these objects enjoy this protection only during military -occupation of enemy territory. Should a battle be waged around an -historical monument on open ground, should a church, a school, or a -museum be defended and attacked during military operations, these -otherwise protected objects may be damaged or destroyed under the same -conditions as other enemy property. - -[Footnote 292: It is of importance to state the fact that, according to -Grotius (III. c. 5, §§ 2 and 3), destruction of graves, tombstones, -churches, and the like is not prohibited by the Law of Nations, although -he strongly (III. c. 12, §§ 5-7) advises that they should be spared -unless their preservation is dangerous to the interests of the -invader.] - -[Sidenote: General Devastation.] - -§ 154. The question must also be taken into consideration whether and -under what conditions general devastation of a locality, be it a town or -a larger part of enemy territory, is permitted. There cannot be the -slightest doubt that such devastation is as a rule absolutely prohibited -and only in exceptional cases permitted when, to use the words of -article 23 (_g_) of the Hague Regulations, it is "imperatively demanded -by the necessities of war." It is, however, impossible to define once -for all the circumstances which make a general devastation necessary, -since everything depends upon the merits of the special case. But the -fact that a general devastation can be lawful must be admitted. And it -is, for instance, lawful in case of a levy _en masse_ on already -occupied territory, when self-preservation obliges a belligerent to -resort to the most severe measures. It is also lawful when, after the -defeat of his main forces and occupation of his territory, an enemy -disperses his remaining forces into small bands which carry on guerilla -tactics and receive food and information, so that there is no hope of -ending the war except by a general devastation which cuts off supplies -of every kind from the guerilla bands. But it must be specially observed -that general devastation is only justified by imperative necessity and -by the fact that there is no better and less severe way open to a -belligerent.[293] - -[Footnote 293: See Hall, § 186, who gives _in nuce_ a good survey of the -doctrine and practice of general devastation from Grotius down to the -beginning of the nineteenth century. See also Spaight, pp. 125-139.] - -Be that as it may, whenever a belligerent resorts to general devastation -he ought, if possible, to make some provision for the unfortunate -peaceful population of the devastated tract of territory. It would be -more humane to take them away into captivity rather than let them perish -on the spot. The practice, resorted to during the South African war, to -house the victims of devastation in concentration camps, must be -approved. The purpose of war may even oblige a belligerent to confine a -population forcibly[294] in concentration camps. - -[Footnote 294: See above, p. 153, note 1. As regards the devastation -resorted to during the South African War, and as regards the -concentration camps instituted in consequence of devastation during this -war, see Beak, _The Aftermath of War_ (1906), pp. 1-30, and _The Times' -History of the War in South Africa_, vol. V. pp. 250-252.] - - -IX - -ASSAULT, SIEGE, AND BOMBARDMENT - - Vattel, III. §§ 168-170--Hall, § 186--Lawrence, § 204--Westlake, - II. pp. 76-79--Moore, VII. § 1112--Halleck, II. pp. 59, 67, - 185--Taylor, §§ 483-485--Bluntschli, §§ 552-554B--Heffter, § - 125--Lueder in Holtzendorff, IV. pp. 448-457--G. F. Martens, II. § - 286--Ullmann, § 181--Bonfils, Nos. 1079-1087--Despagnet, Nos. - 528-535--Pradier-Fodéré, VI. Nos. 2779-2786--Rivier, II. pp. - 284-288--Nys, III. pp. 210-219--Calvo, IV. §§ 2067-2095--Fiore, - III. Nos. 1322-1330, and Code, Nos. 1519-1524--Longuet, §§ - 58-59--Mérignhac, pp. 171-182--Pillet, pp. 101-112--Zorn, pp. - 161-174--Holland, _War_, Nos. 80-83--Rolin-Jaequemyns in _R.I._ - II. (1870), pp. 659 and 674, III. (1871), pp. 297-307--Bordwell, - pp. 286-288--Meurer, §§ 32-34--Spaight, pp. - 157-201--_Kriegsbrauch_, pp. 18-22--_Land Warfare_, §§ 117-138. - -[Sidenote: Assault, Siege, and Bombardment, when lawful.] - -§ 155. Assault is the rush of an armed force upon enemy forces in the -battlefield, or upon intrenchments, fortifications, habitations, -villages, or towns, such rushing force committing every violence against -opposing persons and destroying all impediments. Siege is the -surrounding and investing of an enemy locality by an armed force, -cutting off those inside from all communication for the purpose of -starving them into surrender or for the purpose of attacking the -invested locality and taking it by assault. Bombardment is the throwing -by artillery of shot and shell upon persons and things. Siege can be -accompanied by bombardment and assault, but this is not necessary, since -a siege can be carried out by mere investment and starvation caused -thereby. Assault, siege, and bombardment are severally and jointly -perfectly legitimate means of warfare.[295] Neither bombardment nor -assault, if they take place on the battlefield, needs special -discussion, as they are allowed under the same circumstances and -conditions as force in general is allowed. The only question here is -under what circumstances assault and bombardment are allowed outside the -battlefield. The answer is indirectly given by article 25 of the Hague -Regulations, where it is categorically enacted that "the attack or -bombardment, by any means[296] whatever, of towns, villages, -habitations, or buildings, which are not defended, is prohibited." Siege -is not specially mentioned, because no belligerent would dream of -besieging an undefended locality, and because siege of an undefended -town would involve unjustifiable violence against enemy persons and -would, therefore, be unlawful. Be this as it may, the fact that defended -localities only may now be bombarded, involves a decided advance in the -view taken by International Law. For it was formerly asserted by many -writers[297] and military experts that, for certain reasons and -purposes, undefended localities also might in exceptional cases be -bombarded. But it must be specially observed that it matters not whether -the defended locality be fortified or not, since an unfortified place -can be defended.[298] And it must be mentioned that nothing prevents a -belligerent who has taken possession of an undefended fortified place -from destroying the fortifications by bombardment as well as by other -means. - -[Footnote 295: The assertion of some writers--see, for instance, Pillet, -pp. 104-107, and Mérignhac, p. 173--that bombardment is lawful only -after an unsuccessful attempt of the besiegers to starve the besieged -into surrender is not based upon a recognised rule of the Law of -Nations.] - -[Footnote 296: The words _by any means whatever_ were inserted by the -Second Peace Conference in order to make it quite clear that the article -is likewise to refer to bombardment from air-vessels.] - -[Footnote 297: See, for instance, Lueder in Holtzendorff, IV. p. 451.] - -[Footnote 298: See Holls, _The Peace Conference at the Hague_ (1900), p. -152.] - -[Sidenote: Assault, how carried out.] - -§ 156. No special rules of International Law exist with regard to the -mode of carrying out an assault. Therefore, only the general rules -respecting offence and defence find application. It is in especial -not[299] necessary to give notice of an impending assault to the -authorities of the respective locality, or to request them to surrender -before an assault is made. That an assault may or may not be preceded or -accompanied by a bombardment, need hardly be mentioned, nor that by -article 28 of the Hague Regulations pillage of towns taken by assault is -now expressly prohibited. - -[Footnote 299: This becomes indirectly apparent from article 26 of the -Hague Regulations.] - -[Sidenote: Siege, how carried out.] - -§ 157. With regard to the mode of carrying out siege without bombardment -no special rules of International Law exist, and here too only the -general rules respecting offence and defence find application. -Therefore, an armed force besieging a town may, for instance, cut off -the river which supplies drinking water to the besieged, but must not -poison[300] such river. And it must be specially observed that no rule -of law exists which obliges a besieging force to allow all -non-combatants, or only women, children, the aged, the sick and wounded, -or subjects of neutral Powers, to leave the besieged locality -unmolested. Although such permission[301] is sometimes granted, it is in -most cases refused, because the fact that non-combatants are besieged -together with the combatants, and that they have to endure the same -hardships, may, and very often does, exercise pressure upon the -authorities to surrender. Further, should the commander of a besieged -place expel the non-combatants in order to lessen the number of those -who consume his store of provisions, the besieging force need not allow -them to pass through its lines, but may drive them back.[302] - -[Footnote 300: See above, § 110.] - -[Footnote 301: Thus in 1870, during the Franco-German War, the German -besiegers of Strassburg as well as of Belfort allowed the women, the -children, and the sick to leave the besieged fortresses.] - -[Footnote 302: See _Land Warfare_, § 129.] - -That diplomatic envoys of neutral Powers may not be prevented from -leaving a besieged town is a consequence of their exterritoriality. -However, if they voluntarily remain, may they claim uncontrolled[303] -communication with their home State by correspondence and couriers? When -Mr. Washburne, the American diplomatic envoy at Paris during the siege -of that city in 1870 by the Germans, claimed the right of sending a -messenger with despatches to London in a sealed bag through the German -lines, Bismarck declared that he was ready to allow foreign diplomatists -in Paris to send a courier to their home States once a week, but only -under the condition that their despatches were open and did not contain -any remarks concerning the war. Although the United States and other -Powers protested, Bismarck did not alter his decision. The whole -question must be treated as open.[304] - -[Footnote 303: The matter is discussed by Rolin-Jaequemyns in _R.I._ -III. (1871), pp. 371-377.] - -[Footnote 304: See above, vol. I. § 399, and Wharton, I. § 97.] - -[Sidenote: Bombardment, how carried out.] - -§ 158. Regarding bombardment, article 26 of the Hague Regulations enacts -that the commander of the attacking forces shall do all he can to notify -his intention to resort to bombardment. But it must be emphasised that a -strict duty of notification for all cases of bombardment is not thereby -imposed, since it is only enacted that a commander _shall do all he can_ -to send notification. He cannot do it when the circumstances of the case -prevent him, or when the necessities of war demand an immediate -bombardment. Be that as it may, the purpose of notification is to enable -private individuals within the locality to be bombarded to seek shelter -for their persons and for their valuable personal property. - -Article 27 of the Hague Regulations enacts the hitherto customary rule -that all necessary steps must be taken to spare as far as possible all -buildings devoted to religion, art, science, and charity; further, -historic monuments, hospitals, and all other places where the sick and -wounded are collected, provided these buildings, places, and monuments -are not used at the same time for military purposes. To enable the -attacking forces to spare these buildings and places, the latter must be -indicated by some particular signs, which must be previously notified to -the attacking forces and must be visible from the far distance from -which the besieging artillery carries out the bombardment.[305] - -[Footnote 305: No siege takes place without the besieged accusing the -besiegers of neglecting the rule that buildings devoted to religion, -art, charity, the tending of the sick, and the like, must be spared -during bombardments. The fact is that in case of a bombardment the -destruction of such buildings cannot always be avoided, although the -artillery of the besiegers do not intentionally aim at them. That the -forces of civilised States intentionally destroy such buildings, I -cannot believe.] - -It must be specially observed that no legal duty exists for the -attacking forces to restrict bombardment to fortifications only. On the -contrary, destruction of private and public buildings through -bombardment has always been and is still considered lawful, as it is one -of the means to impress upon the authorities the advisability of -surrender. Some writers[306] assert either that bombardment of the town, -in contradistinction to the fortifications, is never lawful, or that it -is only lawful when bombardment of the fortifications has not resulted -in inducing surrender. But this opinion does not represent the actual -practice of belligerents, and the Hague Regulations do not adopt it. - -[Footnote 306: See, for instance, Pillet, pp. 104-107; Bluntschli § -554A; Mérignhac, p. 180. Vattel (III. § 169) does not deny the right to -bombard the town, although he does not recommend such bombardment.] - - -X - -ESPIONAGE AND TREASON - - Vattel, III. §§ 179-182--Hall, § 188--Westlake, II. pp. 79 and - 90--Lawrence, § 199--Phillimore, III. § 96--Halleck, I. pp. - 571-575, and in _A.J._ V.(1911), pp. 590-603--Taylor, §§ 490 and - 492--Wharton, III. § 347--Moore, VII. § 1132--Bluntschli, §§ - 563-564, 628-640--Heffter, § 125--Lueder in Holtzendorff, IV. pp. - 461-467--Ullmann, § 176--Bonfils, Nos. 1100-1104--Despagnet, Nos. - 537-542--Pradier-Fodéré, VI. Nos. 2762-2768--Rivier, II. pp. - 282-284--Nys, III. pp. 256-263--Calvo, IV. §§ 2111-2122--Fiore, - III. Nos. 1341, 1374-1376, and Code, Nos. 1487-1490--Martens, II. - § 116--Longuet, §§ 63-75--Mérignhac, pp. 183-209--Pillet, pp. - 97-100--Zorn, pp. 174-195--Holland, _War_, Nos. 84-87--Bordwell, - pp. 291-292--Meurer, §§ 35-38--Spaight, pp. 202-215, - 333-335--Ariga, §§ 98-100--Takahashi, pp. 185-194--Friedemann, - _Die Lage der Kriegskundschafter und Spione_ (1892)--Violle, - _L'espionage militaire en temps de guerre_ (1904)--Adler, _Die - Spionage_ (1906)--_Kriegsbrauch_, pp. 30-31--_Land Warfare_, §§ - 155-173--Bentwich in _The Journal of the Society of Comparative - Legislation_, New Series, X. (1909), pp. 243-299. - -[Sidenote: Twofold Character of Espionage and Treason.] - -§ 159. War cannot be waged without all kinds of information about the -forces and the intentions of the enemy and about the character of the -country within the zone of military operations. To obtain the necessary -information, it has always been considered lawful, on the one hand, to -employ spies, and, on the other, to make use of the treason of enemy -soldiers or private enemy subjects, whether they were bribed[307] or -offered the information voluntarily and gratuitously. Article 24 of the -Hague Regulations enacts the old customary rule that the employment of -methods necessary to obtain information about the enemy and the country -is considered allowable. The fact, however, that these methods are -lawful on the part of the belligerent who employs them does not prevent -the punishment of such individuals as are engaged in procuring -information. Although a belligerent acts lawfully in employing spies and -traitors, the other belligerent, who punishes spies and traitors, -likewise acts lawfully. Indeed, espionage and treason bear a twofold -character. For persons committing acts of espionage or treason are--as -will be shown below in § 255--considered war criminals and may be -punished, but the employment of spies and traitors is considered lawful -on the part of the belligerents. - -[Footnote 307: Some writers maintain, however, that it is not lawful to -bribe enemy soldiers into espionage; see below, § 162.] - -[Sidenote: Espionage in contradistinction to Scouting and -Despatch-bearing.] - -§ 160. Espionage must not be confounded, firstly, with scouting, or -secondly, with despatch-bearing. According to article 29 of the Hague -Regulations, espionage is the act of a soldier or other individual who -clandestinely, or under false pretences, seeks to obtain information -concerning one belligerent in the zone of belligerent operations with -the intention of communicating it to the other belligerent.[308] -Therefore, soldiers not in disguise, who penetrate into the zone of -operations of the enemy, are not spies. They are scouts who enjoy all -privileges of the members of armed forces, and they must, if captured, -be treated as prisoners of war. Likewise, soldiers or civilians charged -with the delivery of despatches for their own army or for that of the -enemy and carrying out their mission openly are not spies. And it -matters not whether despatch-bearers make use of balloons or of other -means of communication. Thus, a soldier or civilian trying to carry -despatches from a force besieged in a fortress to other forces of the -same belligerent, whether making use of a balloon or riding or walking -at night, may not be treated as a spy. On the other hand, spying can -well be carried out by despatch-bearers or by persons in a balloon, -whether they make use of the balloon of a despatch-bearer or rise in a -balloon for the special purpose of spying.[309] The mere fact that a -balloon is visible does not protect the persons using it from being -treated as spies; since spying can be carried out under false pretences -quite as well as clandestinely. But special care must be taken really to -prove the fact of espionage in such cases, for an individual carrying -despatches is _prima facie_ not a spy and must not be treated as a spy -until proved to be such. - -[Footnote 308: Assisting or favouring espionage or knowingly concealing -a spy are, according to a customary rule of International Law, -punishable as though they were themselves acts of espionage; see _Land -Warfare_, § 172.] - -[Footnote 309: See below, § 356 (4), concerning wireless telegraphy.] - -A remarkable case of espionage is that of Major André,[310] which -occurred in 1780 during the American War of Independence. The American -General Arnold, who was commandant of West Point, on the North River, -intended to desert the Americans and join the British forces. He opened -negotiations with Sir Henry Clinton for the purpose of surrendering West -Point, and Major André was commissioned by Sir Henry Clinton to make the -final arrangements with Arnold. On the night of September 21, Arnold and -André met outside the American and British lines, but André, after -having changed his uniform for plain clothes, undertook to pass the -American lines on his return, furnished with a passport under the name -of John Anderson by General Arnold. He was caught, convicted as a spy, -and hanged. As he was not seeking information,[311] and therefore was -not a spy according to article 29 of the Hague Regulations, a conviction -for espionage would not, if such a case occurred to-day, be justified. -But it would be possible to convict for war treason, for André was no -doubt negotiating treason. Be that as it may, George III. considered -André a martyr, and honoured his memory by granting a pension to his -mother and a baronetcy to his brother.[312] - -[Footnote 310: See Halleck in _A.J._ V. (1911), p. 594.] - -[Footnote 311: Halleck, _loc. cit._, p. 598, asserts the contrary.] - -[Footnote 312: See Phillimore, III. § 106; Halleck, I. p. 575; Rivier, -II. p. 284.] - -[Sidenote: Punishment of Espionage.] - -§ 161. The usual punishment for spying is hanging or shooting, but less -severe punishments are, of course, admissible and sometimes inflicted. -However this may be, according to article 30 of the Hague Regulations a -spy may not be punished without a trial before a court-martial. And -according to article 31 of the Hague Regulations a spy who is not -captured in the act but rejoins the army to which he belongs, and is -subsequently captured by the enemy, may not be punished for his previous -espionage and must be treated as a prisoner of war. But it must be -specially observed that article 31 concerns only such spies as belong to -the armed forces of the enemy; civilians who act as spies and are -captured later may be punished. Be that as it may, no regard is paid to -the status, rank, position, or motive of a spy. He may be a soldier or a -civilian, an officer or a private. He may be following instructions of -superiors or acting on his own initiative from patriotic motives. A case -of espionage, remarkable on account of the position of the spy, is that -of the American Captain Nathan Hale, which occurred in 1776. After the -American forces had withdrawn from Long Island, Captain Hale recrossed -under disguise and obtained valuable information about the English -forces that had occupied the island. But he was caught before he could -rejoin his army, and he was executed as a spy.[313] - -[Footnote 313: The case of Major Jakoga and Captain Oki, which, though -reported as a case of espionage, is really a case of treason, will be -discussed below in § 255.] - -[Sidenote: Treason.] - -§ 162. Treason can be committed by a soldier or an ordinary subject of a -belligerent, but it can also be committed by an inhabitant of an -occupied enemy territory or even by the subject of a neutral State -temporarily staying there, and it can take place after an arrangement -with the favoured belligerent or without such an arrangement. In any -case a belligerent making use of treason acts lawfully, although the -Hague Regulations do not mention the matter at all. But many acts of -different sorts can be treasonable; the possible cases of treason and -the punishment of treason will be discussed below in § 255. - -Although it is generally recognised that a belligerent acts lawfully who -makes use of the offer of a traitor, the question is controversial[314] -whether a belligerent acts lawfully who bribes a commander of an enemy -fortress into surrender, incites enemy soldiers to desertion, bribes -enemy officers for the purpose of getting important information, incites -enemy subjects to rise against the legitimate Government, and the like. -If the rules of the Law of Nations are formulated, not from doctrines of -book-writers, but from what is done by the belligerents in -practice,[315] it must be asserted that such acts, detestable and -immoral as they are, are not considered illegal according to the Law of -Nations. - -[Footnote 314: See Vattel, III. § 180; Heffter, § 125; Taylor, § 490; -Martens, II. § 110 (8); Longuet, § 52; Mérignhac, p. 188, and others. -See also below, § 164.] - -[Footnote 315: See _Land Warfare_, § 158.] - - -XI - -RUSES - - Grotius, III. c. 1, §§ 6-18--Bynkershoek, _Quaest. jur. publ._ I. - c. 1--Vattel, III. §§ 177-178--Hall, § 187--Lawrence, § - 207--Westlake, II. p. 73--Phillimore, III. § 94--Halleck, I. pp. - 566-571--Taylor, § 488--Moore, VII. § 1115--Bluntschli, §§ - 565-566--Heffter, § 125--Lueder in Holtzendorff, IV. pp. - 457-461--Ullmann, § 176--Bonfils, Nos. 1073-1075--Despagnet, Nos. - 526-527--Pradier-Fodéré, VI. Nos. 2759-2761--Rivier, II. p. - 261--Nys, III. pp. 252-255--Calvo, IV. §§ 2106-2110--Fiore, III. - Nos. 1334-1339--Longuet, §§ 53-56--Mérignhac, pp. 165-168--Pillet, - pp. 93-97--_Kriegsbrauch_, pp. 23-24--Holland, _War_, Nos. - 78-79--Bordwell, pp. 283-286--Meurer, II pp. 151-152--Spaight, pp. - 152-156--_Land Warfare_, §§ 139-154--Brocher in _R.I._ V. (1873), - pp. 325-329. - -[Sidenote: Character of Ruses of War.] - -§ 163. Ruses of war or stratagems are deceit employed during military -operations for the purpose of misleading the enemy. Such deceit is of -great importance in war, and, just as belligerents are allowed to -employ all methods of obtaining information, so they are, on the other -hand, and article 24 of the Hague Regulations confirms this, allowed to -employ all sorts of ruses for the purpose of deceiving the enemy. Very -important objects can be attained through ruses of war, as, for -instance, the surrender of a force or of a fortress, the evacuation of -territory held by the enemy, the withdrawal from a siege, the -abandonment of an intended attack, and the like. But ruses of war are -also employed, and are very often the decisive factor, during battles. - -[Sidenote: Different kinds of Stratagems.] - -§ 164. Of ruses there are so many kinds that it is impossible to -enumerate[316] and classify them. But in order to illustrate acts -carried out as ruses some instances may be given. It is hardly necessary -to mention the laying of ambushes and traps, the masking of military -operations such as marches or the erection of batteries and the like, -the feigning of attacks or flights or withdrawals, the carrying out of a -surprise, and other stratagems employed every day in war. But it is -important to know that, when useful, feigned signals and bugle-calls may -be ordered, the watchword of the enemy may be used, deceitful -intelligence may be disseminated,[317] the signals and the bugle-calls -of the enemy may be mimicked[318] to mislead his forces. And even such -detestable acts[319] as bribery of enemy commanders and officials in -high position, and secret seduction of enemy soldiers to desertion, and -of enemy subjects to insurrection, are frequently committed, although -many writers protest. As regards the use of the national flag, the -military ensigns, and the uniforms of the enemy, theory and practice -are unanimous in rejecting it during actual attack and defence, since -the principle is considered inviolable that during actual fighting -belligerent forces ought to be certain who is friend and who is foe. But -many[320] publicists maintain that until the actual fighting begins -belligerent forces may by way of stratagem make use of the national -flag, military ensigns, and uniforms of the enemy. Article 23 (_f_) of -the Hague Regulations does not prohibit any and every use of these -symbols, but only their _improper_ use, thus leaving the question -open,[321] what uses are proper and what are not. Those who have -hitherto taught the admissibility of the use of these symbols outside -actual fighting can correctly maintain that the quoted article 23 (_f_) -does not prohibit it.[322] - -[Footnote 316: See _Land Warfare_, § 144, where a great number of -legitimate ruses are enumerated.] - -[Footnote 317: See the examples quoted by Pradier-Fodéré, VI. No. 2761.] - -[Footnote 318: See Pradier-Fodéré, VI. No. 2760.] - -[Footnote 319: The point has been discussed above in § 162.] - -[Footnote 320: See, for instance, Hall, § 187; Bluntschli, § 565; -Taylor, § 488; Calvo, IV. No. 2106; Pillet, p. 95; Longuet, § 54. But, -on the other hand, the number of publicists who consider it illegal to -make use of the enemy flag, ensigns, and uniforms, even before an actual -attack, is daily becoming larger; see, for instance, Lueder in -Holtzendorff, IV. p. 458; Mérignhac, p. 166; Pradier-Fodéré, VI. No. -2760; Bonfils, No. 1074; _Kriegsbrauch_, p. 24. As regards the use of -the enemy flag on the part of men-of-war, see below, in § 211.] - -[Footnote 321: Some writers maintain that article 23 (_f_) of the Hague -Regulations has settled the controversy, but they forget that this -article speaks only of the _improper_ use of the enemy ensigns and -uniform. See _Land Warfare_, § 152.] - -[Footnote 322: The use of the enemy uniform for the purpose of deceit is -different from the case when members of armed forces who are deficient -in clothes wear the uniforms of prisoners or of the enemy dead. If this -is done--and it always will be done if necessary--such distinct -alterations in the uniform ought to be made as will make it apparent to -which side the soldiers concerned belong (see _Land Warfare_, § 154). -Different again is the case where soldiers are, through lack of -clothing, obliged to wear the apparel of civilians, such as greatcoats, -hats, and the like. Care must then be taken that the soldiers concerned -do nevertheless wear a fixed distinctive emblem which marks them as -soldiers, since otherwise they lose the privileges of members of the -armed forces of the belligerents (see article 1, No. 2, of the Hague -Regulations). During the Russo-Japanese War both belligerents repeatedly -accused each other of using Chinese clothing for members of their armed -forces; the soldiers concerned apparently were obliged through lack of -proper clothing temporarily to make use of Chinese garments. See, -however, Takahashi, pp. 174-178.] - -[Sidenote: Stratagems in contradistinction to Perfidy.] - -§ 165. Stratagems must be carefully distinguished from perfidy, since -the former are allowed, whereas the latter is prohibited. Halleck (I. p. -566) correctly formulates the distinction by laying down the principle -that, whenever a belligerent has expressly or tacitly engaged and is -therefore bound by a moral obligation to speak the truth to an enemy, it -is perfidy to betray the latter's confidence, because it contains a -breach of good faith.[323] Thus a flag of truce or the cross of the -Geneva Convention must never be made use of for a stratagem, -capitulations must be carried out to the letter, the feigning of -surrender for the purpose of luring the enemy into a trap is a -treacherous act, as is the assassination of enemy commanders or soldiers -or heads of States. On the other hand, stratagem may be met by -stratagem, and a belligerent cannot complain of the enemy who so -deceives him. If, for instance, a spy of the enemy is bribed to give -deceitful intelligence to his employer, or if an officer, who is -approached by the enemy and offered a bribe, accepts it feigningly but -deceives the briber and leads him to disaster, no perfidy is committed. - -[Footnote 323: See _Land Warfare_, §§ 139-142, 146-150.] - - -XII - -OCCUPATION OF ENEMY TERRITORY - - Grotius, III. c. 6, § 4--Vattel, III. §§ 197-200--Hall, §§ - 153-161--Westlake, II. pp. 83-106--Lawrence, §§ 176-179--Maine, - pp. 176-183--Halleck, II. pp. 432-466--Taylor, §§ - 568-579--Wharton, III. §§ 354-355--Moore, VII. §§ - 1143-1155--Bluntschli, §§ 539-551--Heffter, §§ 131-132--Lueder in - Holtzendorff, IV. pp. 510-524--Klüber, §§ 255-256--G. F. Martens, - II. § 280--Ullmann, § 183--Bonfils, Nos. 1156-1175--Despagnet, - Nos. 567-578--Pradier-Fodéré, VII. Nos. 2939-2988, 3019-3028--Nys, - III. pp. 309-351--Rivier, II. pp. 299-306--Calvo, IV. §§ - 2166-2198--Fiore, III. Nos. 1454-1481, and Code, Nos. - 1535-1563--Martens, II. §§ 117-119--Longuet, §§ - 115-133--Mérignhac, pp. 241-262--Pillet, pp. 237-259--Zorn, pp. - 213-243--_Kriegsbrauch_, pp. 45-50--Holland, _War_, Nos. - 102-106--Bordwell, pp. 312-330--Meurer, II. §§ 45-55--Spaight, pp. - 320-380--_Land Warfare_, §§ 340-405--Waxel, _L'armée d'invasion el - la population_ (1874)--Litta, _L'occupazione militare_ - (1874)--Löning, _Die Verwaltung des General-Gouvernements im - Elsass_ (1874), and in _R.I._ IV. (1872), p. 622, V. (1873), p. - 69--Bernier, _De l'occupation militaire en temps de guerre_ - (1884)--Corsi, _L'occupazione militare in tempo di guerra e le - relazione internazionale che ne derivano_ (2nd edit. 1886)--Bray, - _De l'occupation militaire en temps de guerre, etc._ - (1891)--Magoon, _Law of Civil Government under Military - Occupation_ (2nd edit. 1900)--Lorriot, _De la nature de - l'occupation de guerre_ (1903)--Deherpe, _Essai sur le - developpement de l'occupation en droit international_ - (1903)--Sichel, _Die kriegerische Besetzung feindlichen - Staatsgebietes_ (1905)--Nowacki, _Die Eisenbahnen im Kriege_ - (1906), pp. 78-90--_Rolin-Jaequemyns_ in _R.I._ II. (1870), p. - 666, and III. (1871), p. 311. - -[Sidenote: Occupation as an Aim of Warfare.] - -§ 166. If a belligerent succeeds in occupying a part or even the whole -of the enemy territory, he has realised a very important aim of warfare. -He can now not only make use of the resources of the enemy country for -military purposes, but can also keep it for the time being as a pledge -of his military success, and thereby impress upon the enemy the -necessity of submitting to terms of peace. And in regard to occupation, -International Law respecting warfare has progressed more than in any -other department. In former times enemy territory that was occupied by a -belligerent was in every point considered his State property, with which -and with the inhabitants therein he could do what he liked. He could -devastate the country with fire and sword, appropriate all public and -private property therein, kill the inhabitants, or take them away into -captivity, or make them take an oath of allegiance. He could, even -before the war was decided and his occupation was definitive, dispose of -the territory by ceding it to a third State, and an instance of this -happened during the Northern War (1700-1718), when in 1715 Denmark sold -the occupied Swedish territories of Bremen and Verden to Hanover. That -an occupant could force the inhabitants of the occupied territory to -serve in his own army and to fight against their legitimate sovereign, -was indubitable. Thus, during the Seven Years' War, Frederick II. of -Prussia repeatedly made forcible levies of thousands of recruits in -Saxony, which he had occupied. But during the second half of the -eighteenth century things gradually began to undergo a change. That the -distinction between mere temporary military occupation of territory, on -the one hand, and, on the other, real acquisition of territory through -conquest and subjugation, became more and more apparent, is shown by the -fact that Vattel (III. § 197) drew attention to it. However, it was not -till long after the Napoleonic wars in the nineteenth century that the -consequences of this distinction were carried to their full extent by -the theory and practice of International Law. So late as 1808, after the -Russian troops had militarily occupied Finland, which was at that time a -part of Sweden, Alexander I. of Russia made the inhabitants take an oath -of allegiance,[324] although it was only by article 4 of the Peace -Treaty of Frederikshamm[325] of September 17, 1809, that Sweden ceded -Finland to Russia. The first writer who drew all the consequences of the -distinction between mere military occupation and real acquisition of -territory was Heffter in his treatise _Das Europaeische Völkerrecht der -Gegenwart_ (§ 131), which made its appearance in 1844. And it is -certain that it took the whole of the nineteenth century to develop such -rules regarding occupation as are now universally recognised and in many -respects enacted by articles 42-56 of the Hague Regulations. - -[Footnote 324: See Martens, _N.R._ I. p. 9.] - -[Footnote 325: See Martens, _N.R._ I. p. 19.] - -In so far as these rules touch upon the special treatment of persons and -property of the inhabitants of, and public property situated within, -occupied territory, they have already been taken into consideration -above in §§ 107-154. What concerns us here are the rights and duties of -the occupying belligerent in relation to his political administration of -the territory and to his political authority over its inhabitants.[326] -The principle underlying these modern rules is that, although the -occupant does in no wise acquire sovereignty over such territory through -the mere fact of having occupied it, he actually exercises for the time -being a military authority over it. As he thereby prevents the -legitimate Sovereign from exercising his authority and claims obedience -for himself from the inhabitants, he has to administer the country not -only in the interest of his own military advantage, but also, so far as -possible at any rate, for the public benefit of the inhabitants. Thus -the present International Law not only gives certain rights to an -occupant, but also imposes certain duties upon him. - -[Footnote 326: The Hague Regulations (Section III. articles 42-56), and -all the French writers, but also many others, treat under the heading -"occupation" not only of the rights and duties of an occupant concerning -the political administration of the country and the political authority -over the inhabitants, but also of other matters, such as appropriation -of public and private property, requisitions and contributions, and -destruction of public and private property, violence against private -enemy subjects and enemy officials. These matters have, however, nothing -to do with occupation, but are better discussed in connection with the -means of land warfare; see above, §§ 107-154.] - -[Sidenote: Occupation, when effected.] - -§ 167. Since an occupant, although his power is merely military, has -certain rights and duties, the first question to deal with is, when and -under what circumstances a territory must be considered occupied. - -Now it is certain that mere invasion is not occupation. Invasion is the -marching or riding of troops--or the flying of a military air -vessel--into enemy country. Occupation is invasion _plus_ taking -possession of enemy country for the purpose of holding it, at any rate -temporarily. The difference between mere invasion and occupation becomes -apparent by the fact that an occupant sets up some kind of -administration, whereas the mere invader does not. A small belligerent -force can raid enemy territory without establishing any administration, -but quickly rush on to some place in the interior for the purpose of -reconnoitring, of destroying a bridge or depôt of munitions and -provisions, and the like, and quickly withdraw after having realised its -purpose.[327] Although it may correctly be asserted that, so long and in -so far as such raiding force is in possession of a locality and sets up -a temporary administration therein, it occupies this locality, yet it -certainly does not occupy the whole territory, and even the occupation -of such locality ceases the moment the force withdraws. - -[Footnote 327: See _Land Warfare_, § 343.] - -However this may be, as a rule occupation will be coincident with -invasion. The troops march into a district, and the moment they get into -a village or town--unless they are actually fighting their way--they -take possession of the Municipal Offices, the Post Office, the Police -Stations, and the like, and assert their authority there. From the -military point of view such villages and towns are now "occupied." -Article 42 of the Hague Regulations enacts that territory is considered -occupied when it is actually placed under the authority of the hostile -army, and that such occupation applies only to the territory where that -authority is established and in a position to assert itself. This -definition of occupation is not at all precise, but it is as precise as -a legal definition of such kind of fact as occupation can be. If, as -some publicists[328] maintain, only such territory were actually -occupied, in which every part is held by a sufficient number of soldiers -to enforce immediately and on the very spot the authority of an -occupant, an effective occupation of a large territory would be -impossible, since then not only in every town, village, and railway -station, but also in every isolated habitation and hut the presence of a -sufficient number of soldiers would be necessary. Reasonably no other -conditions ought to be laid down as necessary to constitute effective -occupation in war than those under which in time of peace a Sovereign is -able to assert his authority over a territory. What these conditions are -is a question of fact which is to be answered according to the merits of -the special case. When the legitimate Sovereign is prevented from -exercising his powers and the occupant, being able to assert his -authority, actually establishes an administration over a territory, it -matters not with what means and in what ways his authority is exercised. -For instance, when in the centre of a territory a large force is -established from which flying columns are constantly sent round the -territory, such territory is indeed effectively occupied, provided there -are no enemy forces present, and, further, provided these columns can -really keep the territory concerned under control.[329] Again, when an -army is marching on through enemy territory, taking possession of the -lines of communication and the open towns, surrounding the fortresses -with besieging forces, and disarming the inhabitants in open places of -habitation, the whole territory left behind the army is effectively -occupied, provided some kind of administration is established, and -further provided that, as soon as it becomes necessary to assert the -authority of the occupant, a sufficient force can within reasonable time -be sent to the locality affected. The conditions vary with those of the -country concerned. When a vast country is thinly populated, a smaller -force is necessary to occupy it, and a smaller number of centres need be -garrisoned than in the case of a thickly populated country. Thus, the -occupation of the former Orange Free State and the former South African -Republic became effective in 1901 some time after their annexation by -Great Britain and the degeneration of ordinary war into guerilla war, -although only about 250,000 British soldiers had to keep up the -occupation of a territory of about 500,000 square miles. The fact that -all the towns and all the lines of communication were in the hands and -under the administration of the British army, that the inhabitants of -smaller places were taken away into concentration camps, that the enemy -forces were either in captivity or dispersed into comparatively small -guerilla bands, and finally, that wherever such bands tried to make an -attack, a sufficient British force could within reasonable time make its -appearance, was quite sufficient to assert British authority[330] over -that vast territory, although it was more than a year before peace was -finally established. - -[Footnote 328: See, for instance, Hall, § 161. This was also the -standpoint of the delegates of the smaller States at the Brussels -Conference of 1874 when the Declaration of Brussels was drafted.] - -[Footnote 329: This is not identical with so-called _constructive_ -occupation, but is really _effective_ occupation. An occupation is -constructive only if an invader declares districts as occupied over -which he actually does not exercise control--for instance, when he -actually occupies only the capital of a large province, and proclaims -that he has thereby occupied the whole of the province, although he does -not take any steps to exercise control over it.] - -[Footnote 330: The annexation of the Orange Free State dates from May -24, 1900, and that of the South African Republic from September 1, 1900. -It may well be doubted whether at these dates the occupation of the -territories concerned was already so complete as to be called effective. -The British Government ought not, therefore, to have proclaimed the -annexation at such early dates. But there ought to be no doubt that the -occupation became effective some time afterwards, in 1901. See, however, -Sir Thomas Barclay in _The Law Quarterly Review_, XXI. (1905), p. 307, -who asserts the contrary; see also, below, § 264, p. 326, note 2, and § -265, p. 327, note 1. _The Times' History of the War in South Africa_ -(vol. V. p. 251) estimates the number of Boer fighters in May 1901 to be -about 13,000. These armed men were dispersed into a very large number of -guerilla bands, and they were in a great many cases men who seemingly -had submitted to the British authorities, but afterwards had taken up -arms.] - -It must be emphasised that the rules regarding effective occupation must -be formulated on the basis of actual practice quite as much as rules -regarding other matters of International Law. Those rules are not -authoritative which are laid down by theorists, but only those which are -abstracted from the actual practice of warfare and are unopposed by the -Powers.[331] - -[Footnote 331: The question is so much controverted that it is -impossible to enumerate the different opinions. Readers who want to -study the question must be referred to the literature quoted above at -the commencement of § 166.] - -[Sidenote: Occupation, when ended.] - -§ 168. Occupation comes to an end when an occupant withdraws from a -territory or is driven out of it. Thus, occupation remains only over a -limited area of a territory if the forces in occupation are drawn into a -fortress on that territory and are there besieged by the re-advancing -enemy, or if the occupant concentrates his forces in a certain place of -the territory, withdrawing before the re-advancing enemy. But occupation -does not cease because the occupant, after having disarmed the -inhabitants and having made arrangements for the administration of the -country, is marching on to overtake the retreating enemy, leaving only -comparatively few soldiers behind. - -[Sidenote: Rights and Duties in General of the Occupant.] - -§ 169. As the occupant actually exercises authority, and as the -legitimate Government is prevented from exercising its authority, the -occupant acquires a temporary right of administration over the -respective territory and its inhabitants. And all steps he takes in the -exercise of this right must be recognised by the legitimate Government -after occupation has ceased. This administration is in no wise to be -compared with ordinary administration, for it is distinctly and -precisely military administration. In carrying it out the occupant is, -on the one hand, totally independent of the Constitution and the laws -of the respective territory, since occupation is an aim of warfare, and -since the maintenance and safety of his forces and the purpose of war -stand in the foreground of his interest and must be promoted under all -circumstances and conditions. But, although as regards the safety of his -army and the purpose of war the occupant is vested with an almost -absolute power, he is not the Sovereign of the territory, and therefore -has no right to make changes in the laws or in the administration except -those which are temporarily necessitated by his interest in the -maintenance and safety of his army and the realisation of the purpose of -war. On the contrary, he has the duty of administrating the country -according to the existing laws and the existing rules of administration; -he must insure public order and safety, must respect family honour and -rights, individual lives, private property, religious convictions and -liberty. Article 43 of the Hague Regulations enacts the following rule -which is of fundamental importance: "The authority of the legitimate -Power having actually passed into the hands of the occupant, the latter -shall take all steps in his power to re-establish and insure, as far as -possible, public order and safety, while respecting, unless absolutely -prevented, the laws in force in the country." - -[Sidenote: Rights of the Occupant regarding the Inhabitants.] - -§ 170. An occupant having authority over the territory, the inhabitants -are under his sway and have to render obedience to his commands. -However, the power of the occupant over the inhabitants is not -unrestricted, for articles 23, 44, and 45 of the Hague Regulations -expressly enact, that he is prohibited from compelling the inhabitants -to take part in military operations against the legitimate Government, -to give information concerning the army of the other belligerent or -concerning the latter's means of defence, or to take an oath of -allegiance. On the other hand, he may compel them to take an -oath--sometimes called an "oath of neutrality"--to abstain from taking -up a hostile attitude against the occupant and willingly to submit to -his legitimate commands; and he may punish them severely for breaking -this oath. He may make requisitions and demand contributions[332] from -them, may compel them to render services as drivers, farriers, and the -like.[333] He may compel them to render services for the repair or the -erection of such roads, buildings, or other works as are necessary for -military operations.[334] He may also collect the ordinary taxes, dues, -and tolls imposed for the benefit of the State by the legitimate -Government. But in such case he is, according to article 48 of the Hague -Regulations, obliged to make the collection, as far as possible, in -accordance with the rules in existence and the assessment in force, and -he is, on the other hand, bound to defray the expenses of the -administration of the occupied territory on the same scale as that by -which the legitimate Government was bound. - -[Footnote 332: See above, §§ 147 and 148.] - -[Footnote 333: Formerly he could likewise compel them to render services -as guides, but this is now prohibited by the wording which article 44 -received from the Second Peace Conference. It should, however, be -mentioned that Germany, Austria-Hungary, Japan, Montenegro, and Russia -have signed Convention IV. with a reservation against article 44, and -that in a war with these Powers the old rule is valid that inhabitants -may be compelled to serve as guides.] - -[Footnote 334: See article 52 of the Hague regulations, and _Land -Warfare_, §§ 388-392.] - -Whoever does not comply with his commands, or commits a prohibited act, -may be punished by him; but article 50 of the Hague Regulations -expressly enacts the rule that _no general penalty, pecuniary or -otherwise, may be inflicted on the population on account of the acts of -individuals for which it cannot be regarded as collectively -responsible_. It must, however, be specially observed that this rule -does not at all prevent[335] reprisals on the part of belligerents -occupying enemy territory. In case acts of illegitimate warfare are -committed by enemy individuals not belonging to the armed forces, -reprisals may be resorted to, although practically innocent individuals -are thereby punished for illegal acts for which they are neither legally -nor morally responsible--for instance, when a village is burned by way -of reprisal for a treacherous attack committed there on enemy soldiers -by some unknown individuals.[336] Nor does this new rule prevent an -occupant from taking hostages[337] in the interest of the safety of the -line of communication threatened by guerillas not belonging to the armed -forces, or for other purposes,[338] although the hostage must suffer for -acts or omissions of others for which he is neither legally nor morally -responsible. - -[Footnote 335: See Holland, _War_, No. 110, and _Land Warfare_, §§ -385-386. See also Zorn, pp. 239-243, where an important interpretation -of article 50 is discussed.] - -[Footnote 336: See below, § 248.] - -[Footnote 337: But this is a moot point; see below, § 259.] - -[Footnote 338: Belligerents sometimes take hostages for the purpose of -securing compliance with demands for contributions, requisitions, and -the like. As long as such hostages obtain the same treatment as -prisoners of war, the practice does not seem to be illegal, although the -Hague Regulations do not mention and many publicists condemn it; see -above, § 116, p. 153, note 1, and below, § 259, p. 319, note 2.] - -It must be particularly noted that in the treatment of the inhabitants -of enemy territory the occupant need not make any difference between -such as are subjects of the enemy and such as are subjects of neutral -States.[339] - -[Footnote 339: See above,§ 88, and Frankenbach, _Die Rechtsstellung von -neutralen Staatsangehörigen in kriegführenden Staaten_ (1910), pp. -46-50.] - -And it must be further observed that, according to British and American -views--see above, § 100_a_--article 23 (_h_) of the Hague Regulations -prohibits an occupant of enemy territory from declaring extinguished, -suspended, or unenforceable in a Court of Law the rights and the rights -of action of the inhabitants. - -[Sidenote: Position of Government Officials and Municipal Functionaries -during Occupation.] - -§ 171. As through occupation authority over the territory actually -passes into the hands of the occupant, he may for the time of his -occupation depose all Government officials and municipal functionaries -that have not withdrawn with the retreating enemy. On the other hand, he -must not compel them by force to carry on their functions during -occupation, if they refuse to do so, except where a military necessity -for the carrying on of a certain function arises. If they are willing to -serve under him, he may make them take an oath of obedience, but not of -allegiance, and he may not compel them to carry on their functions in -his name, but he may prevent them from doing so in the name of the -legitimate Government.[340] Since, according to article 43 of the Hague -Regulations, he has to secure public order and safety, he must -temporarily appoint other functionaries in case those of the legitimate -Government refuse to serve under him, or in case he deposes them for the -time of the occupation. - -[Footnote 340: Many publicists assert that in case an occupant leaves -officials of the legitimate Government in office, he "must" pay them -their ordinary salaries. But I cannot see that there is a customary or -conventional rule in existence concerning this point. But it is in an -occupant's own interest to pay such salaries. and he will as a rule do -this. Only in the case of article 48 of the Hague Regulations is he -compelled to do it.] - -[Sidenote: Position of Courts of Justice during Occupation.] - -§ 172. The particular position which Courts of Justice have nowadays in -civilised countries, makes it necessary to discuss their position during -occupation.[341] There is no doubt that an occupant may suspend the -judges as well as other officials. However, if he does suspend them, he -must temporarily appoint others in their place. If they are willing to -serve under him, he must respect their independence according to the -laws of the country. Where it is necessary, he may set up military -Courts instead of the ordinary Courts. In case and in so far as he -admits the administration of justice by the ordinary Courts, he may -nevertheless, so far as it is necessary for military purposes or for the -maintenance of public order and safety, temporarily alter the laws, -especially the Criminal Law, on the basis of which justice is -administered, as well as the laws regarding procedure. He has, however, -no right to constrain the Courts to pronounce their verdicts in his -name, although he need not allow them to pronounce verdicts in the name -of the legitimate Government. A case that happened during the -Franco-German War may serve as an illustration. In September 1870, after -the fall of the Emperor Napoleon and the proclamation of the French -Republic, the Court of Appeal at Nancy pronounced its verdicts under the -formula "In the name of the French Government and People." Since Germany -had not yet recognised the French Republic, the Germans ordered the -Court to use the formula "In the name of the High German Powers -occupying Alsace and Lorraine," but gave the Court to understand that, -if the Court objected to this formula, they were disposed to admit -another, and were even ready to admit the formula "In the name of the -Emperor of the French," as the Emperor had not abdicated. The Court, -however, refused to pronounce its verdict otherwise than "In the name of -the French Government and People," and, consequently, suspended its -sittings. There can be no doubt that the Germans had no right to order -the formula, "In the name of the High German Powers, &c.," to be used, -but they were certainly not obliged to admit the formula preferred by -the Court; and the fact that they were disposed to admit another formula -than that at first ordered ought to have made the Court accept a -compromise. Bluntschli (§ 547) correctly maintains that the most natural -solution of the difficulty would have been to use the neutral formula -"In the name of the Law." - -[Footnote 341: See Petit, _L'Administration de la justice en territoire -occupé_ (1900).] - - - - -CHAPTER IV - -WARFARE ON SEA - - -I - -ON SEA WARFARE IN GENERAL - - Hall, § 147--Lawrence, §§ 193-194--Westlake, II. pp. - 120-132--Maine, pp. 117-122--Manning, pp. 183-184--Phillimore, - III. § 347--Twiss, II. § 73--Halleck, II. pp. 80-82--Taylor, § - 547--Wharton, III. §§ 342-345--Wheaton, § 355--Bluntschli, §§ - 665-667--Heffter, § 139--Geffcken in Holtzendorff, IV. pp. - 547-548, 571-581--Ullmann, §§ 187-188--Bonfils, Nos. 1268, - 1294-1338--Despagnet, Nos. 647-649--Pradier-Fodéré, VIII. Nos. - 3066-3090, 3107-3108--Nys, III. pp. 433-466--Rivier, II. pp. - 329-335--Calvo, IV. §§ 2123, 2379-2410--Fiore, III. Nos. - 1399-1413--Pillet, pp. 118-120--Perels, § 36--Testa, pp. - 147-157--Boeck, Nos. 3-153--Lawrence, _Essays_, pp. - 278-306--Westlake, _Chapters_, pp. 245-253--Ortolan, I. pp. - 35-50--Hautefeuille, I. pp. 161-167--Gessner, Westlake, Lorimer, - Rolin-Jaequemyns, Laveleye, Albéric Rolin, and Pierantoni in - _R.I._ VII. (1875), pp. 256-272 and 558-656--Twiss, in _R.I._ XVI. - (1884), pp. 113-137--See also the authors quoted below, § 178, p. - 223, note 1. - -[Sidenote: Aims and Means of Sea Warfare.] - -§ 173. The purpose of war is the same in the case of warfare on land or -on sea--namely, the overpowering of the enemy. But sea warfare serves -this purpose by attempting the accomplishment of aims different from -those of land warfare. Whereas the aims of land warfare are defeat of -the enemy army and occupation of the enemy territory, the aims[342] of -sea warfare are: defeat of the enemy navy; annihilation of the enemy -merchant fleet; destruction of enemy coast fortifications, and of -maritime as well as military establishments on the enemy coast; cutting -off intercourse with the enemy coast; prevention of carriage of -contraband and of rendering unneutral service to the enemy; all kinds -of support to military operations on land, such as protection of a -landing of troops on the enemy coast; and lastly, defence of the home -coast and protection to the home merchant fleet.[343] The means by which -belligerents in sea warfare endeavour to realise these aims are: attack -on and seizure of enemy vessels, violence against enemy individuals, -appropriation and destruction of enemy vessels and goods carried by -them, requisitions and contributions, bombardment of the enemy coast, -cutting of submarine cables, blockade, espionage, treason, ruses, -capture of neutral vessels carrying contraband or rendering unneutral -service. - -[Footnote 342: Aims of sea warfare must not be confounded with ends of -war; see above, § 66.] - -[Footnote 343: Article 1 of the U.S. Naval War Code enumerates the -following as aims of sea warfare:--The capture or destruction of the -military and naval forces of the enemy, of his fortifications, arsenals, -dry docks, and dockyards, of his various military and naval -establishments, and of his maritime commerce; to prevent his procuring -war material from neutral sources; to aid and assist military operations -on land; to protect and defend the national territory, property, and -sea-borne commerce.] - -[Sidenote: Lawful and Unlawful Practices of Sea Warfare.] - -§ 174. As regards means of sea warfare, just as regards means of land -warfare, it must be emphasised that not every practice capable of -injuring the enemy in offence and defence is lawful. Although no -regulations regarding the laws of war on sea have as yet been enacted by -a general law-making treaty as a pendant to the Hague Regulations, there -are treaties concerning special points--such as submarine mines, -bombardment by naval forces, and others--and customary rules of -International Law in existence which regulate the matter. Be that as it -may, the rules concerning sea warfare are in many points identical with, -but in many respects differ from, the rules in force regarding warfare -on land. Therefore, the means of sea warfare must be discussed -separately in the following sections. But blockade and capture of -vessels carrying contraband and rendering unneutral service to the -enemy, although they are means of warfare against an enemy, are of such -importance as regards neutral trade that they will be discussed below in -Part III. §§ 368-413. - -[Sidenote: Objects of the Means of Sea Warfare.] - -§ 175. Whereas the objects against which means of land warfare may be -directed are innumerable, the number of the objects against which means -of sea warfare are directed is very limited, comprising six objects -only. The chief object is enemy vessels, whether public or private; the -next, enemy individuals, with distinction between those taking part in -fighting and others; the third, enemy goods on enemy vessels; the -fourth, the enemy coast; the fifth and sixth, neutral vessels attempting -to break blockade, carrying contraband, or rendering unneutral service -to the enemy. - -[Sidenote: Development of International Law regarding Private Property -on Sea.] - -§ 176. It is evident that in times when a belligerent could destroy all -public and private enemy property he was able to seize, no special rule -existed regarding private enemy ships and private enemy property carried -by them on the sea. But the practice of sea warfare frequently went -beyond the limits of even so wide a right, treating neutral goods on -enemy ships as enemy goods, and treating neutral ships carrying enemy -goods as enemy ships. It was not until the time of the _Consolato del -Mare_ in the fourteenth century that a set of clear and definite rules -with regard to private enemy vessels and private enemy property on sea -in contradistinction to neutral ships and neutral goods was adopted. -According to this famous collection of maritime usages observed by the -communities of the Mediterranean, there is no doubt that a belligerent -may seize and appropriate all private enemy ships and goods. But a -distinction is made in case of either ship or goods being neutral. -Although an enemy ship may always be appropriated, neutral goods thereon -have to be restored to the neutral owners. On the other hand, enemy -goods on neutral ships may be appropriated, but the neutral ships -carrying such goods must be restored to their owners. However, these -rules of the _Consolato del Mare_ were not at all generally recognised, -although they were adopted by several treaties between single States -during the fourteenth and fifteenth centuries. Neither the communities -belonging to the Hanseatic League, nor the Netherlands and Spain during -the War of Independence, nor England and Spain during their wars in the -sixteenth century, adopted these rules. And France expressly enacted by -Ordinances of 1543 (article 42) and 1583 (article 69) that neutral goods -on enemy ships as well as neutral ships carrying enemy goods should be -appropriated.[344] Although France adopted in 1650 the rules of the -_Consolato del Mare_, Louis XIV. dropped them again by the Ordinance of -1681 and re-enacted that neutral goods on enemy ships and neutral ships -carrying enemy goods should be appropriated. Spain enacted the same -rules in 1718. The Netherlands, in contradistinction to the _Consolato -del Mare_, endeavoured by a number of treaties to foster the principle -that the flag covers the goods, so that enemy goods on neutral vessels -were exempt from, whereas neutral goods on enemy vessels were subject -to, appropriation. On the other hand, throughout the eighteenth and -during the nineteenth century down to the beginning of the Crimean War -in 1854, England adhered to the rules of the _Consolato del Mare_. Thus, -no generally accepted rules of International Law regarding private -property on sea were in existence.[345] Matters were made worse by -privateering, which was generally recognised as lawful, and by the fact -that belligerents frequently declared a coast blockaded without having a -sufficient number of men-of-war on the spot to make the blockade -effective. It was not until the Declaration of Paris in 1856 that -general rules of International Law regarding private property on sea -came into existence. - -[Footnote 344: _Robe d'ennemy confisque celle d'amy. Confiscantur ex -navibus res, ex rebus naves._] - -[Footnote 345: Boeck, Nos. 3-103, and Geffcken in Holtzendorff, IV. pp. -572-578, give excellent summaries of the facts.] - -[Sidenote: Declaration of Paris.] - -§ 177. Things began to undergo a change with the outbreak of the Crimean -War in 1854, when all the belligerents proclaimed that they would not -issue Letters of Marque, and when, further, Great Britain declared that -she would not seize enemy goods on neutral vessels, and when, thirdly, -France declared that she would not appropriate neutral goods on enemy -vessels. Although this alteration of attitude on the part of the -belligerents was originally intended for the Crimean War only and -exceptionally, it led after the conclusion of peace in 1856 to the -famous and epoch-making Declaration of Paris,[346] which enacted the -four rules--(1) that privateering is abolished, (2) that the neutral -flag covers enemy goods[347] with the exception of contraband of war, -(3) that neutral goods, contraband of war excepted, are not liable to -capture under the enemy flag, (4) that blockades, in order to be -binding, must be effective, which means maintained by a force sufficient -really to prevent access to the coast of the enemy. Since, with the -exception of a few States such as the United States of America, -Colombia, Venezuela, Bolivia, and Uruguay, all members of the Family of -Nations are now parties to the Declaration of Paris, it may well be -maintained that the rules quoted are general International Law, the more -so as the non-signatory Powers have hitherto in practice always acted -in accordance with those rules.[348] - -[Footnote 346: See Martens, _N.R.G._ XV. p. 767, and above, vol. I. § -559.] - -[Footnote 347: It has been asserted--see, for instance, Rivier, II. p. -429--that the neutral flag covers only private, not public, enemy -property, and therefore that such goods on neutral vessels as belong to -the State of the enemy may be seized and appropriated. This opinion -would seem, however, to be untenable in face of the fact that the -Declaration of Paris speaks of _marchandise neutre_ without any -qualification, only excepting contraband goods, thus protecting the -whole of the cargo under the neutral flag, contraband excepted. See -below, § 319, p. 385, note 3.] - -[Footnote 348: That there is an agitation for the abolition of the -Declaration of Paris has been mentioned above, § 83, p. 100, note 3.] - -[Sidenote: The Principle of Appropriation of Private Enemy Vessels and -Enemy Goods thereon.] - -§ 178. The Declaration of Paris did not touch upon the old rule that -private enemy vessels and private enemy goods thereon may be seized and -appropriated, and this rule is, therefore, as valid as ever, although -there is much agitation for its abolition. In 1785 Prussia and the -United States of America had already stipulated by article 23 of their -Treaty of Friendship[349] that in case of war between the parties each -other's merchantmen shall not be seized and appropriated. Again, in 1871 -the United States and Italy, by article 12 of their Treaty of -Commerce,[350] stipulated that in case of war between the parties each -other's merchantmen, with the exception of those carrying contraband of -war or attempting to break a blockade, shall not be seized and -appropriated. In 1823 the United States had already made the proposal to -Great Britain, France, and Russia[351] for a treaty abrogating the rule -that enemy merchantmen and enemy goods thereon may be appropriated; but -Russia alone accepted the proposal under the condition that all other -naval Powers should consent. Again, in 1856,[352] on the occasion of the -Declaration of Paris, the United States endeavoured to obtain the -victory of the principle that enemy merchantmen shall not be -appropriated, making it a condition of their accession to the -Declaration of Paris that this principle should be recognised. But again -the attempt failed, owing to the opposition of Great Britain. - -[Footnote 349: See Martens, _R._ IV. p. 37. Perels (p. 198) maintains -that this article has not been adopted by the Treaty of Commerce between -Prussia and the United States of May 1, 1828; but this statement is -incorrect, for article 12 of this treaty--see Martens, _N.R._ VII. p. -615--adopts it expressly.] - -[Footnote 350: See Martens, _N.R.G._ 2nd Ser. I. p. 57.] - -[Footnote 351: See Wharton, III. § 342, pp. 260-261, and Moore, VII. § -1198, p. 465.] - -[Footnote 352: See Wharton, III. § 342, pp. 270-287, and Moore, VII. § -1198, p. 466.] - -At the outbreak of war in 1866, Prussia and Austria expressly declared -that they would not seize and appropriate each other's merchantmen. At -the outbreak of the Franco-German War in 1870, Germany declared French -merchantmen exempt from capture, but she changed her attitude when -France did not act upon the same lines. It should also be mentioned that -already in 1865 Italy, by article 211 of her Marine Code, enacted that, -in case of war with any other State, enemy merchantmen not carrying -contraband of war or breaking a blockade shall not be seized and -appropriated, provided reciprocity be granted. And it should further be -mentioned that the United States of America made attempts[353] in vain -to secure immunity from capture to enemy merchantmen and goods on sea at -the First as well as at the Second Hague Peace Conference. - -[Footnote 353: See Holls, _The Peace Conference at the Hague_, pp. -306-321, and Scott, _Conferences_, pp. 699-707.] - -It cannot be denied that the constant agitation, since the middle of the -eighteenth century, in favour of the abolition of the rule that private -enemy vessels and goods may be captured on the High Seas, might, during -the second half of the nineteenth century, have met with success but for -the decided opposition of Great Britain. Public opinion in Great Britain -was not, and is not, prepared to consent to the abolition of this rule. -And there is no doubt that the abolition of the rule would involve a -certain amount of danger to a country like Great Britain whose position -and power depend chiefly upon her navy. The possibility of annihilating -an enemy's commerce by annihilating his merchant fleet is a powerful -weapon in the hands of a great naval Power. Moreover, if enemy -merchantmen are not captured, they can be fitted out as cruisers, or at -least be made use of for the transport of troops, munitions, and -provisions. Have not several maritime States made arrangements with -their steamship companies to secure the building of their Transatlantic -liners according to plans which make these merchantmen easily -convertible into men-of-war? - -The argument that it is unjust that private enemy citizens should suffer -through having their property seized has no weight in face of the -probability that fear of the annihilation of its merchant fleet in case -of war may well deter a State intending to go to war from doing so. It -is a matter for politicians, not for jurists, to decide whether Great -Britain must in the interest of self-preservation oppose the abolition -of the rule that sea-borne private enemy property may be confiscated. - -However this may be, since the end of the nineteenth century it has not -been the attitude of Great Britain alone which stands in the way of the -abolition of the rule. Since the growth of navies among continental -Powers, these Powers have learnt to appreciate the value of the rule in -war, and the outcry against the capture of merchantmen has become less -loud. To-day, it may perhaps be said that, even if Great Britain were to -propose the abolition of the rule, it is probable that a greater number -of the maritime States would refuse to accede. For it should be noted -that at the Second Peace Conference, France, Russia, Japan, Spain, -Portugal, Mexico, Colombia, and Panama, besides Great Britain, voted -against the abolition of the rule. And there is noticeable a slow, but -constant, increase in the number of continental publicists[354] who -oppose the abolition of the once so much objected to practice of -capturing enemy merchantmen. - -[Footnote 354: See, for instance, Perels, § 36, pp. 195-198; Röpcke, -_Das Seebeuterecht_ (1904), pp. 36-47; Dupuis, Nos. 29-31; Pillet, p. -119; Giordana, _La proprieta privata nelle guerre maritime, etc._ -(1907); Niemeyer, _Prinzipien des Seekriegsrechts_ (1909); Boidin, pp. -144-167. On the other hand, the Institute of International Law has -several times voted in favour of the abolition of the rule; see _Tableau -Général de l'Institut de droit International_ (1893), pp. 190-193. The -literature concerning the question of confiscation of private enemy -property on sea is abundant. The following authors, besides those -already quoted above at the commencement of § 173, may be -mentioned:--Upton, _The Law of Nations affecting Commerce during War_ -(1863); Cauchy, _Du respect de la propriété privée dans la guerre -maritime_ (1866); Vidari, _Del rispetto della proprietà privata fra gli -stati in guerra_ (1867); Gessner, _Zur Reform des Kriegsseerechts_ -(1875); Klobukowski, _Die Seebeute oder das feindliche Privateigenthum -zur See_ (1877); Bluntschli, _Das Beuterecht im Kriege und das -Seebeuterecht insbesondere_ (1878); Boeck, _De la propriété privée -ennemie sous pavillon ennemi_ (1882); Dupuis, _La guerre maritime et les -doctrines anglaises_ (1899); Leroy, _La guerre maritime_ (1900); Röpcke, -_Das Seebeuterecht_ (1904); Hirst, _Commerce and Property in Naval -Warfare: A Letter of the Lord Chancellor_ (1906); Hamman, _Der Streit um -das Seebeuterecht_ (1907); Wehberg, _Das Beuterecht im Land und -Seekrieg_ (1909); Cohen, _The Immunity of Enemy's Property from Capture -at Sea_ (1909); Macdonell, _Some plain Reasons for Immunity from Capture -of Private Property at Sea_ (1910). See also the literature quoted by -Bonfils, No. 1281, Pradier-Fodéré, VIII. Nos. 3070-3090, and Boeck, Nos. -382-572, where the arguments of the authors against and in favour of the -present practice are discussed.] - -[Sidenote: Impending Codification of Law of Sea Warfare.] - -§ 179. Be that as it may, the time is not very far distant when the -Powers will perforce come to an agreement on this as on other points of -sea warfare, in a code of regulations regarding sea warfare as a pendant -to the Hague Regulations regarding warfare on land. An initiative step -was taken by the United States of America by her Naval War Code[355] -published in 1900, although she withdrew[356] the Code in 1904. -Meanwhile, the Second Peace Conference has produced a number of -Conventions dealing with some parts of Sea Warfare, namely: (1) the -Convention (VI.) concerning the status of enemy merchantmen at the -outbreak of hostilities; (2) the Convention (VII.) concerning the -conversion of merchantmen into warships; (3) the Convention (VIII.) -concerning the laying of automatic submarine contact mines; (4) the -Convention (IX.) concerning the bombardment by naval forces; (5) the -Convention (XI.) concerning restrictions on the exercise of the right of -capture in maritime war. - -[Footnote 355: See above, vol. I. § 32.] - -[Footnote 356: See above, § 68, p. 83, note 1.] - - -II - -ATTACK AND SEIZURE OF ENEMY VESSELS - - Hall, §§ 138 and 148--Lawrence, § 182--Westlake, II. pp. 133-140, - 307-331--Phillimore, III. § 347--Twiss, II. § 73--Halleck, II. pp. - 105-108--Taylor, §§ 545-546--Moore, VII. §§ 1175-1183, - &c.,--Walker, § 50, p. 147--Wharton, III. § 345--Bluntschli, §§ - 664-670--Heffter, §§ 137-139--Ullmann, § 188--Bonfils, Nos. - 1269-1271, 1350-1354, 1398-1400--Despagnet, Nos. 650-659--Rivier, - § 66--Nys, III. pp. 467-478--Pradier-Fodéré, VIII. Nos. 3155-3165, - 3176-3178--Calvo, IV. §§ 2368-2378--Fiore, III. Nos. 1414-1424, - and Code, Nos. 1643-1649--Pillet, pp. 120-128--Perels, § - 35--Testa, pp. 155-157--Lawrence, _War_, pp. 48-55, - 93-111--Ortolan, II. pp. 31-34--Boeck, Nos. 190-208--Dupuis, Nos. - 150-158, and _Guerre_, Nos. 74-112--U.S. Naval War Code, articles - 13-16--Bernsten, §§ 7-8. - -[Sidenote: Importance of Attack and Seizure of Enemy Vessels.] - -§ 180. Whereas in land warfare all sorts of violence against enemy -individuals are the chief means, in sea warfare attack and seizure of -enemy vessels are the most important means. For together with enemy -vessels, a belligerent takes possession of the enemy individuals and -enemy goods thereon, so that he can appropriate vessels and goods, as -well as detain those enemy individuals who belong to the enemy armed -forces as prisoners of war. For this reason, and compared with attack -and seizure of enemy vessels, violence against enemy persons and the -other means of sea warfare play only a secondary part, although such -means are certainly not unimportant. For a weak naval Power can even -restrict the operations of her fleet to mere coast defence, and thus -totally refrain from directly attacking and seizing enemy vessels. - -[Sidenote: Attack when legitimate.] - -§ 181. All enemy men-of-war and other public vessels, which are met by a -belligerent's men-of-war on the High Seas or within the territorial -waters of either belligerent,[357] may at once be attacked, and the -attacked vessel may, of course, defend herself by a counter-attack. -Enemy merchantmen may be attacked only if they refuse to submit to visit -after having been duly signalled to do so. And no duty exists for an -enemy merchantman to submit to visit; on the contrary, she may refuse -it, and defend herself against an attack. But only a man-of-war is -competent to attack men-of-war as well as merchantmen, provided the war -takes place between parties to the Declaration of Paris, so that -privateering is prohibited. Any merchantman of a belligerent attacking a -public or private vessel of the enemy would be considered and treated as -a pirate, and the members of the crew would be liable to be treated as -war criminals[358] to the same extent as private individuals committing -hostilities in land warfare. However, if attacked by an enemy vessel, a -merchantman is competent to deliver a counter-attack and need not -discontinue her attack because the vessel which opened hostilities takes -to flight, but may pursue and seize her. - -[Footnote 357: But not, of course, in territorial waters of neutral -States; see the _De Fortuyn_ (1760), Burrell 175.] - -[Footnote 358: See above, § 85, and below, § 254. Should a merchantman, -legitimately--after having been herself attacked--or illegitimately, -attack an enemy vessel, and succeed in capturing her, the prize, on -condemnation, becomes _droits_ of Admiralty and, therefore, the property -of the British Government; see article 39 of the Naval Prize Act, 1864, -and article 44 of the Naval Prize Bill introduced in 1911.] - -It must be specially mentioned that an attack upon enemy vessels on the -sea may be made by forces on the shore. For instance, this is done when -coast batteries fire upon an enemy man-of-war within reach of their -guns. Enemy merchantmen, however, may not be attacked in this way, for -they may only be attacked by men-of-war after having been signalled in -vain to submit to visit. - -[Sidenote: Attack how effected.] - -§ 182. One mode of attack which was in use at the time of sailing ships, -namely, boarding and fighting the crew, which can be described as a -parallel to assault in land warfare, is no longer used, but if an -instance occurred, it would be perfectly lawful. Attack is nowadays -effected by cannonade, torpedoes, and, if opportunity arises, by -ramming; and nothing forbids an attack on enemy vessels by launching -projectiles and explosives from air-vessels, provided the belligerents -are not parties to the Declaration--see above, § 114--which prohibits -such attacks. As a rule attacks on merchantmen will be made by cannonade -only, as the attacking vessel aims at seizing her on account of her -value. But, in case the attacked vessel not only takes to flight, but -defends herself by a counter-attack, all modes of attack are lawful -against her, just as she herself is justified in applying all modes of -attack by way of defence. - -As regards attack by torpedoes, article 1 No. 3 of Convention VIII. of -the Second Peace Conference enacts that it is forbidden to use torpedoes -which do not become harmless if they miss their mark. - -[Sidenote: Submarine Contact Mines.] - -§ 182_a_. A new mode of attack which requires special attention[359] is -that by means of floating mechanical, in contradistinction to so-called -electro-contact, mines. The latter need not specially be discussed, -because they are connected with a battery on land, can naturally only be -laid within territorial waters, and present no danger to neutral -shipping except on the spot where they are laid. But floating mechanical -mines can be dropped as well in the Open Sea as in territorial waters; -they can, moreover, drift away to any distance from the spot where they -were dropped and thus become a great danger to navigation in general. -Mechanical mines were for the first time used, and by both parties, in -the Russo-Japanese War during the blockade of Port Arthur in 1904, and -the question of their admissibility was at once raised in the press of -all neutral countries, the danger to neutral shipping being obvious. The -Second Peace Conference took the matter up and, in spite of the opposing -views of the Powers, was able to produce the Convention (VIII.) -concerning the laying of automatic submarine contact mines. This -Convention comprises thirteen articles and was signed, although by some -only with reservations, by all the Powers represented at the Conference, -except China, Montenegro, Nicaragua, Portugal, Russia, Spain, and -Sweden. Most of the signatory States have already ratified, and -Nicaragua has since acceded. The more important stipulations of this -Convention are the following:-- - -(1) Belligerents[360] are forbidden to lay _unanchored_ automatic -contact mines, unless they be so constructed as to become harmless one -hour at most after those who laid them have lost control over them, and -it is forbidden to lay _anchored_ automatic contact mines which do not -become harmless as soon as they have broken loose from their moorings -(article 1). - -(2) It is forbidden to lay automatic contact mines off the coasts and -ports of the enemy, with the sole object of intercepting commercial -navigation (article 2).[361] - -(3) When anchored automatic contact mines are employed, every possible -precaution must be taken for the security of peaceful navigation. The -belligerents must provide, as far as possible, for these mines becoming -harmless after a limited time has elapsed, and, where the mines cease to -be under observation, to notify the danger zones as soon as military -exigencies permit, by notice to mariners, which must also be -communicated to the Governments through the diplomatic channel (article -3). - -(4) At the close of the war, each Power must remove the mines laid by -it. As regards anchored automatic contact mines laid by one of the -belligerents off the coasts of the other, their position must be -notified to the other party by the Power which laid them, and each Power -must proceed with the least possible delay to remove the mines in its -own waters (article 5). - -(5) The Convention remains in force for seven years, but, unless -denounced, it continues in force afterwards (article 11). According to -article 12, however, the contracting Powers agree to reopen the question -of the employment of automatic contact mines after six and a half years -unless the Third Peace Conference has already taken up and settled the -matter. - -[Footnote 359: See Lawrence, _War_, pp. 93-111; Wetzstein, _Die -Seeminenfrage im Völkerrecht_ (1909); Rocholl, _Die Frage der Minen im -Seekrieg_ (1910); Barclay, pp. 59 and 158; Lémonon, pp. 472-502; -Higgins, pp. 328-345; Boidin, pp. 216-235; Dupuis, _Guerre_, Nos. -331-358; Scott, _Conferences_, pp. 576-587; Martitz in the _Report of -the 23rd Conference (1906) of the International Law Association_, pp. -47-74; Stockton in _A.J._ II. (1908), pp. 276-284.] - -[Footnote 360: As regards neutrals, see below, § 363_a_.] - -[Footnote 361: France and Germany have signed with reservations against -article 2.] - -There is no doubt that the stipulations of Convention VIII. are totally -inadequate to secure the safety of neutral shipping, and it is for this -reason that Great Britain added the following reservation in signing the -Convention:--"In placing their signatures to this Convention the British -plenipotentiaries declare that the mere fact that the said Convention -does not prohibit a particular act or proceeding must not be held to -debar His Britannic Majesty's Government from contesting its -legitimacy." It is to be hoped that the Third Peace Conference will -produce a more satisfactory settlement of the problem. The Institute of -International Law studied the matter at its meetings at Paris in 1910 -and at Madrid in 1911, and produced a _Règlementation_[362] -_internationale de l'usage des mines sous-marines et torpilles_, -comprising nine articles, of which the more important are the -following:-- - -(1) It is forbidden to place anchored or unanchored automatic mines in -the Open Sea (the question of the laying of electric contact mines in -the Open Sea being reserved for future consideration). - -(2) Belligerents may lay mines in their own and in the enemy's -territorial waters, but it is forbidden (_a_) to lay unanchored -automatic contact mines which do not become harmless one hour at most -after those who laid them have lost control over them; (_b_) to lay -anchored automatic contact mines which do not become harmless as soon as -they have broken loose from their moorings. - -(3) A belligerent is only allowed to lay mines off the coasts and ports -of the enemy for naval and military purposes, he is not allowed to lay -them there in order to establish or maintain a commercial blockade. - -(4) If mines are laid, all precautions must be taken for the safety of -peaceful navigation, and belligerents must, in especial, provide that -mines become harmless after a limited time has elapsed. In case mines -cease to be under observation the belligerents must, as soon as military -exigencies permit, notify the danger zones to mariners and also to the -Governments through the diplomatic channel. - -(5) The question as to the laying of mines in straits is reserved for -future consideration. - -(6) At the end of the war each Power must remove the mines laid by it. -As regards anchored automatic contact mines laid by one of the -belligerents off the coasts of the other, their position must be -notified to the other party by the Power which laid them, and each Power -must proceed with the least possible delay to remove the mines in its -own waters. The Power whose duty it is to remove the mines after the war -must make known the date at which the removal of the mines is complete. - -(7) A violation of these rules involves responsibility on the part of -the guilty State. The State which has laid the mines is presumed to be -guilty unless the contrary is proved, and an action may be brought -against the guilty State, even by individuals who have suffered damage, -before the competent International Tribunal. - -[Footnote 362: See _Annuaire_, XXIV. (1911), p. 301.] - -[Sidenote: Duty of giving Quarter.] - -§ 183. As soon as an attacked or counter-attacked vessel hauls down her -flag and, therefore, signals that she is ready to surrender, she must be -given quarter and seized without further firing. To continue an attack -although she is ready to surrender, and to sink her and her crew, would -constitute a violation of customary International Law, and would only as -an exception be admissible in case of imperative necessity or of -reprisals. - -[Sidenote: Seizure.] - -§ 184. Seizure is effected by securing possession of the vessel through -the captor sending an officer and some of his own crew on board the -captured vessel. But if for any reason this is impracticable, the captor -orders the captured vessel to lower her flag and to steer according to -his orders. - -[Sidenote: Effect of Seizure.] - -§ 185. The effect of seizure is different with regard to private enemy -vessels, on the one hand, and, on the other, to public vessels. - -Seizure of _private_ enemy vessels may be described as a parallel to -occupation of enemy territory in land warfare. Since the vessel and the -individuals and goods thereon are actually placed under the captor's -authority, her officers and crew, and any private individuals on board, -are for the time being submitted to the discipline of the captor, just -as private individuals on occupied enemy territory are submitted to the -authority of the occupant.[363] Seizure of private enemy vessels does -not, however, vest the property finally in the hands of the -belligerent[364] whose forces effected the capture. The prize has to be -brought before a Prize Court, and it is the latter's confirmation of -the capture through adjudication of the prize which makes the -appropriation by the capturing belligerent final.[365] - -[Footnote 363: Concerning the ultimate fate of the crew, see above, § -85.] - -[Footnote 364: It is asserted that a captured enemy merchantman may at -once be converted by the captor into a man-of-war, but the cases of the -_Ceylon_ (1811) and the _Georgina_ (1814), 1 Dodson 105 and 397, which -are quoted in favour of such a practice, are not decisive. See Higgins, -_War and the Private Citizen_ (1912), pp. 138-142.] - -[Footnote 365: See below, § 192.] - -On the other hand, the effect of seizure of _public_ enemy vessels is -their immediate and final appropriation. They may be either taken into a -port or at once destroyed. All individuals on board become prisoners of -war, although, if perchance there should be on board a private enemy -individual of no importance, he would probably not be kept for long in -captivity, but liberated in due time. - -As regards goods on captured public enemy vessels, there is no doubt -that the effect of seizure is the immediate appropriation of such goods -on the vessels concerned as are enemy property, and these goods may -therefore be destroyed at once, if desirable. Should, however, neutral -goods be on board a captured enemy public vessel, it is a moot point -whether or no they share the fate of the captured ship. According to -British practice they do, but according to American practice they do -not.[366] - -[Footnote 366: See, on the one hand, the _Fanny_ (1814), 1 Dodson, 443, -and, on the other, the _Nereide_ (1815), 9 Cranch, 388. See also below, -§ 424, p. 542 note 2.] - -[Sidenote: Immunity of Vessels charged with Religious, Scientific, or -Philanthropic Mission.] - -§ 186. Enemy vessels engaged in scientific discovery and exploration -were, according to a general international usage in existence before the -Second Peace Conference of 1907, granted immunity from attack and -seizure in so far and so long as they themselves abstained from -hostilities. The usage grew up in the eighteenth century. In 1766, the -French explorer Bougainville, who started from St. Malo with the vessels -_La Boudeuse_ and _L'Étoile_ on a voyage round the world, was furnished -by the British Government with safe-conducts. In 1776, Captain Cook's -vessels _Resolution_ and _Discovery_, sailing from Plymouth for the -purpose of exploring the Pacific Ocean, were declared exempt from -attack and seizure on the part of French cruisers by the French -Government. Again, the French Count Lapérouse, who started on a voyage -of exploration in 1785 with the vessels _Astrolabe_ and _Boussole_, was -secured immunity from attack and seizure. During the nineteenth century -this usage became quite general, and had almost ripened into a custom; -examples are the Austrian cruiser _Novara_ (1859) and the Swedish -cruiser _Vega_ (1878). No immunity, however, was granted to vessels -charged with religious or philanthropic missions. A remarkable case -occurred during the Franco-German war. In June, 1871, the _Palme_, a -vessel belonging to the Missionary Society of Basle, was captured by a -French man-of-war, and condemned by the Prize Court of Bordeaux. The -owners appealed and the French Conseil d'État set the vessel free, not -because the capture was not justified but because equity demanded that -the fact that Swiss subjects owning sea-going vessels were obliged to -have them sailing under the flag of another State, should be taken into -consideration.[367] - -[Footnote 367: See Rivier, II. pp. 343-344; Dupuis, No. 158; and Boeck, -No. 199.] - -The Second Peace Conference embodied the previous usage concerning -immunity of vessels of discovery and exploration in a written rule and -extended the immunity to vessels with a religious or philanthropic -mission, for article 4 of Convention XI. enacts that vessels charged -with religious, scientific, or philanthropic missions are exempt from -capture. - -It must be specially observed that it matters not whether the vessel -concerned is a private or a public vessel.[368] - -[Footnote 368: See U.S. Naval War Code, article 13. The matter is -discussed at some length by Kleen, II. § 210, pp. 503-505. Concerning -the case of the English explorer Flinders, who sailed with the vessel -_Investigator_ from England, but exchanged her for the _Cumberland_, -which was seized in 1803 by the French at Port Louis, in Mauritius, as -she was not the vessel to which a safe-conduct was given, see Lawrence, -§ 185.] - -[Sidenote: Immunity of Fishing-boats and small boats employed in local -Trade.] - -§ 187. Coast fishing-boats, in contradistinction to boats engaged in -deep-sea fisheries, were, according to a general, but not universal, -custom in existence during the nineteenth century, granted immunity from -attack and seizure so long and in so far as they were unarmed and were -innocently employed in catching and bringing in fish.[369] As early as -the sixteenth century treaties were concluded between single States -stipulating such immunity to each other's fishing-boats for the time of -war. But throughout the seventeenth and eighteenth centuries there were -instances of a contrary practice, and Lord Stowell refused[370] to -recognise in strict law any such exemption, although he recognised a -rule of comity to that extent. Great Britain has always taken the -standpoint that any immunity granted by her to fishing-boats was a -relaxation[371] of strict right in the interest of humanity, but -revocable at any moment, and that her cruisers were justified in seizing -enemy fishing-boats unless prevented therefrom by special instructions -on the part of the Admiralty.[372] But at the Second Peace Conference -she altered her attitude, and agreed to the immunity not only of fishing -vessels, but also of small boats employed in local trade. Article 3 of -Convention XI. enacts, therefore, that vessels employed exclusively in -coast fisheries, and small boats employed in local trade, are, together -with appliances, rigging, tackle, and cargo, exempt from capture. - -[Footnote 369: The _Paquette Habana_ (1899), 175, United States, 677. -See U.S. Naval War Code, article 14; Japanese Prize Law, article 3 (1).] - -[Footnote 370: The _Young Jacob and Joanna_ (1798), 1 C. Rob, 20.] - -[Footnote 371: See Hall, § 148.] - -[Footnote 372: See Holland, _Prize Law_, § 36.] - -It must be specially observed that boats engaged in deep-sea fisheries -and large boats engaged in local trade do not enjoy the privilege of -immunity from capture, and that the fishing vessels and small boats -employed in local trade lose that privilege in case they take any part -whatever in hostilities. And article 3 expressly stipulates that -belligerents must not take advantage of the harmless character of the -said boats in order to use them for military purposes while preserving -their peaceful appearance. - -[Sidenote: Immunity of Merchantmen at the Outbreak of War on their -Voyage to and from a Belligerent's Port.] - -§ 188. Several times at the outbreak of war during the nineteenth -century belligerents decreed that such enemy merchantmen as were on -their voyage to one of the former's ports at the outbreak of war, should -not be attacked and seized during the period of their voyage to and from -such port. Thus, at the outbreak of the Crimean War, Great Britain and -France decreed such immunity for Russian vessels, Germany did the same -with regard to French vessels in 1870,[373] Russia with regard to -Turkish vessels in 1877, the United States with regard to Spanish -vessels in 1898, Russia and Japan with regard to each other's vessels in -1904. But there is no rule of International Law which compels a -belligerent to grant such days of grace, and it is probable that in -future wars days of grace will not be granted. The reason is that the -steamboats of many countries are now built, according to an arrangement -with the Government of their home State, from special designs which make -them easily convertible into cruisers, and that a belligerent fleet -cannot nowadays remain effective for long without being accompanied by a -train of transport-vessels, colliers, repairing-vessels, and the -like.[374] - -[Footnote 373: See, however, above, § 178, p. 222.] - -[Footnote 374: This point is ably argued by Lawrence, _War_, pp 54-55.] - -In case, however, merchantmen, other than those constructed on special -lines in order to make them easily convertible into cruisers, are, at -the outbreak of war, on their voyage to an enemy port and are ignorant -of the outbreak of hostilities, article 3 of Convention VI.[375] of the -Second Peace Conference must find application. They may not, therefore, -be confiscated, but may only be captured on condition that they shall -be restored after the conclusion of peace, or that indemnities shall be -paid for them if they have been requisitioned or destroyed. - -[Footnote 375: See above, § 102_a_, Nos. 3 and 4.] - -[Sidenote: Vessels in Distress.] - -§ 189. Instances have occurred when enemy vessels which were forced by -stress of weather to seek refuge in a belligerent's harbour were granted -exemption from seizure.[376] Thus, when in 1746, during war with Spain, -the _Elisabeth_, a British man-of-war, was forced to take refuge in the -port of Havanna, she was not seized, but was offered facility for -repairing damages, and furnished with a safe-conduct as far as the -Bermudas. Thus, further, when in 1799, during war with France, the -_Diana_, a Prussian merchantman, was forced to take refuge in the port -of Dunkirk and seized, she was restored by the French Prize Court. But -these and other cases have not created any rule of International Law -whereby immunity from attack and seizure is granted to vessels in -distress, and no such rule is likely to grow up, especially not as -regards men-of-war and such merchantmen as are easily convertible into -cruisers. - -[Footnote 376: See Ortolan, II. pp. 286-291; Kleen, II. § 210, pp. -492-494.] - -[Sidenote: Immunity of Hospital and Cartel Ships.] - -§ 190. According to the Hague Convention, which adapted the principles -of the Geneva Convention to warfare on sea, hospital ships are -inviolable, and therefore may be neither attacked nor seized; see below -in §§ 204-209. Concerning the immunity of cartel ships, see below in § -225. - -[Sidenote: Immunity of Mail-boats and of Mail-bags.] - -§ 191. No general rule of International Law exists granting enemy -mail-boats immunity from attack and seizure, but the several States have -frequently stipulated such immunity in the case of war by special -treaties.[377] Thus, for instance, Great Britain and France by article 9 -of the Postal Convention of August 30, 1860, and Great Britain and -Holland by article 7 of the Postal Convention of October 14, 1843, -stipulated that all mail-boats navigating between the countries of the -parties shall continue to navigate in time of war between these -countries without impediment or molestation until special notice be -given by either party that the service is to be discontinued. - -[Footnote 377: See Kleen, II. § 210, pp. 505-507.] - -Whereas there is no general rule granting immunity from capture to enemy -mail-boats, enemy _mail-bags_ do, according to article 1 of Convention -XI., enjoy the privilege of such immunity, for it is there enacted that -the postal correspondence of neutrals or belligerents, whether official -or private in character, which may be found on board a neutral[378] or -enemy ship at sea, is inviolable, and that, in case the ship is -detained, the correspondence is to be forwarded by the captor with the -least possible delay. There is only one exception to this rule of -article 1, for correspondence destined to or proceeding from a blockaded -port does not enjoy the privilege of immunity. - -[Footnote 378: See below, §§ 319 and 411.] - -It must be specially observed that postal correspondence, and not -parcels sent by parcel post, are immune from capture. - - -III - -APPROPRIATION AND DESTRUCTION OF ENEMY MERCHANTMEN - - Hall, §§ 149-152, 171, 269--Lawrence, §§ 183-191--Westlake, II. - pp. 156-160--Phillimore, III. §§ 345-381--Twiss, II. §§ - 72-97--Halleck, II. pp. 362-431, 510-526--Taylor, §§ - 552-567--Wharton, III. § 345--Wheaton, §§ 355-394--Moore, VII. §§ - 1206-1214--Bluntschli, §§ 672-673--Heffter, §§ 137-138--Geffcken - in Holtzendorff, IV. pp. 588-596--Ullmann, § 189--Bonfils, Nos. - 1396-1440--Despagnet, Nos. 670-682--Pradier-Fodéré, VIII. Nos. - 3179-3207--Rivier, II. § 66--Calvo, IV. §§ 2294-2366, V. §§ - 3004-3034--Fiore, III. Nos. 1426-1443, and Code, Nos. - 1693-1706--Martens, II. §§ 125-126--Pillet, pp. 342-352--Perels, - §§ 36, 55-58--Testa, pp. 147-160--Valin, _Traité des prises_, 2 - vols. (1758-60), and _Commentaire sur l'ordonnance de 1681_, 2 - vols. (1766)--Pistoye et Duverdy, _Traité des prises maritimes_, 2 - vols. (1854-1859)--Upton, _The Law of Nations affecting Commerce - during War_ (1863)--Boeck, Nos. 156-209, 329-380--Dupuis, Nos. - 96-149, 282-301--Bernsten, § 8--Marsden, _Early Prize Jurisdiction - and Prize Law in England_ in _The English Historical Review_, - XXIV. (1909), p. 675; XXV. (1910), p. 243; XXVI. (1911) p. - 34--Roscoe, _The Growth of English Law_ (1911), pp. 92-140. See - also the literature quoted by Bonfils at the commencement of No. - 1396. - -[Sidenote: Prize Courts.] - -§ 192. It has already been stated above, in § 185, that the capture of a -private enemy vessel has to be confirmed by a Prize Court, and that it -is only through the latter's adjudication that the vessel becomes -finally appropriated. The origin[379] of Prize Courts is to be traced -back to the end of the Middle Ages. During the Middle Ages, after the -Roman Empire had broken up, a state of lawlessness established itself on -the High Seas. Piratical vessels of the Danes covered the North Sea and -the Baltic, and navigation of the Mediterranean Sea was threatened by -Greek and Saracen pirates. Merchantmen, therefore, associated themselves -for mutual protection and sailed as a merchant fleet under a specially -elected chief, the so-called Admiral. They also occasionally sent out a -fleet of armed vessels for the purpose of sweeping pirates from certain -parts of the High Seas. Piratical vessels and goods which were captured -were divided among the captors according to a decision of their Admiral. -During the thirteenth century the maritime States of Europe themselves -endeavoured to keep order on the Open Sea. By-and-by armed vessels were -obliged to be furnished with Letters Patent or Letters of Marque from -the Sovereign of a maritime State and their captures submitted to the -official control of such State as had furnished them with their Letters. -A board, called the Admiralty, was instituted by maritime States, and -officers of that Board of Admiralty exercised control over the armed -vessels and their captures, inquiring in each case[380] into the -legitimation of the captor and the nationality of the captured vessel -and her goods. And after modern International Law had grown up, it was a -recognised customary rule that in time of war the Admiralty of maritime -belligerents should be obliged to institute a Court[381] or Courts -whenever a prize was captured by public vessels or privateers in order -to decide whether the capture was lawful or not. These Courts were -called Prize Courts. This institution has come down to our times, and -nowadays all maritime States either constitute permanent Prize Courts, -or appoint them specially in each case of an outbreak of war. The whole -institution is essentially one in the interest of neutrals, since -belligerents want to be guarded by a decision of a Court against claims -of neutral States regarding alleged unjustified capture of neutral -vessels and goods. The capture of any private vessel, whether _prima -facie_ belonging to an enemy or a neutral, must, therefore, be submitted -to a Prize Court. Article 1 of Convention XII. (as yet unratified) of -the Second Peace Conference now expressly enacts the old customary rule -that "the validity of the capture of a merchantman or its cargo, when -neutral or enemy property is involved, is decided before a Prize Court." -It must, however, be emphasised that the ordinary Prize-Courts are not -International Courts, but National Courts instituted by Municipal Law, -and that the law they administer is Municipal Law,[382] based on custom, -statutes, or special regulations of their State. Every State is, -however, bound by International Law to enact only such statutes and -regulations[383] for its Prize Courts as are in conformity with -International Law. A State may, therefore, instead of making special -regulations, directly order its Prize Courts to apply the rules of -International Law, and it is understood that, when no statutes are -enacted or regulations are given, Prize Courts have to apply -International Law. Prize Courts may be instituted by belligerents in any -part of their territory or the territories of allies, but not on neutral -territory. It would nowadays constitute a breach of neutrality on the -part of a neutral State to allow the institution on its territory of a -Prize Court.[384] - -[Footnote 379: I follow the excellent summary of the facts given by -Twiss, II. §§ 74-75, but Marsden's articles in _The English Historical -Review_, XXIV. (1909), p. 675, XXV. (1910), p. 243, XXVI. (1911), p. 34, -must likewise be referred to.] - -[Footnote 380: The first case that is mentioned as having led to -judicial proceedings before the Admiral in England dates from 1357; see -Marsden, _loc. cit._ XXIV. (1909), p. 680.] - -[Footnote 381: In England an Order in Council, dated July 20, 1589, -first provided that all captures should be submitted to the High Court -of Admiralty; see Marsden, _loc. cit._ XXIV. (1909), p. 690.] - -[Footnote 382: See below, § 434.] - -[Footnote 383: The constitution and procedure of Prize Courts in Great -Britain are governed by the Naval Prize Act, 1864 (27 and 28 Vict. ch. -25), and the Prize Courts Act, 1894 (57 and 58 Vict. ch. 39). The Naval -Prize Bill introduced by the British Government in 1911, although -accepted by the House of Commons, was thrown out by the House of -Lords.--It should be mentioned that the Institute of International Law -has in various meetings occupied itself with the whole matter of -capture, and adopted a body of rules in the _Règlement international des -Prises Maritimes_, which represent a code of Prize Law; see _Annuaire_, -IX. pp. 218-243, but also XVI. pp. 44 and 311.] - -[Footnote 384: See below, § 327, and article 4 of Convention XIII. of -the Second Peace Conference.] - -Whereas the ordinary Prize Courts are national courts, Convention -XII.--as yet unratified--of the Second Peace Conference, provides for -the establishment of an International[385] Prize Court at the Hague, -which, in certain matters, is to serve as a Court of Appeal in prize -cases. In these cases jurisdiction in matters of prize is exercised, in -the first instance, by the Prize Courts of belligerents (article 2), -but, according to article 6, the national Prize Courts may not deal with -any case in which there is a second appeal; since such cases necessarily -come before the International Prize Court at the second appeal. This -means that belligerents, besides Prize Courts of the first instance, may -set up a Prize Court of Appeal, but they may not set up a second Court -of Appeal above the first, except in cases in which the International -Prize Court has no jurisdiction. - -[Footnote 385: See above, vol. I. § 476_a_, and below, §§ 442-447.] - -It must be specially observed that the proposed International Prize -Court--see articles 3 and 4--is, in the main, a Court to decide between -belligerents and neutrals, and not between two belligerents. - -[Sidenote: Conduct of Prize to port of Prize Court.] - -§ 193. As soon as a vessel is seized she must be conducted to a port -where a Prize Court is sitting. As a rule the officer and the crew sent -on board the prize by the captor will navigate the prize to the port. -This officer can ask the master and crew of the vessel to assist him, -but, if they refuse, they may not be compelled thereto. The captor need -not accompany the prize to the port. In the exceptional case, however, -where an officer and crew cannot be sent on board and the captured -vessel is ordered to lower her flag and to steer according to orders, -the captor must conduct the prize to the port. To which port a prize is -to be taken is not for International Law to determine; the latter says -only that the prize must be taken straight to a port of a Prize Court, -and only in case of distress or necessity is delay allowed. If the -neutral State concerned gives permission,[386] the prize may, in case -of distress or in case she is in such bad condition as prevents her from -being taken to a port of a Prize Court, be taken to a near neutral port, -and, if admitted, the capturing man-of-war as well as the prize enjoy -there the privilege of exterritoriality. But as soon as circumstances -allow, the prize must be conducted from the neutral port to that of the -Prize Court, and only if the condition of the prize does not at all -allow this, may the Prize Court give its verdict in the absence of the -prize after the ship papers of the prize and witnesses have been -produced before it. - -[Footnote 386: See below, § 328, and articles 21-23 of Convention XIII. -of the Second Peace Conference.] - -The whole of the crew of the prize are, as a rule, to be kept on board -and to be brought before the Prize Court. But if this is impracticable, -several important members of the crew, such as the master, mate, or -supercargo, must be kept on board, whereas the others may be removed and -forwarded to the port of the Prize Court by other means of transport. -The whole of the cargo is, as a rule, also to remain on board the prize. -But if the whole or part of the cargo is in a condition which prevents -it from being sent to the port of the Prize Court, it may, according to -the needs of the case, either be destroyed or sold in the nearest port, -and in the latter case an account of the sale has to be sent to the -Prize Court. All neutral goods amongst the cargo are also to be taken to -the port of adjudication, although they have now, according to the -Declaration of Paris, to be restored to their neutral owners. But if -such neutral goods are not in a condition to be taken to the port of -adjudication, they may likewise be sold or destroyed, as the case may -require. - -[Sidenote: Destruction of Prize.] - -§ 194. Since through adjudication by the Prize Courts the ownership of -captured private enemy vessels becomes finally transferred to the -belligerent whose forces made the capture, it is evident that after -transfer the captured vessel as well as her cargo may be destroyed. On -the other hand, it is likewise evident that, since a verdict of a Prize -Court is necessary before the appropriation of the prize becomes final, -a captured merchantman must not as a rule be destroyed instead of being -conducted to the port of a Prize Court. There are, however, exceptions -to the rule, but no unanimity exists in theory or practice as regards -those exceptions. Whereas some[387] consider the destruction of a prize -allowable only in case of imperative necessity, others[388] allow it in -nearly every case of convenience. Thus, the Government of the United -States of America, on the outbreak of war with England in 1812, -instructed the commanders of her vessels to destroy at once all -captures, the very valuable excepted, because a single cruiser, however -successful, could man a few prizes only, but by destroying each capture -would be able to continue capturing, and thereby constantly diminish the -enemy merchant fleet.[389] During the Civil War in America the cruisers -of the Southern Confederated States destroyed all enemy prizes because -there was no port open for them to bring prizes to. And during the -Russo-Japanese War, Russian cruisers destroyed twenty-one captured -Japanese merchantmen.[390] According to British practice,[391] the -captor is allowed to destroy the prize in only two cases--namely, first, -when the prize is in such a condition as prevents her from being sent to -any port of adjudication; and, secondly, when the capturing vessel is -unable to spare a prize crew to navigate the prize into such a port. -The _Règlement international des prises maritimes_ of the Institute of -International Law enumerates in § 50 five cases in which destruction of -the capture is allowed--namely (1) when the condition of the vessel and -the weather make it impossible to keep the prize afloat; (2) when the -vessel navigates so slowly that she cannot follow the captor and is -therefore exposed to an easy recapture by the enemy; (3) when the -approach of a superior enemy force creates the fear that the prize might -be recaptured by the enemy; (4) when the captor cannot spare a prize -crew; (5) when the port of adjudication to which the prize might be -taken is too far from the spot where the capture was made. Be that as it -may,[392] in every case of destruction of the vessel the captor must -remove crew, ship papers, and, if possible, the cargo, before the -destruction of the prize, and must afterwards send crew, papers, and -cargo to a port of a Prize Court for the purpose of satisfying the -latter that both the capture and the destruction were lawful. - -[Footnote 387: See, for instance, Bluntschli, § 672.] - -[Footnote 388: See, for instance, Martens, § 126, who moreover makes no -difference between the prize being an enemy or a neutral ship.] - -[Footnote 389: U.S. Naval War Code (article 14) allows the destruction -"in case of military or other necessity."] - -[Footnote 390: See Takahashi, pp. 284-310.] - -[Footnote 391: The _Actaeon_ (1815), 2 Dod. 48; the _Felicity_ (1819), 2 -Dod. 381; the _Leucade_ (1855), Spinks, 217. See also Holland, _Prize -Law_, §§ 303-304.] - -[Footnote 392: The whole matter is thoroughly discussed by Boeck, Nos. -268-285; Dupuis, Nos. 262-268; and Calvo, V. §§ 3028-3034. As regards -destruction of a neutral prize, see below, § 431.] - -But if destruction of a captured enemy merchantman can as an exception -be lawful, the question as to indemnities to be paid to the neutral -owners of goods carried by the destroyed vessel requires attention. It -seems to be obvious that, if the destruction of the vessel herself was -lawful, and if it was not possible to remove her cargo, no indemnities -need be paid. An illustrative case happened during the Franco-German -War. On October 21, 1870, the French cruiser _Dessaix_ seized two German -merchantmen, the _Ludwig_ and the _Vorwärts_, but burned them because -she could not spare a prize crew to navigate the prizes into a French -port. The neutral owners of part of the cargo claimed indemnities, but -the French Conseil d'État refused to grant indemnities on the ground -that the action of the captor was lawful.[393] - -[Footnote 393: See Boeck, No. 146; Barboux, p. 153; Calvo, V. § 3033; -Dupuis, No. 262; Hall, § 269. Should the International Prize Court at -the Hague be established, article 3 of Convention XII. of the Second -Peace Conference would enable the owners of neutral goods destroyed with -the destroyed enemy merchantmen that carried them to bring the question -as to whether they may claim damages before this Court.] - -[Sidenote: Ransom of Prize.] - -§ 195. Although prizes have as a rule to be brought before a Prize -Court, International Law nevertheless does not forbid the ransoming of -the captured vessel either directly after the capture or after she has -been conducted to the port of a Prize Court, but before the Court has -given its verdict. However, the practice of accepting and paying ransom, -which grew up in the seventeenth century, is in many countries now -prohibited by Municipal Law. Thus, for instance, Great Britain by -section 45 of the Naval Prize Act, 1864, prohibits ransoming except in -such cases as may be specially provided for by an Order of the King in -Council.[394] Where ransom is accepted, a contract of ransom is entered -into by the captor and the master of the captured vessel; the latter -gives a so-called ransom bill to the former, in which he promises the -amount of the ransom. He is given a copy of the ransom bill for the -purpose of a safe-conduct to protect his vessel from again being -captured, under the condition that he keeps the course to such port as -is agreed upon in the ransom bill. To secure the payment of ransom, an -officer of the captured vessel can be detained as hostage, otherwise the -whole of the crew is to be liberated with the vessel, ransom being an -equivalent for both the restoration of the prize and the release of her -crew from captivity. So long as the ransom bill is not paid, the hostage -can be kept in captivity. But it is exclusively a matter for the -Municipal Law of the State concerned to determine whether or no the -captor can sue upon the ransom bill, if the ransom is not voluntarily -paid.[395] Should the capturing vessel, with the hostage or the ransom -bill on board, be captured herself and thus become a prize of the enemy, -the hostage is liberated, the ransom bill loses its effect, and need not -be paid.[396] - -[Footnote 394: Article 40 of the Naval Prize Bill of 1911 runs as -follows:-- - - (1) His Majesty in Council may, in relation to any war, make such - orders as may seem expedient according to circumstances for - prohibiting or allowing, wholly or in certain cases or subject to - any conditions or regulations or otherwise as may from time to - time seem meet, the ransoming or the entering into any contract or - agreement for the ransoming of any ship or goods belonging to any - of His Majesty's subjects, and taken as prize by any of His - Majesty's enemies. - - (2) Any contract or agreement entered into, and any bill, bond, or - other security given for ransom of any ship or goods, shall be - under the exclusive jurisdiction of the High Court as a Prize - Court (subject to appeal to the Supreme Prize Court) and if - entered into or given in contravention to any such Order in - Council shall be deemed to have been entered into or given for an - illegal consideration. - - (3) If any person ransoms or enters into any contract or agreement - for ransoming any ship or goods, in contravention of any such - Order in Council, he shall for every such offence be liable to be - proceeded against in the High Court at the suit of His Majesty in - his office of Admiralty, and on conviction to be fined, in the - discretion of the Court, any sum not exceeding five hundred - pounds.] - -[Footnote 395: See Hall, § 151, p. 479:--"The English Courts refuse to -accept such arrangements (for ransom) from the effect of the rule that -the character of an alien enemy carries with it a disability to sue, and -compel payment of the debt indirectly through an action brought by the -imprisoned hostage for the recovery of his freedom." The American -Courts, in contradistinction to the British, recognise ransom bills. See -on the one hand, the case of _Cornu_ v. _Blackburne_ (1781), 2 Douglas, -640, _Anthon_ v. _Fisher_ (1782), 2 Douglas, 649 note, the _Hoop_, 1 C. -Rob. 201; and, on the other, _Goodrich_ and _De Forest_ v. _Gordon_ -(1818), 15 Johnson, 6.] - -[Footnote 396: The matter of ransom is treated with great lucidity by -Twiss, II. §§ 180-183; Boeck, Nos. 257-267; Dupuis, Nos. 269-277.] - -[Sidenote: Loss of Prize, especially Recapture.] - -§ 196. A prize is lost--(1) when the captor intentionally abandons her, -(2) when she escapes through being rescued by her own crew, or (3) when -she is recaptured. Just as through capture the prize becomes, according -to International Law, the property of the belligerent whose forces made -the capture, provided a Prize Court confirms the capture, so such -property is lost when the prize vessel becomes abandoned, or escapes, or -is recaptured. And it seems to be obvious, and everywhere recognised by -Municipal Law, that as soon as a captured enemy merchantman succeeds in -escaping, the proprietorship of the former owners revives _ipso facto_. -But the case is different when a captured vessel, whose crew has been -taken on board the capturing vessel, is abandoned and afterwards met and -taken possession of by a neutral vessel or by a vessel of her home -State. It is certainly not for International Law to determine whether or -not the original proprietorship revives through abandonment. This is a -matter for Municipal Law. The case of recapture is different from -escape. Here too Municipal Law has to determine whether or no the former -proprietorship revives, since International Law lays down the rule only -that recapture takes the vessel out of the property of the enemy and -brings her into the property of the belligerent whose forces made the -recapture. Municipal Law of the individual States has settled the matter -in different ways. Thus, Great Britain, by section 40 of the Naval Prize -Act, 1864, enacted that the recaptured vessel, except when she has been -used by the captor as a ship of war, shall be restored to her former -owner on his paying one-eighth to one-fourth, as the Prize Court may -award, of her value as prize salvage, no matter if the recapture was -made before or after the enemy Prize Court had confirmed the -capture.[397] Other States restore a recaptured vessel only when the -recapture was made within twenty-four hours[398] after the capture -occurred, or before the captured vessel was conducted into an enemy -port, or before she was condemned by an enemy Prize Court. - -[Footnote 397: Article 30 of the Naval Prize Bill introduced in 1911 -simply enacts that British merchantmen or goods captured by the enemy -and recaptured by a British man-of-war shall be restored to the owner by -a decree of the Prize Court.] - -[Footnote 398: So, for instance, France; see Dupuis, Nos. 278-279.] - -[Sidenote: Fate of Prize.] - -§ 197. Through being captured and afterwards condemned by a Prize Court, -a captured enemy vessel and captured enemy goods become the property of -the belligerent whose forces made the capture. What becomes of the -prize after the condemnation is not for International, but for Municipal -Law to determine. A belligerent can hand the prize over to the officers -and crew who made the capture, or can keep her altogether for himself, -or can give a share to those who made the capture. As a rule, prizes are -sold after they are condemned, and the whole or a part of the net -proceeds is distributed among the officers and crew who made the -capture. For Great Britain this distribution is regulated by the "Royal -Proclamation as to Distribution of Prize Money" of August 3, 1886.[399] -There is no doubt whatever that, if a neutral subject buys a captured -ship after her condemnation, she may not be attacked and captured by the -belligerent to whose subject she formerly belonged, although, if she is -bought by an enemy subject and afterwards captured, she might be -restored[400] to her former owner. - -[Footnote 399: See Holland, _Prize Law_, pp. 142-150.] - -[Footnote 400: See above, § 196.] - -[Sidenote: Vessels belonging to Subjects of Neutral States, but sailing -under Enemy Flag.] - -§ 198. It has been already stated above in § 89 that merchantmen owned -by subjects of neutral States but sailing under enemy flag are vested -with enemy character. It is, therefore, evident that they may be -captured and condemned. As at present no non-littoral State has a -maritime flag, vessels belonging to subjects of such States are forced -to navigate under the flag of another State,[401] and they are, -therefore, in case of war exposed to capture. - -[Footnote 401: See above, vol. I. § 261.] - -[Sidenote: Effect of Sale of Enemy Vessels during War.] - -§ 199. Since enemy vessels are liable to capture, the question must be -taken into consideration whether the fact that an enemy vessel has been -sold during the war to a subject of a neutral or to a subject of the -belligerent State whose forces seized her, has the effect of excluding -her appropriation. It is obvious that, if the question is answered in -the affirmative, the owners of enemy vessels can evade the danger of -having their property captured by selling their vessels. The question -of transfer of enemy vessels must, therefore, be regarded as forming -part of the larger questions of enemy character and has consequently -been treated in detail above, § 91. - -[Sidenote: Goods sold by and to Enemy Subjects during War.] - -§ 200. If a captured enemy vessel carries goods consigned by enemy -subjects to subjects of neutral States, or to subjects of the -belligerent whose forces captured the vessel, they may not be -appropriated, provided the consignee can prove that he is the owner. As -regards such goods found on captured enemy merchantmen as are consigned -to enemy subjects but have been sold _in transitu_ to subjects of -neutral States, no unanimous practice of the different States is in -existence. The subject of goods sold _in transitu_ must--in the same way -as the question of transfer of enemy vessels--be considered as forming -part of the larger question of enemy character. It has, for this reason, -been treated above, § 92. - - -IV - -VIOLENCE AGAINST ENEMY PERSONS - - See the literature quoted above at the commencement of § 107. See - also Bonfils, Nos. 1273-1273'3. - -[Sidenote: Violence against Combatants.] - -§ 201. As regards killing and wounding combatants in sea warfare and the -means used for the purpose, customary rules of International Law are in -existence according to which only those combatants may be killed or -wounded who are able and willing to fight or who resist capture. Men -disabled by sickness or wounds, or such men as lay down arms and -surrender or do not resist capture, must be given quarter, except in a -case of imperative necessity or of reprisals. Poison, and such arms, -projectiles, and materials as cause unnecessary injury, are prohibited, -as is also killing and wounding in a treacherous way.[402] The -Declaration of St. Petersburg[403] and the Hague Declaration prohibiting -the use of expanding (Dum-Dum)[404] bullets, apply to sea warfare as -well as to land warfare, as also do the Hague Declarations concerning -projectiles and explosives launched from balloons, and projectiles -diffusing asphyxiating or deleterious gases.[405] - -[Footnote 402: See the corresponding rules for warfare on land, which -are discussed above in §§ 108-110. See also U.S. Naval War Code, article -3.] - -[Footnote 403: See above,§ 111.] - -[Footnote 404: See above, § 112.] - -[Footnote 405: See above, §§ 113 and 114.] - -All combatants, and also all officers and members of the crews of -captured merchantmen, could formerly[406] be made prisoners of war. -According to articles 5 to 7 of Convention XI. of the Second Peace -Conference--see above in § 85--such members of the crews as are subjects -of neutral States may never be made prisoners of war; but the captain, -officers, and members of the crews who are enemy subjects, and, further, -the captain and officers who are subjects of neutral States may be made -prisoners of war in case they refuse to be released on parole. As soon -as such prisoners are landed, their treatment falls under articles 4-20 -of the Hague Regulations; but as long as they are on board, the old -customary rule of International Law, that prisoners must be treated -humanely,[407] and not like convicts, must be complied with. The Hague -Convention for the adaptation of the Geneva Convention to sea warfare -enacts, however, some particular rules concerning the shipwrecked, the -wounded, and the sick who, through falling into the hands of the enemy, -become prisoners of war.[408] - -[Footnote 406: This was almost generally recognised, but was refused -recognition by Count Bismarck during the Franco-German War (see below, § -249) and by some German publicists, as, for instance, Lueder in -Holtzendorff, IV. p. 479, note 6.] - -[Footnote 407: See Holland, _Prize Law_, § 249, and U.S. Naval War Code, -articles 10, 11.] - -[Footnote 408: See below, § 205.] - -[Sidenote: Violence against Non-combatant Members of Naval Forces.] - -§ 202. Just as military forces consist of combatants and -non-combatants, so do the naval forces of belligerents. Non-combatants, -as, for instance, stokers, surgeons, chaplains, members of the hospital -staff, and the like, who do not take part in the fighting, may not be -attacked directly and killed or wounded.[409] But they are exposed to -all injuries indirectly resulting from attacks on or by their vessels. -And they may certainly be made prisoners of war, with the exception of -members of the religious, medical, and hospital staff, who are -inviolable according to article 10 of the Hague Convention for the -adaptation to maritime warfare of the principles of the Geneva -Convention.[410] - -[Footnote 409: See U.S. Naval War Code, article 3.] - -[Footnote 410: See below, § 209.] - -[Sidenote: Violence against Enemy Individuals not belonging to the Naval -Forces.] - -§ 203. Since and so far as enemy individuals on board an attacked or -seized enemy vessel who do not belong to the naval forces do not take -part in the fighting, they may not directly be attacked and killed or -wounded, although they are exposed to all injury indirectly resulting -from an attack on or by their vessel. If they are mere private -individuals, they may as an exception only and under the same -circumstances as private individuals on occupied territory be made -prisoners of war.[411] But they are nevertheless, for the time they are -on board the captured vessel, under the discipline of the captor. All -restrictive measures against them which are necessary are therefore -lawful, as are also punishments, in case they do not comply with lawful -orders of the commanding officer. If they are enemy officials in -important positions,[412] they may be made prisoners of war. - -[Footnote 411: See U.S. Naval War Code, article 11, and above, § 116.] - -[Footnote 412: See above, § 117.] - - -V - -TREATMENT OF WOUNDED AND SHIPWRECKED - - Perels, § 37--Pillet, pp. 188-191--Westlake, II. pp. - 275-280--Moore, VII. § 1178--Bernsten, § 12--Bonfils, Nos. - 1280-1280'9--Pradier-Fodéré, VIII. No. 3209--U.S. Naval War Code, - articles 21-29--Ferguson, _The Red Cross Alliance at Sea_ - (1871)--Houette, _De l'extension des principes de la Convention de - Genève aux victimes des guerres maritimes_ (1892)--Cauwès, - _L'extension des principes de la Convention de Genève aux guerres - maritimes_ (1899)--Holls, _The Peace Conference at the Hague_ - (1900), pp. 120-132--Boidin, pp. 248-262--Dupuis, _Guerre_, Nos. - 82-105--Meurer, II. §§ 74-87--Higgins, pp. 382-394--Lémonon, pp. - 526-554--Nippold, II. § 33--Scott, _Conferences_, pp. - 599-614--Takahashi, pp. 375-385--Fauchille in _R.G._ VI. (1899), - pp. 291-302--Bayer, in _R.G._ VIII. (1901), pp. 225-230--Renault - in _A.J._ II. pp. 295-306--Higgins, _War and the Private Citizen_ - (1912), pp. 73-90, and in _The Law Quarterly Review_, XXVI (1910), - pp. 408-414. See also the literature quoted above at the - commencement of § 118. - -[Sidenote: Adaptation of Geneva Convention to Sea Warfare.] - -§ 204. Soon after the ratification of the Geneva Convention the -necessity of adapting its principles to naval warfare was generally -recognised, and among the non-ratified Additional articles to the Geneva -Convention of 1868 were nine which aimed at such an adaptation. But it -was not until the Hague Peace Conference in 1899 that an adaptation came -into legal existence. This adaptation was contained in the -"Convention[413] for the Adaptation to Maritime Warfare of the -Principles of the Geneva Convention of August 22, 1864," which comprised -fourteen articles. It has, however, been replaced by the "Convention -(X.) for the Adaptation of the Principles of the Geneva Convention to -Maritime War," of the Second Hague Peace Conference. This new convention -comprises twenty-eight articles and was signed, although with some -reservations, by all the Powers represented at the Conference, except -Nicaragua which acceded later, and it has already been ratified by most -of the signatory Powers. It provides rules concerning the wounded, -sick, shipwrecked, and dead; hospital ships; sickbays on men-of-war; the -distinctive colour and emblem of hospital ships; neutral vessels taking -on board belligerent wounded, sick, or shipwrecked; the religious, -medical, and hospital staff of captured ships; the carrying out of the -convention, and the prevention of abuses and infractions. - -[Footnote 413: Martens, _N.R.G._ 2nd Ser. XXVI. p. 979.] - -[Sidenote: The Wounded, Sick, and Shipwrecked.] - -§ 205. Soldiers, sailors, and other persons officially attached to -fleets or armies, whatever their nationality, who are taken on board -when sick or wounded, must be respected and tended by the captors -(article 11). All enemy shipwrecked, sick, or wounded who fall into the -power of a belligerent are prisoners of war. It is left to the captor to -determine whether they are to be kept on board, or to be sent to a port -of his own country, or a neutral port, or even a hostile port; and in -the last case such repatriated prisoners must be prevented by their -Government from again serving in the war (article 14). The shipwrecked, -wounded, or sick, who are landed at a neutral port with the consent of -the local authorities, must, unless there is an arrangement to the -contrary between the neutral State concerned and the belligerent States, -be guarded by the neutral State so as to prevent them from again taking -part in the war;[414] the expenses of tending and interning them must be -borne by the State to whom they belong (article 15). After each -engagement, both belligerents must, so far as military interests permit, -take measures to search for the shipwrecked, wounded, and sick, and to -ensure them protection against pillage and maltreatment (article 16). -Each belligerent must, as early as possible, send to the authorities of -their country, navy, or army, a list of the names of the sick and -wounded picked up by him; and the belligerents must keep each other -informed as to internments and transfers as well as to admissions into -hospital and deaths which have occurred amongst the sick and wounded in -their hands. And they must collect all objects of personal use, -valuables, letters, &c., that are found in the captured ships in order -to have them forwarded to the persons concerned by the authorities of -their own country (article 17). - -[Footnote 414: See below, § 348_a_.] - -[Sidenote: Treatment of the Dead.] - -§ 205_a_. After each engagement both belligerents must, so far as -military interests permit, take measures to ensure the dead protection -against pillage and maltreatment, and they must see that the burial, -whether by land or sea, or cremation of the dead is preceded by a -careful examination of the corpses in order to determine that life is -really extinct (article 16). Each belligerent must, as early as -possible, send to the authorities of their country, navy, or army, the -military identification marks or tokens found on the dead; they must -also collect all the objects of personal use, valuables, letters, &c., -which have been left by the wounded and sick who die in hospital, in -order that they may be forwarded to the persons concerned by the -authorities of their own country (article 17). - -[Sidenote: Hospital Ships.] - -§ 206. Three different kinds of hospital ships must be -distinguished--namely, military hospital ships, hospital ships equipped -by private individuals or relief societies of the belligerents, and -hospital ships equipped by private neutral individuals and neutral -relief societies. - -(1) Military hospital ships (article 1) are ships constructed or -assigned by States specially and solely for the purpose of assisting the -wounded, sick, and shipwrecked. Their names must be communicated to the -belligerents at the commencement of or during hostilities, and in any -case before they are employed. They must be respected by the -belligerents, they may not be captured while hostilities last, and they -are not on the same footing as men-of-war during their stay in a -neutral port. - -(2) Hospital ships equipped wholly or in part at the cost of private -individuals or officially recognised relief societies of the -belligerents must be respected by either belligerent (article 2), and -are exempt from capture, provided their home State has given them an -official commission and has notified their names to the other -belligerent at the commencement of or during hostilities, and in any -case before they are employed. They must, further, be furnished with a -certificate from the competent authorities declaring that they had been -under the latter's control while fitting out and on final departure. - -(3) Hospital ships, equipped wholly or in part at the cost of private -individuals or officially recognised relief societies of neutral States -(article 3), must likewise be respected, and are exempt from capture, -provided that they are placed under the control of one of the -belligerents, with the previous consent of their own Government and with -the authorisation of the belligerent himself, and that the latter has -notified their names to his adversary at the commencement of, or during, -hostilities, and in any case before they are employed. - -According to article 4 all military and other hospital ships must afford -relief and assistance to the wounded, sick, and shipwrecked of either -belligerent. The respective Governments are prohibited from using these -ships for any military purpose. The commanders of these vessels must not -in any way hamper the movements of the combatants, and during and after -an engagement they act at their own risk and peril. Both belligerents -have a right to control and visit all military and other hospital ships, -to refuse their assistance, to order them off, to make them take a -certain course, to put a commissioner on board, and, lastly, to detain -them temporarily, if important circumstances require this. In case a -hospital ship receives orders from a belligerent, these orders must, as -far as possible, be inscribed in the ship papers. - -The protection to which hospital ships are entitled ceases if they are -made use of to commit acts harmful to the enemy[415] (article 8). But -the fact of the staff being armed for the purpose of maintaining order -and defending the wounded and sick, and the fact of the presence of -wireless telegraphic apparatus on board, are not sufficient reasons for -withdrawing protection. - -[Footnote 415: An interesting case of this kind occurred during the -Russo-Japanese war. The _Aryol_ (also called the _Orel_), a hospital -ship of the Russian Red Cross Society, was captured, and afterwards -condemned by the Prize Court on the following grounds:--(_a_) For having -communicated the orders of the commander-in-chief of the Russian -squadron with which she was sailing to other Russian vessels; (_b_) for -carrying, by order of the commander-in-chief of the squadron, in order -to take them to Vladivostock, the master and some members of the crew of -the British steamship _Oldhamia_, which had been captured by the -Russians; (_c_) for having been instructed to purchase in Cape Town, or -its neighbourhood, 11,000 ft. of conducting wire of good insulation; -(_d_) for having navigated at the head of the squadron in the position -usually occupied by reconnoitring vessels.--See Takahashi, pp. 620-625, -and Higgins, _op. cit._ p. 74, and in _The Law Quarterly Review_, XXVI. -(1910), p. 408.] - -It must be specially observed that any man-of-war of either belligerent -may, according to article 12, demand the surrender of the wounded, sick, -or shipwrecked who are on board hospital ships of any kind. According to -a reservation by Great Britain, article 12 is understood "to apply only -to the case of combatants rescued during or after a naval engagement in -which they have taken part." - -[Sidenote: Hospital Ships in Neutral Ports.] - -§ 206_a_. For the purpose of defining the status of hospital ships when -entering neutral ports an International Conference met at the Hague in -1904, where Germany, Austria-Hungary, Belgium, China, Korea, Denmark, -Spain, the United States of America, France, Greece, Guatemala, Italy, -Japan, Luxemburg, Mexico, Holland, Persia, Portugal, Roumania, Russia, -Servia, and Siam, were represented. Great Britain, however, did not -take part. The following is the text of the six articles of the -Convention signed by all the representatives:-- - - Article 1.--Hospital ships fulfilling the conditions prescribed in - articles 1, 2, and 3 of the Convention concluded at the Hague on - July 27, 1899, for the adaptation of the principles of the Geneva - Convention of August 22, 1864, to naval warfare shall in time of - war be exempt in the ports of the contracting parties from all - dues and taxes imposed on vessels for the benefit of the State. - - Article 2.--The provision contained in the preceding article shall - not prevent the exercise of the right of search and other - formalities demanded by the fiscal and other laws in force in the - said ports. - - Article 3.--The regulation laid down in article 1 is binding only - upon the contracting Powers in case of war between two or more of - themselves. The said rule shall cease to be obligatory as soon as - in a war between any of the contracting Powers a non-contracting - Power shall join one of the belligerents. - - Article 4.--The present Convention, which bears date of this day - and may be signed up to October 1, 1905, by any Power which shall - have expressed a wish to do so, shall be ratified as speedily as - possible. The ratifications shall be deposited at the Hague. On - the deposit of the ratifications, a _procès-verbal_ shall be drawn - up, of which a certified copy shall be conveyed by diplomatic - channels, after the deposit of each ratification, to all the - contracting Powers. - - Article 5.--Non-signatory Powers will be allowed to adhere to the - present convention after October 1, 1905. For that purpose they - will have to make known the fact of their adhesion to the - contracting Powers by means of a written notification addressed to - the Government of the Netherlands, which will be communicated by - that Government to all the other contracting Powers. - - Article 6.--In the event of any of the high contracting parties - denouncing the present Convention, the denunciation shall only - take effect after notification has been made in writing to the - Government of the Netherlands and communicated by that Government - at once to all the other contracting Powers. Such denunciation - shall be effective only in respect of the Power which shall have - given notice of it. - -[Sidenote: Sick-Bays.] - -§ 206_b_. According to article 7, in case of a fight on board a -man-of-war, the sick-bays must, as far as possible, be respected and -spared. These sick-bays, and the material belonging to them, remain -subject to the laws of war; they may not, however, be used for any -purpose other than that for which they were originally intended so long -as they are required for the wounded and sick. But should the military -situation require it, a commander into whose power they have fallen may -nevertheless apply them to other purposes, under the condition that he -previously makes arrangements for proper accommodation for the wounded -and sick on board. The protection to which sick-bays are entitled ceases -if they are made use of to commit acts harmful to the enemy (article 8). -But the fact that the staff of sick-bays is armed in order to defend the -wounded and sick is not sufficient reason for withdrawing protection. - -[Sidenote: Distinctive Colour and Emblem of Hospital Ships.] - -§ 207. All military hospital ships must be painted white outside with a -horizontal band of green about one metre and a half in breadth. Other -hospital ships must also be painted white outside, but with a horizontal -band of red. The boats and small craft of hospital ships used for -hospital work must likewise be painted white. And besides being painted -in this distinguishing colour, all military and other hospital ships -(article 5) must hoist, together with their national flag, the white -flag with a red cross stipulated by the Geneva Convention. If they -belong to a neutral State, they must also fly at the main mast the -national flag of the belligerent under whose control they are placed. -Hospital ships which, under the terms of article 4, are detained by the -enemy, must haul down the national flag of the belligerent to whom they -belong. All hospital ships which wish to ensure by night the freedom -from interference to which they are entitled, must, subject to the -assent of the belligerent they are accompanying, take the necessary -measures to render their special painting sufficiently plain. According -to article 6 the distinguishing signs mentioned in article 5 may only be -used, whether in time of peace or war, for protecting or indicating the -ships therein mentioned. - -Although in this connection the red cross is especially stipulated as -the distinctive emblem, there is no objection to the use by -non-Christian States, who object to the cross on religious grounds, of -another emblem. Thus Turkey reserved the right to use a red crescent, -and Persia to use a red sun. - -[Sidenote: Neutral Vessels assisting the Wounded, Sick, or Shipwrecked.] - -§ 208. A distinction must be made between neutral men-of-war and private -vessels assisting the sick, wounded, and shipwrecked. - -(1) If men-of-war take on board wounded, sick, or shipwrecked persons, -precaution must be taken, so far as possible, that they do not again -take part in the operations of war (article 13). Such individuals must -not, however, be handed over to the adversary but must be detained till -the end of the war.[416] - -(2) Neutral merchantmen,[417] yachts, or boats which have of their own -accord rescued sick, wounded, or shipwrecked men, or who have taken such -men on board at the appeal of the belligerent, must, according to -article 9, enjoy special protection and certain immunities. In no case -may they be captured for the sole reason of having such persons on -board. But, subject to any undertaking that may have been given to them, -they remain liable to capture for any violation of neutrality they may -have committed. - -[Footnote 416: See below, § 348.] - -[Footnote 417: See below, § 348_a_.] - -It must be specially observed that, according to article 12, any -man-of-war of either belligerent may demand from merchant ships, yachts, -and boats, whatever the nationality of such vessels, the surrender of -the wounded, sick, or shipwrecked who are on board. - -According to the reservation of Great Britain, mentioned above in § -206, article 12 is understood "to apply only to the case of combatants -rescued during or after a naval engagement in which they have taken -part." - -[Sidenote: The Religious, Medical, and Hospital Staff.] - -§ 209. The religious, medical, and hospital staff of any captured vessel -is inviolable, and the members may not be made prisoners of war, but -they must continue to discharge their duties while necessary. If they do -this, the belligerent into whose hands they have fallen has to give them -the same allowances and the same pay as are granted to persons holding -the same rank in his own navy. They may leave the ship, when the -commander-in-chief considers it possible, and on leaving they are -allowed to take with them all surgical articles and instruments which -are their private property (article 10). - -[Sidenote: Application of Convention X., and Prevention of Abuses.] - -§ 209_a_. The provisions of Convention X. are only binding in the case -of war between contracting Powers, they cease to be binding the moment a -non-contracting Power becomes one of the belligerents (article 18). In -the case of operations of war between land and sea forces of -belligerents, the provisions of Convention X. only apply to forces on -board ship (article 22). The commanders-in-chief of the belligerent -fleets must, in accordance with the instructions of their Governments -and in conformity with the general principles of the Convention, arrange -the details for carrying out the articles of Convention X., as well as -for cases not provided for in these articles (article 19). The -contracting parties must take the necessary measures to instruct their -naval forces, especially the personnel protected by Convention X., in -the provisions of the Convention, and to bring these provisions to the -notice of the public (article 20). The contracting Powers must, in case -their criminal laws are inadequate, enact measures necessary for -checking, in time of war, individual acts of pillage or maltreatment of -the wounded and sick in the fleet, as well as for punishing, as -unjustifiable adoption of military or naval marks, the unauthorised use -of the distinctive signs mentioned in article 5 on the part of vessels -not protected by the present Convention; they must communicate to each -other, through the Dutch Government, the enactments for preventing such -acts at the latest within five years of the ratification of Convention -X.[418] (article 21). - -[Footnote 418: Great Britain has entered a reservation against articles -6 and 21, but see above, § 124_b_, p. 164, note 1.] - -[Sidenote: General Provisions of Convention X.] - -§ 209_b_. Convention X. comes into force sixty days after ratification -or accession on the part of each Power concerned (article 26). It -replaces the Convention of 1899 for the adaptation to naval warfare of -the principles of the Geneva Convention, but this latter Convention -remains in force between such of its contracting parties as do not -become parties to Convention X. (article 25). Such non-signatory Powers -of Convention X. as are parties to the Geneva Convention of 1906 are -free to accede at any time, and a Power desiring to accede must notify -its intention in writing to the Dutch Government which must communicate -the accession to all the contracting Powers (article 24). Each of the -contracting Powers is at any time at liberty to denounce Convention X. -by a written notification to the Dutch Government which must immediately -communicate the notification to all the other contracting Powers; the -denunciation, however, does not take effect until one year after the -notification has reached the Dutch Government, and a denunciation only -affects the Power making the notification (article 27). A register kept -by the Dutch Minister of Foreign Affairs must record the dates of the -deposit of ratifications, as well as the dates of accessions or of -denunciations; each contracting Power is entitled to have access to -this register and to be supplied with duly certified extracts from it -(article 28). - - -VI - -ESPIONAGE, TREASON, RUSES - - See, besides the literature quoted above at the commencement of §§ - 159 and 163, Pradier-Fodéré, VIII. No. 3157, and Bentwich in _The - Journal of the Society of Comparative Legislation_, New Series, X. - (1909), pp. 243-249. - -[Sidenote: Espionage and Treason.] - -§ 210. Espionage[419] and treason do not play as large a part in sea -warfare as in land warfare;[420] still they may be made use of by -belligerents. But it must be specially observed that, since the Hague -Regulations deal only with land warfare, the legal necessity of trying a -spy by court-martial according to article 30 of these Regulations does -not exist for sea warfare, although such trial by court-martial is -advisable. - -[Footnote 419: As regards the case of the _Haimun_, see below, § 356.] - -[Footnote 420: See above, §§ 159-162.] - -[Sidenote: Ruses.] - -§ 211. Ruses are customarily allowed in sea warfare within the same -limits as in land warfare, perfidy being excluded. As regards the use of -a false flag, it is by most publicists considered perfectly lawful for a -man-of-war to use a neutral's or the enemy's flag (1) when chasing an -enemy vessel, (2) when trying to escape, and (3) for the purpose of -drawing an enemy vessel into action.[421] On the other hand, it is -universally agreed that immediately before an attack a vessel must fly -her national flag. Halleck (I. p. 568) relates the following instance: -In 1783 the _Sybille_, a French frigate of thirty-eight guns, enticed -the British man-of-war _Hussar_ by displaying the British flag and -intimating herself to be a distressed prize of a British captor. The -_Hussar_ approached to succour her, but the latter at once attacked the -_Hussar_ without showing the French flag. She was, however, overpowered -and captured, and the commander of the _Hussar_ publicly broke the sword -of the commander of the _Sybille_, whom he justly accused of perfidy, -although the French commander was acquitted when subsequently brought to -trial by the French Government. Again, Halleck (I. p. 568) relates: In -1813 two merchants of New York carried out a plan for destroying the -British man-of-war _Ramillies_ in the following way. A schooner with -some casks of flour on deck was expressly laden with several casks of -gunpowder having trains leading from a species of gunlock, which, by the -action of clockwork, went off at a given time after it had been set. To -entice the _Ramillies_ to seize her, the schooner came up, and the -_Ramillies_ then sent a boat with thirteen men and a lieutenant to cut -her off. Subsequently the crew of the schooner abandoned her and she -blew up with the lieutenant and his men on board. - -[Footnote 421: The use of a false flag on the part of a belligerent -man-of-war is analogous to the use of the enemy flag and the like in -land warfare; see above, § 164. British practice--see Holland, _Prize -Law_, § 200--permits the use of false colours. U.S. Naval War Code, -article 7, forbids it altogether, whereas as late as 1898, during the -war with Spain in consequence of the Cuban insurrection, two American -men-of-war made use of the Spanish flag (see Perels, p. 183). And during -the war between Turkey and Russia, in 1877, Russian men-of-war in the -Black Sea made use of the Italian flag (see Martens, II. § 103, p. 566). -The question of the permissibility of the use of a neutral or enemy flag -is answered in the affirmative, among others, by Ortolan, II. p. 29; -Fiore, III. No. 1340; Perels, § 35, p. 183; Pillet, p. 116; Bonfils, No. -1274; Calvo, IV. 2106; Hall, § 187. See also Pillet in _R.G._ V. (1898), -pp. 444-451. But see the arguments against the use of a false flag in -Pradier-Fodéré, VI. No. 2760.] - -Vattel (III. § 178) relates the following case of perfidy: In 1755, -during war between Great Britain and France, a British man-of-war -appeared off Calais, made signals of distress for the purpose of -soliciting French vessels to approach to her succour, and seized a sloop -and some sailors who came to bring her help. Vattel is himself not -certain whether this case is a fact or fiction. But be that as it may, -there is no doubt that, if the case be true, it is an example of -perfidy, which is not allowed. - - -VII - -REQUISITIONS, CONTRIBUTIONS, BOMBARDMENT - - Hall, § 140*--Lawrence, § 204--Westlake, II. pp. 315-318--Moore, - VII. §§ 1166-1174--Taylor, § 499--Bonfils, Nos. - 1277-1277'1--Despagnet, Nos. 618-618 _bis_--Fiore, Code, Nos. - 1633-1642--Pradier-Fodéré, VIII. Nos. 3153-3154--Nys, III. pp. - 430-432--Pillet, p. 117--Perels, § 35, p. 181--Holland, _Studies_, - pp. 96-111--Dupuis, Nos. 67-73, and _Guerre_, Nos. 42-47--Barclay, - _Problems_, p. 51--Higgins, pp. 352-357--Lémonon, pp. - 503-525--Bernsten, § 7, III.--Boidin, pp. 201-215--Nippold, II. § - 28--Scott, _Conferences_, pp. 587-598, and in _A.J._ II. (1908), - pp. 285-294. - -[Sidenote: Requisitions and Contributions upon Coast Towns.] - -§ 212. No case has to my knowledge occurred in Europe[422] of -requisitions or contributions imposed by naval forces upon enemy coast -towns. The question whether or not such requisitions and contributions -would be lawful became of interest through an article on naval warfare -of the future, published in 1882 by the French Admiral Aube in the -_Revue des Deux Mondes_ (vol. 50, p. 331). Aube pointed out that one of -the tasks of the fleet in sea warfare of the future would be to attack -and destroy by bombardment fortified and unfortified military and -commercial enemy coast towns, or at least to compel them mercilessly to -requisitions and contributions. As during the British naval manoeuvres -of 1888 and 1889 imaginary contributions were imposed upon several coast -towns, Hall (§ 140*) took into consideration the question under what -conditions requisitions and contributions would be lawful in sea -warfare. He concluded, after careful consideration and starting from the -principles regarding requisitions and contributions in land warfare, -that such requisitions and contributions may be levied, provided a force -is landed which actually takes possession of the respective coast town -and establishes itself there, although only temporarily, until the -imposed requisitions and contributions have been complied with; that, -however, no requisitions or contributions could be demanded by a single -message sent on shore under threatened penalty of bombardment in case of -refusal. There is no doubt that Hall's arguments are, logically, -correct; but it was not at all certain that the naval Powers would adopt -them, since neither the Institute of International Law nor the U.S. -Naval War Code had done so.[423] The Second Hague Peace Conference has -now settled the matter through the Convention (IX.) concerning -bombardment by naval forces in time of war which amongst its thirteen -articles includes two--3 and 4--dealing with requisitions and -contributions. This Convention has been signed, although with some -reservations, by all the Powers represented at the Conference except -Spain, China, and Nicaragua, but China and Nicaragua acceded later. Many -States have already ratified. - -[Footnote 422: Holland, _Studies_, p. 101, mentions a case which -occurred in South America in 1871.] - -[Footnote 423: The Institute of International Law has touched upon the -question of requisitions and contributions in sea warfare in article 4, -No. 1, of its rules regarding the bombardment of open towns by naval -forces; see below, § 213, p. 267. U.S. Naval War Code, article 4, allows -"reasonable" requisitions, but no contributions since "ransom" is not -allowed.] - -According to article 3 undefended ports, towns, villages, dwellings, or -other buildings may be bombarded by a naval force, if the local -authorities, on a formal summons being made to them, decline to comply -with requisitions for provisions or supplies _necessary_ for the -_immediate_ use of the naval force concerned. These requisitions must be -proportional to the resources of the place; they can only be demanded by -the commander of the naval force concerned; they must be paid for in -cash, and, if this is not possible for want of sufficient ready money, -their receipt must be acknowledged. - -As regards contributions, Convention IX. does not directly forbid the -demand for them, but article 4 expressly forbids bombardment of -undefended places by a naval force on account of non-payment of money -contributions; in practice, therefore, the demand for contributions will -not occur in naval warfare. - -[Sidenote: Bombardment of the Enemy Coast.] - -§ 213. There is no doubt whatever that enemy coast towns which are -defended may be bombarded by naval forces, acting either independently -or in co-operation with a besieging army. But before the Second Peace -Conference of 1907 the question was not settled as to whether or not -_open and undefended_ coast places might be bombarded by naval forces. -The Institute of International Law in 1895, at its meeting at Cambridge, -appointed a committee to investigate the matter. The report[424] of this -committee, drafted by Professor Holland with the approval of the Dutch -General Den Beer Portugael, and presented in 1896 at the meeting at -Venice,[425] is of such interest that it is advisable to reproduce here -a translation of the following chief parts:-- - - When the Prince de Joinville recommended in 1844, in case of war, - the devastation of the great commercial towns of England, the Duke - of Wellington wrote:--"What but the inordinate desire of - popularity could have induced a man in his station to write and - publish such a production, an invitation and provocation to war, - to be carried on in a manner such as has been disclaimed by the - civilised portions of mankind?" (Raikes, _Correspondence_, p. - 367). The opinion of the Prince de Joinville has been taken up by - Admiral Aube in an article which appeared in the _Revue des Deux - Mondes_ in 1882. After having remarked that the ultimate object of - war is to inflict the greatest possible damage to the enemy and - that "La richesse est le nerf de la guerre," he goes on as - follows:--"Tout ce qui frappe l'ennemi dans sa richesse devient - non seulement légitime, mais s'impose comme obligatoire. Il faut - donc s'attendre à voir les flottes cuirassées, maîtresses de la - mer, tourner leur puissance d'attaque et déstruction, à défaut - d'adversaires se dérobant à leurs coups, contre toutes les villes - du littoral, fortifiées ou non, pacifiques ou guerrières, les - incendier, les ruiner, et tout au moins les rançonner sans merci. - Cela s'est fait autrefois; cela ne se fait plus; cela se fera - encore: Strasbourg et Péronne en sont garants...." - - The discussion was opened again in 1888, on the occasion of - manoeuvres executed by the British Fleet, the enemy part of which - feigned to hold to ransom, under the threat of bombardment, great - commercial towns, such as Liverpool, and to cause unnecessary - devastation to pleasure towns and bathing-places, such as - Folkestone, through throwing bombs. One of your reporters observed - in a series of letters addressed to the _Times_ that such acts are - contrary to the rules of International Law as well as to the - practice of the present century. He maintained that bombardment of - an open town ought to be allowed only for the purpose of obtaining - requisitions in kind necessary for the enemy fleet and - contributions instead of requisitions, further by the way of - reprisal, and in case the town defends itself against occupation - by enemy troops approaching on land.... Most of the admirals and - naval officers of England who took part in the lively - correspondence which arose in the _Times_ and other journals - during the months of August and September 1880 took up a contrary - attitude.... - -[Footnote 424: See _Annuaire_, XV. (1896), pp. 148-150.] - -[Footnote 425: See _Annuaire_, XV. (1896), p. 313.] - -On the basis of this report the Institute, at the same meeting, adopted -a body of rules regarding the bombardment of open towns by naval forces, -declaring that the rules of the law of war concerning bombardment are -the same in the case of land warfare and sea warfare. Of special -interest are articles 4 and 5 of these rules, which run as follows:-- - - Article 4. In virtue of the general principles above, the - bombardment by a naval force of an open town, that is to say one - which is not defended by fortifications or by other means of - attack or of resistance for immediate defence, or by detached - forts situated in proximity, for example of the maximum distance - of from four to ten kilometres, is inadmissible except in the - following cases:-- - - (1) For the purpose of obtaining by requisitions or contributions - what is necessary for the fleet. These requisitions or - contributions must in every case remain within the limits - prescribed by articles 56 and 58 of the Manual of the Institute. - - (2) For the purpose of destroying sheds, military erections, - depôts of war munitions, or of war vessels in a port. Further, an - open town which defends itself against the entrance of troops or - of disembarked marines can be bombarded for the purpose of - protecting the disembarkation of the soldiers and of the marines, - if the open town attempts to prevent it, and as an auxiliary - measure of war to facilitate the result made by the troops and the - disembarked marines, if the town defends itself. Bombardments of - which the object is only to exact a ransom are specially - forbidden, and, with the stronger reason, those which are intended - only to bring about the submission of the country by the - destruction, for which there is no other motive, of the peaceful - inhabitants or of their property. - - Article 5. An open town cannot be exposed to a bombardment for the - only reasons:-- - - (_a_) That it is the capital of the State or the seat of the - Government (but naturally these circumstances do not guarantee it - in any way against a bombardment). - - (_b_) That it is actually occupied by troops, or that it is - ordinarily the garrison of troops of different arms intended to - join the army in time of war. - -The First Peace Conference did not settle the matter, but expressed the -desire "that the proposal to settle the question of bombardment of -ports, towns, and villages by a naval force may be referred to a -subsequent Conference for consideration." The Second Peace Conference, -however, by Convention IX.--see above, § 212, p. 265--has provided -detailed rules concerning all the points in question, and the following -is now the law concerning bombardment by naval forces:-- - -(1) The bombardment of undefended ports, towns, villages, dwellings, or -other buildings is under all circumstances and conditions prohibited -(article 1). To define the term "undefended," article 1 expressly enacts -that "a place cannot be bombarded solely because automatic submarine -contact mines are anchored off the harbour," but Great Britain, France, -Germany, and Japan entered a reservation against this, since they -correctly consider such a place to be "defended." - -(2) Although undefended places themselves are exempt, nevertheless -military works, military or naval establishments, depôts of arms or war -material, workshops or plant which could be utilised for the needs of -the hostile fleet or army, and men-of-war in the harbour of undefended -places may be bombarded. And no responsibility is incurred for any -unavoidable damage caused thereby to the undefended place or its -inhabitants. As a rule, however, the commander must, before resorting to -bombardment of these works, ships, and the like, give warning to the -local authorities so that they can destroy the works and vessels -themselves. Only if, for military reasons, immediate action is necessary -and no delay can be allowed to the enemy, may bombardment be resorted to -without previous warning, the commander being compelled to take all due -measures in order that the undefended place itself may suffer as little -harm as possible (article 2). - -The first case in which naval forces acted according to these rules -occurred during the Turco-Italian war. On February 25, 1912, Admiral -Faravelli, the commander of an Italian squadron, surprised, at dawn, the -Turkish gunboat _Awni-Illa_ and a torpedo-boat in the port of Beirut. -These vessels were called upon to surrender, they were given until nine -o'clock a.m. to comply with the demand, and the demand was communicated -to the Governor and the Consular authorities. At nine o'clock the -Turkish vessels were again, by signal, summoned to surrender, and as no -reply was received, they were fired at and destroyed, but not without -first having vigorously answered the fire of the Italians. Shells -missing the vessels and bursting on the quay killed and wounded a number -of individuals and damaged several buildings. The Turkish Government -protested against this procedure as a violation of Convention IX. of the -Second Peace Conference, but, provided the official report of Admiral -Faravelli corresponds with the facts, the Turkish protest is unfounded. - -(3) In case undefended places do not comply with legitimate -requisitions, they likewise may be bombarded; see details above, § 212. - -(4) In case of bombardments, all necessary steps must be taken to spare -buildings devoted to public worship, art, science, or charitable -purposes; historical monuments; hospitals, and places where the sick or -wounded are collected, provided they are not at the time used for -military purposes. To enable the attacking force to carry out this -injunction, the privileged buildings, monuments, and places must be -indicated by visible signs, which shall consist of large stiff -rectangular panels, divided diagonally into two coloured triangular -portions, the upper portion black, the lower portion white (article 5). -Unless military exigencies render it impossible the commander of an -attacking naval force must, before commencing the bombardment, do all in -his power to warn the authorities (article 6). - -(5) The giving over to pillage of a town or place, even when taken by -assault, is forbidden (article 7). - - -VIII - -INTERFERENCE WITH SUBMARINE TELEGRAPH CABLES - - Moore, VII. § 1176--Westlake, II. pp. 280-283--Liszt, § 41, - III.--Bonfils, No. 1278--Pradier-Fodéré, VI. No. 2772--Fiore, III. - No. 1387, and Code, Nos. 1650-1655--Perels, § 35, p. 185--Perdrix, - _Les câbles sousmarines et leur protection internationale_ - (1902)--Kraemer, _Die unterseeischen Telegraphenkabel in - Kriegszeiten_ (1903)--Scholz, _Krieg und Seekabel_ - (1904)--Zuculin, _I cavi sottomarini e il telegrafo senza fili nel - diritto di guerra_ (1907)--Holland, in _Journal de Droit - International Privé et de la Jurisprudence comparée_ (Clunet), - XXV. (1898), pp. 648-652, and _War_, No. 114--Goffin, in _The Law - Quarterly Review_, XV. (1899), pp. 145-154--Bar, in the _Archiv - für Oeffentliches Recht_, XV. (1900), pp. 414-421--Rey, in _R.G._ - VIII. (1901), pp. 681-762--Dupuis, in _R.G._ X. (1903), pp. - 532-547--Nordon in _The Law Magazine and Review_, XXXII. (1907), - pp. 166-188. See also the literature quoted above, vol. I., at the - commencement of § 286. - -[Sidenote: Uncertainty of Rules concerning Interference with Submarine -Telegraph Cables.] - -§ 214. As the "International Convention[426] for the Protection of -Submarine Telegraph Cables" of 1884 expressly stipulates by article 15 -that freedom of action is reserved to belligerents, the question is not -settled how far belligerents are entitled to interfere with submarine -telegraph cables. The only conventional rule concerning this question is -article 54 of the Hague Regulations, inserted by the Second Peace -Conference, which enacts that submarine cables connecting occupied enemy -territory with a neutral territory shall not be seized or destroyed, and -that, if a case of absolute necessity has compelled the occupant to -seize or destroy such cable, it must be restored after the conclusion of -peace and indemnities paid. There is no rule in existence which deals -with other possible cases of seizure and destruction. - -[Footnote 426: See above, vol. I. §§ 286 and 287.] - -The Institute of International Law has studied the matter and -adopted,[427] at its meeting at Brussels in 1902, the following five -rules:-- - - (1) Le câble sousmarin reliant deux territoires neutres est - inviolable. - - (2) Le câble reliant les territoires de deux belligérants ou deux - parties du territoire d'un des belligérants peut être coupé - partout, excepté dans la mer territoriale et dans les eaux - neutralisées dépendant d'un territoire neutre. - - (3) Le câble reliant un territoire neutre au territoire d'un des - belligérants ne peut en aucun cas être coupé dans la mer - territoriale ou dans les eaux neutralisées dépendant d'un - territoire neutre. En haute mer, ce câble ne peut être coupé que - s'il y a blocus effectif et dans les limites de la ligne du - blocus, sauf rétablissement du câble dans le plus bref délai - possible. Le câble peut toujours être coupé sur le territoire et - dans la mer territoriale dépendant d'un territoire ennemi jusqu'à - d'une distance de trois milles marins de la laisse de basse-marée. - - (4) Il est entendu que la liberté de l'État neutre de transmettre - des dépêches n'implique pas la faculté d'en user ou d'en permettre - l'usage manifestement pour prêter assistance à l'un des - belligérants. - - (5) En ce qui concerne l'application des règles précédentes, il - n'y a de différence à établir ni entre les câbles d'État et les - câbles appartenant à des particuliers, ni entre les câbles de - propriété ennemie et ceux qui sont de propriété neutre. - -[Footnote 427: See _Annuaire_, XIX. (1902), p. 331.] - -The U.S. Naval War Code, article 5, laid down the following rules:-- - - (1) Submarine telegraphic cables between points in the territory - of an enemy, or between the territory of the United States and - that of an enemy, are subject to such treatment as the necessities - of war may require. - - (2) Submarine telegraphic cables between the territory of an enemy - and neutral territory may be interrupted within the territorial - jurisdiction of the enemy. - - (3) Submarine telegraphic cables between two neutral territories - shall be held inviolable and free from interruption.[428] - -[Footnote 428: It is impossible for a treatise to discuss the details of -the absolutely unsettled question as to how far belligerents may -interfere with submarine telegraph cables. Readers who take a particular -interest in it may be referred to the excellent monograph of Scholz, -_Krieg und Seekabel_ (1904), which discusses the matter thoroughly and -ably.] - - - - -CHAPTER V - -NON-HOSTILE RELATIONS OF BELLIGERENTS - - -I - -ON NON-HOSTILE RELATIONS IN GENERAL BETWEEN BELLIGERENTS - - Grotius, III. c. 19--Pufendorf, VIII. c. 7, §§ 1-2--Bynkershoek, - _Quaest. jur. publ._ I. c. 1--Vattel, III. §§ 174-175--Hall, § - 189--Lawrence, § 210--Phillimore, III. § 97--Halleck, I. pp. - 310-311--Taylor, § 508--Wheaton, § 399--Bluntschli, § - 679--Heffter, § 141--Lueder in Holtzendorff, IV. pp. - 525-527--Ullmann, § 185--Bonfils, Nos. 1237-1238--Despagnet, No. - 555--Pradier-Fodéré, VII. Nos. 2882-2887--Rivier, II. p. - 367--Calvo, IV. §§ 2411-2412--Fiore, III. No. 1482, and Code, Nos. - 1721-1723--Martens, II. § 127--Longuet, §§ 134-135--Mérignhac, pp. - 218-220--Pillet, pp. 355-356--_Kriegsbrauch_, p. 38--_Land - Warfare_, §§ 221-223--Emanuel, _Les conventions militaires dans la - guerre continentale_ (1904). - -[Sidenote: _Fides etiam hosti servanda._] - -§ 215. Although the outbreak of war between States as a rule brings -non-hostile intercourse to an end, necessity of circumstances, -convenience, humanity, and other factors call, or may call, some kinds -of non-hostile relations of belligerents into existence. And it is a -universally recognised principle of International Law that, where such -relations arise, belligerents must carry them out in good faith. _Fides -etiam hosti servanda_ is a rule which was adhered to in antiquity, when -no International Law in the modern sense of the term existed. But it had -then a religious and moral sanction only. Since in modern times war is -not a condition of anarchy and lawlessness between belligerents, but a -contention in many respects regulated, restricted, and modified by law, -it is obvious that, where non-hostile relations between belligerents -occur, they are protected by law. _Fides etiam hosti servanda_ is, -therefore, a principle which nowadays enjoys as well a legal as a -religious and moral sanction. - -[Sidenote: Different kinds of Non-hostile Relations.] - -§ 216. As through the outbreak of war all diplomatic intercourse and -other non-hostile relations come to an end, it is obvious that -non-hostile relations between belligerents must originate either from -special rules of International Law or from special agreements between -the belligerents. - -No special rules of International Law which demanded non-hostile -relations between belligerents existed in former times, but of late a -few rules of this kind have arisen. Thus, for instance, release on -parole[429] of prisoners of war creates an obligation on the part of the -enemy not to re-admit the individuals concerned into the forces while -the war lasts. And, to give another example, by article 4 of the Geneva -Convention of 1906, and article 14 of the Hague Regulations--see also -article 17 of Convention X. of the Second Peace Conference--it is the -duty of either belligerent to return to the enemy, by his -prisoner-of-war bureau, all objects of personal use, letters, jewellery, -and the like found on the battlefield or left by those who died in -hospital.[430] Non-hostile relations of this kind, however, need not be -considered in this chapter, since they have already been discussed on -several previous pages. - -[Footnote 429: See above, § 129.] - -[Footnote 430: See above, § 144.] - -Non-hostile relations originating from special agreements of -belligerents, so-called _commercia belli_, may either be concluded in -time of peace for the purpose of creating certain non-hostile relations -between the parties in case war breaks out, or they may be concluded -during the actual time of war. Such non-hostile relations are created -through passports, safe-conducts, safeguards, flags of truce, cartels, -capitulations, and armistices. Non-hostile relations can also be -created by peace negotiations.[431] Each of these non-hostile relations -must be discussed separately. - -[Footnote 431: See below, § 267.] - -[Sidenote: Licences to Trade.] - -§ 217. Several writers[432] speak of non-hostile relations between -belligerents created by licences to trade granted by a belligerent to -enemy subjects either within certain limits or generally. It has been -explained above, in § 101, that it is for Municipal Law to determine -whether or not through the outbreak of war all trade and the like is -prohibited between the subjects of belligerents. If the Municipal Law of -one or both belligerents does contain such a prohibition, it is of -course within the discretion of one or both of them to grant exceptional -licences to trade to their own or the other belligerent's subjects, and -such licences naturally include certain privileges. Thus, for instance, -if a belligerent allows enemy subjects to trade with his own subjects, -enemy merchantmen engaged in such trade are exempt from capture and -appropriation by the grantor. Yet it is not International Law which -creates this exemption, but the very licence to trade granted by the -belligerent and revocable at any moment; and no non-hostile -international relations between the belligerents themselves originate -from such licences. The matter would be different if, either in time of -peace for the time of war, or, during war, the belligerents agreed to -allow certain trade between their subjects; but non-hostile relations -originating from such an agreement would not be relations arising from a -licence to trade, but from a cartel.[433] - -[Footnote 432: See, for instance, Hall, § 196; Halleck, II. pp. 343-363; -Lawrence, § 214; Manning, p. 168; Taylor, § 512; Wheaton, §§ 409-410; -Fiore, III. No. 1500; Pradier-Fodéré, VII. No. 2938.] - -[Footnote 433: See below, § 224.] - - -II - -PASSPORTS, SAFE-CONDUCTS, SAFEGUARDS - - Grotius, III. c. 21, §§ 14-22--Vattel, III. §§ 265-277--Hall, §§ - 191 and 195--Lawrence, § 213--Phillimore, III. §§ 98-102--Halleck, - II. pp. 323-328--Taylor, § 511--Wheaton, § 408--Moore, VII. §§ - 1158-1159--Bluntschli, §§ 675-678--Heffter, § 142--Lueder in - Holtzendorff, IV. pp. 525-527--Ullmann, § 185--Bonfils, Nos. - 1246-1247--Despagnet, Nos. 558-561--Pradier-Fodéré, VII. Nos. - 2884, 2932-2938--Nys, III. pp. 504-505--Calvo, IV. §§ - 2413-2418--Fiore, III. No. 1499, and Code, Nos. - 1742-1749--Longuet, §§ 142-143--Mérignhac, pp. 239-240--Pillet, - pp. 359-360--_Kriegsbrauch_, p. 41--Holland, _War_, No. 101--_Land - Warfare_, §§ 326-337. - -[Sidenote: Passports and Safe-conducts.] - -§ 218. Belligerents on occasions arrange between themselves that -passports and safe-conducts shall be given to certain of each other's -subjects. Passports are written permissions given by a belligerent to -enemy subjects, or others, allowing them to travel within that -belligerent's territory or enemy territory occupied by him. -Safe-conducts are written permissions given by a belligerent to enemy -subjects, or others, allowing them to proceed to a particular place for -a defined object, for instance, to a besieged town for conducting -certain negotiations; but safe-conducts may also be given for goods, and -they then comprise permission to carry such goods without molestation to -a certain place. Passports as well as safe-conducts make the grantee -inviolable so long and in so far as he complies with the conditions -specially imposed upon him or made necessary by the circumstances of the -special case. Passports and safe-conducts are not transferable, and they -may be granted to enemy subjects for a limited or an unlimited period; -in the former case their validity ceases with the expiration of the -period. Both may be withdrawn, not only when the grantee abuses the -protection, but also for military expediency. It must, however, be -specially observed that passports and safe-conducts are only a matter -of International Law when the granting of them has been arranged between -the belligerents or their responsible commanders, or between -belligerents and neutral Powers. If they are granted without such an -arrangement, unilaterally on the part of one of the belligerents, they -fall outside the scope of International Law.[434] - -[Footnote 434: The distinction between passports and the like arranged -between the belligerents to be granted, on the one hand, and, on the -other, such as are granted unilaterally, would seem to be necessary, -although it is not generally made.] - -[Sidenote: Safeguards.] - -§ 219. Belligerents on occasions arrange between themselves that they -shall grant protection to certain of each other's subjects or property -against their own forces in the form of safeguards, of which there are -two kinds. One consists in a written order given to an enemy subject or -left with enemy property and addressed to the commander of armed forces -of the grantor, in which the former is charged with the protection of -the respective individual or property, and by which both become -inviolable. The other kind of safeguard is given by detailing one or -more soldiers to accompany enemy subjects or to guard the spot where -certain enemy property is, for the purpose of protection. Soldiers on -this duty are inviolable on the part of the other belligerent; they must -neither be attacked nor made prisoners, and they must, on falling into -the hands of the enemy, be fed, well kept, and eventually safely sent -back to their corps. As in the case of passports and safe-conducts, it -must be specially observed that safeguards are only a matter of -International Law when the granting of them has been arranged by the -belligerents, and not otherwise; except in the case of the safeguards -mentioned by article 8, No. 2, of the Geneva Convention of 1906, who, -according to articles 9 and 12 of that Convention, are inviolable. - - -III - -FLAGS OF TRUCE - - Hall, § 190--Lawrence, § 211--Westlake, II. p. 81--Moore, VII. § - 1157--Phillimore, III. § 115--Halleck, II. pp. 333, 334--Taylor, § - 510--Bluntschli, §§ 681-684--Heffter, § 126--Lueder in - Holtzendorff, IV. pp. 421-423--Ullmann, § 180--Bonfils, Nos. - 1239-1245--Despagnet, Nos. 556-557--Pradier-Fodéré, VII. Nos. - 2927-2931--Rivier, II. pp. 279-280--Calvo, IV. §§ - 2430-2432--Fiore, III. No. 1378, and Code, Nos. - 1495-1500--Martens, II. § 127--Longuet, §§ 136-138--Mérignhac, pp. - 220-225--Pillet, pp. 356-358--Zorn, pp. 195-199--Meurer, II. §§ - 39-40--Bordwell, p. 293--Spaight, pp. 216-231--_Kriegsbrauch_, pp. - 26-29--Holland, _War_, Nos. 88-91--_Land Warfare_, §§ 224-255. - -[Sidenote: Meaning of Flags of Truce.] - -§ 220. Although the outbreak of war brings all negotiations between -belligerents to an end, and although no negotiations are as a rule -conducted during war, certain circumstances and conditions make it -necessary or convenient for the armed forces of belligerents to enter -into negotiations with each other for various purposes. Since time -immemorial a white flag has been used as a symbol by an armed force -wishing to negotiate with the enemy, and always and everywhere it has -been considered a duty of the enemy to respect this symbol. In land -warfare the flag of truce is made use of in the following manner.[435] -An individual--soldier or civilian--charged by his force with the task -of negotiating with the enemy, approaches the latter either carrying the -flag himself, or accompanied by a flag-bearer and, often, also by a -drummer, a bugler, or a trumpeter, and an interpreter. In sea warfare -the individual charged with the task of negotiating approaches the enemy -in a boat flying the white flag. The Hague Regulations have now by -articles 32 to 34 enacted most of the customary rules of International -Law regarding flags of truce without adding any new rule. These rules -are the same for land warfare as for sea warfare, although their -validity for land warfare is now grounded on the Hague Regulations, -whereas their validity for sea warfare is still based on custom only. - -[Footnote 435: See Hague Regulations, article 32.] - -[Sidenote: Treatment of Unadmitted Flag-bearers.] - -§ 221. As a commander of an armed force is not, according to article 33 -of the Hague Regulations, compelled to receive a bearer of a flag of -truce, a flag-bearer who makes his appearance may at once be signalled -to withdraw. Yet even then he is inviolable from the time he displays -the flag to the end of the time necessary for withdrawal. During this -time he may neither be intentionally attacked nor made prisoner. -However, an armed force in battle is not obliged to stop its military -operations on account of the approach of an enemy flag-bearer who has -been signalled to withdraw. Although the latter may not be fired upon -intentionally, should he be wounded or killed accidentally, during the -battle, no responsibility or moral blame would rest upon the belligerent -concerned. In former times the commander of an armed force could inform -the enemy that, within a certain defined or indefinite period, he would -under no circumstances or conditions receive a flag-bearer; if, in spite -of such notice, a flag-bearer approached, he did not enjoy any -privilege, and he could be attacked and made prisoner like any other -member of the enemy forces. But this rule is now obsolete, and its place -is taken by the rule that a commander must never, except in a case of -reprisals, declare beforehand, even only for a specified period, that he -will not receive a bearer of a flag of truce.[436] - -[Footnote 436: This becomes quite apparent from the discussion of the -subject at the First Peace Conference; see Martens, _N.R.G._ 2nd Ser. -XXVI. p. 465; and _Land Warfare_, § 234.] - -[Sidenote: Treatment of Admitted Flag-bearers.] - -§ 222. Bearers of flags of truce and their parties, when admitted by the -other side, must be granted the privilege of inviolability. They may -neither be attacked nor taken prisoners, and they must be allowed to -return safely in due time to their own lines. On the other hand, the -forces admitting enemy flag-bearers need not allow them to acquire -information about the receiving forces and to carry it back to their own -corps. Flag-bearers and their parties may, therefore, be blindfolded by -the receiving forces, or be conducted by roundabout ways, or be -prevented from entering into communication with individuals other than -those who confer officially with them, and they may even temporarily be -prevented from returning till a certain military operation of which they -have obtained information is carried out. Article 33 of the Hague -Regulations specifically enacts that a commander to whom a flag of truce -is sent "may take all steps necessary to prevent the envoy taking -advantage of his mission to obtain information." Bearers of flags of -truce are not, however, prevented from reporting to their corps any -information they have gained by observation in passing through the enemy -lines and in communicating with enemy individuals. But they are not -allowed to sketch maps of defences and positions, to gather information -secretly and surreptitiously, to provoke or to commit treacherous acts, -and the like. If nevertheless they do any of these acts, they may be -court-martialed. Articles 33 and 34 of the Hague Regulations -specifically enact that a flag-bearer may temporarily be detained in -case he abuses his mission for the purpose of obtaining information, and -that he loses all privileges of inviolability "if it is proved beyond -doubt that he has taken advantage of his privileged position to provoke -or commit an act of treachery." Bearers of white flags and their party, -who approach the enemy and are received, must carry[437] some -authorisation with them to show that they are charged with the task of -entering into negotiations (article 32), otherwise they may be detained -as prisoners, since it is his mission and not the white flag itself -which protects the flag-bearer. This mission protects every one who is -charged with it, notwithstanding his position in his corps and his -status as a civilian or a soldier, but it does not protect a deserter. -The latter may be detained, court-martialed, and punished, notice being -given to his principal of the reason of punishment.[438] - -[Footnote 437: Article 32 of the Hague Regulations confirms this -customary rule by speaking of an individual who is "authorised" by one -of the belligerents to enter into communication with the other.] - -[Footnote 438: See Hall, § 190.] - -[Sidenote: Abuse of Flag of Truce.] - -§ 223. Abuse of his mission by an authorised flag-bearer must be -distinguished from an abuse of the flag of truce itself. Such abuse is -possible in two different forms:-- - -(1) The force which sends an authorised flag-bearer to the enemy has to -take up a corresponding attitude; the ranks which the flag-bearer leaves -being obliged to halt and to cease fire. Now it constitutes an abuse of -the flag of truce if such attitude corresponding with the sending of a -flag of truce is intentionally not taken up by the sending force. The -case is even worse when a flag-bearer is intentionally sent on a feigned -mission in order that military operations may be carried out by the -sender under the protection due from the enemy to the flag-bearer and -his party. - -(2) The second form of a possible abuse appears in the case in which a -white flag is made use of for the purpose of making the enemy believe -that a flag of truce is about to be sent, although it is not sent, and -of carrying out operations under the protection granted by the enemy to -this pretended flag of truce. - -It need hardly be specially mentioned that both forms of abuse are gross -perfidy and may be met with reprisals, or with punishment of the -offenders in case they fall into the hands of the enemy. The following -case of abuse is related by Sir Sherston Baker in Halleck (II. p. -315):--"On July 12, 1882, while the British fleet was lying off -Alexandria, in support of the authority of the Khedive of Egypt, and the -rebels under Arabi Pasha were being driven to great straits, a rebel -boat, carrying a white flag of truce, was observed approaching H.M.S. -_Invincible_ from the harbour, whereupon H.M. ships _Temeraire_ and -_Inflexible_, which had just commenced firing, were ordered to suspend -fire. So soon as the firing ceased, the boat, instead of going to the -_Invincible_, returned to the harbour. A flag of truce was -simultaneously hoisted by the rebels on the Ras-el-Tin fort. These -deceits gave the rebels time to leave the works and to retire through -the town, abandoning the forts, and withdrawing the whole of their -garrison under the flag of truce." - - -IV - -CARTELS - - Grotius, III. c. 21, §§ 23-30--Vattel, III. §§ 278-286--Hall, § - 193--Lawrence, § 212--Westlake, II. p. 139--Phillimore, III. §§ - 111-112--Halleck, II. pp. 326-329--Taylor, § 599--Bluntschli, §§ - 679-680--Heffter, § 142--Lueder in Holtzendorff, IV. pp. - 525-529--Ullmann, § 185--Bonfils, Nos. 827 and 1280--Despagnet, - No. 658--Pradier-Fodéré, VII. Nos. 2832-2837, 2888--Rivier, II. p. - 360--Nys, III. pp. 521-525--Calvo, IV. §§ 2419-2429--Longuet, §§ - 140, 141--Pillet, p. 359--_Kriegsbrauch_, p. 38--Holland, _War_, - No. 100, and _Prize Law_, §§ 32-35--_Land Warfare_, §§ 338-339. - -[Sidenote: Definition and Purpose of Cartels.] - -§ 224. Cartels are conventions between belligerents concluded for the -purpose of permitting certain kinds of non-hostile intercourse between -one another such as would otherwise be prevented by the condition of -war. Cartels may be concluded during peace in anticipation of war, or -during the time of war, and they may provide for numerous purposes. -Thus, communication by post, telegraph, telephone, and railway, which -would otherwise not take place, can be arranged by cartels, as can also -the exchange of prisoners, or a certain treatment of wounded, and the -like. Thus, further, intercourse between each other's subjects through -trade[439] can, either with or without limits, be agreed upon by -belligerents. All rights and duties originating from cartels must be -complied with in the same manner and good faith as rights and duties -arising from other treaties. - -[Footnote 439: See above, § 217. But arrangements for granting -passports, safe-conducts, and safeguards--see above, §§ 218 and 219--are -not a matter of cartels.] - -[Sidenote: Cartel Ships.] - -§ 225. Cartel ships[440] are vessels of belligerents which are -commissioned for the carriage by sea of exchanged prisoners from the -enemy country to their own country, or for the carriage of official -communications to and from the enemy. Custom has sanctioned the -following rules regarding these cartel ships for the purpose of securing -protection for them on the one hand, and, on the other, their exclusive -employment as a means for the exchange of prisoners: Cartel ships must -not do any trade or carry any cargo or despatches;[441] they are -especially not allowed to carry ammunition or instruments of war, except -one gun for firing signals. They have to be furnished with a document -from an official belonging to the home State of the prisoners and -stationed in the country of the enemy declaring that they are -commissioned as cartel ships. They are under the protection of both -belligerents and may neither be seized nor appropriated. They enjoy this -protection not only when actually carrying exchanged prisoners or -official communications, but also on their way home after such carriage -and on their way to fetch prisoners or official communications.[442] -They lose the protection at once, and may consequently be seized and -eventually be appropriated, in case they do not comply, either with the -general rules regarding cartel ships, or with the special conditions -imposed upon them. - -[Footnote 440: See above, § 190.] - -[Footnote 441: The _La Rosina_ (1800), 2 C. Rob. 372; the _Venus_ -(1803), 4 C. Rob. 355.] - -[Footnote 442: The _Daifje_ (1800), 3 C. Rob. 139; the _La Gloire_ -(1804), 5 C. Rob. 192.] - - -V - -CAPITULATIONS - - Grotius, III. c. 22, § 9--Vattel, III. §§ 261-264--Hall, § - 194--Lawrence, § 215--Westlake, II. p. 81--Phillimore, III. §§ - 122-127--Halleck, II. pp. 319-322--Taylor, §§ 514-516--Wheaton, § - 405--Moore, VII. § 1160--Bluntschli, §§ 697-699--Heffter, § - 142--Lueder in Holtzendorff, IV. p. 527--Ullmann, § 185--Bonfils, - Nos. 1259-1267--Despagnet, No. 562--Pradier-Fodéré, VII. Nos. - 2917-2926--Rivier, II. pp. 361-362--Nys, III. pp. 514-517--Calvo, - IV. §§ 2450-2452--Fiore, III. Nos. 1495-1497, and Code, Nos. - 1733-1740--Martens, II. § 127--Longuet, §§ 151-154--Mérignhac, pp. - 225-230--Pillet, pp. 361-364--Bordwell, p. 294--Meurer, II. §§ - 41-42--Spaight, pp. 249-259--_Kriegsbrauch_, pp. 38-41--Holland, - _War_, No. 92--_Land Warfare_, §§ 301-325. - -[Sidenote: Character and Purpose of Capitulations.] - -§ 226. Capitulations are conventions between armed forces of -belligerents stipulating the terms of surrender of fortresses and other -defended places, or of men-of-war, or of troops. It is, therefore, -necessary to distinguish between a _simple_ and a _stipulated_ -surrender. If one or more soldiers lay down their arms and surrender, or -if a fortress or a man-of-war surrenders without making any terms -whatever, there is no capitulation, for capitulation is a convention -stipulating the terms of surrender. - -Capitulations are military conventions only and exclusively; they must -not, therefore, contain arrangements other than those of a local and -military character concerning the surrendering forces, places, or -ships. If they do contain such arrangements, the latter are not valid, -unless they are ratified by the political authorities of both -belligerents.[443] The surrender of a certain place or force may, of -course, be arranged by some convention containing other than military -stipulations, but then such surrender would not originate from a -capitulation. And just as is their character, so the purpose of -capitulations is merely military--namely, the abandonment of a hopeless -struggle and resistance which would only involve useless loss of life on -the part of a hopelessly beset force. Therefore, whatever may be the -indirect consequences of a certain capitulation, its direct consequences -have nothing to do with the war at large, but are local only and concern -the surrendering force exclusively. - -[Footnote 443: See Phillimore, III. § 123, who discusses the promise of -Lord William Bentinck to Genoa, in 1814, regarding its independence, -which was disowned by the British Government. Phillimore himself -disapproves of the attitude of Great Britain, and so do some foreign -publicists, as, for instance, Despagnet (No. 562); but the rule that -capitulations are military conventions, and that, therefore, such -stipulations are not valid as are not of a local military character, is -indubitable.] - -[Sidenote: Contents of Capitulations.] - -§ 227. If special conditions are not agreed upon in a capitulation, it -is concluded under the obvious condition that the surrendering force -become prisoners of war, and that all war material and other public -property in their possession or within the surrendering place or ship -are surrendered in the condition they were at the time when the -signature was given to the capitulation. Nothing prevents a force -fearing surrender from destroying their provisions, munitions, their -arms and other instruments of war which, when falling into the hands of -the enemy, would be useful to him. Again, nothing prevents a commander, -even after negotiations regarding surrender have begun, from destroying -such articles. But when once a capitulation has been signed,[444] such -destruction is no longer lawful, and, if carried out, constitutes -perfidy which may be punished by the other party as a war crime. - -[Footnote 444: When, during the Russo-Japanese War, in January 1905, -General Stoessel, the Commander of Port Arthur, had fortifications blown -up and vessels sunk, during negotiations for surrender, but before the -capitulation was signed, the Press undeservedly accused him of perfidy. -U.S. Naval War Code, article 52, enacted the right principle, that -"_after agreeing upon or signing_ a capitulation, the capitulator must -neither injure nor destroy the vessels, property, or stores in his -possession that he is to deliver up, unless the right to do so is -expressly reserved to him in the agreement or capitulation."] - -But special conditions may be agreed upon between the forces concerned, -and they must then be faithfully adhered to by both parties. The only -rule which article 35 of the Hague Regulations enacts regarding -capitulations is that the latter must be in accordance with the demands -of military honour, and that, when once settled, they must be -scrupulously observed. It is instructive to give some instances of -possible conditions:--A condition of a capitulation may be the provision -that the convention shall be valid only if within a certain period -relief troops are not approaching. Provision may, further, be made that -the surrendering forces shall not in every detail be treated like -ordinary prisoners of war. Thus it may be stipulated that the officers -or even the soldiers shall be released on parole, that officers -remaining prisoners shall retain their swords. Whether or not a -belligerent will grant or even offer such specially favourable -conditions depends upon the importance of the force, place, or ship to -be surrendered, and upon the bravery of the surrendering force. There -are even instances of capitulations which stipulated that the -surrendering forces should leave the place with full honours, carrying -their arms and baggage away and joining their own army unmolested by the -enemy through whose lines they had to march.[445] - -[Footnote 445: During the Franco-German War the Germans granted these -most favourable conditions to the French forces that surrendered Belfort -on February 15, 1871.] - -[Sidenote: Form of Capitulations.] - -§ 228. No rule of International Law exists regarding the form of -capitulations, which may, therefore, be concluded either orally or in -writing. But they are usually concluded in writing. Negotiations for -surrender, from whichever side they emanate, are usually sent under a -flag of truce, but a force which is ready to surrender without special -conditions can indicate their intention by hoisting a white flag as a -signal that they abandon all and every resistance. The question whether -the enemy must at once cease firing and accept the surrender, is to be -answered in the affirmative, provided he is certain that the white flag -was hoisted by order or with the authority of the commander of the -respective force. As, however, such hoisting may well have taken place -without the authority of the commander and may, therefore, be disowned -by the latter, no duty exists for the enemy to cease his attack until he -is convinced that the white flag really indicates the intention of the -commander to surrender. - -[Sidenote: Competence to conclude Capitulations.] - -§ 229. The competence to conclude capitulations is vested in the -commanders of the forces opposing each other. Capitulations entered into -by unauthorised subordinate officers may, therefore, be disowned by the -commander concerned without breach of faith. As regards special -conditions of capitulations, it must be particularly noted that the -competence of a commander to grant them is limited[446] to those the -fulfilment of which depends entirely upon the forces under his command. -If he grants conditions against his instructions, his superiors may -disown such conditions. And the same is valid if he grants conditions -the fulfilment of which depends upon forces other than his own and upon -superior officers. The capitulation in El Arish[447] on January 24, -1800, arranged between the French General Kléber and the Turkish Grand -Vizier, and approved by the British Admiral, Sir Sidney Smith, presents -an illustrative example of this rule. As General Kléber, who was -commanding the French army in Egypt, thought that he could not remain in -Egypt, he proposed surrender under the condition that his army should be -safely transported to France, carrying away their arms and baggage. The -Grand Vizier accepted these conditions. The British Admiral, Sir Sidney -Smith, who approved of these conditions, was the local commander on the -coast of Egypt, but was an officer inferior to Lord Keith, the commander -of the British Mediterranean fleet. The latter had, on January 8, 1800, -received secret orders, dated December 15, 1799, from the British -Government instructing him not to agree to any capitulation which -stipulated the free return of Kléber's army to France. Sir Sidney Smith -did not, however, receive instructions based on these orders until -February 22, 1800, and, therefore, when he approved of the capitulation -of El Arish in January, was not aware that he acted against orders of -the British Government.[448] Lord Keith, after having received the above -orders on January 8, 1800, wrote at once to General Kléber, pointing out -that he was not allowed to grant the return of the French army to -France.[449] On the other hand, the British Government, after having -been informed that Sir Sidney Smith had approved of the return of the -French army, sent, on March 28, 1800, fresh orders[450] to Lord Keith, -received by him at the end of April, advising him, although Sir Sidney -Smith had exceeded his competence, to allow the capitulation to be -carried out and the French army to be safely transported to France. -Meanwhile, however, circumstances had entirely changed. When General -Kléber had on March 17, 1800, received Lord Keith's letter of January 8, -he addressed a proclamation,[451] in which Lord Keith's letter was -embodied, to his troops asking them to prepare themselves for battle and -actually began hostilities again on March 20. He was assassinated on -June 14, and General Menou took over the command, and it was the latter -who received, on June 20, 1800, information of the changed attitude of -the British Government regarding the capitulation of El Arish. -Hostilities having been renewed as far back as March, General Menou -refused,[452] on his part, to consent to the carrying out of the -capitulation, and continued hostilities. - -[Footnote 446: See U.S. Naval War Code, article 51.] - -[Footnote 447: Martens, _R._ VII. p. 1.] - -[Footnote 448: Martens, _R._ VII. pp. 8 and 9.] - -[Footnote 449: Martens, _R._ VII. p. 10.] - -[Footnote 450: Martens, _R._ VII. p. 11.] - -[Footnote 451: Martens, _R._ VII. p. 15.] - -[Footnote 452: Martens, _R._ VII. p. 16.] - -It is obvious that Sir Sidney Smith, in approving the capitulation, -granted a condition which did not depend entirely upon himself and the -forces under him, but which depended upon Lord Keith and his fleet. Lord -Keith as well as the British Government could have lawfully disowned -this condition. That the British Government did not do so, but was ready -to ratify Sir Sidney Smith's approval, was due to the fact that it did -not want to disavow the promises of Sir Sidney Smith, who was not at the -time aware of the orders of his Government to Lord Keith. On the other -hand, the French Generals were not wrong in resuming hostilities after -having received Lord Keith's first information, as thereby the -capitulation fell to the ground. - -[Sidenote: Violation of Capitulations.] - -§ 230. That capitulations must be scrupulously adhered to is an old -customary rule, now enacted by article 35 of the Hague Regulations. Any -act contrary to a capitulation would constitute an international -delinquency if ordered by the belligerent Government concerned, and a -war crime if committed without such order. Such violation may be met -with reprisals or punishment of the offenders as war criminals. - - -VI - -ARMISTICES - - Grotius, III. c. 21, §§ 1-13, c. 22, § 8--Pufendorf, VIII. c. 7, - §§ 3-12--Vattel, III. §§ 233-260--Hall, § 192--Lawrence, § - 216--Westlake, p. 82--Phillimore, III. §§ 116-121--Halleck, II. - pp. 311-319--Moore, VII. § 1162--Taylor, §§ 513 and 516--Wheaton, - §§ 400-404--Bluntschli, §§ 688-699--Heffter, § 142--Lueder in - Holtzendorff, IV. pp. 531-544--Ullmann, § 186--Bonfils, Nos. - 1248-1258--Despagnet, Nos. 563-566--Pradier-Fodéré, VII. Nos. - 2889-2918--Rivier, II. pp. 362-368--Nys, III. pp. 518-520--Calvo, - IV. §§ 2433-2449--Fiore, III. Nos. 1484-1494, and Code, Nos. - 1750-1763--Martens, II. § 127--Longuet, §§ 145-149--Mérignhac, pp. - 230-239--Pillet, pp. 364-370--Zorn. pp. 201-206--Bordwell, p. - 291--Meurer, II. §§ 43-44--Spaight, pp. 232-248--_Kriegsbrauch_, - pp. 41-44--Holland, _War_, Nos. 93-99--_Land Warfare_, §§ 256-300. - -[Sidenote: Character and Kinds of Armistices.] - -§ 231. Armistices or truces, in the wider sense of the term, are all -agreements between belligerent forces for a temporary cessation of -hostilities. They are in no wise to be compared with peace, and ought -not to be called temporary peace, because the condition of war remains -between the belligerents themselves, and between the belligerents and -neutrals on all points beyond the mere cessation of hostilities. In -spite of such cessation the right of visit and search over neutral -merchantmen therefore remains intact, as does likewise the right to -capture neutral vessels attempting to break a blockade, and the right to -seize contraband of war. However, although all armistices are -essentially alike in so far as they consist of cessation of hostilities, -three different kinds must be distinguished--namely, (1) suspensions of -arms, (2) general armistices, and (3) partial armistices.[453] It must -be emphasised that the Hague Regulations deal with armistices in -articles 36 to 41 very incompletely, so that the gaps need filling up -from old customary rules. - -[Footnote 453: Although, as will be seen from the following sections, -this distinction is absolutely necessary, it is not made by several -publicists. Holland, _War_, No. 93, even says: "There is no difference -of meaning, according to British usage at least, between a 'truce,' an -'armistice,' and a 'suspension of arms.'" _Land Warfare_, § 256--see in -especial note (_a_)--accepts the distinction as indispensable.] - -[Sidenote: Suspensions of Arms.] - -§ 232. Suspensions of arms, in contradistinction to armistices in the -narrower sense of the term, are such cessations of hostilities as are -agreed upon between large or small military or naval forces for a very -short time and regarding momentary and local military purposes only. -Such purposes may be--collection of the wounded; burial of the dead; -negotiation regarding surrender or evacuation of a defended place, or -regarding an armistice in the narrower sense of the term; but may also -be the creation of a possibility for a commander to ask for and receive -instructions from a superior authority,[454] and the like. Suspensions -of arms have nothing to do with political purposes, or with the war -generally, since they are of momentary and local importance only. They -concern exclusively those forces and that spot which are the object of -the suspension of arms. The Hague Regulations do not specially mention -suspensions of arms, since article 37 speaks of local armistices only, -apparently comprising suspensions of arms among local armistices. - -[Footnote 454: An instructive example of a suspension of arms for such -purposes is furnished by the Convention between the German forces -besieging Belfort and the French forces holding this fortress during the -Franco-German War, signed on February 13, 1871; see Martens, _N.R.G._ -XIX. p. 646.] - -[Sidenote: General Armistices.] - -§ 233. A general armistice is such a cessation of hostilities as, in -contradistinction to suspensions of arms with their momentary and local -military purposes, is agreed upon between belligerents for the whole of -their forces and the whole region of war. General armistices are always -conventions of vital political importance affecting the whole of the -war. They are as a rule, although not necessarily, concluded for a -political purpose. It may be that negotiations of peace have ripened so -far that the end of the war is in sight and that, therefore, military -operations appear superfluous; or that the forces of either belligerent -are exhausted and need rest; or that the belligerents have to face -domestic difficulties, the settlement of which is more pressing than the -continuation of the war; or any other political purpose. Thus article 2 -of the general armistice agreed upon at the end of the Franco-German War -on January 28, 1871,[455] expressly declared the purpose of the -armistice to be the creation of the possibility for the French -Government to convoke a Parliamentary Assembly which could determine -whether or not the war was to be continued or what conditions of peace -should be accepted. - -[Footnote 455: Martens, _N.R.G._ XIX. p. 626.] - -It is of importance to note that, for particular reasons, small parts of -the belligerent forces and small parts of the theatre of war may be -specially excluded without detracting from the general character of the -armistice, provided the bulk of the forces and the greater part of the -region of war are included. Thus, article 1 of the above-mentioned -general armistice at the end of the Franco-German war specially excluded -all military operations in the Départements du Doubs, du Jura, de la -Côte d'Or, and likewise the siege of Belfort. It should also be -mentioned that in the practice of belligerents the terms "suspension of -arms" and "general armistice" are sometimes not sufficiently -distinguished, but are interchangeable. Thus, for instance, the -above-mentioned general armistice between France and Germany is entitled -"Convention entre l'Allemagne et la France pour la suspension des -hostilités, ..." whereas the different articles of the Convention always -speak correctly of an armistice, and whereas, further, an annexe to the -Convention signed on January 29 is entitled[456] "Annexe à la Convention -d'armistice." - -[Footnote 456: Martens, _N.R.G._ XIX. p. 636.] - -[Sidenote: Partial Armistices.] - -§ 234. Partial armistices are agreements for cessations of hostilities -which are not concluded by belligerents for their whole forces and the -whole region of war, but do not merely serve, like suspensions of arms, -momentary and local military purposes. They are armistices concluded by -belligerents for a considerable part of their forces and front; they are -always of political importance affecting the war in general; and they -are very often, although they need not be, agreed upon for political -purposes. Article 37 of the Hague Regulations apparently includes -partial armistices together with suspensions of arms under the term -"local" armistices. A partial armistice may be concluded for the -military or the naval forces only; for cessation of hostilities in the -colonies only; for cessation of hostilities between two of the -belligerents in case more than two are parties to the war, and the like. -But it is always a condition that a considerable part of the forces and -region of war must be included, and that the purpose is not only a -momentary one. - -[Sidenote: Competence to conclude Armistices.] - -§ 235. As regards the competence to conclude armistices, a distinction -is necessary between suspensions of arms and general and partial -armistices. - -(1) Since the character and purpose of suspensions of arms are military, -local, and momentary only, every commander is supposed to be competent -to agree upon a suspension of arms, and no ratification on the part of -superior officers or other authorities is required. Even commanders of -the smallest opposing detachments may arrange a suspension of arms. - -(2) On the other hand, since general armistices are of vital political -importance, only the belligerent Governments themselves or their -commanders-in-chief are competent to conclude them, and ratification, -whether specially stipulated or not, is necessary. Should a -commander-in-chief conclude a general armistice which would not find -ratification, hostilities may at once be recommenced without breach of -faith, it being a matter of common knowledge that a commander-in-chief -is not authorised to agree upon exclusion of ratification, unless he -received special powers thereto. - -(3) Partial armistices may be concluded by the commanders-in-chief of -the respective forces, and ratification is not necessary, unless -specially stipulated; the commanders being responsible to their own -Governments in case they agree upon a partial armistice without being -specially authorised thereto. - -[Sidenote: Form of Armistices.] - -§ 236. No legal rule exists regarding the form of armistices, which may -therefore be concluded either orally or in writing. However, the -importance of general as well as partial armistices makes it advisable -to conclude them by signing written documents containing all items which -have been agreed upon. No instance is known of a general or partial -armistice of modern times concluded otherwise than in writing. But -suspensions of arms are often only orally concluded. - -[Sidenote: Contents of Armistices.] - -§ 237. That hostilities must cease is the obvious content of all kinds -of armistices. Usually, although not at all necessarily, the parties -embody special conditions in the agreement instituting an armistice. If -and so far as this has not been done, the import of armistices is for -some parts much controverted. Everybody agrees that belligerents during -an armistice may, outside the line where the forces face each other, do -everything and anything they like regarding defence and preparation of -offence; for instance, they may manufacture and import munitions and -guns, drill recruits, build fortresses, concentrate or withdraw troops. -But no unanimity exists regarding such acts as must be left undone or -may be done within the very line where the belligerent forces face each -other. The majority of writers, led by Vattel (III. § 245), maintain -that in the absence of special stipulations it is essentially implied in -an armistice that within such line no alteration of the _status quo_ -shall take place which the other party, were it not for the armistice, -could by application of force, for instance by a cannonade or by some -other means, prevent from taking place. These writers consider it a -breach of faith for a belligerent to make such alterations under the -protection of the armistice. On the other hand, a small minority of -writers, but led by Grotius (III. c. 21, § 7) and Pufendorf (VIII. 7, § -7), assert that cessation of hostilities and of further advance only are -essentially implied in an armistice; all other acts, such as -strengthening of positions by concentration of more troops on the spot, -erection and strengthening of defences, repairing of breaches of -besieged fortresses, withdrawing of troops, making of fresh batteries on -the part of besiegers without advancing, and the like, being allowed. As -the Hague Regulations do not mention the matter, the controversy still -remains unsettled. I believe the opinion of the minority to be correct, -since an armistice does not mean anything else than a cessation of -actual hostilities, and it is for the parties who agree upon an -armistice to stipulate such special conditions as they think necessary -or convenient. This applies particularly to the other controversial -questions as to revictualling of besieged places and as to intercourse, -commercial and otherwise, of the inhabitants of the region where actual -fighting was going on before the armistice. As regards revictualling, it -has been correctly maintained that, if it were not allowed, the position -of the besieged forces would thereby be weakened by the action of the -armistice. But I cannot see why this should be an argument to hold -revictualling permissible. The principle _vigilantibus jura sunt -scripta_ applies to armistices as well as to all other legal -transactions. It is for the parties to prepare such arrangements as -really suit their needs and wants. Thus, during the Franco-German War an -armistice for twenty-five days proposed in November 1870 fell to the -ground on the Germans refusing to grant the revictualling of Paris.[457] -It seems to be the intention of the Hague Regulations that the parties -should always stipulate those special conditions which they need. -Article 39 pronounces this intention regarding intercourse, commercial -and otherwise, during armistices, by the following words:--"It is for -the contracting parties to settle in the terms of the armistice what -communications may be held within the theatre of war with the population -and with each other." - -[Footnote 457: See Pradier-Fodéré, VII. No. 2908, where the question of -revictualling during an armistice is discussed at some length, and the -opinions of many publicists from Grotius to our own days are quoted.] - -It must be specially mentioned that for the purpose of preventing the -outbreak of hostilities during an armistice it is usual to agree upon -so-called lines of demarcation[458]--that is, a small neutral zone -between the forces facing each other which must not be entered by -members of either force. But such lines of demarcation do not exist, if -they are not specially stipulated by the armistice concerned. - -[Footnote 458: See Pradier-Fodéré, VII. No. 2901.] - -[Sidenote: Commencement of Armistices.] - -§ 238. In case the contrary is not stipulated, an armistice commences -the very moment the agreement upon it is complete. But often the parties -stipulate in the agreement the time from which the armistice shall -begin. If this is done in so detailed a manner that the very hour of the -commencement is mentioned, no cause for controversy is given. But -sometimes the parties fix only the date by stipulating that the -armistice shall last from one certain day to another, _e.g._ from June -15 to July 15. In such case the actual commencement is controversial. -Most publicists maintain that in such case the armistice begins at 12 -o'clock of the night between the 14th and the 15th of June, but Grotius -(III. c. 21, § 4) maintains that it begins at 12 o'clock of the night -between the 15th and the 16th of June.[459] Therefore, to avoid -difficulties, agreements concerning armistices ought always to stipulate -whether the first day is to be included in the armistice. Be that as it -may, when the forces included in an armistice are dispersed over a very -large area, the parties very often stipulate different dates of -commencement for the different parts of the front, because it is not -possible to announce the armistice at once to all the forces included. -Thus, for instance, article 1 of the general armistice at the end of the -Franco-German War[460] stipulated its immediate commencement for the -forces in and around Paris, but that with regard to the other forces its -commencement should be delayed three days. Article 38 of the Hague -Regulations enacts that an armistice must be notified officially and in -good time to the competent authorities and the troops, and that -hostilities are suspended immediately after the ratification or at a -fixed date, as the case may be. - -[Footnote 459: See Pradier-Fodéré, VII. No. 2897. The controversy occurs -again with regard to the end of an armistice; see below, § 240.] - -[Footnote 460: Martens, _N.R.G._ XIX. p. 626.] - -It sometimes happens that hostilities are carried on after the -commencement of an armistice by forces which did not know of its -commencement. In such cases the _status quo_ at the date of the -commencement of armistice has to be re-established so far as possible, -prisoners made and enemy vessels seized being liberated, capitulations -annulled, places occupied evacuated, and the like; but the parties may, -of course, stipulate the contrary. - -[Sidenote: Violation of Armistices.] - -§ 239. Any violation of armistices is prohibited, and, if ordered by the -Governments concerned, constitutes an international delinquency. In case -an armistice is violated by members of the forces on their own account, -the individuals concerned may be punished by the other party in case -they fall into its hands. Be that as it may, the question must be -answered, what general attitude is to be taken by one party, if the -other violates the armistice? No unanimity regarding this point exists -among the writers on International Law, many[461] asserting that in case -of violation the other party may at once, without giving notice, re-open -hostilities; others[462] maintaining that such party may not do this, -but has only the right to denounce the armistice. The Hague Regulations -endeavour to settle the controversy, article 40 enacting that any -serious violation of an armistice by one of the parties gives the other -the right to denounce it, and even, in case of urgency, to recommence -hostilities at once. Three rules may be formulated from this--(1) -violations which are not serious do not even give the right to denounce -an armistice; (2) serious violations do as a rule empower the other -party to denounce only the armistice, but not to recommence hostilities -at once without notice; (3) only in case of urgency is a party justified -in recommencing hostilities without notice, when the other party has -broken an armistice. But since the terms "serious violation" and -"urgency" lack precise definition, it is practically left to the -discretion of the injured party. - -It must be specially observed that violation of an armistice committed -by private individuals acting on their own initiative is to be -distinguished from violation by members of the armed forces. In the -former case the injured party has, according to article 41 of the Hague -Regulations, only the right of demanding punishment of the offenders, -and, if necessary, indemnity for losses sustained. - -[Footnote 461: See, for instance, Grotius, III. c. 21, § 11; Pufendorf, -VIII. c. 7, § 11; Vattel, III. § 242; Phillimore, II. § 121; Bluntschli, -§ 695; Fiore, III. No. 1494.] - -[Footnote 462: See, for instance, Calvo, IV. § 2436; Despagnet, No. 566; -Pradier-Fodéré, VII. No. 2913.] - -[Sidenote: End of Armistices.] - -§ 240. In case an armistice has been concluded for an indefinite period, -the parties having made no stipulations regarding notice to recommence -hostilities, notice may be given at any time, and hostilities -recommenced at once after notification. In most cases, however, -armistices are agreed upon for a definite period, and then they expire -with such period without special notice, unless notification has been -expressly stipulated. If, in case of an armistice for a definite period, -the exact hour of the termination has not been agreed upon, but only the -date, the armistice terminates at twelve o'clock midnight of such date. -In case an armistice has been arranged to last from one certain day to -another, _e.g._ from June 15 to July 15, it is again[463] controversial -whether July 15 is excluded or included. An armistice may, lastly, be -concluded under a resolutive condition, in which case the occurrence of -the condition brings the armistice to an end. - -[Footnote 463: See above, § 238.] - - - - -CHAPTER VI - -MEANS OF SECURING LEGITIMATE WARFARE - - -I - -ON MEANS IN GENERAL OF SECURING LEGITIMATE WARFARE - - Bonfils, Nos. 1014-1017--Spaight, p. 460--_Land Warfare_, §§ - 435-438. - -[Sidenote: Legitimate and Illegitimate Warfare.] - -§ 241. Since war is not a condition of anarchy and lawlessness, -International Law requires that belligerents shall comply with its rules -in carrying on their military and naval operations. So long and in so -far as belligerents do this, their warfare is legitimate; if they do not -comply with the rules, their warfare is illegitimate. Now, illegitimate -acts and omissions can be committed by belligerent Governments -themselves, by the commanders or members of their forces, and by their -subjects not belonging to the forces. Experience teaches that, on the -whole, omissions and the committal of illegitimate acts on the part of -individual soldiers are unavoidable during war, since the passions which -are aroused by and during war will always carry away some individuals. -But belligerents bear a vicarious responsibility for internationally -illegal acts of their soldiers, which turns into original responsibility -if they refuse to repair the wrong done by punishing the offenders and, -if necessary, indemnifying the sufferers.[464] Cases in which -belligerent Governments themselves commit illegitimate acts, as well as -cases in which they refuse to punish their soldiers for illegitimate -acts constitute international delinquencies.[465] Now, if in time of -peace an international delinquency is committed, the offended State can, -if the worst comes to the worst, make war against the offender to compel -adequate reparation.[466] But if an international delinquency is -committed during warfare itself, no means whatever exist of compelling -reparation. - -[Footnote 464: See above, vol. I. §§ 149-150.] - -[Footnote 465: See above, vol. I. § 151.] - -[Footnote 466: See above, vol. I. § 156.] - -[Sidenote: How Legitimate Warfare is on the whole secured.] - -§ 242. Yet legitimate warfare is, on the whole at any rate, secured -through several means recognised by International Law. These means of -securing legitimate warfare may be divided into three classes. The first -class comprises measures of self-help:--reprisals; punishment of war -crimes committed by enemy soldiers and other enemy subjects; the taking -of hostages. The second class comprises:--complaints lodged with the -enemy; complaints lodged with neutral States; good offices, mediation, -and intervention on the part of neutral States. And there is, thirdly, -the fact that, according to article 3 of Convention IV. of the Second -Peace Conference, belligerents are responsible for all acts committed by -persons forming part of their forces, and are liable to make -compensation, if the case demands it, for any violation of the Hague -Regulations. These means, as I have said, do on the whole secure the -legitimacy of warfare, because it is to the interest of either -belligerent to prevent the enemy from getting a justifiable opportunity -of making use of them. On the other hand, isolated illegitimate acts of -individual enemy soldiers will always occur; but they will in many cases -meet with punishment either by one party to the war or the other. As -regards hostile acts of private enemy individuals not belonging to the -armed forces, belligerents have a right[467] to consider and punish them -severely as acts of illegitimate warfare. - -[Footnote 467: See below, § 254.] - - -II - -COMPLAINTS, GOOD OFFICES AND MEDIATION, INTERVENTION - - _Land Warfare_, §§ 439-440. - -[Sidenote: Complaints lodged with the Enemy.] - -§ 243. Commanders of forces engaged in hostilities frequently lodge -complaints with each other regarding single acts of illegitimate warfare -committed by members of their forces, such as abuses of the flag of -truce, violations of such flag or of the Geneva Convention, and the -like. The complaint is sent to the enemy under the protection of a flag -of truce, and the interest which every commander takes in the legitimate -behaviour of his troops will always make him attend to complaints and -punish the offenders, provided the complaints concerned are found to be -justified. Very often, however, it is impossible to verify the -statements in the complaint, and then certain assertions by one party, -and their denial by the other, face each other without there being any -way of solving the difficulty. It also often happens during war that the -belligerent Governments lodge with each other mutual complaints of -illegitimate acts and omissions. Since diplomatic intercourse is broken -off during war, such complaints are either sent to the enemy under the -protection of a flag of truce or through a neutral[468] State which -lends its good offices. But here too indignant assertion and emphatic -denial frequently face each other without there being a way of solving -the conflict. - -[Footnote 468: Thus, in October 1904, during the Russo-Japanese War, -Japan sent a complaint concerning the alleged use of Chinese clothing on -the part of Russian troops to the Russian Government, through the -intermediary of the United States of America; see Takahashi, pp. -174-178.] - -[Sidenote: Complaints lodged with Neutrals.] - -§ 244. If certain grave illegitimate acts or omissions of warfare occur, -belligerents frequently lodge complaints with neutral States, either -asking their good offices, mediation, or intervention to make the enemy -comply with the laws of war, or simply drawing their attention to the -facts. Thus, at the beginning of the Franco-German War, France lodged a -complaint with Great Britain and asked her intervention on account of -the intended creation of a volunteer fleet on the part of Germany, which -France considered a violation of the Declaration of Paris.[469] -Conversely, in January 1871, Germany, in a circular addressed to her -diplomatic envoys abroad, and to be communicated to the respective -neutral Governments, complained of twenty-one cases in which the French -forces had, deliberately and intentionally it was alleged, fired on -bearers of a flag of truce. Again, in November 1911, and in February -1912, during the Turco-Italian War, Turkey lodged a complaint with the -Powers on account of the execution of Arabs in Tripoli as war criminals, -and on account of the bombardment of Turkish war vessels in the harbour -of Beirut.[470] - -[Footnote 469: See above, § 84.] - -[Footnote 470: See above, § 213.] - -[Sidenote: Good Offices and Mediation.] - -§ 245. Complaints lodged with neutral States may have the effect of one -or more of the latter lending their offices or their mediation to the -belligerents for the purpose of settling such conflict as arose out of -the alleged illegitimate acts or omissions of warfare, thus preventing -them from resorting to reprisals. Such good offices and mediation do not -differ from those which settle a difference between States in time of -peace and which have been discussed above in §§ 7-11; they are friendly -acts in contradistinction to intervention, which is dictatorial -interference for the purpose of making the respective belligerents -comply with the laws of war. - -[Sidenote: Intervention on the part of Neutrals.] - -§ 246. There can be no doubt that neutral States, whether a complaint -has been lodged with them or not, may either singly, or jointly and -collectively, exercise intervention in cases of illegitimate acts or -omissions of warfare being committed by belligerent Governments, or -committed by members of belligerent forces if the Governments concerned -do not punish the offenders. It will be remembered that it has been -stated above in Vol. I. § 135, No. 4, that other States have a right to -intervene in case a State violates in time of peace or war those -principles of the Law of Nations which are universally recognised. There -is not the slightest doubt that such principles of International Law are -endangered in case a belligerent Government commits acts of illegitimate -warfare or does not punish the offenders in case such acts are committed -by members of its armed forces. But apart from this, the Hague -Regulations make illegitimate acts of warfare on land now appear as by -right the affair of all signatory States to the Convention, and -therefore, in case of war between signatory States, the neutral -signatory States certainly would have a right of intervention if acts of -warfare were committed which are illegitimate according to the Hague -Regulations. It must, however, be specially observed that any such -intervention, if it ever occurred, would have nothing to do with the war -in general and would not make the intervening State a party to the war, -but would concern only the international delinquency committed by the -one belligerent through acts of illegitimate warfare. - - -III - -REPRISALS - - Vattel, III. p. 142--Hall, § 135--Westlake, II. pp. 112-115, and - _Chapters_, pp. 253-258--Taylor, §§ 487 and 507--Wharton, III. § - 348B--Moore, VII. § 1114--Bluntschli, §§ 567, 580, 654, - 685--Lueder in Holtzendorff, IV. p. 392--Pradier-Fodéré, VIII. - Nos. 3214-3221--Bonfils, Nos. 1018-1026--Despagnet, No. - 543--Rivier, II. pp. 298-299--Calvo, IV. §§ 2041-2043--Martens, - II. § 121--Mérignhac, pp. 210-218--Holland, _War_, Nos. - 119-120--Bordwell, p. 305--Spaight, pp. 462-465--_Land Warfare_, - §§ 452-460--Halleck in _A.J._ VI. (1912), pp. 107-118. - -[Sidenote: Reprisals between Belligerents in contradistinction to -Reprisals in time of Peace.] - -§ 247. Whereas reprisals in time of peace are to be distinguished from -retorsion and are injurious acts committed for the purpose of compelling -a State to consent to a satisfactory settlement of a difference created -through an international delinquency,[471] reprisals between -belligerents are retaliation of an illegitimate act of warfare, whether -constituting an international delinquency or not, for the purpose of -making the enemy comply in future with the rules of legitimate warfare. -Reprisals between belligerents are terrible means, because they are in -most cases directed against innocent enemy individuals, who must suffer -for real or alleged offences for which they are not responsible. But -reprisals cannot be dispensed with, because without them illegitimate -acts of warfare would be innumerable. As matters stand, every -belligerent and every member of his forces knows for certain that -reprisals are to be expected in case they violate the rules of -legitimate warfare. And when nevertheless an illegal act occurs and is -promptly met with reprisals as a retaliation, human nature would not be -what it is if such retaliation did not act as a deterrent against a -repetition of illegitimate acts. - -[Footnote 471: See above, §§ 33 and 42.] - -[Sidenote: Reprisals admissible for every Illegitimate Act of Warfare.] - -§ 248. Whereas reprisals in time of peace are admissible for -international delinquencies only, reprisals between belligerents are at -once admissible for every and any act of illegitimate warfare, whether -the act constitutes an international delinquency or not. It is for the -consideration of the injured belligerent as to whether he will at once -resort to reprisals, or, before doing so, will lodge complaints with the -enemy or with neutral States. Practically, however, a belligerent will -rarely resort at once to reprisals, provided the violation of the rules -of legitimate warfare is not very grave and the safety of his troops -does not require prompt and drastic measures. Thus, the Germans during -the Franco-German War frequently by way of reprisal, bombarded and fired -undefended open villages where their soldiers were treacherously killed -by enemy individuals in ambush who did not belong to the armed forces. -And Lord Roberts, during the South African War, ordered[472] by way of -reprisal the destruction of houses and farms in the vicinity of the -place where damage was done to the lines of communication.[473] - -[Footnote 472: See section 4 of the Proclamation of June 19, 1900 -(Martens, _N.R.G._ 2nd Ser., XXXII. p. 147), and Beak, _The Aftermath of -War_ (1906), p. 11.] - -[Footnote 473: That prisoners of war may be made the objects of -reprisals for acts of illegitimate warfare committed by the enemy, there -is hardly any doubt; see Beinhauer, _Die Kriegsgefangenschaft_ (1910), -p. 74.] - -[Sidenote: Danger of Arbitrariness in Reprisals.] - -§ 249. The right to exercise reprisals carries with it great danger of -arbitrariness, for often the alleged facts which make belligerents -resort to reprisals are not sufficiently verified, or the rules of war -which they consider the enemy has violated are sometimes not generally -recognised, or the act of reprisal performed is often excessive compared -with the precedent act of illegitimate warfare. Three cases may -illustrate this danger. - -(1) In 1782 Joshua Huddy, a captain in the army of the American -insurgents, was taken prisoner by loyalists and handed over to a Captain -Lippencott for the ostensible purpose of being exchanged, but was -arbitrarily hanged. The commander of the British troops had Lippencott -arrested, and ordered him to be tried for murder. Lippencott was, -however, acquitted by the court-martial, as there was evidence to show -that his command to execute Huddy was in accordance with orders of a -Board which he was bound to obey. Thereupon some British officers who -were prisoners of war in the hands of the Americans were directed to -cast lots to determine who should be executed by way of reprisal for the -execution of Huddy. The lot fell on Captain Asgill, a young officer only -nineteen years old, and he would have been executed but for the -mediation of the Queen of France, who saved his life.[474] - -(2) "The British Government, having sent to England, early in 1813, to -be tried for treason, twenty-three Irishmen, naturalised in the United -States, who had been captured on vessels of the United States, Congress -authorised the President to retaliate. Under this act, General Dearborn -placed in close confinement twenty-three prisoners taken at Fort George. -General Prevost, under express directions of Lord Bathurst, ordered the -close imprisonment of double the number of commissioned and -non-commissioned United States' officers. This was followed by a threat -of 'unmitigated severity against the American citizens and villages' in -case the system of retaliation was pursued. Mr. Madison having retorted -by putting in confinement a similar number of British officers taken by -the United States, General Prevost immediately retorted by subjecting to -the same discipline all his prisoners whatsoever.... A better temper, -however, soon came over the British Government, by whom this system had -been instituted. A party of United States' officers, who were prisoners -of war in England, were released on parole, with instructions to state -to the President that the twenty-three prisoners who had been charged -with treason in England had not been tried, but remained on the usual -basis of prisoners of war. This led to the dismissal on parole of all -the officers of both sides."[475] - -(3) During the Franco-German War the French had captured forty German -merchantmen, and made their captains and crews prisoners of war. Count -Bismarck, who considered it against International Law to detain these -men as prisoners, demanded their liberation, and when the French refused -this, ordered by way of reprisal forty French private individuals of -local importance to be arrested and to be sent as prisoners of war to -Bremen, where they were kept until the end of the war. Count Bismarck -was decidedly wrong,[476] since France had, as the law then stood, in no -way committed an illegal act by detaining the German crews as prisoners -of war.[477] - -[Footnote 474: See the case reported in Martens, _Causes Célèbres_, III, -pp. 311-321. See also Phillimore, III. § 105.] - -[Footnote 475: See Wharton, III. § 348B.] - -[Footnote 476: That Bismarck's standpoint was wrong has been pointed out -above in § 201. Some German writers, however, take his part; see, for -instance, Lueder in Holtzendorff, IV. p. 479, note 6. As regards the -present law on the subject, see above, §§ 85 and 201.] - -[Footnote 477: The case is one of reprisals, and has nothing to do with -the taking of hostages; see below, § 258.] - -[Sidenote: Proposed Restriction of Reprisals.] - -§ 250. The Hague Regulations do not mention reprisals at all because the -Brussels Conference of 1874, which accepted the unratified Brussels -Declaration, had struck out several sections of the Russian draft code -regarding reprisals. These original sections[478] (69-71) -stipulated--(1) that reprisals should be admitted only in extreme cases -of absolutely certain violations of the rules of legitimate warfare; (2) -that the acts performed by way of reprisal must not be excessive, but in -proportion to the respective violation; (3) that reprisals should be -ordered by commanders-in-chief only. Articles 85 and 86 of the Manual of -the Laws of War, adopted by the Institute of International Law,[479] -propose the following rules:--(1) Reprisals are to be prohibited in -case reparation is given for the damage done by an illegal act; (2) in -grave cases, in which reprisals are an imperative necessity, they must -never exceed the degree of the violation committed by the enemy; (3) -they may only be resorted to with the authorisation of the -commander-in-chief; (4) they must in every case respect the laws of -humanity and of morality. In face of the arbitrariness with which, -according to the present state of International Law, reprisals may be -exercised, it cannot be denied that an agreement upon some precise rules -regarding reprisals is an imperative necessity. - -[Footnote 478: See Martens, _N.R.G._ 2nd Ser. IV. pp. 14, 139, 207.] - -[Footnote 479: See _Annuaire_, V. p. 174.] - - -IV - -PUNISHMENT OF WAR CRIMES - - Hall, § 135--Bluntschli, §§ 627-643A--Spaight, p. 462--Holland, - _War_, Nos. 117-118--Ariga, §§ 96-99--Takahashi, pp. - 166-184--Landa in _R.I._ X. (1878), pp. 182-184--_Land Warfare_, - §§ 441-451. - -[Sidenote: Conception of War Crimes.] - -§ 251. In contradistinction to hostile acts of soldiers by which the -latter do not lose their privilege of being treated as members of armed -forces who have done no wrong, war crimes are such hostile or other acts -of soldiers or other individuals as may be punished by the enemy on -capture of the offenders. It must, however, be emphasised that the term -war crime is used, not in the moral sense of the term crime, but only in -a technical legal sense, on account of the fact that perpetrators of -these acts may be punished by the enemy. For, although among the acts -called war crimes are many which are crimes in the moral sense of the -term, such, for instance, as the abuse of a flag of truce or -assassination of enemy soldiers; there are others which may be highly -praiseworthy and patriotic acts, such as taking part in a levy _en -masse_ on territory occupied by the enemy. But because every belligerent -may, and actually must, in the interest of his own safety punish these -acts, they are termed war crimes, whatever may be the motive, the -purpose, and the moral character of the respective act.[480] - -[Footnote 480: See above, § 57.] - -[Sidenote: Different kinds of War Crimes.] - -§ 252. In spite of the uniform designation of these acts as war crimes, -four different kinds of war crimes must be distinguished on account of -the essentially different character of the acts. Violations of -recognised rules regarding warfare committed by members of the armed -forces belong to the first kind; all hostilities in arms committed by -individuals who are not members of the enemy armed forces constitute the -second kind; espionage and war treason belong to the third; and all -marauding acts belong to the fourth kind. - -[Sidenote: Violations of Rules regarding Warfare.] - -§ 253. Violations of rules regarding warfare are war crimes only when -committed without an order of the belligerent Government concerned. If -members of the armed forces commit violations _by order_ of their -Government, they are not war criminals and may not be punished by the -enemy; the latter may, however, resort to reprisals. In case members of -forces commit violations ordered by their commanders, the members may -not be punished, for the commanders are alone responsible, and the -latter may, therefore, be punished as war criminals on their capture by -the enemy. - -The following are the more important violations that may occur: - -(1) Making use of poisoned or otherwise forbidden arms and ammunition. - -(2) Killing or wounding soldiers disabled by sickness or wounds, or who -have laid down arms and surrendered. - -(3) Assassination, and hiring of assassins. - -(4) Treacherous request for quarter, or treacherous feigning of sickness -and wounds. - -(5) Ill-treatment of prisoners of war, of the wounded and sick. -Appropriation of such of their money and valuables as are not public -property. - -(6) Killing or attacking harmless private enemy individuals. Unjustified -appropriation and destruction of their private property, and especially -pillaging. Compulsion of the population of occupied territory to furnish -information about the army of the other belligerent or about his means -of defence. - -(7) Disgraceful treatment of dead bodies on battlefields. Appropriation -of such money and other valuables found upon dead bodies as are not -public property, nor arms, ammunition, and the like. - -(8) Appropriation and destruction of property belonging to museums, -hospitals, churches, schools, and the like. - -(9) Assault, siege, and bombardment of undefended open towns and other -habitations. Unjustified bombardment of undefended places on the part of -naval forces. - -(10) Unnecessary bombardment of historical monuments, and of such -hospitals and buildings devoted to religion, art, science, and charity, -as are indicated by particular signs notified to the besiegers -bombarding a defended town. - -(11) Violations of the Geneva Convention. - -(12) Attack on or sinking of enemy vessels which have hauled down their -flags as a sign of surrender. Attack on enemy merchantmen without -previous request to submit to visit. - -(13) Attack or seizure of hospital ships, and all other violations of -the Hague Convention for the adaptation to naval warfare of the -principles of the Geneva Convention. - -(14) Unjustified destruction of enemy prizes.[481] - -(15) Use of enemy uniforms and the like during battle, use of the enemy -flag during attack by a belligerent vessel. - -(16) Violation of enemy individuals furnished with passports or -safe-conducts, violation of safeguards. - -(17) Violation of bearers of flags of truce. - -(18) Abuse of the protection granted to flags of truce. - -(19) Violation of cartels, capitulations, and armistices. - -(20) Breach of parole. - -[Footnote 481: Unjustified destruction of neutral prizes--see below, § -431--is not a war crime, but is nevertheless an international -delinquency, if ordered by the belligerent government.] - -[Sidenote: Hostilities in Arms by Private Individuals.] - -§ 254. Since International Law is a law between States only and -exclusively, no rules of International Law can exist which prohibit -private individuals from taking up arms and committing hostilities -against the enemy. But private individuals committing such acts do not -enjoy the privileges of members of armed forces, and the enemy has -according to a customary rule of International Law the right to consider -and punish such individuals as war criminals. Hostilities in arms -committed by private individuals are not war crimes because they really -are violations of recognised rules regarding warfare, but because the -enemy has the right to consider and punish them as acts of illegitimate -warfare. The conflict between praiseworthy patriotism on the part of -such individuals and the safety of the enemy troops does not allow of -any solution. It would be unreasonable for International Law to impose -upon belligerents the duty to forbid the taking up of arms by their -private subjects, because such action may occasionally be of the -greatest value to a belligerent, especially for the purpose of freeing a -country from the enemy who has militarily occupied it. Nevertheless the -safety of his troops compels the enemy to consider and punish such -hostilities as acts of illegitimate warfare, and International Law gives -him a right to do so. - -It is usual to make a distinction between hostilities in arms on the -part of private individuals against an invading or retiring enemy on the -one hand, and, on the other, hostilities in arms committed on the part -of the inhabitants against an enemy occupying a conquered territory. In -the latter case one speaks of war rebellion, whether inhabitants take up -arms singly or rise in a so-called levy _en masse_. Articles 1 and 2 of -the Hague Regulations make the greatest possible concessions regarding -hostilities committed by irregulars.[482] Beyond the limits of these -concessions belligerents will never be able to go without the greatest -danger to their troops. - -[Footnote 482: See above, §§ 80 and 81.] - -It must be particularly noted that merchantmen of belligerents, which -attack enemy vessels without previously having been attacked by them, -commit a war crime,[483] and that the captains, officers, and members of -the crews may, therefore, be punished as war criminals to the same -extent as private individuals who commit hostilities in land warfare. - -[Footnote 483: See above, §§ 85 and 181.] - -[Sidenote: Espionage and War Treason.] - -§ 255. Article 24 of the Hague Regulations now enacts the old customary -rule that a belligerent has a right to employ all methods necessary to -obtain information, and these methods include espionage and treason. But -this right stands face to face with the right to consider and punish as -war criminals enemy individuals, whether soldiers or not, committing -acts of espionage or treason. There is an irreconcilable conflict -between the necessity of obtaining information on the one hand, and -self-preservation on the other; and accordingly espionage and treason, -as has been explained above in § 159, bear a twofold character. On the -one hand, International Law gives a right to belligerents to make use of -espionage and treason. On the other hand, the same law gives a right to -belligerents to consider espionage and treason, committed by enemy -soldiers or enemy private individuals within their lines, as acts of -illegitimate warfare, and consequently punishable. - -Espionage has already been treated above in §§ 159-161. War treason may -be committed in different ways. The following are the chief cases of war -treason that may occur:-- - -(1) Information of any kind given to the enemy. - -(2) Voluntary supply of money, provisions, ammunition, horses, clothing, -and the like, to the enemy. - -(3) Any voluntary assistance to military operations of the enemy, be it -by serving as guide in the country, by opening the door of a defended -habitation, by repairing a destroyed bridge, or otherwise. - -(4) Attempt to induce soldiers to desert, to surrender, to serve as -spies, and the like, and negotiating desertion, surrender, and espionage -offered by soldiers. - -(5) Attempt to bribe soldiers or officials in the interest of the enemy, -and negotiating such bribe. - -(6) Liberation of enemy prisoners of war. - -(7) Conspiracy against the armed forces or against individual officers -and members of them. - -(8) Wrecking of military trains, destruction of the lines of -communication or of the telegraphs or telephones in the interest of the -enemy, and the destruction of any war material for the same purpose. - -(9) Circulation of enemy proclamations dangerous to the interests of the -belligerent concerned. - -(10) Intentional false guidance of troops by a hired guide or by one who -offered his services voluntarily. - -(11) Rendering courier or similar services to the enemy. - -It must be specially observed that enemy soldiers--in contradistinction -to private enemy individuals--may only be punished for war treason when -they have committed the act of treason during their stay within a -belligerent's lines under disguise. If, for instance, two soldiers in -uniform are sent into the rear of the enemy for the purpose of -destroying a bridge, they may not, when caught by the enemy, be punished -for war treason, because their act was one of legitimate warfare. But if -they exchange their uniforms for plain clothes and thereby appear as -members of the peaceful private population, they may be punished for war -treason. A remarkable case of this kind occurred in the summer of 1904, -during the Russo-Japanese War. Two Japanese disguised in Chinese clothes -were caught in the attempt to destroy, with the aid of dynamite, a -railway bridge in Manchuria, in the rear of the Russian forces. Brought -before a court-martial, they confessed themselves to be Shozo Jakoga, -forty-three years of age, a Major on the Japanese General Staff, and -Teisuki Oki, thirty-one years of age, a Captain on the Japanese General -Staff. They were convicted, and condemned to be hanged, but the mode of -punishment was changed and they were shot. All the newspapers which -mentioned this case reported it as a case of espionage, but it is in -fact one of war treason. Although the two officers were in disguise, -their conviction for espionage was impossible according to article 29 of -the Hague Regulations, provided, of course, they were court-martialed -for no other act than the attempt to destroy a bridge. - -It must be particularly noted that there are many acts of inhabitants -which a belligerent may forbid and punish in the interests of order and -the safety of his army, although these acts do not fall under the -category of war treason, and are not therefore punished as war crimes. -To this class belong all acts which violate the orders legitimately -decreed by an occupant of enemy territory.[484] - -[Footnote 484: See _Land Warfare_, § 446.] - -[Sidenote: Marauding.] - -§ 256. Marauders are individuals roving either singly or collectively in -bands over battlefields, or following advancing or retreating forces in -quest of booty. They have nothing to do with warfare in the strict sense -of the term, but they are an unavoidable accessory to warfare and -frequently consist of soldiers who have left their corps. Their acts are -considered acts of illegitimate warfare, and their punishment takes -place in the interest of the safety of either belligerent. - -[Sidenote: Mode of Punishment of War Crimes.] - -§ 257. All war crimes may be punished with death, but belligerents may, -of course, inflict a more lenient punishment, or commute a sentence of -death into a more lenient penalty. If this be done and imprisonment take -the place of capital punishment, the question arises whether such -convicts must be released at the end of the war, although their term of -imprisonment has not yet expired. Some publicists[485] answer this -question in the affirmative, maintaining that it could never be lawful -to inflict a penalty extending beyond the duration of the war. But I -believe that the question has to be answered in the negative. If a -belligerent has a right to pronounce a sentence of capital punishment, -it is obvious that he may select a more lenient penalty and carry the -latter out even beyond the duration of the war. And it would in no wise -be in the interest of humanity to deny this right, for otherwise -belligerents would have always to pronounce and carry out sentence of -capital punishment in the interest of self-preservation. - -[Footnote 485: See, for instance, Hall, § 135, p. 432.] - - -V - -TAKING OF HOSTAGES - - Hall, §§ 135 and 156--Taylor, § 525--Bluntschli, § 600--Lueder in - Holtzendorff, IV. pp. 475-477--Klüber, §§ 156 and 247--G. F. - Martens, II. 277--Ullmann, § 183--Bonfils, Nos. 1145 and - 1151--Pradier-Fodéré, VII. Nos. 2843-2848--Rivier, II. p. - 302--Calvo, IV. §§ 2158-2160--Fiore, III. Nos. 1363-1364--Martens, - II. § 119--Longuet, § 84--Bordwell, p. 305--Spaight, pp. - 465-470--_Kriegsbrauch_, pp. 49, 50--_Land Warfare_, §§ 461-464. - -[Sidenote: Former Practice of taking Hostages.] - -§ 258. The practice of taking hostages as a means of securing legitimate -warfare prevailed in former times much more than nowadays. It was -frequently resorted to in cases in which belligerent forces depended -more or less upon each other's good faith, such as capitulations and -armistices for instance. To make sure that no perfidy was intended, -officers or prominent private individuals were taken as hostages and -could be held responsible with their lives for any perfidy committed by -the enemy. This practice has totally disappeared, and is hardly likely -to be revived. But this former practice must not be confounded with the -still existing practice of seizing enemy individuals for the purpose of -making them the object of reprisals. Thus, when in 1870, during the -Franco-German War, Count Bismarck ordered forty French notables to be -seized and to be taken away into captivity as a retaliation upon the -French for refusing to liberate the crews of forty captured merchantmen, -these forty French notables were not taken as hostages, but were made -the object of reprisals.[486] - -[Footnote 486: The case has been discussed above in § 249. All the -French writers who comment upon this case make the mistake of referring -to it as an instance of the taking of hostages.] - -[Sidenote: Modern Practice of taking Hostages.] - -§ 259. A new practice of taking hostages was resorted to by the Germans -in 1870 during the Franco-German War for the purpose of securing the -safety of forces against possible hostile acts on the part of private -inhabitants of occupied enemy territory. Well-known men were seized and -detained in the expectation that the population would refrain from -hostile acts out of regard for the fate of the hostages. Thus, when -unknown people frequently wrecked the trains transporting troops, the -Germans seized prominent enemy citizens and put them on the engines of -trains to prevent the latter from being wrecked, a means which always -proved effective and soon put a stop to further train-wrecking. The same -practice was resorted to, although for a short time only, by Lord -Roberts[487] in 1900 during the South African War. This practice has -been condemned by the majority of publicists. But, with all due -deference to the authority of so many prominent men who oppose the -practice, I cannot agree with their opinion. Matters would be different -if hostages were seized and exposed to dangers for the purpose of -preventing legitimate hostilities on the part of members of the armed -forces of the enemy.[488] But no one can deny that train-wrecking on -occupied enemy territory by private enemy individuals is an act which a -belligerent is justified in considering and punishing as war -treason.[489] It is for the purpose of guarding against an act of -illegitimate warfare that these hostages are put on the engines. The -danger they are exposed to comes from their fellow-citizens, who are -informed of the fact that hostages are on the engines and who ought -therefore to refrain from wrecking the trains. It cannot, and will not, -be denied that the measure is a harsh one, and that it makes individuals -liable to suffer for acts for which they are not responsible. But the -safety of his troops and lines of communication is at stake for the -belligerent concerned, and I doubt, therefore, whether even the most -humane commanders will be able to dispense with this measure, since it -alone has proved effective. And it must further be taken into -consideration that the amount of cruelty connected with it is no greater -than in reprisals where also innocent individuals must suffer for -illegitimate acts for which they are not responsible. And is it not more -reasonable to prevent train-wrecking by putting hostages on the engines -than to resort to reprisals for wreckage of trains? For there is no -doubt that a belligerent is justified in resorting to reprisals[490] in -each case of train-wrecking by private enemy individuals.[491] - -[Footnote 487: See section 3 of the Proclamation of Lord Roberts, dated -Pretoria, June 19, 1900, but this section was repealed by the -Proclamation of July 29, 1900. See Martens, _N.R.G._ 2nd Ser. XXXII. -(1905), pp. 147 and 149.] - -[Footnote 488: _Land Warfare_, § 463, does not consider the practice -commendable, because innocent citizens are thereby exposed to legitimate -acts of train-wrecking on the part of raiding parties of armed forces of -the enemy.] - -[Footnote 489: See above, § 255, No. 8.] - -[Footnote 490: See above, § 248.] - -[Footnote 491: Belligerents sometimes take hostages to secure compliance -with requisitions, contributions, ransom bills, and the like, but such -cases have nothing to do with illegitimate warfare: see above, § 116, p. -153, note 1, and § 170, p. 213, note 3. The Hague Regulations do not -mention the taking of hostages for any purpose.] - - -VI - -COMPENSATION - - Bonfils, No. 1026'1--Despagnet, No. 510 _bis_--Lémonon, pp. - 344-346--Higgins, pp. 260-261--Scott, _Conferences_, p. - 528--Nippold, II. § 24--Boidin, pp. 83-84--Spaight, p. - 462--Holland, _War_, No. 19--_Land Warfare_, § 436. - -[Sidenote: How the Principle of Compensation for Violations of the Laws -of War arose.] - -§ 259_a_. There is no doubt that, if a belligerent can be made to pay -compensation for all damage done by him in violating the laws of war, -this will be an indirect means of securing legitimate warfare. In former -times no rule existed which stipulated such compensation, although, of -course, violation of the laws of war was always an international -delinquency. On the contrary, it was an established customary rule[492] -that claims for reparation of damages caused by violations of the rules -of legitimate warfare could not be raised after the conclusion of peace, -unless the contrary was expressly stipulated. It was not until the -Second Hague Peace Conference that matters underwent a change. In -revising the Convention concerning the laws and customs of war on land, -besides other alterations, a new article (3) was adopted which enacts -that a belligerent who violates the provisions of the Hague Regulations, -shall, if the case demand, be liable to make compensation, and that he -shall be responsible for all acts committed by persons forming part of -his armed forces. - -[Footnote 492: See below, § 274, p. 335.] - -Attention should be drawn to the fact that Germany, on whose initiative -this principle was adopted, proposed two articles concerning the matter, -the one dealing with the payment of compensation for violations of the -Hague Regulations with regard to subjects of neutral States,[493] and -the other for violations of these Regulations with regard to enemy -subjects. The conference, however, preferred to make no distinction -between the different cases of violation but to adopt the general -principle. - -[Footnote 493: See below, § 357.] - -[Sidenote: Compensation for Violations of the Hague Regulations.] - -§ 259_b_. It is apparent that article 3 of Convention IV. enacts two -different rules: firstly, that a belligerent who violates the Hague -Regulations shall, if the case demand, pay compensation; and secondly, -that a belligerent is responsible for all acts committed by any person -forming part of his armed forces. - -To take this second rule first, the responsibility of a State for -internationally illegal acts on the part of members of its armed forces -is, provided the acts have not been committed by the State's command or -authorisation, only a vicarious responsibility, but nevertheless the -State concerned must, as was pointed out above, Vol. I. § 163, pay -damages for these acts when required. For this reason, article 3 does -not create a new rule in so far as it enacts that belligerents must pay -for damage caused by members of their forces. - -On the other hand, the rule that compensation must be paid by -belligerents for damage done through violations of the Hague -Regulations, is a new rule, at any rate in so far as it is laid down in -a general way. If interpreted according to the letter, article 3 of -Convention IV. establishes the rule for payment of compensation for -violations of the Hague Regulations only, and not for violations of -other rules of International Law concerning land warfare or even -concerning sea warfare. I have, however, no doubt that the Powers would -recognise that the principle of article 3 must find application to any -rule of the laws of war, if by the violation of such rule subjects of -the enemy, or of neutral States, suffer damage. For instance, if the -commander of a naval force, in contravention of Convention IX. of the -Second Peace Conference, were to bombard an undefended place, -compensation could be claimed for such subjects of the enemy and -subjects of neutral States as suffered damage through the bombardment. - -A point, however, to be kept in view is that article 3, although it -establishes the obligation to pay compensation, does not stipulate -anything concerning the time or the way in which claims for compensation -are to be settled. This is clearly a case for arbitration, and it is to -be hoped that the Third Peace Conference will make arbitration -obligatory in cases of claims for compensation arising from violations, -on the part of a belligerent, of the Hague Regulations as well as of -other laws of war. - - - - -CHAPTER VII - -END OF WAR, AND POSTLIMINIUM - - -I - -ON TERMINATION OF WAR IN GENERAL - - Hall, § 197--Lawrence, § 217--Phillimore, III. § 510--Taylor, § - 580--Moore, VII. § 1163--Heffter, § 176--Kirchenheim in - Holtzendorff, IV. pp. 791-792--Ullmann, § 198--Bonfils, No. - 1692--Despagnet, No. 605--Calvo, V. § 3115--Fiore, III. No. - 1693--Martens, II. § 128--Longuet, § 155. - -[Sidenote: War a Temporary Condition.] - -§ 260. The normal condition between two States being peace, war can -never be more than a temporary condition; whatever may have been the -cause or causes of a war, the latter cannot possibly last for ever. For -either the purpose of war will be realised and one belligerent will be -overpowered by the other, or both will sooner or later be so exhausted -by their exertions that they will desist from the struggle. Nevertheless -wars may last for many years, although of late European wars have -gradually become shorter. The shortening of European wars in recent -times has resulted from several causes, the more important of which -are:--conscription, the foundation of the armies of all the great -European Powers, Great Britain excepted; the net of railways which -extends over all European countries, and which enables a much quicker -transport of troops on enemy territory; and lastly, the vast numbers of -the opposing forces which usually hasten a decisive battle. - -[Sidenote: Three Modes of Termination of War.] - -§ 261. Be that as it may, a war may be terminated in three different -ways. Belligerents may, first, abstain from further acts of war and -glide into peaceful relations without expressly making peace through a -special treaty. Or, secondly, belligerents may formally establish the -condition of peace through a special treaty of peace. Or, thirdly, a -belligerent may end the war through subjugation of his adversary.[494] - -[Footnote 494: That a civil war may come to an end through simple -cessation of hostilities or through a treaty of peace need hardly be -mentioned. But it is of importance to state the fact that there is a -difference between civil war and other war concerning the third mode of -ending war, namely subjugation. For to terminate a civil war, conquest -_and_ annexation, which together make subjugation, is unnecessary (see -below, § 264), but conquest alone is sufficient.] - - -II - -SIMPLE CESSATION OF HOSTILITIES - - Hall, § 203--Phillimore, III. § 511--Halleck, II. p. 468--Taylor, - § 584--Bluntschli, § 700--Heffter, § 177--Kirchenheim in - Holtzendorff, IV. p. 793--Ullmann, § 198--Bonfils, No. - 1693--Despagnet, No. 605--Rivier, II. pp. 435-436--Calvo, V. § - 3116--Fiore, III. No. 1693--Martens, II. § 128--Longuet, § - 155--Mérignhac, p. 323--Pillet, p. 370. - -[Sidenote: Exceptional Occurrence of simple Cessation of Hostilities.] - -§ 262. The regular modes of termination of war are treaties of peace or -subjugation, but cases have occurred in which simple cessation of all -acts of war on the part of both belligerents has actually and informally -brought the war to an end. Thus ended in 1716 the war between Sweden and -Poland, in 1720 the war between Spain and France, in 1801 the war -between Russia and Persia, in 1867 the war between France and Mexico. -And it may also be mentioned that, whereas the war between Prussia and -several German States in 1866 came to an end through subjugation of some -States and through treaties of peace with others, Prussia has never -concluded a treaty of peace with the Principality of Lichtenstein, which -was also a party to the war. Although such termination of war through -simple cessation of hostilities is for many reasons inconvenient, and -is, therefore, as a rule avoided, it may nevertheless in the future as -in the past occasionally occur. - -[Sidenote: Effect of Termination of War through simple Cessation of -Hostilities.] - -§ 263. Since in the case of termination of war through simple cessation -of hostilities no treaty of peace embodies the conditions of peace -between the former belligerents, the question arises whether the -_status_ which existed between the parties before the outbreak of war, -the _status quo ante bellum_, should be revived, or the _status_ which -exists between the parties at the time when they simply ceased -hostilities, the _status quo post bellum_ (the _uti possidetis_), can be -upheld. The majority of publicists[495] correctly maintain that the -_status_ which exists at the time of cessation of hostilities becomes -silently recognised through such cessation, and is, therefore, the basis -of the future relations of the parties. This question is of the greatest -importance regarding enemy territory militarily occupied by a -belligerent at the time hostilities cease. According to the correct -opinion such territory can be annexed by the occupier, the adversary -through the cessation of hostilities having dropped all rights he -possessed over such territory. On the other hand, this termination of -war through cessation of hostilities contains no decision regarding such -claims of the parties as have not been settled by the actual position of -affairs at the termination of hostilities, and it remains for the -parties to settle them by special agreement or to let them stand over. - -[Footnote 495: See, however, Phillimore, III. § 511, who maintains that -the _status quo ante bellum_ has to be revived.] - - -III - -SUBJUGATION - - Vattel, III. §§ 199-203--Hall, §§ 204-205--Lawrence, § - 77--Phillimore, III. § 512--Halleck, I. pp. 467-498--Taylor, §§ - 220, 585-588--Moore, I. § 87--Walker, § 11--Wheaton, § - 165--Bluntschli, §§ 287-289, 701-702--Heffter, § 178--Kirchenheim - in Holtzendorff, IV. p. 792--Liszt, § 10--Ullmann, §§ 92, 97, and - 197--Bonfils, Nos. 535 and 1694--Despagnet, Nos. 387-390, - 605--Rivier, II. pp. 436-441--Calvo, V. §§ 3117-3118--Fiore, II. - Nos. 863, III. No. 1693, and Code, Nos. 1078-1089--Martens. I. § - 91, II. § 128--Longuet, § 155--Mérignhac, p. 324--Pillet, p. - 371--Holtzendorff, _Eroberung und Eroberungsrecht_ - (1871)--Heimburger, _Der Erwerb der Gebietshoheit_ (1888), pp. - 121-132--Westlake, in _The Law Quarterly Review_, XVII. (1901), p. - 392. - -[Sidenote: Subjugation in contradistinction to Conquest.] - -§ 264. Subjugation must not be confounded with conquest, although there -can be no subjugation without conquest. Conquest is taking possession of -enemy territory by military force. Conquest is completed as soon as the -territory concerned is effectively[496] occupied. Now it is obvious that -conquest of a part of enemy territory has nothing to do with -subjugation, because the enemy may well reconquer it. But even the -conquest of the whole of the enemy territory need not necessarily -include subjugation. For, first, in a war between more than two -belligerents the troops of one of them may evacuate their country and -join the army of allies, so that the armed contention is continued, -although the territory of one of the allies is completely conquered. -Again, a belligerent, although he has annihilated the forces, conquered -the whole of the territory of his adversary, and thereby actually -brought the armed contention to an end,[497] may nevertheless not choose -to exterminate the enemy State by annexing the conquered territory, but -may conclude a treaty of peace with the expelled or imprisoned head of -the defeated State, re-establish the latter's Government, and hand the -whole or a part of the conquered territory over to it. Subjugation takes -place only when a belligerent, after having annihilated the forces and -conquered the territory of his adversary, destroys his existence by -annexing the conquered territory. Subjugation may, therefore, correctly -be defined as _extermination in war of one belligerent by another -through annexation_[498] _of the former's territory after conquest, the -enemy forces having been annihilated_.[499] - -[Footnote 496: The conditions of effective occupation have been -discussed above in § 167. Regarding subjugation as a mode of acquisition -of territory, see above, vol. I. §§ 236-241.] - -[Footnote 497: The continuation of guerilla war after the termination of -a real war is discussed above in § 60.] - -[Footnote 498: That conquest alone is sufficient for the termination of -civil wars has been pointed out above, § 261, p. 323, note 1.] - -[Footnote 499: It should be mentioned that a premature annexation can -become valid through the occupation in question becoming soon afterwards -effective. Thus, although the annexation of the South African Republic, -on September 1, 1900, was premature, it became valid through the -occupation becoming effective in 1901. See above, § 167, p. 209, note -1.] - -[Sidenote: Subjugation a formal End of War.] - -§ 265. Although complete conquest, together with annihilation of the -enemy forces, brings the armed contention, and thereby the war, actually -to an end, the formal end of the war is thereby not yet realised, as -everything depends upon the resolution of the victor regarding the fate -of the vanquished State. If he be willing to re-establish the captive or -expelled head of the vanquished State, it is a treaty of peace concluded -with the latter which terminates the war. But if he desires to acquire -the whole of the conquered territory for himself, he annexes it, and -thereby formally ends the war through subjugation. That the expelled -head of the vanquished State protests and keeps up his claims, matters -as little eventually as protests on the part of neutral States. These -protests may be of political importance for the future, legally they are -of no importance at all. - -History presents numerous instances of subjugation. Although no longer -so frequent as in former times, subjugation is not at all of rare -occurrence. Thus, modern Italy came into existence through the -subjugation by Sardinia in 1859 of the Two Sicilies, the Grand Dukedom -of Tuscany, the Dukedoms of Parma and Modena, and in 1870 the Papal -States. Thus, further, Prussia subjugated in 1866 the Kingdom of -Hanover, the Dukedom of Nassau, the Electorate of Hesse-Cassel, and the -Free Town of Frankfort-on-the-Main. And Great Britain annexed in 1900 -the Orange Free State and the South African Republic.[500] - -[Footnote 500: Since Great Britain annexed these territories in 1900, -the agreement of 1902, regarding "Terms of Surrender of the Boer Forces -in the Field"--see _Parliamentary Papers_, South Africa, 1902, Cd. -1096--is not a treaty of peace, and the South African War came formally -to an end through subjugation, although--see above, § 167, p. 209, note -1--the proclamation of the annexation was somewhat premature. The -agreement embodying the terms of surrender of the routed remnants of the -Boer forces has, therefore, no internationally legal basis (see also -below, § 274, p. 334, note 2). The case would be different if the -British Government had really--as Sir Thomas Barclay asserts in _The Law -Quarterly Review_, XXI. (1905), pp. 303 and 307--recognised the -existence of the Government of the South African Republic down to May -31, 1902.] - - -IV - -TREATY OF PEACE - - Grotius, III. c. 20--Vattel, IV. §§ 9-18--Phillimore, III. §§ - 513-516--Halleck, I. pp. 306-324--Taylor, §§ 590-592--Moore, VII. - § 1163--Wheaton, §§ 538-543--Bluntschli, §§ 703-707--Heffter, § - 179--Kirchenheim in Holtzendorff, IV. pp. 794-804--Ullmann, § - 198--Bonfils, Nos. 1696-1697, 1703-1705--Despagnet, Nos. - 606-611--Rivier, II. pp. 443-453--Nys, III. pp. 719-734--Calvo, V. - §§ 3119-3136--Fiore, III. Nos. 1694-1700, and Code, Nos. - 1931-1941--Martens, II. § 128--Longuet, §§ 156-164--Mérignhac, pp. - 324-329--Pillet, pp. 372-375. - -[Sidenote: Treaty of Peace the most frequent End of War.] - -§ 266. Although occasionally war ends through simple cessation of -hostilities, and although subjugation is not at all rare or irregular, -the most frequent end of war is a treaty of peace. Many publicists -correctly call a treaty of peace the normal mode of terminating war. On -the one hand, simple cessation of hostilities is certainly an irregular -mode. Subjugation, on the other hand, is in most cases either not -within the scope of the intention of the victor or not realisable. And -it is quite reasonable that a treaty of peace should be the normal end -of war. States which are driven from disagreement to war will, sooner or -later, when the fortune of war has given its decision, be convinced that -the armed contention ought to be terminated. Thus a mutual understanding -and agreement upon certain terms is the normal mode of ending the -contention. And it is a treaty of peace which embodies such -understanding. - -[Sidenote: Peace Negotiations.] - -§ 267. However, as the outbreak of war interrupts all regular -non-hostile intercourse between belligerents, negotiations for peace are -often difficult of initiation. Each party, although willing to -negotiate, may have strong reasons for not opening negotiations. Good -offices and mediation on the part of neutrals, therefore, always are of -great importance, as thereby negotiations are called into existence -which otherwise might have been long delayed. But it must be emphasised -that neither formal nor informal peace negotiations do _ipso facto_ -bring hostilities to a standstill, although a partial or general -armistice may be concluded for the purpose of such negotiations. The -fact that peace negotiations are going on directly between belligerents -does not create any non-hostile relations between them apart from those -negotiations themselves. Such negotiations can take place by the -exchange of letters between the belligerent Governments, or through -special negotiators who may meet on neutral territory or on the -territory of one of the belligerents. In case they meet on belligerent -territory, the enemy negotiators are inviolable and must be treated on -the same footing as bearers of flags of truce, if not as diplomatic -envoys. For it can happen that a belligerent receives an enemy -diplomatic envoy for the purpose of peace negotiations. Be that as it -may, negotiations, wherever taking place and by whomsoever conducted, -may always be broken off before an agreement is arrived at. - -[Sidenote: Preliminaries of Peace.] - -§ 268. Although ready to terminate the war through a treaty of peace, -belligerents are frequently not able to settle all the terms of peace at -once. In such cases hostilities are usually brought to an end through -so-called preliminaries of peace, the definite treaty, which has to take -the place of the preliminaries, being concluded later on. Such -preliminaries are a treaty in themselves, embodying an agreement of the -parties regarding such terms of peace as are essential. Preliminaries -are as binding as any other treaty, and therefore they need -ratification. Very often, but not necessarily, the definitive treaty of -peace is concluded at a place other than that at which the preliminaries -were settled. Thus, the war between Austria, France, and Sardinia was -ended by the Preliminaries of Villafranca of July 11, 1859, yet the -definitive treaty of peace was concluded at Zurich on November 10, 1859. -The war between Austria and Prussia was ended by the Preliminaries of -Nickolsburg of July 26, 1866, yet the definitive treaty of peace was -concluded at Prague on August 23. In the Franco-German War the -Preliminaries of Versailles of February 26, 1871, were the precursor of -the definitive treaty of peace concluded at Frankfort on May 10, -1871.[501] - -[Footnote 501: No preliminaries of peace were agreed upon at the end of -the Russo-Japanese war. After negotiations at Portsmouth (New Hampshire) -had led to a final understanding on August 29, 1905, the treaty of peace -was signed on September 5, and ratified on October 16.] - -The purpose for which preliminaries of peace are agreed upon makes it -obvious that such essential terms of peace as are stipulated by the -Preliminaries are the basis of the definitive treaty of peace. It may -happen, however, that neutral States protest for the purpose of -preventing this. Thus, when the war between Russia and Turkey had been -ended through the Preliminaries of San Stefano of March 3, 1878, Great -Britain protested, a Congress met at Berlin, and Russia had to be -content with less favourable terms of peace than those stipulated at San -Stefano. - -[Sidenote: Form and Parts of Peace Treaties.] - -§ 269. International Law does not contain any rules regarding the form -of peace treaties; they may, therefore, be concluded verbally or in -writing. But the importance of the matter makes the parties always -conclude a treaty of peace in writing, and there is no instance of a -verbally concluded treaty of peace. - -According to the different points stipulated, it is usual to distinguish -different parts within a peace treaty. Besides the preamble, there are -general, special, and separate articles. General articles are those -which stipulate such points as are to be agreed upon in every treaty of -peace, as the date of termination of hostilities, the release of -prisoners of war, and the like. Special articles are those which -stipulate the special terms of the agreement of peace in question. -Separate articles are those which stipulate points with regard to the -execution of the general and special articles, or which contain -reservations and other special remarks of the parties. Sometimes -_additional_ articles occur. Such are stipulations agreed upon in a -special treaty following the treaty of peace and comprising stipulations -regarding such points as have not been mentioned in the treaty of peace. - -[Sidenote: Competence to conclude Peace.] - -§ 270. As the treaty-making Power is according to the Law of Nations in -the hands of the head[502] of the State, it is he who is competent to -conclude peace. But just as constitutional restrictions imposed upon -heads of States regarding their general power of concluding -treaties[503] are of importance for International Law, so constitutional -restrictions imposed upon heads of States regarding their competence to -make peace are of similar importance. And, therefore, such treaties of -peace concluded by heads of States as violate constitutional -restrictions are not binding upon the States concerned, because the -heads have exceeded their powers. The Constitutions of the several -States settle the matter differently, and it is not at all necessary -that the power of declaring war and that of making peace should be -vested by a Constitution in the same hands. In Great Britain the power -of the Crown to declare war and to make peace is indeed unrestricted. -But in the German Empire, for instance, it is different; for whereas the -Emperor, the case of an attack on German territory excepted, may declare -war only with the consent of the Bundesrath, his power of making peace -is unrestricted.[504] - -[Footnote 502: See above, vol. I. § 495.] - -[Footnote 503: See above, vol. I. § 497.] - -[Footnote 504: See more examples in Rivier, II. p. 445.] - -The controverted question as to whether the head of a State who is a -prisoner of war is competent to make peace ought to be answered in the -negative. The reason is that the head of a constitutional State, -although he does not by becoming a prisoner of war lose his position, he -nevertheless thereby loses the power of exercising the rights connected -with his position.[505] - -[Footnote 505: See Vattel, IV. § 13.] - -[Sidenote: Date of Peace.] - -§ 271. Unless the treaty provides otherwise, peace commences with the -signing of the peace treaty. Should the latter not be ratified, -hostilities may be recommenced, and the unratified peace treaty is -considered as an armistice. Sometimes, however, the peace treaty fixes a -future date for the commencement of peace, stipulating that hostilities -must cease on a certain future day. This is the case when war is waged -in several or widely separated parts of the world, and when, therefore, -it is impossible at once to inform the opposing forces of the conclusion -of peace.[506] It may even occur that different dates are stipulated -for the termination of hostilities in different parts of the world. - -[Footnote 506: The ending of the Russo-Japanese war was quite peculiar. -Although the treaty of peace was signed on September 5, 1905, the -agreement concerning an armistice pending ratification of the peace -treaty was not signed until September 14, and hostilities went on till -September 16.] - -The question has arisen as to whether, in case a peace treaty provides a -future date for the termination of hostilities in distant parts, and in -case the forces in these parts hear of the conclusion of peace before -such date, they must abstain at once from further hostilities. Most -publicists correctly answer this question in the affirmative. But the -French Prize Courts in 1801 condemned as a good prize the English vessel -_Swineherd_ which was captured by the French privateer _Bellona_ in the -Indian Seas within the period of five months fixed by the Peace of -Amiens for the termination of hostilities in these seas.[507] - -[Footnote 507: The details of this case are given by Hall, § 199; see -also Phillimore, III. § 521.] - - -V - -EFFECTS OF TREATY OF PEACE - - Grotius, III. c. 20--Vattel, IV. §§ 19-23--Hall, §§ - 198-202--Lawrence, § 218--Phillimore, III. §§ 518-528--Halleck, I. - pp. 312-324--Taylor, §§ 581-583--Wheaton, §§ 544-547--Bluntschli, - §§ 708-723--Heffter, §§ 180-183, 184A--Kirchenheim in - Holtzendorff, IV. pp. 804-817--Ullmann, § 199--Bonfils, Nos. - 1698-1702--Despagnet, No. 607--Rivier, II. pp. 454-461--Calvo, V. - §§ 3137-3163--Fiore, III. Nos. 1701-1703, and Code, Nos. - 1942-1962--Martens, II. § 128--Longuet, §§ 156-164--Mérignhac, pp. - 330-336--Pillet, pp. 375-377. - -[Sidenote: Restoration of Condition of Peace.] - -§ 272. The chief and general effect of a peace treaty is restoration of -the condition of peace between the former belligerents. As soon as the -treaty is ratified, all rights and duties which exist in time of peace -between the members of the family of nations are _ipso facto_ and at -once revived between the former belligerents. - -On the one hand, all acts legitimate in warfare cease to be legitimate. -Neither contributions and requisitions, nor attacks on members of the -armed forces or on fortresses, nor capture of ships, nor occupation of -territory are any longer lawful. If forces, ignorant of the conclusion -of peace, commit such hostile acts, the condition of things at the time -peace was concluded must as far as possible be restored.[508] Thus, -ships captured must be set free, territory occupied must be evacuated, -members of armed forces taken prisoners must be liberated, contributions -imposed and paid must be repaid. - -[Footnote 508: The _Mentor_ (1799), 1 C. Rob. 179. Matters are, of -course, different in case a future date--see above, § 271--is stipulated -for the termination of hostilities.] - -On the other hand, all peaceful intercourse between the former -belligerents as well as between their subjects is resumed as before the -war. Thus diplomatic intercourse is restored, and consular officers -recommence their duties.[509] - -[Footnote 509: The assertion of many writers, that such contracts -between subjects of belligerents as have been suspended by the outbreak -of war revive _ipso facto_ by the conclusion of peace is not the outcome -of a rule of International Law. But just as Municipal Law may suspend -such contracts _ipso facto_ by the outbreak of war, so it may revive -them _ipso facto_ by the conclusion of peace. See above, § 101.] - -Attention must be drawn to the fact that the condition of peace created -by a peace treaty is legally final in so far as the order of things set -up and stipulated by the treaty of peace is the settled basis of future -relations between the parties, however contentious the matters concerned -may have been before the outbreak of war. In concluding peace the -parties expressly or implicitly declare that they have come to an -understanding regarding such settled matters. They may indeed make war -against each other in future on other grounds, but they are legally -bound not to go to war over such matters as have been settled by a -previous treaty of peace. That the practice of States does not always -comply with this rule is a well-known fact which, although it discredits -this rule, cannot shake its theoretical validity. - -[Sidenote: Principle of _Uti Possidetis_.] - -§ 273. Unless the parties stipulate otherwise, the effect of a treaty of -peace is that conditions remain as at the conclusion of peace. Thus, all -moveable State property, as munitions, provisions, arms, money, horses, -means of transport, and the like, seized by an invading belligerent -remain his property, as likewise do the fruits of immoveable property -seized by him. Thus further, if nothing is stipulated regarding -conquered territory, it remains in the hands of the possessor, who may -annex it. But it is nowadays usual, although not at all legally -necessary, for the conqueror desirous of retaining conquered territory -to stipulate cession of such territory in the treaty of peace. - -[Sidenote: Amnesty.] - -§ 274. Since a treaty of peace is considered a final settlement of the -war, one of the effects of every peace treaty is the so-called -amnesty--that is, an immunity for all wrongful acts done by the -belligerents themselves, the members of their forces, and their subjects -during the war, and due to political motives.[510] It is usual, but not -at all necessary, to insert an amnesty clause in a treaty of peace. -So-called war crimes[511] which were not punished before the conclusion -of peace may no longer be punished after its conclusion. Individuals -who have committed such war crimes and have been arrested for them must -be liberated.[512] International delinquencies committed intentionally -by belligerents through violation of the rules of legitimate warfare are -considered condoned. Formerly even claims for reparation of damages -caused by such acts could not be raised after the conclusion of peace, -unless the contrary was expressly stipulated, but the matter is -different now in accordance with article 3 of Convention IV. of the -Second Peace Conference.[513] On the other hand, the amnesty has nothing -to do with ordinary crimes or with debts incurred during war. A prisoner -of war who commits murder during captivity may be tried and punished -after the conclusion of peace, just as a prisoner who runs into debt -during captivity may be sued after the conclusion of peace, or an action -may be brought on ransom bills after peace has been restored. - -[Footnote 510: Stress must be laid on the fact that this immunity is -only effective in regard to the other party to the war. For instance, -the occupant of enemy territory may not, after the conclusion of peace, -punish war criminals. Nothing, however, prevents a belligerent from -punishing members of his own forces or any of his own subjects who -during war committed violations of the laws of war, _e.g._ killed -wounded enemy soldiers and the like.] - -[Footnote 511: See above, §§ 251-257. Clause 4 of the "Terms of -Surrender of the Boer Forces in the Field"--see _Parliamentary Papers_, -South Africa, 1902, Cd. 1096--seems to contradict this assertion, as it -expressly excludes from the amnesty "certain acts, contrary to usages of -war, which have been notified by the Commander-in-Chief to the Boer -Generals, and which shall be tried by court-martial immediately after -the close of hostilities." But it will be remembered--see above, § 265, -p. 327, note 1--that the agreement embodying these terms of surrender -does not bear the character of a treaty of peace, the Boer War having -been terminated through subjugation.] - -[Footnote 512: This applies to such individuals only as have not yet -been convicted. Those who are undergoing a term of imprisonment need not -be liberated at the conclusion of peace; see above, § 257.] - -[Footnote 513: See above, § 259_a_.] - -But it is important to remember here again that the amnesty grants -immunity only for wrongful acts done by the subjects of one belligerent -against the other. Such wrongful acts as have been committed by the -subjects of a belligerent against their own Government are not covered -by the amnesty. Therefore treason, desertion, and the like committed -during the war by his own subjects may be punished by a belligerent -after the conclusion of peace, unless the contrary has been expressly -stipulated in the treaty of peace.[514] - -[Footnote 514: Thus Russia stipulated by article 17 of the Preliminaries -of San Stefano, in 1878--see Martens, _N.R.G._ 2nd Ser. III. p. -252--that Turkey must accord an amnesty to such of her own subjects as -had compromised themselves during the war.] - -[Sidenote: Release of Prisoners of War.] - -§ 275. A very important effect of a treaty of peace is termination of -the captivity of prisoners of war.[515] This, however, does not mean -that with the conclusion of peace all prisoners of war must at once be -released. It only means--to use the words of article 20 of the Hague -Regulations--that "After the conclusion of peace, the repatriation of -prisoners of war shall take place as speedily as possible." The instant -release of prisoners at the very place where they were detained, would -be inconvenient not only for the State which kept them in captivity, but -also for themselves, as in most cases they would not possess means to -pay for their journey home. Therefore, although with the conclusion of -peace they cease to be captives in the technical sense of the term, -prisoners of war remain as a body under military discipline until they -are brought to the frontier and handed over to their Government. That -prisoners of war may be detained after the conclusion of peace until -they have paid debts incurred during captivity seems to be an almost -generally[516] recognised rule. But it is controversial whether such -prisoners of war may be detained as are undergoing a term of -imprisonment imposed upon them for offences against discipline. After -the Franco-German War in 1871 Germany detained such prisoners,[517] -whereas Japan after the Russo-Japanese War in 1905 released them. - -[Footnote 515: See above, § 132.] - -[Footnote 516: See, however, Pradier-Fodéré, VII. No. 2839, who objects -to it.] - -[Footnote 517: See Pradier-Fodéré, VII. No. 2840; Beinhauer, _Die -Kriegsgefangenschaft_ (1910), p. 79; Payrat, _Le prisonnier de Guerre_ -(1910), pp. 364-370.] - -[Sidenote: Revival of Treaties.] - -§ 276. The question how far a peace treaty has the effect of reviving -treaties concluded between the parties before the outbreak of war is -much controverted. The answer depends upon the other question, how far -the outbreak of war cancels existing treaties between belligerents.[518] -There can be no doubt that all such treaties as have been cancelled by -the outbreak of war do not revive. On the other hand, there can likewise -be no doubt that such treaties as have only become suspended by the -outbreak of war do revive. But no certainty or unanimity exists -regarding such treaties as do not belong to the above two classes, and -it must, therefore, be emphasised that no rule of International Law -exists concerning these treaties. It is for the parties to make such -special stipulations in the peace treaty as will settle the matter. - -[Footnote 518: See the very detailed discussion of the question in -Phillimore, III. §§ 529-538; see also above, § 99.] - - -VI - -PERFORMANCE OF TREATY OF PEACE - - Grotius, III. c. 20--Vattel, IV. §§ 24-34--Phillimore, III. § - 597--Halleck, I. pp. 322-324--Taylor, §§ 593-594--Wheaton, §§ - 548-550--Bluntschli, §§ 724-726--Heffter, § 184--Kirchenheim in - Holtzendorff, IV. pp. 817-822--Ullmann, § 199--Bonfils, Nos. - 1706-1709--Despagnet, Nos. 612 and 613--Rivier, II. pp. - 459-461--Calvo, V. §§ 3164-3168--Fiore, III. Nos. - 1704-1705--Martens, II. § 128--Longuet, §§ 156-164--Mérignhac, pp. - 336-337. - -[Sidenote: Treaty of Peace, how to be carried out.] - -§ 277. The general rule, that treaties must be performed in good faith, -applies to peace treaties as well as to others. The great importance, -however, of a treaty of peace and its special circumstances and -conditions make it necessary to draw attention to some points connected -with the performance of treaties of peace. Occupied territory may have -to be evacuated, a war indemnity to be paid in cash, boundary lines of -ceded territory may have to be drawn, and many other tasks performed. -These tasks often necessitate the conclusion of numerous treaties for -the purpose of performing details of the peace treaty concerned, and the -appointment of commissioners who meet in conference to inquire into -details and prepare a compromise. Difficulties may arise in regard to -the interpretation[519] of certain stipulations of the peace treaty -which arbitration will settle if the parties cannot agree. - -[Footnote 519: See above, vol. I. §§ 553-554.] Arrangements may have to -be made for the case in which a part or the whole of the territory -occupied during the war remains, according to the peace treaty, for some -period under military occupation, such occupation to serve as a means of -securing the performance of the peace treaty.[520] One can form an idea -of the numerous points of importance to be dealt with during the -performance of a treaty of peace if one takes into consideration the -fact that, after the Franco-German War was terminated in 1871 by the -Peace of Frankfort, more than a hundred Conventions were successively -concluded between the parties for the purpose of carrying out this -treaty of peace. - -[Footnote 520: See above, vol. I. § 527.] - -[Sidenote: Breach of Treaty of Peace.] - -§ 278. Just as is the performance, so is the breach of peace treaties of -great importance. A peace treaty can be violated in its entirety or in -one of its stipulations only. Violation by one of the parties does not -_ipso facto_ cancel the treaty, but the other party may cancel it on the -ground of violation. Just as in connection with violation of treaties in -general, so in violations of treaties of peace, some publicists maintain -that a distinction must be drawn between essential and non-essential -stipulations, and that violation of essential stipulations only creates -a right of cancelling the treaty of peace. It has been shown above, Vol. -I. § 547, that the majority of publicists rightly oppose the -distinction. - -But a distinction must be made between violation during the period in -which the conditions of the peace treaty have to be fulfilled, and -violation after such period. In the first case, the other party may at -once recommence hostilities, the war being considered not to have -terminated through the violated peace treaty. The second case, which -might happen soon or several years after the period for the fulfilment -of the peace conditions, is in no way different from violation of any -treaty in general. And if a party cancels the peace treaty and wages war -against the offender who violated it, this war is a new war, and in no -way a continuation of the previous war which was terminated by the -violated treaty of peace. It must, however, be specially observed that, -just as in case of violation of a treaty in general, so in case of -violation of a peace treaty, the offended party who wants to cancel the -treaty on the ground of its violation must do this in reasonable time -after the violation has taken place, otherwise the treaty remains valid, -or at least the non-violated parts of it. A mere protest neither -constitutes a cancellation nor reserves the right of cancellation.[521] - -[Footnote 521: See above, vol. I. § 547.] - - -VII - -POSTLIMINIUM - - Grotius, III. c. 9--Bynkershoek, _Quaest. jur. publ._ I. c. 15 and - 16--Vattel, III. §§ 204-222--Hall, §§ 162-166--Manning, pp. - 190-195--Phillimore, III. §§ 568-590--Halleck, II. pp. - 500-526--Taylor, § 595--Wheaton, § 398--Bluntschli, §§ - 727-741--Heffter, §§ 188-192--Kirchenheim in Holtzendorff, IV. pp. - 822-836--Bonfils, No. 1710--Despagnet, No. 611--Nys, III. pp. - 738-739--Rivier, II. pp. 314-316--Calvo, V. §§ 3169-3226--Fiore, - III. Nos. 1706-1712--Martens, II. § 128--Pillet, p. 377. - -[Sidenote: Conception of Postliminium.] - -§ 279. The term "postliminium" is originally one of Roman Law derived -from _post_ and _limen_ (_i.e._ boundary). According to Roman Law the -relations of Rome with a foreign State depended upon the fact whether or -not a treaty of friendship[522] existed. If such a treaty was not in -existence, Romans entering the foreign State concerned could be -enslaved, and Roman goods taken there could be appropriated. Now, _jus -postliminii_ denoted the rule, firstly, that such an enslaved Roman, -should he ever return into the territory of the Roman Empire, became -_ipso facto_ a Roman citizen again with all the rights he possessed -previous to his capture, and, secondly, that Roman property, -appropriated after entry into the territory of a foreign State, should -at once upon being taken back into the territory of the Roman Empire -_ipso facto_ revert to its former Roman owner. Modern International and -Municipal Law have adopted the term for the purpose of indicating the -fact that territory, individuals, and property, after having come in -time of war under the sway of the enemy, return either during the war or -with the end of the war under the sway of their original Sovereign. This -can occur in different ways. An occupied territory can voluntarily be -evacuated by the enemy and then at once be reoccupied by the owner. Or -it can be reconquered by the legitimate Sovereign. Or it can be -reconquered by a third party and restored to its legitimate owner. -Conquered territory can also be freed through a successful levy _en -masse_. Property seized by the enemy can be retaken, but it can also be -abandoned by the enemy and subsequently revert to the belligerent from -whom it was taken. And, further, conquered territory can in consequence -of a treaty of peace be restored to its legitimate Sovereign. In all -cases concerned, the question has to be answered what legal effects the -postliminium has in regard to the territory, the individuals thereon, or -the property concerned. - -[Footnote 522: See above, vol. I. § 40.] - -[Sidenote: Postliminium according to International Law, in -contradistinction to Postliminium according to Municipal Law.] - -§ 280. Most writers confound the effects of postliminium according to -Municipal Law with those according to International Law. For instance: -whether a private ship which is recaptured reverts _ipso facto_ to its -former owner;[523] whether the former laws of a reconquered State revive -_ipso facto_ by the reconquest; whether sentences passed on criminals -during the time of an occupation by the enemy should be annulled--these -and many similar questions treated in books on International Law have -nothing at all to do with International Law, but have to be answered -exclusively by the Municipal Law of the respective States. International -Law can deal only with such effects of postliminium as are -international. These international effects of postliminium may be -grouped under the following heads: revival of the former condition of -things, validity of legitimate acts, invalidity of illegitimate acts. - -[Footnote 523: See above, § 196.] - -[Sidenote: Revival of the Former Condition of Things.] - -§ 281. Although a territory and the individuals thereon come through -military occupation in war under the actual sway of the enemy, neither -such territory nor such individuals, according to the rules of -International Law of our times, fall under the sovereignty of the -invader. They rather remain, if not acquired by the conqueror through -subjugation, under the sovereignty of the other belligerent, although -the latter is in fact prevented from exercising his supremacy over them. -Now, the moment the invader voluntarily evacuates such territory, or is -driven away by a levy _en masse_, or by troops of the other belligerent -or of his ally, the former condition of things _ipso facto_ revives; the -territory and individuals concerned being at once, so far as -International Law is concerned, considered to be again under the sway of -their legitimate Sovereign. For all events of international importance -taking place on such territory the legitimate Sovereign is again -responsible towards third States, whereas during the time of occupation -the occupant was responsible for such events. - -But it must be specially observed that the case in which the occupant of -a territory is driven out of it by the forces of a third State not -allied with the legitimate Sovereign of such territory is not a case of -postliminium, and that consequently the former state of things does not -revive, unless the new occupant hands the territory over to the -legitimate Sovereign. If this is not done, the military occupation of -the new occupant takes the place of that of the previous occupant. - -[Sidenote: Validity of Legitimate Acts.] - -§ 282. Postliminium has no effect upon such acts of the former military -occupant connected with the occupied territory and the individuals and -property thereon as were legitimate acts of warfare. On the contrary, -the State into whose possession such territory has reverted must -recognise all such legitimate acts of the former occupant, and the -latter has by International Law a right to demand such recognition. -Therefore, if the occupant has collected the ordinary taxes, has sold -the ordinary fruits of immoveable property, has disposed of such -moveable state property as he was competent to appropriate, or has -performed other acts in conformity with the laws of war, this may not be -ignored by the legitimate Sovereign after he has again taken possession -of the territory. - -However, only those consequences of such acts must be recognised which -have occurred during the occupation. A case which illustrates this -happened after the Franco-German War. In October 1870, during occupation -by German troops of the _Départements de la Meuse_ and _de la Meurthe_, -a Berlin firm entered into a contract with the German Government to fell -15,000 oak trees in the State forests of these _départements_, paying in -advance £2250. The Berlin firm sold the contract rights to others, who -felled 9000 trees and sold, in March 1871, their right to fell the -remaining 6000 trees to a third party. The last-named felled a part of -these trees during the German occupation, but, when the French -Government again took possession of the territory concerned, the -contractors were without indemnity prevented from further felling of -trees.[524] The question whether the Germans had a right at all to enter -into the contract is doubtful. But even if they had such right, it -covered the felling of trees during their occupation only, and not -afterwards. - -[Footnote 524: The Protocol of Signature added to the Additional -Convention to the Peace Treaty of Frankfort, signed on December 11, -1871--see Martens, _N.R.G._ XX. p. 868--comprises a declaration stating -the fact that the French Government does not recognise any liability to -pay indemnities to the contractors concerned.] - -[Sidenote: Invalidity of Illegitimate Acts.] - -§ 283. If the occupant has performed acts which are not legitimate acts -of warfare, postliminium makes their invalidity apparent. Therefore, if -the occupant has sold immoveable State property, such property may -afterwards be claimed from the acquirer, whoever he is, without any -indemnity. If he has given office to individuals, they may afterwards be -dismissed. If he has appropriated and sold such private or public -property as may not legitimately be appropriated by a military occupant, -it may afterwards be claimed from the acquirer without payment of -damages. - -[Sidenote: No Postliminium after Interregnum.] - -§ 284. Cases of postliminium occur only when a conquered territory comes -either during or at the end of the war again into the possession of the -legitimate Sovereign. No case of postliminium arises when a territory, -ceded to the enemy by the treaty of peace or conquered and annexed -without cession at the end of a war which was terminated through simple -cessation of hostilities,[525] later on reverts to its former owner -State, or when the whole of the territory of a State which was conquered -and subjugated regains its liberty and becomes again the territory of an -independent State. Such territory has actually been under the -sovereignty of the conqueror; the period between the conquest and the -revival of the previous condition of things was not one of mere military -occupation during war, but one of interregnum during time of peace, and -therefore the revival of the former condition of things is not a case -of postliminium. An illustrative instance of this is furnished by the -case of the domains of the Electorate of Hesse-Cassel.[526] This -hitherto independent State was subjugated in 1806 by Napoleon and became -in 1807 part of the Kingdom of Westphalia constituted by Napoleon for -his brother Jerome, who governed it up to the end of 1813, when, with -the downfall of Napoleon, the Kingdom of Westphalia fell to pieces and -the former Elector of Hesse-Cassel was reinstated. Jerome had during his -reign sold many of the domains of Hesse-Cassel. The Elector, however, on -his return, did not recognise these contracts, but deprived the owners -of their property without indemnification, maintaining that a case of -postliminium had arisen, and that Jerome had no right to sell the -domains. The Courts of the Electorate pronounced against the Elector, -denying that a case of postliminium had arisen, since Jerome, although a -usurper, had been King of Westphalia during an interregnum, and since -the sale of the domains was therefore no wrongful act. But the Elector, -who was absolute in the Electorate, did not comply with the verdict of -his own courts, and the Vienna Congress, which was approached in the -matter by the unfortunate proprietors of the domains, refused its -intervention, although Prussia strongly took their part. It is generally -recognised by all writers on International Law that this case was not -one of postliminium, and the attitude of the Elector cannot therefore be -defended by appeal to International Law. - -[Footnote 525: See above, § 263.] - -[Footnote 526: See Phillimore, III. §§ 568-574, and the literature there -quoted.] - - - - -PART III - -NEUTRALITY - - - - -CHAPTER I - -ON NEUTRALITY IN GENERAL - - -I - -DEVELOPMENT OF THE INSTITUTION OF NEUTRALITY - - Hall, §§ 208-214--Lawrence, § 223--Westlake, II. pp. - 169-177--Phillimore, III. §§ 161-226--Twiss, II. §§ - 208-212--Taylor, §§ 596-613--Walker, _History_, pp. 195-203, and - _Science_, pp. 374-385--Geffcken in Holtzendorff, IV. pp. - 614-634--Ullmann, § 190--Bonfils, Nos. 1494-1521--Despagnet, No. - 687--Rivier, II. pp. 370-375--Nys, III. pp. 558-567--Calvo, IV. §§ - 2494-2591--Fiore, III. Nos. 1503-1535--Martens, II. § 130--Dupuis, - Nos. 302-307--Mérignhac, pp. 339-342--Boeck, Nos. 8-153--Kleen, I. - pp. 1-70--Cauchy, _Le droit maritime international_ (1862), vol. - II. pp. 325-430--Gessner, pp. 1-69--Bergbohm, _Die bewaffnete - Neutralität 1780-1783_ (1884)--Fauchille, _La diplomatie française - et la ligue des neutres 1780_ (1893)--Schweizer, _Geschichte der - schweizerischen Neutralitaet_ (1895), I. pp. 10-72. - -[Sidenote: Neutrality not practised in Ancient Times.] - -§ 285. Since in antiquity there was no notion of an International -Law,[527] it is not to be expected that neutrality as a legal -institution should have existed among the nations of old. Neutrality did -not exist even in practice, for belligerents never recognised an -attitude of impartiality on the part of other States. If war broke out -between two nations, third parties had to choose between the -belligerents and become allies or enemies of one or other. This does not -mean that third parties had actually to take part in the fighting. -Nothing of the kind was the case. But they had, if necessary, to render -assistance; for example, to allow the passage of belligerent forces -through their country, to supply provisions and the like to the party -they favoured, and to deny all such assistance to the enemy. Several -instances are known of efforts[528] on the part of third parties to take -up an attitude of impartiality, but belligerents never recognised such -impartiality. - -[Footnote 527: See above, vol. I. § 37.] - -[Footnote 528: See Geffcken in Holtzendorff, IV. pp. 614-615.] - -[Sidenote: Neutrality during the Middle Ages.] - -§ 286. During the Middle Ages matters changed in so far only as, in the -latter part of this period, belligerents did not exactly force third -parties to a choice; but legal duties and rights connected with -neutrality did not exist. A State could maintain that it was no party to -a war, although it furnished one of the belligerents with money, troops, -and other kinds of assistance. To prevent such assistance, which was in -no way considered illegal, treaties were frequently concluded, during -the latter part of the Middle Ages, for the purpose of specially -stipulating that the parties were not to assist each other's enemies in -any way during time of war, and were to prevent their subjects from -rendering such assistance. Through the influence of such treaties the -difference between a really and feigned impartial attitude of third -States during war became recognised, and neutrality, as an institution -of International Law, gradually developed during the sixteenth century. - -Of great importance was the fact that the Swiss Confederation, in -contradistinction to her policy during former times, made it a matter of -policy from the end of the sixteenth century always to remain neutral -during wars between other States. Although this former neutrality of the -Swiss can in no way be compared with modern neutrality, since Swiss -mercenaries for centuries afterwards fought in all European wars, the -Swiss Government itself succeeded in each instance in taking up and -preserving such an attitude of impartiality as complied with the current -rules of neutrality. - -It should be mentioned that the collection of rules and customs -regarding Maritime Law which goes under the name of _Consolato del Mare_ -made its appearance about the middle of the fourteenth century. One of -the rules there laid down, that in time of war enemy goods on neutral -vessels may be confiscated, but that, on the other hand, neutral goods -on enemy vessels must be restored, became of great importance, since -Great Britain acted accordingly from the beginning of the eighteenth -century until the outbreak of the Crimean War in 1854.[529] - -[Footnote 529: See above, § 176.] - -[Sidenote: Neutrality during the Seventeenth Century.] - -§ 287. At the time of Grotius, neutrality was recognised as an -institution of International Law, although such institution was in its -infancy only and needed a long time to reach its present range. Grotius -did not know, or at any rate did not make use of, the term -neutrality.[530] He treats neutrality in the very short seventeenth -chapter of the Third Book on the Law of War and Peace, under the head -_De his, qui in bello medii sunt_, and establishes in § 3 two doubtful -rules only. The first is that neutrals shall do nothing which may -strengthen a belligerent whose cause is unjust, or which may hinder the -movements of a belligerent whose cause is just. The second rule is that -in a war in which it is doubtful whose cause is just, neutrals shall -treat both belligerents alike, in permitting the passage of troops, in -supplying provisions for the troops, and in not rendering assistance to -persons besieged. - -[Footnote 530: That the term was known at the time of Grotius may be -inferred from the fact that Neumayr de Ramsla in 1620 published his work -_Von der Neutralität und Assistenz ... in Kriegszeiten_; see Nys in -_R.I._ XVII. (1885), p. 78.] - -The treatment of neutrality by Grotius shows, on the one hand, that -apart from the recognition of the fact that third parties could remain -neutral, not many rules regarding the duties of neutrals existed, and, -on the other hand, that the granting of passage to troops of -belligerents and the supply of provisions to them was not considered -illegal. And the practice of the seventeenth century furnishes numerous -instances of the fact that neutrality was not really an attitude of -impartiality, and that belligerents did not respect the territories of -neutral States. Thus, although Charles I. remained neutral, the Marquis -of Hamilton and six thousand British soldiers were fighting in 1631 -under Gustavus Adolphus. "In 1626 the English captured a French ship in -Dutch waters. In 1631 the Spaniards attacked the Dutch in a Danish port; -in 1639 the Dutch were in turn the aggressors, and attacked the Spanish -Fleet in English waters; again, in 1666 they captured English vessels in -the Elbe...; in 1665 an English fleet endeavoured to seize the Dutch -East India Squadron in the harbour of Bergen, but were beaten off with -the help of the forts; finally, in 1693, the French attempted to cut -some Dutch ships out of Lisbon, and on being prevented by the guns of -the place from carrying them off, burnt them in the river."[531] - -[Footnote 531: See Hall, § 209, p. 604.] - -[Sidenote: Progress of Neutrality during the Eighteenth Century.] - -§ 288. It was not until the eighteenth century that theory and practice -agreed upon the duty of neutrals to remain impartial, and the duty of -belligerents to respect the territories of neutrals. Bynkershoek and -Vattel formulated adequate conceptions of neutrality. Bynkershoek[532] -does not use the term "neutrality," but calls neutrals _non hostes_, and -he describes them as those who are of neither party--_qui neutrarum -partium sunt_--in a war, and who do not, in accordance with a treaty, -give assistance to either party. Vattel (III. § 103), on the other hand, -makes use of the term "neutrality," and gives the following -definition:--"Neutral nations, during a war, are those who take no one's -part, remaining friends common to both parties, and not favouring the -armies of one of them to the prejudice of the other." But although -Vattel's book appeared in 1758, twenty-one years after that of -Bynkershoek, his doctrines are in some ways less advanced than those of -Bynkershoek. The latter, in contradistinction to Grotius, maintained -that neutrals had nothing to do with the question as to which party to a -war had a just cause; that neutrals, being friends to both parties, have -not to sit as judges between these parties, and, consequently, must not -give or deny to one or other party more or less in accordance with their -conviction as to the justice or injustice of the cause of each. Vattel, -however, teaches (III. § 135) that a neutral, although he may generally -allow the passage of troops of the belligerents through his territory, -may refuse this passage to such belligerent as is making war for an -unjust cause. - -[Footnote 532: _Quaest. jur. publ._ I. c. 9.] - -Although the theory and practice of the eighteenth century agreed upon -the duty of neutrals to remain impartial, the impartiality demanded was -not at all a strict one. For, firstly, throughout the greater part of -the century a State was considered not to violate neutrality in case it -furnished one of the belligerents with such limited assistance as it had -previously promised by treaty.[533] In this way troops could be supplied -by a neutral to a belligerent, and passage through neutral territory -could be granted to his forces. And, secondly, the possibility existed -for either belligerent to make use of the resources of neutrals. It was -not considered a breach of neutrality on the part of a State to allow -one or both belligerents to levy troops on its territory, or to grant -Letters of Marque to vessels belonging to its commercial fleet. During -the second half of the eighteenth century, theory and practice became -aware of the fact that neutrality was not consistent with these and -other indulgences. But this only led to the distinction between -neutrality in the strict sense of the term and an imperfect neutrality. - -[Footnote 533: See examples in Hall, § 211.] - -As regards the duty of belligerents to respect neutral territory, -progress was also made in the eighteenth century. Whenever neutral -territory was violated, reparation was asked and made. But it was -considered lawful for the victor to pursue the vanquished army into -neutral territory, and, likewise, for a fleet to pursue[534] the -defeated enemy fleet into neutral territorial waters. - -[Footnote 534: See below, §§ 320 and 347 (4).] - -[Sidenote: First Armed Neutrality.] - -§ 289. Whereas, on the whole, the duty of neutrals to remain impartial -and the duty of belligerents to respect neutral territory became -generally recognised during the eighteenth century, the members of the -Family of Nations did not come to an agreement during this period -regarding the treatment of neutral vessels trading with belligerents. It -is true that the right of visit and search for contraband of war and the -right to seize the latter was generally recognised, but in other -respects no general theory and practice was agreed upon. France and -Spain upheld the rule that neutral goods on enemy ships as well as -neutral ships carrying enemy goods could be seized by belligerents. -Although England granted from time to time, by special treaties with -special States, the rule "Free ship, free goods," her general practice -throughout the eighteenth century followed the rule of the _Consolato -del Mare_, according to which enemy goods on neutral vessels may be -confiscated, whereas neutral goods on enemy vessels must be restored. -England, further, upheld the principle that the commerce of neutrals -should in time of war be restricted to the same limits as in time of -peace, since most States in time of peace reserved cabotage and trade -with their colonies to vessels of their own merchant marine. It was in -1756 that this principle first came into question. In this year, during -war with England, France found that on account of the naval superiority -of England she was unable to carry on her colonial trade by her own -merchant marine, and she, therefore, threw open this trade to vessels of -the Netherlands, which had remained neutral. England, however, ordered -her fleet to seize all such vessels with their cargoes on the ground -that they had become incorporated with the French merchant marine, and -had thereby acquired enemy character. From this time the above principle -is commonly called the "rule[535] of 1756." England, thirdly, followed -other Powers in the practice of declaring enemy coasts to be blockaded -and condemning captured neutral vessels for breach of blockade, although -the blockades were by no means always effective. - -[Footnote 535: See Phillimore, III. §§ 212-222; Hall, § 234; Manning, -pp. 260-267; Westlake, II. p. 254; Moore, VII. § 1180; Boeck, No. 52: -Dupuis, Nos. 131-133. Stress must be laid on the fact that the original -meaning of the rule of 1756 is different from the meaning it received by -its extension in 1793. From that year onwards England not only -considered those neutral vessels which embarked upon the French coasting -and colonial trade thrown open to them during the war with England, as -having acquired enemy character, but likewise those neutral vessels -which carried neutral goods from neutral ports to ports of a French -colony. This extension of the rule of 1756 was clearly unjustified, and -it is not possible to believe that it will ever be revived.] - -As privateering was legitimate and in general use, neutral commerce was -considerably disturbed during every war between naval States. Now in -1780, during war between Great Britain, her American colonies, France, -and Spain, Russia sent a circular[536] to England, France, and Spain, in -which she proclaimed the following five principles: (1) That neutral -vessels should be allowed to navigate from port to port of belligerents -and along their coasts; (2) that enemy goods on neutral vessels, -contraband excepted, should not be seized by belligerents; (3) that, -with regard to contraband, articles 10 and 11 of the treaty of 1766 -between Russia and Great Britain should be applied in all cases; (4) -that a port should only be considered blockaded if the blockading -belligerent had stationed vessels there, so as to create an obvious -danger for neutral vessels entering the port; (5) that these principles -should be applied in the proceedings and judgments on the legality of -prizes. In July and August 1780, Russia[537] entered into a treaty, -first with Denmark and then with Sweden, for the purpose of enforcing -those principles by equipping a number of men-of-war. Thus the "Armed -Neutrality" made its appearance. In 1781, the Netherlands, Prussia, and -Austria, in 1782 Portugal, and in 1783 the Two Sicilies joined the -league. France, Spain, and the United States of America accepted the -principles of the league without formally joining. The war between -England, the United States, France, and Spain was terminated in 1783, -and the war between England and the Netherlands in 1784, but in the -treaties of peace the principles of the "Armed Neutrality" were not -mentioned. This league had no direct practical consequences, since -England retained her former standpoint. Moreover, some of the States -that had joined the league acted contrary to some of its principles when -they themselves went to war--as did Sweden during her war with Russia -1788-1790, and France and Russia in 1793--and some of them concluded -treaties in which were stipulations at variance with those principles. -Nevertheless, the First Armed Neutrality has proved of great importance, -because its principles have furnished the basis of the Declaration of -Paris of 1856. - -[Footnote 536: Martens, _R._ III. p. 158.] - -[Footnote 537: Martens, _R._ III. pp. 189 and 198.] - -[Sidenote: The French Revolution and the Second Armed Neutrality.] - -§ 290. The wars of the French Revolution showed that the time was not -yet ripe for the progress aimed at by the First Armed Neutrality. -Russia, the very same Power which had initiated the Armed Neutrality in -1780 under the Empress Catharine II. (1762-1796), joined Great Britain -in 1793 in order to interdict all neutral navigation into ports of -France, with the intention of subduing France by famine. Russia and -England justified their attitude by the exceptional character of their -war against France, which country had proved to be the enemy of the -security of all other nations. The French Convention answered with an -order to the French fleet to capture all neutral ships carrying -provisions to enemy ports or carrying enemy goods. - -But although Russia herself had acted in defiance of the principles of -the First Armed Neutrality, she called a second into existence in 1800, -during the reign of the Emperor Paul. The Second Armed Neutrality was -caused by the refusal of England to concede immunity from visit and -search to neutral merchantmen under convoy.[538] Sweden was the first to -claim in 1653, during war between Holland and Great Britain, that the -belligerents should not visit and search Swedish merchantmen under -convoy of Swedish men-of-war, provided a declaration was made by the -men-of-war that the merchantmen had no contraband on board. Other States -later raised the same claim, and many treaties were concluded which -stipulated the immunity from visit and search of neutral merchantmen -under convoy. But Great Britain refused to recognise the principle, and -when, in July 1800, a British squadron captured a Danish man-of-war and -her convoy of several merchantmen for having resisted visit and search, -Russia invited Sweden, Denmark, and Prussia to renew the "Armed -Neutrality," and to add to its principles the further one, that -belligerents should not have a right of visit and search in case the -commanding officer of the man-of-war, under whose convoy neutral -merchantmen were sailing, should declare that the convoyed vessels did -not carry contraband of war. In December 1800 Russia concluded treaties -with Sweden, Denmark, and Prussia consecutively, by which the "Second -Armed Neutrality" became a fact.[539] But it lasted only a year on -account of the assassination of the Emperor Paul of Russia on March 23, -and the defeat of the Danish fleet by Nelson on April 2, 1801, in the -battle of Copenhagen. Nevertheless, the Second Armed Neutrality likewise -proved of importance, for it led to a compromise in the "Maritime -Convention" concluded by England and Russia under the Emperor Alexander -I. on June 17, 1801, at St. Petersburg.[540] By article 3 of this -treaty, England recognised, as far as Russia was concerned, the rules -that neutral vessels might navigate from port to port and on the coasts -of belligerents, and that blockades must be effective. But in the same -article England enforced recognition by Russia of the rule that enemy -goods on neutral vessels may be seized, and she did not recognise the -immunity of neutral vessels under convoy from visit and search, -although, by article 4, she conceded that the right of visit and search -should be exercised only by men-of-war, and not by privateers, in case -the neutral vessels concerned sailed under convoy. - -[Footnote 538: See below, § 417.] - -[Footnote 539: Martens, _R._ VII. pp. 127-171. See also Martens, _Causes -Célèbres_, IV. pp. 218-302.] - -[Footnote 540: Martens, _R._ VII. p. 260.] - -But this compromise did not last long. When in November 1807 war broke -out between Russia and England, the former in her declaration of -war[541] annulled the Maritime Convention of 1801, proclaimed again the -principles of the First Armed Neutrality, and asserted that she would -never again drop these principles. Great Britain proclaimed in her -counter-declaration[542] her return to those principles against which -the First and the Second Armed Neutrality were directed, and she was -able to point out that no Power had applied these principles more -severely than Russia under the Empress Catharine II. after the latter -had initiated the First Armed Neutrality. - -[Footnote 541: Martens, _R._ VIII. p. 706.] - -[Footnote 542: Martens, _R._ VIII. p. 710.] - -Thus all progress made by the Maritime Convention of 1801 fell to the -ground. Times were not favourable to any progress. After Napoleon's -Berlin decrees in 1806 ordering the boycott of all English goods, -England declared all French ports and all the ports of the allies of -France blockaded, and ordered her fleet to capture all ships destined to -these ports. And Russia, which had in her declaration of war against -England in 1807 solemnly asserted that she would never again drop the -principles of the First Armed Neutrality, by article 2 of the Ukase[543] -published on August 1, 1809, violated one of the most important of these -principles by ordering that neutral vessels carrying enemy (English) -goods were to be stopped, the enemy goods seized, and the vessels -themselves seized if more than the half of their cargoes consisted of -enemy goods. - -[Footnote 543: Martens, _N.R._ I. p. 484.] - -[Sidenote: Neutrality during the Nineteenth Century.] - -§ 291. The development of the rules of neutrality during the nineteenth -century was due to four factors. - -(1) The most prominent and influential factor is the attitude of the -United States of America towards neutrality from 1793 to 1818. When in -1793 England joined the war which had broken out in 1792 between the -so-called First Coalition and France, Genêt, the French diplomatic envoy -accredited to the United States, granted Letters of Marque to American -merchantmen manned by American citizens in American ports. These -privateers were destined to cruise against English vessels, and French -Prize Courts were set up by the French Minister in connection with -French consulates in American ports. On the complaint of Great Britain, -the Government of the United States ordered these privateers to be -disarmed and the French Prize Courts to be disorganised.[544] As the -trial of Gideon Henfield,[545] who was acquitted, proved that the -Municipal Law of the United States did not prohibit the enlistment of -American citizens in the service of a foreign belligerent, Congress in -1794 passed an Act temporarily forbidding American citizens to accept -Letters of Marque from a foreign belligerent and to enlist in the army -or navy of a foreign State, and forbidding the fitting out and arming of -vessels intended as privateers for foreign belligerents. Other Acts were -passed from time to time. Finally, on April 20, 1818, Congress passed -the Foreign Enlistment Act, which deals definitely with the matter, and -is still in force,[546] and which afforded the basis of the British -Foreign Enlistment Act of 1819. The example of the United States -initiated the present practice, according to which it is the duty of -neutrals to prevent the fitting out and arming on their territory of -cruisers for belligerents, to prevent enlistment on their territory for -belligerents, and the like. - -[Footnote 544: See Wharton, III. §§ 395-396.] - -[Footnote 545: Concerning this trial, see Taylor, § 609.] - -[Footnote 546: See Wheaton, §§ 434-437; Taylor, § 610; Lawrence, § 223.] - -(2) Of great importance for the development of neutrality during the -nineteenth century became the permanent neutralisation of Switzerland -and Belgium. These States naturally adopted and retained throughout -every war an exemplary attitude of impartiality towards the -belligerents. And each time war broke out in their vicinity they took -effectual military measures for the purpose of preventing belligerents -from making use of their neutral territory and resources. - -(3) The third factor is the Declaration of Paris of 1856, which -incorporated into International Law the rule "Free ship, free goods," -the rule that neutral goods on enemy ships cannot be appropriated, and -the rule that blockade must be effective. - -(4) The fourth and last factor is the general development of the -military and naval resources of all members of the Family of Nations. As -all the larger States were, during the second half of the nineteenth -century, obliged to keep their armies and navies at every moment ready -for war, it followed as a consequence that, whenever war broke out, each -belligerent was anxious not to injure neutral States in order to avoid -their taking the part of the enemy. On the other hand, neutral States -were always anxious to fulfil the duties of neutrality for fear of being -drawn into the war. Thus the general rule, that the development of -International Law has been fostered by the interests of the members of -the Family of Nations, applies also to the special case of neutrality. -But for the fact that it is to the interest of belligerents to remain -during war on good terms with neutrals, and that it is to the interest -of neutrals not to be drawn into war, the institution of neutrality -would never have developed so favourably as it actually did during the -nineteenth century. - -[Sidenote: Neutrality in the Twentieth Century.] - -§ 292. And this development has continued during the first decade of the -twentieth century. The South African and Russo-Japanese wars produced -several incidents which gave occasion for the Second Peace Conference of -1907 to take the matter of neutrality within the range of its -deliberations and to agree upon the Convention (V.) concerning the -rights and duties of neutral Powers and persons in war on land, as well -as upon the Convention (XIII.) concerning the rights and duties of -neutral Powers in maritime war. And some of the other Conventions agreed -upon at this Conference, although they do not directly concern neutral -Powers, are indirectly of great importance to them. Thus the Convention -(VII.) respecting the conversion of merchantmen into men-of-war -indirectly concerns neutral trade as well as the Convention (VIII.) -respecting the laying of submarine mines, and the Convention (XI.) -concerning restrictions on the exercise of the right of capture. Of the -greatest importance, however, is the fact that by the as yet unratified -Convention XII. the Conference agreed upon the establishment of an -International Prize Court to serve as a Court of Appeal in such prize -cases decided by the Prize Courts of either belligerent as concern the -interests of neutral Powers or their subjects. To enable this proposed -Court to find its verdicts on the basis of a generally accepted prize -law the Naval Conference of London met in 1908 and produced, in 1909, -the Declaration of London concerning the laws of naval war, which -represents a code comprising the rules respecting blockade, contraband, -unneutral service, destruction of neutral prizes, transfer to neutral -flag, enemy character, convoy, resistance to search, and compensation. -Although the Declaration of London has been signed by only ten Powers, -none of which has as yet ratified,[547] there is no doubt that sooner or -later, perhaps with some slight modifications, it will either be -_expressly_ ratified, or become customary law by the fact that maritime -Powers which go to war will carry out its rules.[548] Be that as it may, -the Declaration of London is a document of epoch-making character and -the future historian of International Law will reckon its development -from the Declaration of Paris (1856) to the Declaration of London[549] -(1909). - -[Footnote 547: See Smith, _International Law_, 4th ed. by Wylie (1911), -pp. 353-371, where the chief points against ratification, and the -answers made thereto, are impartially set forth.] - -[Footnote 548: Thus both Italy and Turkey, although the latter is not -even a signatory Power, during the Turco-Italian War, complied with the -rules of the Declaration of London.] - -[Footnote 549: As regards the literature in favour and against the -ratification, on the part of Great Britain, of the Declaration of -London, see above, vol. I. § 568_b_, p. 595, note 1, and as regards the -value of the Report of the Drafting Committee of the Naval Conference of -London, see above, vol. I. § 554, No. 7.] - - -II - -CHARACTERISTICS OF NEUTRALITY - - Grotius, III. c. 17, § 3--Bynkershoek, _Quaest. jur. publ._ I. c. - 9--Vattel, III. §§ 103-104--Hall, §§ 19-20--Lawrence, § - 222--Westlake, II. pp. 161-169--Phillimore, III. §§ - 136-137--Halleck, II. p. 141--Taylor, § 614--Moore, VII. §§ - 1287-1291--Walker, § 54--Wheaton, § 412--Bluntschli, §§ - 742-744--Heffter, § 144--Geffcken in Holtzendorff, IV. pp. - 605-606--Gareis, § 87--Liszt, § 42--Ullmann, § 190--Bonfils, Nos. - 1441 and 1443--Despagnet, No. 686--Rivier, II. pp. - 368-370--Pradier-Fodéré, VIII. Nos. 3222-3224, 3232-3233--Nys, - III. pp. 570-581--Calvo, IV. §§ 2491-2493--Fiore, III. Nos. - 1536-1541, and Code, Nos. 1768-1775--Martens, II. § 129--Dupuis, - No. 316--Mérignhac, pp. 349-351--Pillet, pp. 272-274--Heilborn, - _System_, pp. 336-351--Perels, § 38--Testa, pp. 167-172--Kleen, I. - §§ 1-4--Hautefeuille, I. pp. 195-200--Gessner, pp. - 22-23--Schopfer, _Le principe juridique de la neutralité et son - évolution dans l'histoire de la guerre_ (1894). - -[Sidenote: Conception of Neutrality.] - -§ 293. Such States as do not take part in a war between other States are -neutrals.[550] The term "neutrality" is derived from the Latin _neuter_. -Neutrality may be defined as _the attitude of impartiality adopted by -third States towards belligerents and recognised by belligerents, such -attitude creating rights and duties between the impartial States and the -belligerents_. Whether or not a third State will adopt and preserve an -attitude of impartiality during war is not a matter for International -Law but for International Politics. Therefore, unless a previous treaty -stipulates it expressly, no duty exists for a State, according to -International Law, to remain neutral in war. On the other hand, it ought -not to be maintained, although this is done by some writers,[551] that -every State has by the Law of Nations a right not to remain neutral. The -fact is that every Sovereign State, as an independent member of the -Family of Nations, is master of its own resolutions, and that the -question of remaining neutral or not is, in absence of a treaty -stipulating otherwise, one of policy and not of law. However, all States -which do not expressly declare the contrary by word or action, are -supposed to be neutral, and the rights and duties arising from -neutrality come into and remain in existence through the mere fact that -a State takes up and preserves an attitude of impartiality and is not -drawn into the war by the belligerents themselves. A special assertion -of intention to remain neutral is not therefore legally necessary on the -part of neutral States, although they often expressly and formally -proclaim[552] their neutrality. - -[Footnote 550: Grotius (III. c. 17) calls them _medii in bello_; -Bynkershoek (I. c. 9) _non hostes qui neutrarum partium sunt_.] - -[Footnote 551: See, for instance, Vattel, III. § 106, and Bonfils, No. -1443.] - -[Footnote 552: See below, § 309.] - -[Sidenote: Neutrality an Attitude of Impartiality.] - -§ 294. Since neutrality is an attitude of impartiality, it excludes such -assistance and succour to one of the belligerents as is detrimental to -the other, and, further, such injuries to the one as benefit the other. -But it requires, on the other hand, active measures from neutral States. -For neutrals must prevent belligerents from making use of their neutral -territories and of their resources for military and naval purposes -during the war. This concerns not only actual fighting on neutral -territories, but also transport of troops, war materials, and provisions -for the troops, the fitting out of men-of-war and privateers, the -activity of Prize Courts, and the like. - -But it is important to remember that the necessary attitude of -impartiality is not incompatible with sympathy with one and antipathy -against the other belligerent, so long as such sympathy and antipathy -are not realised in actions violating impartiality. Thus, not only -public opinion and the Press of a neutral State, but also the -Government,[553] may show their sympathy to one party or another -without thereby violating neutrality. And it must likewise be specially -observed that acts of humanity on the part of neutrals and their -subjects, such as the sending of doctors, medicine, provisions, dressing -material, and the like, to military hospitals, and the sending of -clothes and money to prisoners of war, can never be construed as acts of -partiality, although these comforts are provided for the wounded and the -prisoners of one of the belligerents only. - -[Footnote 553: See, however, Geffcken in Holtzendorff, IV. p. 656, and -Frankenbach, _Die Rechtsstellung von neutralen Staatsangehörigen in -kriegführenden Staaten_ (1910), p. 53, who assert the contrary.] - -[Sidenote: Neutrality an Attitude creating Rights and Duties.] - -§ 295. Since neutrality is an attitude during the condition of war only, -this attitude calls into existence special rights and duties which do -not generally obtain. They come into existence by the fact that the -outbreak of war has been notified or has otherwise[554] unmistakably -become known to third States who take up an attitude of impartiality, -and they expire _ipso facto_ by the termination of the war. - -[Footnote 554: See article 2 of Convention III. of the Second Peace -Conference.] - -Rights and duties deriving from neutrality do not exist before the -outbreak of war, although such outbreak may be expected every moment. -Even so-called neutralised States, as Switzerland and Belgium, have -during time of peace no duties connected with neutrality, although as -neutralised States they have even in time of peace certain duties. These -duties are not duties connected with neutrality, but duties imposed upon -the neutralised States as a condition of their neutralisation. They -include restrictions for the purpose of safeguarding the neutralised -States from being drawn into war.[555] - -[Footnote 555: See above, vol. I. § 96.] - -[Sidenote: Neutrality an Attitude of States.] - -§ 296. As International Law is a law between States only and -exclusively, neutrality is an attitude of impartiality on the part of -States, and not on the part of individuals.[556] Individuals derive -neither rights nor duties, according to International Law, from the -neutrality of those States whose subjects they are. Neutral States are -indeed obliged by International Law to prevent their subjects from -committing certain acts, but the duty of these subjects to comply with -such injunctions of their Sovereigns is a duty imposed upon them by -Municipal, not by International Law. Belligerents, on the other hand, -are indeed permitted by International Law to punish subjects of neutrals -for breach of blockade, for carriage of contraband and for rendering -unneutral service to the enemy; but the duty of subjects of neutrals to -comply with these injunctions of belligerents is a duty imposed upon -them by these very injunctions of the belligerents, and not by -International Law. Although as a rule a State has no jurisdiction over -foreign subjects on the Open Sea,[557] either belligerent has, -exceptionally, by International Law, the right to punish foreign -subjects by confiscation of cargo, and eventually of the vessel itself, -in case their vessels break blockade, carry contraband, or render -unneutral service to the enemy; but punishment is threatened and -executed by the belligerents, not by International Law. Therefore, if -neutral merchantmen commit such acts, they neither violate neutrality -nor do they act against International Law, but they simply violate -injunctions of the belligerents concerned. If they choose to run the -risk of punishment in the form of losing their property, this is their -own concern, and their neutral home State need not prevent them from -doing so. But to the right of belligerents to punish subjects of -neutrals for the acts specified corresponds the duty of neutral States -to acquiesce on their part in the exercise of this right by either -belligerent. - -[Footnote 556: It should be specially observed that it is an inaccuracy -of language to speak (as is commonly done in certain cases) of -individuals as being neutral. Thus, article 16 of Convention V. of the -Second Peace Conference designates the nationals of a State which is not -taking part in a war as "neutrals." Thus, further, belligerents -occupying enemy territory frequently make enemy individuals who are not -members of the armed forces of the enemy take a so-called oath of -neutrality.] - -[Footnote 557: See above, vol. I. § 146.] - -Moreover, apart from carriage of contraband, breach of blockade, and -unneutral service to the enemy, which a belligerent may punish by -capturing and confiscating the vessels or goods concerned, subjects of -neutrals are perfectly unhindered in their movements, and neutral States -have in especial no duty to prevent their subjects from selling arms, -munitions, and provisions to a belligerent, from enlisting in his -forces, and the like. - -[Sidenote: No Cessation of Intercourse during Neutrality between -Neutrals and Belligerents.] - -§ 297. Neutrality as an attitude of impartiality involves the duty of -abstaining from assisting either belligerent either actively or -passively, but it does not include the duty of breaking off all -intercourse with the belligerents. Apart from certain restrictions -necessitated by impartiality, all intercourse between belligerents and -neutrals takes place as before, a condition of peace prevailing between -them in spite of the war between the belligerents. This applies -particularly to the working of treaties, to diplomatic intercourse, and -to trade. But indirectly, of course, the condition of war between -belligerents may have a disturbing influence upon intercourse between -belligerents and neutrals. Thus the treaty-rights of a neutral State may -be interfered with through occupation of enemy territory by a -belligerent; its subjects living on such territory bear in a sense enemy -character; its subjects trading with the belligerents are hampered by -the right of visit and search, and the right of the belligerents to -capture blockade-runners and contraband of war. - -[Sidenote: Neutrality an Attitude during War (Neutrality in Civil War).] - -§ 298. Since neutrality is an attitude during war, the question arises -as to the necessary attitude of foreign States during civil war. As -civil war becomes real war through recognition[558] of the insurgents as -a belligerent Power, a distinction must be made as to whether -recognition has taken place or not. There is no doubt that a foreign -State commits an international delinquency by assisting insurgents in -spite of its being at peace with the legitimate Government. But matters -are different after recognition. The insurgents are now a belligerent -Power, and the civil war is now real war. Foreign States can either -become a party to the war or remain neutral, and in the latter case all -duties and rights of neutrality devolve upon them. Since, however, -recognition may be granted by foreign States independently of the -attitude of the legitimate Government, and since recognition granted by -the latter is not at all binding upon foreign Governments, it may happen -that insurgents are granted recognition on the part of the legitimate -Government, whereas foreign States refuse it, and _vice versa_.[559] In -the first case, the rights and duties of neutrality devolve upon foreign -States as far as the legitimate Government is concerned. Men-of-war of -the latter may visit and search merchantmen of foreign States for -contraband; a blockade declared by the legitimate Government is binding -upon foreign States, and the like. But no rights and duties of -neutrality devolve upon foreign States as regards the insurgents. A -blockade declared by them is not binding, their men-of-war may not visit -and search merchantmen for contraband. On the other hand, if insurgents -are recognised by a foreign State but not by the legitimate Government, -such foreign State has all rights and duties of neutrality so far as the -insurgents are concerned, but not so far as the legitimate Government is -concerned.[560] In practice, however, recognition of insurgents on the -part of foreign States will, if really justified, always have the effect -of causing the legitimate Government to grant its recognition also. - -[Footnote 558: See above, §§ 59 and 76, and Rougier, _Les guerres -civiles et le droit des gens_ (1903), pp. 414-447.] - -[Footnote 559: See above, § 59.] - -[Footnote 560: See the body of nine rules regarding the position of -foreign States in case of an insurrection, adopted by the Institute of -International Law at its meeting at Neuchâtel in 1900 (_Annuaire_, -XVIII. p. 227). The question as to whether, in case foreign States -refuse recognition to insurgents, although the legitimate Government has -granted it, the legitimate Government has a right of visit and search -for contraband is controversial; see _Annuaire_, XVIII. pp. 213-216.] - -[Sidenote: Neutrality to be recognised by the Belligerents.] - -§ 299. Just as third States have no duty to remain neutral in a war, so -they have no right[561] to demand that they be allowed to remain -neutral. History reports many cases in which States, although they -intended to remain neutral, were obliged by one or both belligerents to -make up their minds and choose the belligerent with whom they would -throw in their lot. For neutrality to come into existence it is, -therefore, not sufficient for a third State at the outbreak of war to -take up an attitude of impartiality, but it is also necessary that the -belligerents recognise this attitude by acquiescing in it and by not -treating such third State as a party to the war. This does not mean, as -has been maintained,[562] that neutrality is based on a contract -concluded either _expressis verbis_ or by unmistakable actions between -the belligerents and third States, and that, consequently, a third State -might at the outbreak of war take up the position of one which is -neither neutral nor a party to the war, reserving thereby for itself -freedom in its future resolutions and actions. Since the normal relation -between members of the Family of Nations is peace, the outbreak of war -between some of the members causes the others to become neutrals _ipso -facto_ by their taking up an attitude of impartiality and by their not -being treated by the belligerents as parties to the war. Thus, it is not -a contract that calls neutrality into existence, but this condition is -rather a legal consequence of a certain attitude on the part of third -States at the outbreak of war, on the one hand, and, on the other, on -the part of the belligerents themselves. - -[Footnote 561: But many writers assert the existence of such a right; -see, for instance, Vattel, III. § 106; Wheaton, § 414; Kleen, I. § 2; -Bonfils, No. 1443.] - -[Footnote 562: See Heilborn, _System_, pp. 347 and 350.] - - -III - -DIFFERENT KINDS OF NEUTRALITY - - Vattel, III. §§ 101, 105, 107, 110--Phillimore, III. §§ - 138-139--Halleck, II. p. 142--Taylor, § 618--Wheaton, §§ - 413-425--Bluntschli, §§ 745-748--Geffcken in Holtzendorff, IV. pp. - 634-636--Ullmann, § 190--Despagnet, No. 685--Pradier-Fodéré, VIII. - Nos. 3225-3231--Rivier, II. pp. 370-379--Calvo, IV. §§ - 2592-2642--Fiore, III. Nos. 1542-1545--Mérignhac, pp. - 347-349--Pillet, pp. 277-284--Kleen, I. §§ 6-22. - -[Sidenote: Perpetual Neutrality.] - -§ 300. The very first distinction to be made between different kinds of -neutrality is that between perpetual or other neutrality. Perpetual or -permanent is the neutrality of States which are neutralised by special -treaties of the members of the Family of Nations, as at the present time -that of Switzerland, Belgium, and Luxemburg. Apart from duties arising -from the fact of their neutralisation which are to be performed in time -of peace as well as in time of war, the duties and rights of neutrality -are the same for neutralised as for other States. It must be specially -observed that this concerns not only the obligation not to assist either -belligerent, but likewise the obligation to prevent them from making use -of the neutral territory for their military purposes. Thus, Switzerland -in 1870 and 1871, during the Franco-German War, properly prevented the -transport of troops, recruits, and war material of either belligerent -over her territory, disarmed the French army which had saved itself by -crossing the Swiss frontier, and detained the members of this army until -the conclusion of peace.[563] - -[Footnote 563: See below, § 339.] - -[Sidenote: General and Partial Neutrality.] - -§ 301. The distinction between general and partial neutrality derives -from the fact that a part of the territory of a State may be -neutralised,[564] as are, for instance, the Ionian Islands of Corfu and -Paxo, which are now a part of the territory of the Kingdom of Greece. -Such State has the duty to remain always partially neutral--namely, as -far as its neutralised part is concerned. In contradistinction to such -partial neutrality, general neutrality is the neutrality of States no -part of whose territory is neutralised by treaty. - -[Footnote 564: See above, § 72.] - -[Sidenote: Voluntary and Conventional Neutrality.] - -§ 302. A third distinction is that between voluntary and conventional -neutrality. Voluntary (or simple or natural) is the neutrality of such -State as is not bound by a general or special treaty to remain neutral -in a certain war. Neutrality is in most cases voluntary, and States -whose neutrality is voluntary may at any time during the war give up -their attitude of impartiality and take the part of either belligerent. -On the other hand, the neutrality of such State as is by treaty bound to -remain neutral in a war is conventional. Of course, the neutrality of -neutralised States is in every case conventional. Yet not-neutralised -States can likewise by treaty be obliged to remain neutral in a certain -war, just as in other cases they can by treaty of alliance be compelled -not to remain neutral, but to take the part of one of the belligerents. - -[Sidenote: Armed Neutrality.] - -§ 303. One speaks of an armed neutrality when a neutral State takes -military measures for the purpose of defending its neutrality against -possible or probable attempts of either belligerent to make use of the -neutral territory. Thus, the neutrality of Switzerland during the -Franco-German War was an armed neutrality. In another sense of the term, -one speaks of an armed neutrality when neutral States take military -measures for the purpose of defending the real or pretended rights of -neutrals against threatening infringements on the part of either -belligerent. The First and Second Armed Neutrality[565] of 1780 and 1800 -were armed neutralities in the latter sense of the term. - -[Footnote 565: See above, §§ 289 and 290.] - -[Sidenote: Benevolent Neutrality.] - -§ 304. Treaties stipulating neutrality often stipulate a "benevolent" -neutrality of the parties regarding a certain war. The term is likewise -frequently used during diplomatic negotiations. However, at present -there is no distinction between benevolent neutrality and neutrality -pure and simple. The idea dates from earlier times, when the obligations -imposed by neutrality were not so stringent, and neutral States could -favour one of the belligerents in many ways without thereby violating -their neutral attitude. If a State remained neutral in the then lax -sense of the term, but otherwise favoured a belligerent, its neutrality -was called benevolent. - -[Sidenote: Perfect and Qualified Neutrality.] - -§ 305. A distinction of great practical importance was in former times -that between perfect, or absolute, and qualified, or imperfect, -neutrality. The neutrality of a State was qualified if it remained -neutral on the whole, but actively or passively, directly or indirectly, -gave some kind of assistance to one of the belligerents in consequence -of an obligation entered into by a treaty previous to the war, and not -for the special war exclusively. On the other hand, a neutrality was -termed perfect if a neutral State neither actively nor passively, and -neither directly nor indirectly, favoured either belligerent. There is -no doubt that in the eighteenth century, when it was recognised that a -State could be considered neutral, although it was by a previous treaty -bound to render more or less limited assistance to one of the -belligerents, this distinction between neutrality perfect and qualified -was justified. But during the second half of the nineteenth century it -became controversial whether a so-called qualified neutrality was -neutrality at all, and whether a State, which, in fulfilment of a treaty -obligation, rendered some assistance to one of the belligerents, -violated its neutrality. The majority of modern writers[566] maintained, -correctly I think, that a State was either neutral or not, and that a -State violated its neutrality in case it rendered any assistance -whatever to one of the belligerents from any motive whatever. For this -reason, a State which had entered into such obligations as those just -mentioned would in time of war frequently be in a conflict of duties. -For, in fulfilling its treaty obligations, it would frequently be -obliged to violate its duty of neutrality, and _vice versa_. Several -writers,[567] however, maintained that such fulfilment of treaty -obligations would not contain a violation of neutrality. All doubt in -the matter ought now to be removed, since article 2 of Convention V. of -the Second Peace Conference categorically enacts that "belligerents are -forbidden to move across the territory of a neutral Power troops or -convoys either of munitions of war or of supplies." The principle at the -back of this enactment no doubt is that a qualified neutrality has no -longer any _raison d'être_, and that neutrality must in every case be -perfect.[568] - -[Footnote 566: See, for instance, Ullmann, § 190; Despagnet, No. 685; -Rivier, II. p. 378; Calvo, IV. § 2594; Taylor, § 618; Fiore, III. No. -1541; Kleen, I. § 21; Hall, § 215 (see also Hall, § 219, concerning -passage of troops). Phillimore, III. § 138, goes with the majority of -publicists, but in § 139 he thinks that it would be too rigid to -consider acts of "minor" partiality which are the result of conventions -previous to the war as violations of neutrality.] - -[Footnote 567: See, for instance, Heffter, § 144; Manning, p. 225; -Wheaton, §§ 425-426; Bluntschli, § 746; Halleck, II. p. 142.] - -[Footnote 568: See above, § 77, where it has been pointed out that a -neutral who takes up an attitude of qualified neutrality may nowadays be -considered as an accessory belligerent party to the war.] - -[Sidenote: Some Historical Examples of Qualified Neutrality.] - -§ 306. For the purpose of illustration the following instances of -qualified neutrality may be mentioned:-- - -(1) By a treaty of amity and commerce concluded in 1778 between the -United States of America and France, the former granted for the time of -war to French privateers and their prizes the right of admission to -American ports, and entered into the obligation not to admit the -privateers of the enemies of France. When subsequently, in 1793, war was -waged between England and France, and England complained of the -admission of French privateers to American ports, the United States met -the complaint by advancing their treaty obligations.[569] - -(2) Denmark had by several treaties, especially by one of 1781, -undertaken the obligation to furnish Russia with a certain number of -men-of-war and troops. When, in 1788, during war between Russia and -Sweden, Denmark fulfilled her obligations towards Russia, she -nevertheless declared herself neutral. And although Sweden protested -against the possibility of such qualified neutrality, she acquiesced in -the fact and did not consider herself to be at war with Denmark.[570] - -(3) In 1848, during war between Germany and Denmark, Great Britain, -fulfilling a treaty obligation towards Denmark, prohibited the -exportation of arms to Germany, whereas such exportation to Denmark -remained undisturbed.[571] - -(4) In 1900, during the South African War, Portugal, for the purpose of -complying with a treaty obligation[572] towards Great Britain regarding -the passage of British troops through Portuguese territory in South -Africa, allowed such passage to an English force which had landed at -Beira[573] and was destined for Rhodesia. - -[Footnote 569: See Wheaton, § 425, and Phillimore, III. § 139.] - -[Footnote 570: See Phillimore, III. § 140.] - -[Footnote 571: See Geffcken in Holtzendorff, VI. p. 610, and Rivier, II. -p. 379.] - -[Footnote 572: Article 11 of the treaty between Great Britain and -Portugal concerning the delimitation of spheres of influence in Africa. -(Martens, _N.R.G._ 2nd Ser. XVIII. p. 185.)] - -[Footnote 573: See below, § 323; Baty, _International Law in South -Africa_ (1900), p. 75; and _The Times' History of the War in South -Africa_, vol. IV. p. 366.] - - -IV - -COMMENCEMENT AND END OF NEUTRALITY - - Hall, § 207--Phillimore, I. §§ 392-392A, III. §§ 146-149--Taylor, - §§ 610-611--Wheaton, §§ 437-439, and Dana's note 215--Heffter, § - 145--Bonfils, Nos. 1445-1446--Despagnet, No. 689--Pradier-Fodéré, - VIII. Nos. 3234-3237--Rivier, II. pp. 379-381--Martens, II. § - 138--Kleen, I. §§ 5, 36-42. - -[Sidenote: Neutrality commences with Knowledge of the War.] - -§ 307. Since neutrality is an attitude of impartiality deliberately -taken up by a State not implicated in a war, neutrality cannot begin -before the outbreak of war becomes known. It is only then that third -States can make up their minds whether or not they intend to remain -neutral. They are supposed to remain neutral, and the duties deriving -from neutrality are incumbent upon them so long as they do not -_expressis verbis_ or by unmistakable acts declare that they will be -parties to the war. It had long been the usual practice on the part of -belligerents to notify the outbreak of war to third States for the -purpose of enabling them to take up the necessary attitude of -impartiality, but such notification was not formerly in strict law -necessary. The mere fact of the knowledge of the outbreak of war which -had been obtained in any way gave a third State an opportunity of making -up its mind regarding the attitude which it intended to take up, and, if -it remained neutral, its neutrality was to be dated from the time of its -knowledge of the outbreak of war. But it is apparent that an immediate -notification of the war on the part of belligerents is of great -importance, as thereby all doubt and controversy regarding the knowledge -of the outbreak of war are excluded. For the fact must always be -remembered that a neutral State may in no way be made responsible for -acts of its own or of its subjects which have been performed before it -knew of the war, although the outbreak of war might be expected. For -this reason article 2 of Convention III. of the Second Peace Conference -enacts that belligerents must without delay send a notification of the -outbreak of war, which may even be made by telegraph, to neutral Powers, -and that the condition of war shall not take effect in regard to neutral -Powers until after receipt of a notification, unless it be established -beyond doubt that they were in fact aware of the outbreak of war.[574] - -[Footnote 574: See above, §§ 94 and 95.] - -[Sidenote: Commencement of Neutrality in Civil War.] - -§ 308. As civil war becomes real war through recognition of the -insurgents as a belligerent Power, neutrality during a civil war begins -for every foreign State from the moment recognition is granted. That -recognition might be granted or refused by foreign States independently -of the attitude of the legitimate Government has been stated above in § -298, where also an explanation is given of the consequences of -recognition granted either by foreign States alone or by the legitimate -Government alone. - -[Sidenote: Establishment of Neutrality by Declarations.] - -§ 309. Neutrality being an attitude of States creating rights and -duties, active measures on the part of a neutral state are required for -the purpose of preventing its officials and subjects from committing -acts incompatible with its duty of impartiality. Now, the manifesto by -which a neutral State orders its organs and subjects to comply with the -attitude of impartiality adopted by itself is called a declaration of -neutrality in the special sense of the term. Such declaration of -neutrality must not, however, be confounded, on the one hand, with -manifestoes of the belligerents proclaiming to neutrals the rights and -duties devolving upon them through neutrality, or, on the other hand, -with the assertions made by neutrals to belligerents or _urbi et orbi_ -that they will remain neutral, although these manifestoes and assertions -are often also called declarations of neutrality.[575] - -[Footnote 575: See above, § 293.] - -[Sidenote: Municipal Neutrality Laws.] - -§ 310. International Law leaves the provision of necessary measures for -the establishment of neutrality to the discretion of each State. Since -in constitutional States the powers of Governments are frequently so -limited by Municipal Law that they may not take adequate measures -without the consent of their Parliaments, and since it is, so far as -International Law is concerned, no excuse for a Government if it is by -its Municipal Law prevented from taking adequate measures, several -States have once for all enacted so-called Neutrality Laws, which -prescribe the attitude to be taken up by their officials and subjects in -case the States concerned remain neutral in a war. These Neutrality Laws -are latent in time of peace, but their provisions become operative _ipso -facto_ by the respective States making a declaration of neutrality to -their officials and subjects. - -[Sidenote: British Foreign Enlistment Act.] - -§ 311. After the United States of America had on April 20, 1818, -enacted[576] a Neutrality Law, Great Britain followed the example in -1819 with her Foreign Enlistment Act,[577] which was in force till 1870. -As this Act did not give adequate powers to the Government, Parliament -passed on August 9, 1870, a new Foreign Enlistment Act,[578] which is -still in force. This Act, in the event of British neutrality, -prohibits--(1) The enlistment by a British subject in the military or -naval service of either belligerent, and similar acts (sections 4-7); -(2) the building, equipping,[579] and despatching[580] of vessels for -employment in the military or naval service of either belligerent -(sections 8-9); (3) the increase, on the part of any individual living -on British territory, of the armament of a man-of-war of either -belligerent being at the time in a British port (section 10); (4) the -preparing or fitting out of a naval or military expedition against a -friendly State (section 11). - -[Footnote 576: Printed in Phillimore, I. pp. 667-672.] - -[Footnote 577: 59 Geo. III. c. 69.] - -[Footnote 578: 33 and 34 Vict. c. 90. See Sibley in the _Law Magazine -and Review_, XXIX. (1904), pp. 453-464, and XXX. (1905), pp. 37-53.] - -[Footnote 579: According to section 30, the Interpretation Clause of the -Act, "equipping" includes "the furnishing of a ship with any tackle, -apparel, furniture, provisions, arms, munitions, or stores, or any other -thing which is used in or about a ship for the purpose of fitting or -adapting her for the sea or for naval service." It is, therefore, not -lawful for British ships, in case Great Britain is neutral, to supply a -belligerent fleet direct with coal, a point which became of interest -during the Russo-Japanese War. German steamers laden with coal followed -the Russian fleet on her journey to the Far East, and British shipowners -were prevented from doing the same by the Foreign Enlistment Act. And it -was in application of this Act that the British Government ordered, in -1904, the detention of the German steamer _Captain W. Menzel_, which -took in Welsh coal at Cardiff for the purpose of carrying it to the -Russian fleet _en route_ to the Far East. See below, § 350.] - -[Footnote 580: An interesting case which ought here to be mentioned -occurred in October 1904, during the Russo-Japanese War. Messrs. Yarrow -& Co., the shipbuilders, possessed a partly completed vessel, the -_Caroline_, which could be finally fitted up either as a yacht or as a -torpedo-boat. In September 1904, a Mr. Sinnet and the Hon. James Burke -Roche called at the shipbuilding yard of Messrs. Yarrow, bought the -_Caroline_, and ordered her to be fitted up as a high-speed yacht. The -required additions were finished on October 3. On October 6 the vessel -left Messrs. Yarrow's yard and was navigated by a Captain Ryder, _via_ -Hamburg, to the Russian port of Libau, there to be altered into a -torpedo-boat. That section 8 of the Foreign Enlistment Act applies to -this case there is no doubt. But there is no doubt either that it is -this Act, and not the rules of International Law, which required the -prosecution of Messrs. Sinnet and Roche on the part of the British -Government. For, if viewed from the basis of International Law, the case -is merely one of contraband. See below, §§ 321, 334, and 397.] - -It must be specially observed that the British Foreign Enlistment Act -goes beyond the requirements of International Law in so far as it tries -to prohibit and penalises a number of acts which, according to the -present rules of International Law, a neutral State is not required to -prohibit and penalise. Thus, for instance, a neutral State need not -prohibit its private subjects from enlisting in the service of a -belligerent; from supplying coal, provisions, arms, and ammunition -direct to a belligerent fleet, provided such fleet is not within or just -outside the territorial waters of the neutral concerned; from selling -ships to a belligerent although it is known that they will be converted -into cruisers or used as transport ships. For article 7 of Convention -VII. as well as of Convention XIII. of the Second Peace Conference -categorically enacts that "a neutral Power is not bound to prevent the -export or transit, on behalf of either belligerent, of arms, munitions -of war, or, in general, of anything which could be of use to an army or -fleet." - -[Sidenote: End of Neutrality.] - -§ 312. Neutrality ends with the war, or through the commencement of war -by a hitherto neutral State against one of the belligerents, or through -one of the belligerents commencing war against a hitherto neutral State. -Since, apart from a treaty obligation, no State has by International Law -the duty to remain neutral in a war between other States,[581] or, if it -is a belligerent, to allow a hitherto neutral State to remain -neutral,[582] it does not constitute a violation of neutrality on the -part of a hitherto neutral to declare war against one of the -belligerents, and on the part of a belligerent to declare war against a -neutral. Duties of neutrality exist so long only as a State remains -neutral. They come to an end _ipso facto_ by a hitherto neutral State -throwing up its neutrality, or by a belligerent beginning war against a -hitherto neutral State. But the ending of neutrality must not be -confounded with violation of neutrality. Such violation does not _ipso -facto_ bring neutrality to an end, as will be shown below in § 358. - -[Footnote 581: See above, § 293.] - -[Footnote 582: See above, § 299.] - - - - -CHAPTER II - -RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS - - -I - -RIGHTS AND DUTIES DERIVING FROM NEUTRALITY - - Vattel, III. § 104--Hall, § 214--Phillimore, III. §§ - 136-138--Twiss, II. § 216--Heffter, § 146--Geffcken in - Holtzendorff, IV. pp. 656-657--Gareis, § 88--Liszt, § 42--Ullmann, - § 191--Bonfils, Nos. 1441-1444--Despagnet, Nos. 684 and - 690--Rivier, II. pp. 381-385--Nys, III. pp. 582-639--Calvo, IV. §§ - 2491-2493--Fiore, III. Nos. 1501, 1536-1540, and Code, Nos. - 1776-1778, 1784--Martens, II. § 131--Kleen, I. §§ - 45-46--Mérignhac, pp. 339-342--Pillet, pp. 273-275. - -[Sidenote: Conduct in General of Neutrals and Belligerents.] - -§ 313. Neutrality can be carried out only if neutrals as well as -belligerents follow a certain line of conduct in their relations with -one another. It is for this reason that from neutrality derive rights -and duties, as well for belligerents as for neutrals, and that, -consequently, neutrality can be violated as well by belligerents as by -neutrals. These rights and duties are correspondent: the duties of -neutrals correspond to the rights of either belligerent, and the duties -of either belligerent correspond to the rights of the neutrals. - -[Sidenote: What Rights and Duties of Neutrals and of Belligerents there -are.] - -§ 314. There are two rights and two duties deriving from neutrality for -neutrals, and likewise two for belligerents. - -Duties of neutrals are, firstly, to act toward belligerents in -accordance with their attitude of impartiality; and, secondly, to -acquiesce in the exercise of either belligerent's right to punish -neutral merchantmen for breach of blockade, carriage of contraband, and -rendering unneutral service to the enemy, and, accordingly, to visit, -search, and eventually capture them. - -The duties of either belligerent are, firstly, to act towards neutrals -in accordance with their attitude of impartiality; and, secondly, not to -suppress their intercourse, and in especial their commerce, with the -enemy.[583] - -[Footnote 583: All writers on International Law resolve the duty of -impartiality incumbent upon neutrals into many several duties, and they -do the same as regards the duty of belligerents--namely, to act toward -neutrals in accordance with the latter's impartiality. In this way quite -a large catalogue of duties and corresponding rights are produced, and -the whole matter is unnecessarily complicated.] - -Either belligerent has a right to demand impartiality from neutrals, -whereas, on the other hand, neutrals have a right to demand such -behaviour from either belligerent as is in accordance with their -attitude of impartiality. Neutrals have a right to demand that their -intercourse, and in especial their commerce, with the enemy shall not be -suppressed; whereas, on the other hand, either belligerent has the right -to punish subjects of neutrals for breach of blockade, carriage of -contraband, and unneutral service, and, accordingly, to visit, search, -and capture neutral merchantmen. - -[Sidenote: Rights and Duties of Neutrals contested.] - -§ 315. Some writers[584] maintain that no rights derive from neutrality -for neutrals, and, consequently, no duties for belligerents, because -everything which must be left undone by a belligerent regarding his -relations with a neutral must likewise be left undone in time of peace. -But this opinion has no foundation. Indeed, it is true that the majority -of the acts which belligerents must leave undone in consequence of their -duty to respect neutrality must likewise be left undone in time of peace -in consequence of the territorial supremacy of every State. However, -there are several acts which do not belong to this class--for instance, -the non-appropriation of enemy goods on neutral vessels. And those acts -which do belong to this class fall nevertheless at the same time under -another category. Thus, a violation of neutral territory on the part of -a belligerent for military and naval purposes of the war is indeed an -act prohibited in time of peace, because every State has to respect the -territorial supremacy of other States; but it is at the same time a -violation of neutrality, and therefore totally different from other -violations of foreign territorial supremacy. This becomes quite apparent -when the true inwardness of such acts is regarded. For every State has a -right to demand reparation for an ordinary violation of its territorial -supremacy, but it need not take any notice of it, and it has no duty to -demand reparation. Yet in case a violation of its territorial supremacy -constitutes at the same time a violation of its neutrality, the neutral -State has not only a right to demand reparation, but has a duty[585] to -do so. For, if it did not, this would contain a violation of its duty of -impartiality, because it would be favouring one belligerent to the -detriment of the other.[586] - -[Footnote 584: Heffter, § 149; Gareis, § 88; Heilborn, _System_, p. -341.] - -[Footnote 585: See, for instance, article 3 of Convention XIII. of the -Second Peace Conference, which enacts:--"When a ship has been captured -in the territorial waters of a neutral Power, such Power must, if the -prize is still within its jurisdiction, employ the means at its disposal -to release the prize with its officers and crew, and to intern the prize -crew. If the prize is not within the jurisdiction of the neutral Power, -the captor Government, on the demand of that Power, must liberate the -prize with its officers and crew."] - -[Footnote 586: See below, § 360.] - -On the other hand, it has been asserted[587] that, apart from -conventional neutrality, from which treaty obligations arise, it is -incorrect to speak of duties deriving from neutrality, since at any -moment during the war neutrals could throw up neutrality and become -parties to the war. I cannot agree with this opinion either. That a -hitherto neutral can at any moment throw up neutrality and take part in -the war, is just as true as that a belligerent can at any moment during -the war declare war against a hitherto neutral State. Yet this only -proves that there is no duty to remain neutral, and no duty for a -belligerent to abstain from declaring war against a hitherto neutral -State. This is a truism which ought not to be doubted, and is totally -different from the question as to what duties derive from neutrality so -long as a certain State remains neutral at all. The assertion that such -duties derive from neutrality is in no way inconsistent with the fact -that neutrality itself can at any moment during the war come to an end -through the beginning of war by either a neutral or a belligerent. This -assertion only states the fact that, so long as neutrals intend -neutrality and so long as belligerents intend to recognise such -neutrality of third States, duties derive from neutrality for both -belligerents and neutrals. - -[Footnote 587: See Gareis, § 88.] - -[Sidenote: Contents of Duty of Impartiality.] - -§ 316. It has already been stated above, in § 294, that impartiality -_excludes_ such assistance and succour to one of the belligerents as is -detrimental to the other, and, further, such injuries to one of the -belligerents as benefit the other, and that it _includes_ active -measures on the part of neutrals for the purpose of preventing -belligerents from making use of neutral territories and neutral -resources for their military and naval purposes. But all this does not -exhaust the contents of the duty of impartiality. - -It must, on the one hand, be added that according to the present strict -conception of neutrality the duty of impartiality of a neutral -_excludes_ all facilities whatever for military and naval operations of -the belligerents, even if granted to both belligerents alike. In former -times assistance was not considered a violation of neutrality, provided -it was given to both belligerents in the same way, and States were -considered neutral although they allowed an equal number of their troops -to fight on the side of each belligerent. To-day this could no longer -happen. From Conventions V. and XIII. of the Second Peace Conference, -which deal with neutrality in land and sea warfare respectively, it -becomes quite apparent that any facility whatever directly concerning -military or naval operations, even if it consists only in granting -passage over neutral territory to belligerent forces, is illegal, -although granted to both belligerents alike. _The duty of impartiality -to-day comprises abstention from any active or passive co-operation with -belligerents._ - -On the other hand, it must be added that the duty of impartiality -_includes_ the equal treatment of both belligerents regarding such -facilities as do not directly concern military or naval operations, and -which may, therefore, be granted or not to belligerents, according to -the discretion of a neutral. If a neutral grants such facilities to one -belligerent, he must grant them to the other in the same degree. If he -refuses them to the one, he must likewise refuse them to the other.[588] -Thus, since it does not, according to the International Law of the -present day, constitute a violation of neutrality if a neutral allows -his subjects to supply either belligerent with arms and ammunition in -the ordinary way of trade, it would constitute a violation of neutrality -to prohibit the export of arms destined for one of the belligerents -only. Thus, further, if a neutral allows men-of-war of one of the -belligerents to bring their prizes into neutral ports, he must grant the -same facility to the other belligerent. - -[Footnote 588: See articles 7, 8, 9, 11, 13, 14, of Convention V., and -articles 7, 9, 11, 17, 19, 21, 23 of Convention XIII. of the Second -Peace Conference.] - -[Sidenote: Duty of Impartiality continuously growing more intense.] - -§ 317. Although neutrality has already for centuries been recognised as -an attitude of impartiality, it has taken two hundred years for the duty -of impartiality to attain its present range and intensity. Now this -continuous development has by no means ceased. It is slowly and -gradually going on, and there is no doubt that during the twentieth -century the duty of impartiality will become much more intense than it -is at present. The fact that the intensity of this duty is the result of -gradual development bears upon many practical questions regarding the -conduct of neutrals. It is therefore necessary to discuss separately the -relations between neutrals and belligerents in order to ascertain what -line of conduct must be followed by neutrals. - -[Sidenote: Neutrality Conventions of the Second Peace Conference.] - -§ 317_a_. The Second Peace Conference has produced two Conventions -concerning neutrality:-- - -(1) The Convention (V.) respecting the rights and duties of neutral -Powers and persons in war on land,[589] which comprises twenty-five -articles and has been signed by all the Powers represented at the -Conference, except China and Nicaragua; both, however, acceded later. -Many Powers have already ratified. Great Britain entered a -reservation[590] against articles 16-18, and Argentina against article -18. - -[Footnote 589: See Lémonon, pp. 407-425; Higgins, pp. 290-294; Boidin, -pp. 121-134; Nippold, § 25; Scott, _Conferences_, pp. 541-555; -Bustamente in _A.J._ II. (1908), pp. 95-120.] - -[Footnote 590: See above, § 88.] - -(2) The Convention (XIII.) respecting the rights and duties of neutral -Powers in maritime war,[591] which comprises thirty-three articles and -has been signed by all the Powers represented at the Conference, except -the United States of America, China, Cuba, Nicaragua, and Spain; but -America, China, and Nicaragua acceded later. Many Powers have already -ratified, but there are a number of reservations; they will be dealt -with in due course when the points concerned are being discussed. - -[Footnote 591: See Lémonon, pp. 555-606; Higgins, pp. 459-483; Bernsten, -§ 13; Boidin, pp. 236-247; Dupuis, _Guerre_, Nos. 277-330; Nippold, § -34; Scott, _Conferences_, pp. 620-648; Hyde in _A.J._ II. (1908), pp. -507-527.] - -Both Conventions deal comprehensively with the rights and duties of -neutrals, but it is not convenient in a treatise on International Law -either to treat separately of the duties of neutrals in war on land and -on sea, or to dispense with any distinction in the treatment of the -several points concerned. The arrangement of topics in the sections of -this chapter will, therefore, be independent of the arrangement of -topics in the two Conventions, and will be as follows:--Neutrals and -Military Operations (§§ 320-328); Neutrals and Military Preparations (§§ -329-335); Neutral Asylum to Soldiers and War Materials (§§ 336-341); -Neutral Asylum to Naval Forces (§§ 342-348); Supplies and Loans to -Belligerents (§§ 349-352); Services to Belligerents (§§ 353-356). - -[Sidenote: Contents of Duty of Belligerents to treat Neutrals in -accordance with their Impartiality.] - -§ 318. Whereas the relations between neutrals and belligerents require -detailed discussion with regard to the duty of impartiality incumbent -upon neutrals, the contents of the duty of belligerents to treat -neutrals in accordance with their impartiality are so manifest that -elaborate treatment is unnecessary. Such duty _excludes_, firstly, any -violation of neutral territory for military or naval purposes of the -war;[592] and, secondly, the appropriation of neutral goods, contraband -excepted, on enemy vessels.[593] On the other hand, such duty -_includes_, firstly, due treatment of neutral diplomatic envoys -accredited to the enemy and found on occupied enemy territory; and, -secondly, due treatment of neutral subjects and neutral property on -enemy territory. A belligerent who conquers enemy territory must at -least grant to neutral envoys accredited to the enemy the right to quit -the occupied territory unmolested.[594] And such belligerent must -likewise abstain from treating neutral subjects and property -established on enemy territory more harshly than the laws of war allow; -for, although neutral subjects and property have, by being established -on enemy territory, acquired enemy character, they have nevertheless not -lost the protection of their neutral home State.[595] And such -belligerent must, lastly, pay full damages in case he makes use of his -right of angary[596] against neutral property in course of transit -through enemy territory. - -[Footnote 592: See articles 1-4 of Convention V., and articles 1-5 of -Convention XIII. of the Second Peace Conference.] - -[Footnote 593: This is stipulated by the Declaration of Paris of 1856.] - -[Footnote 594: The position of foreign envoys found by a belligerent on -occupied enemy territory is not settled as regards details. But there is -no doubt that a certain consideration is due to them, and that they must -at least be granted the right to depart. See above, vol. I. § 399.] - -[Footnote 595: See above, § 88.] - -[Footnote 596: See below, §§ 364-367.] - -[Sidenote: Contents of Duty not to suppress Intercourse between Neutrals -and the Enemy.] - -§ 319. The duty of either belligerent not to suppress intercourse of -neutrals with the enemy requires no detailed discussion either. It is a -duty which is in accordance with the development of the institution of -neutrality. It is of special importance with regard to commerce of -subjects of neutrals with belligerents, since formerly attempts were -frequently made to intercept all neutral trade with the enemy. A -consequence of the now recognised freedom of neutral commerce with -either belligerent is, firstly, the rule, enacted by the Declaration of -Paris of 1856, that enemy goods, with the exception of contraband, on -neutral vessels on the Open Sea or in enemy territorial waters may not -be appropriated by a belligerent,[597] and, secondly, the rule, enacted -by article 1 of Convention XI. of the Second Peace Conference, that the -postal correspondence of neutrals or belligerents, except correspondence -destined for or proceeding from a blockaded port, which may be found on -a neutral or enemy vessel, is inviolable.[598] But the recognised -freedom of neutral commerce necessitates, on the other hand, certain -measures on the part of belligerents. It would be unreasonable to impose -on a belligerent a duty not to prevent the subjects of neutrals from -breaking a blockade, from carrying contraband, and, lastly, from -rendering unneutral service to the enemy. International Law gives, -therefore, a right to either belligerent to forbid all such acts to -neutral merchantmen, and, accordingly, to visit, search, capture, and -punish them.[599] - -[Footnote 597: That not only goods owned by enemy individuals but also -goods owned by the enemy State are exempt from appropriation when on -neutral vessels, has been pointed out above, § 177, p. 220, note 2.] - -[Footnote 598: See above, § 191, and below, § 411.] - -[Footnote 599: That a subject of a neutral State who tries to break a -blockade, or carries contraband to the enemy, or renders the enemy -unneutral service, violates injunctions of the belligerents, but not -International Law, has been shown above in § 296; see also below, §§ 383 -and 398.] - - -II - -NEUTRALS AND MILITARY OPERATIONS - - Vattel, III. §§ 105, 118-135--Hall, §§ 215, 219, 220, - 226--Westlake, II. pp. 179-183--Lawrence, §§ 229, - 234-240--Manning, pp. 225-227, 245-250--Twiss, II. §§ 217, 218, - 228--Halleck, II. pp. 146, 165, 172--Taylor, §§ 618, 620, 632, - 635--Walker, §§ 55, 57, 59-61--Wharton, III. §§ 397-400--Moore, - VII. §§ 1293-1303--Wheaton, §§ 426-429--Bluntschli, §§ 758, 759, - 763, 765, 769-773--Heffter, §§ 146-150--Geffcken in Holtzendorff, - IV. pp. 657-676--Ullmann, § 191--Bonfils, Nos. 1449-1457, 1460, - 1469, 1470--Despagnet, Nos. 690-692--Rivier, II. pp. - 395-408--Calvo, IV. §§ 2644-2664, 2683--Fiore, III. Nos. - 1546-1550, 1574-1575, 1582-1584--Martens, II. §§ 131-134--Kleen, - I. §§ 70-75, 116-122--Mérignhac, pp. 352-380--Pillet, pp. - 284-289--Perels, § 39--Testa, pp. 173-180--Heilborn, _Rechte_, pp. - 4-12--Dupuis, Nos. 308-310, 315-317, and _Guerre_, Nos. - 277-294--_Land Warfare_, §§ 465-471. - -[Sidenote: Hostilities by and against Neutrals.] - -§ 320. The duty of impartiality incumbent upon a neutral must obviously -prevent him from committing hostilities against either belligerent. This -would need no mention were it not for the purpose of distinction between -hostilities on the one hand, and, on the other, military or naval acts -of force by a neutral for the purpose of repulsing violations of his -neutrality committed by either belligerent. Hostilities of a neutral are -acts of force performed for the purpose of attacking a belligerent. They -are acts of war, and they create a condition of war between such neutral -and the belligerent concerned. If, however, a neutral does not attack a -belligerent, but only repulses him by force when he violates or attempts -to violate the neutrality of the neutral, such repulse does not comprise -hostilities. Thus, if men-of-war of a belligerent attack an enemy vessel -in a neutral port and are repulsed by neutral men-of-war, or if -belligerent forces try to make their way through neutral territory and -are forcibly prevented by neutral troops, no hostilities have been -committed by the neutral, who has done nothing else than fulfil his duty -of impartiality. Article 10 of Convention V. enacts categorically that -"the fact of a neutral Power repelling, even by force, attacks on its -neutrality, cannot be considered as a hostile act." And stress must be -laid on the fact that it is no longer legitimate for a belligerent to -pursue[600] military or naval forces who take refuge on neutral -territory; should, nevertheless, a belligerent do this, he must, if -possible, be repulsed by the neutral. - -[Footnote 600: See above, § 288, p. 352, and below, § 347 (4), p. 422.] - -It is, on the other hand, likewise obvious that hostilities against a -neutral on the part of either belligerent are acts of war, and not mere -violations of neutrality. If, however, belligerent forces attack enemy -forces which have taken refuge on neutral territory or which are there -for other purposes, such acts are not hostilities against the neutral, -but mere violations of neutrality which must be repulsed or for which -reparation must be made, as the case may be. - -Quite a peculiar condition arose at the outbreak of and during the -Russo-Japanese War. The ends for which Japan went to war were the -expulsion of the Russian forces from the Chinese Province of Manchuria -and the liberation of Korea, which was at the time an independent State, -from the influence of Russia. Manchuria and Korea became therefore the -theatre of war, although both were neutral territories and although -neither China nor Korea became parties to the war. The hostilities which -occurred on these neutral territories were in no wise directed against -the neutrals concerned. This anomalous condition of matters arose out of -the inability of both China and Korea to free themselves from Russian -occupation and influence. And Japan considered her action, which must be -classified as an intervention, justified on account of her vital -interests. The Powers recognised this anomalous condition by influencing -China not to take part in the war, and by influencing the belligerents -not to extend military operations beyond the borders of Manchuria. -Manchuria and Korea having become the theatre of war,[601] the -hostilities committed there by the belligerents against one another -cannot be classified as a violation of neutrality. The case of the -_Variag_ and the _Korietz_ on the one hand, and, on the other, the case -of the _Reshitelni_, may illustrate the peculiar condition of affairs:-- - -(1) On February 8, 1904, a Japanese squadron under Admiral Uriu entered -the Korean harbour of Chemulpo and disembarked Japanese troops. The next -morning Admiral Uriu requested the commanders of two Russian ships in -the harbour of Chemulpo, the _Variag_ and the _Korietz_, to leave the -harbour and engage him in battle outside, threatening attack inside the -harbour in case they would not comply with his request. But the Russian -ships did comply, and the battle took place outside the harbour, but -within Korean territorial waters.[602] The complaint made by Russia, -that in this case the Japanese violated Korean neutrality, would seem to -be unjustified, since Korea fell within the region and the theatre of -war. - -(2) The Russian destroyer _Reshitelni_, one of the vessels that escaped -from Port Arthur on August 10, 1904, took refuge in the Chinese harbour -of Chifu. On August 12, two Japanese destroyers entered the harbour, -captured the _Reshitelni_, and towed her away.[603] There ought to be no -doubt that this act of the Japanese comprises a violation of -neutrality,[604] since Chifu does not belong to the part of China which -fell within the region of war. - -[Footnote 601: See above, § 71, p. 87; Lawrence, _War_, pp. 268-294; -Ariga, §§ 16-22.] - -[Footnote 602: See Lawrence, _War_, pp. 279-289, and Takahashi, pp. -462-466.] - -[Footnote 603: See Lawrence, _War_, pp. 291-294, and Takahashi, pp. -437-444.] - -[Footnote 604: See below, § 361, where the case of the _General -Armstrong_ is discussed.] - -[Sidenote: Furnishing Troops and Men-of-War to Belligerents.] - -§ 321. If a State remains neutral, it violates its impartiality by -furnishing a belligerent with troops or men-of-war. And it matters not -whether a neutral renders such assistance to one of the belligerents or -to both alike. Whereas Convention V. does not mention the furnishing of -troops to belligerents on the part of neutrals, article 6 of Convention -XIII. enacts that "the supply, in any manner, directly or indirectly, by -a neutral Power to a belligerent Power, of warships, ammunition, or war -material of any kind whatever, is forbidden." - -However, the question is controversial as to whether a neutral State, -which in time of peace concluded a treaty with one of the belligerents -to furnish him in case of war with a limited number of troops, would -violate its neutrality by fulfilling its treaty obligation. Several -writers[605] have answered the question in the negative, and there is no -doubt that during the eighteenth century such cases happened. But no -case happened during the nineteenth century, and there ought to be no -doubt that nowadays the answer must be in the affirmative, since a -qualified neutrality[606] is no longer admissible. - -[Footnote 605: See, for instance, Bluntschli, § 759, and Heffter, § 144. -See above, § 306 (2), where the case is quoted of Denmark furnishing -troops to Russia in 1788 during a Russo-Swedish war.] - -[Footnote 606: See above, § 305.] - -As regards furnishing men-of-war to belligerents, the question arose -during the Russo-Japanese War as to whether a neutral violates his duty -of impartiality by not preventing his national steamship companies from -selling to a belligerent such of their liners as are destined in case of -war to be incorporated as cruisers in the national navy. The question -was discussed on account of the sale to Russia of the _Augusta Victoria_ -and the _Kaiserin Maria Theresia_ by the North German Lloyd, and the -_Fürst Bismarck_ and the _Columbia_ by the Hamburg-American Line, -vessels which were at once enrolled in the Russian Navy as second-class -cruisers, re-named as the _Kuban_, _Ural_, _Don_, and _Terek_. Had these -vessels, according to an arrangement with the German Government, really -been auxiliary cruisers to the German Navy, and had the German -Government given its consent to the transaction, a violation of -neutrality would have been committed by Germany. But the German Press -maintained that these vessels had not been auxiliary cruisers to the -Navy, and Japan did not lodge a protest with Germany on account of the -sale. If these liners were not auxiliary cruisers to the German Navy, -their sale to Russia was a legitimate sale of articles of -contraband.[607] - -[Footnote 607: See below, § 397.] - -[Sidenote: Subjects of Neutrals fighting among Belligerent Forces.] - -§ 322. Although several States, as Great Britain[608] and the United -States of America, by their Municipal Law prohibit their subjects from -enlisting in the military or naval service of belligerents, the duty of -impartiality incumbent upon neutrals does not at present include any -necessity for such prohibition, provided the individuals concerned cross -the frontier singly[609] and not in a body. But a neutral must recall -his military and naval officers who may have been serving in the army or -navy of either belligerent before the outbreak of war. A neutral must, -further, retain military and naval officers who want to resign their -commissions for the obvious purpose of enlisting in the service of -either belligerent. Therefore, when in 1877, during war between Turkey -and Servia, Russian officers left the Russian and entered the Servian -Army as volunteers with permission of the Russian Government, there was -a violation of the duty of impartiality on the part of neutral Russia. - -[Footnote 608: See Section 4 of the Foreign Enlistment Act, 1870.] - -[Footnote 609: See article 6 of Convention V.] - -On the other hand, there is no violation of neutrality in a neutral -allowing surgeons and such other non-combatant members of his army as -are vested with a character of inviolability according to the Geneva -Convention to enlist or to remain in the service of either belligerent. - -[Sidenote: Passage of Troops and War Material through Neutral -Territory.] - -§ 323. In contradistinction to the practice of the eighteenth -century,[610] it is now generally recognised that a violation of the -duty of impartiality is involved when a neutral allows a belligerent the -passage of troops or the transport of war material over his -territory.[611] And it matters not whether a neutral gives such -permission to one of the belligerents only, or to both alike. The -practice of the eighteenth century was a necessity, since many German -States consisted of parts distant one from another, so that their troops -had to pass through other Sovereigns' territories for the purpose of -reaching outlying parts. At the beginning of the nineteenth century the -passing of belligerent troops through neutral territory still occurred. -Prussia, although she at first repeatedly refused it, at last entered in -1805 into a secret convention with Russia granting Russian troops -passage through Silesia during war with France. On the other hand, even -before Russia had made use of this permission, Napoleon ordered -Bernadotte to march French troops through the then Prussian territory -of Anspach without even asking the consent of Prussia. In spite of the -protest of the Swiss Government, Austrian troops passed through Swiss -territory in 1813, and when in 1815 war broke out again through the -escape of Napoleon from the Island of Elba and his return to France, -Switzerland granted to the allied troops passage through her -territory.[612] But since that time it has become universally recognised -that all passage of belligerent troops through neutral territory must be -prohibited, and the Powers declared _expressis verbis_ in the Act of -November 20, 1815, which neutralised Switzerland, and was signed at -Paris,[613] that "no inference unfavourable to the neutrality and -inviolability of Switzerland can and must be drawn from the facts which -have caused the passage of the allied troops through a part of the -territory of the Swiss Confederation." The few instances[614] in which -during the nineteenth century States pretended to remain neutral, but -nevertheless allowed the troops of one of the belligerents passage -through their territory, led to war between the neutral and the other -belligerent. - -[Footnote 610: See Vattel, III. §§ 119-132.] - -[Footnote 611: See Dumas in _R.G._ XVI. (1909), pp. 289-316.] - -[Footnote 612: See Wheaton, §§ 418-420.] - -[Footnote 613: See Martens, _N.R._ II. p. 741.] - -[Footnote 614: See Heilborn, _Rechte_, pp. 8-9.] - -[Sidenote: Passage of Wounded through Neutral Territory.] - -However, just as in the case of furnishing troops so in the case of -passage, it is a moot point whether passage of troops can be granted -without thereby violating the duty of impartiality incumbent upon a -neutral, in case a neutral is required to grant it in consequence of an -existing State-servitude or of a treaty previous to the war. There ought -to be no doubt that, since nowadays a qualified neutrality is no longer -admissible, the question must be answered in the negative.[615] - -[Footnote 615: See above, §§ 305 and 306, and also above, vol. I. § 207. -Clauss, _Die Lehre von den Staatsdienstbarkeiten_ (1894), pp. 212-217, -must likewise be referred to. See also Dumas in _R.G._ XVI. (1909), pp. -286-316.] - -§ 324. The passage of wounded soldiers is different from that of troops. -If a neutral allows the passage of wounded soldiers, he certainly does -not render direct assistance to the belligerent concerned. But it may -well be that indirectly it is of assistance on account of the fact that -a belligerent, thereby relieved from transport of his wounded, can now -use the lines of communication for the transport of troops, war -material, and provisions. Thus, when in 1870 after the battles of Sedan -and Metz, Germany applied to Belgium and Luxemburg to allow her wounded -to be sent through their territories, France protested on the ground -that the relief thereby created to the lines of communication in the -hands of the Germans would be an assistance to the military operations -of the German Army. Belgium, on the advice of Great Britain, did not -grant the request made by Germany, but Luxemburg granted it.[616] - -[Footnote 616: See Hall, § 219, and Geffcken in Holtzendorff, IV. p. -664.] - -According to article 14 of Convention V. a neutral Power _may_ grant the -passage of wounded or sick to a belligerent. If he does grant it, the -trains bringing them must carry neither combatants nor war material, and -those of the wounded and sick who belong to the army of the other -belligerent must remain on the neutral territory concerned, must there -be guarded by the neutral Government, and must, after having recovered, -be prevented from returning to their home State and rejoining their -corps. By the stipulation of article 14 it is left to the consideration -of a neutral whether or no he will allow the passage of wounded and sick -to a belligerent; he will, therefore, have to investigate every case and -come to a conclusion according to its merits. It should be stated that, -according to article 15 of Convention V., the "Geneva Convention applies -to the sick and wounded interned in neutral territory." - -[Sidenote: Passage of Men-of-War.] - -§ 325. In contradistinction to passage of troops through his territory, -the duty of impartiality incumbent upon a neutral does not require him -to forbid the passage of belligerent men-of-war through the maritime -belt forming part of his territorial waters. Article 10 of Convention -XIII. categorically enacts that "the neutrality of a Power is not -violated (_n'est pas compromise_) by the mere passage of belligerent -men-of-war and their prizes." Since, as stated above in Vol. I. § 188, -every littoral State may even in time of peace prohibit the passage of -foreign men-of-war through its maritime belt provided such belt does not -form a part of the highways for international traffic, it may certainly -prohibit the passage of belligerent men-of-war in time of war. However, -no duty exists for a neutral to prohibit such passage in time of war, -and he need not exclude belligerent men-of-war from his ports either, -although he may do this likewise. The reason is that such passage and -such admittance into ports contain very little assistance indeed, and -are justified by the character of the sea as an international high road. -But it is, on the other hand, obvious that belligerent men-of-war must -not commit any hostilities against enemy vessels during their passage, -and must not use the neutral maritime belt and neutral ports as a basis -for their operations against the enemy.[617] - -[Footnote 617: See below, § 333.] - -[Sidenote: Occupation of Neutral Territory by Belligerents.] - -§ 326. In contradistinction to the practice of the eighteenth -century,[618] the duty of impartiality must nowadays prevent a neutral -from permitting belligerents to occupy a neutral fortress or any other -part of neutral territory. If a treaty previously entered into -stipulates such occupation, it cannot be granted without violation of -neutrality.[619] On the contrary, the neutral must even use force to -prevent belligerents from occupying any part of his neutral territory. -The question as to whether such occupation on the part of a belligerent -would be excusable in case of extreme necessity on account of the -neutral's inability to prevent the other belligerent from making use of -the neutral territory as a base for his military operations must, I -think, be answered in the affirmative, since an extreme case of -necessity in the interest of self-preservation must be considered as an -excuse.[620] - -[Footnote 618: See Kleen, I. § 116.] - -[Footnote 619: See Klüber, § 281, who asserts the contrary.] - -[Footnote 620: See Vattel, III. § 122; Bluntschli, § 782; Calvo, IV. § -2642. Kleen, I. § 116, seems not to recognise an extreme necessity of -the kind mentioned above as an excuse.--There is a difference between -this case and the case which arose at the outbreak of the Russo-Japanese -War, when both belligerents invaded Korea, for, as was explained above -in § 320, Korea and Manchuria fell within the region and the theatre of -war.] - -[Sidenote: Prize Courts on Neutral Territory.] - -§ 327. It has long been universally recognised that the duty of -impartiality must prevent a neutral from permitting a belligerent to set -up Prize Courts on neutral territory. The intention of a belligerent in -setting up a court on neutral territory can only be to facilitate the -plundering by his men-of-war of the commerce of the enemy. A neutral -tolerating such Prize Courts would, therefore, indirectly assist the -belligerent in his naval operations. During the eighteenth century it -was not considered illegitimate on the part of neutrals to allow the -setting up of Prize Courts on their territory. The _Règlement du Roi de -France concernant les prises qui seront conduites dans les ports -étrangers, et des formalités que doivent remplir les Consuls de S.M. qui -y sont établis_ of 1779, furnishes a striking proof of it. But since in -1793 the United States of America disorganised the French Prize Courts -set up by the French envoy Genêt on her territory,[621] it became -recognised that such Prize Courts are inconsistent with the duty of -impartiality incumbent upon a neutral, and article 4 of Convention XIII. -enacts this formerly customary rule. - -[Footnote 621: See above, § 291 (1.)] - -[Sidenote: Belligerent's Prizes in Neutral Ports.] - -§ 328. It would, no doubt, be an indirect assistance to the naval -operations of a belligerent if a neutral allowed him to organise on -neutral territory the safekeeping of prizes or their sale. - -But the case of a temporary stay of a belligerent man-of-war with her -prize in a neutral port is different. Neutral Powers may--although most -maritime States no longer do it--allow prizes to be brought temporarily -into their ports. Articles 21 and 22 of Convention XIII. lay down the -following rules in the matter: A prize may only be brought into a -neutral port on account of unseaworthiness, stress of weather, or want -of fuel or provisions; it must leave as soon as the circumstances which -justified its entry are at an end, and if it does not, the neutral Power -must order it to leave at once and must, in case of disobedience, employ -the means at disposal to release the prize with its officers and crew, -and to intern the prize-crew; a prize brought into a neutral port for -reasons other than unseaworthiness, stress of weather, or want of fuel -or provisions, must forthwith be released by the respective neutral -Power. - -The question requires attention as to whether a prize whose -unseaworthiness is so great that it cannot be repaired, may be allowed -to remain in the neutral port and be there sold[622] after the competent -Prize Court has condemned it. Since article 21 enacts that an admitted -prize must leave the neutral port as soon as the circumstances which -justified its entry are at an end, there is no doubt that it may remain -if it cannot by repair be made seaworthy. And there ought, consequently, -to be no objection to its sale in the neutral port, provided it has -previously been condemned by the proper Prize Court. - -[Footnote 622: See Kleen, vol. I. § 115.] - -While the stipulation of article 21 cannot meet with any objection, the -stipulation of article 23 of Convention XIII. is of a very doubtful -character. This article enacts that a neutral Power may allow prizes to -enter its ports, whether under convoy or not, when they are brought -there to be sequestrated pending the decision of a Prize Court. And it -is of importance to state the fact that the restriction of article 21 -does not apply to prizes brought into a neutral port under the rule of -article 23. This rule actually enables a belligerent to safeguard all -his prizes against recapture, and a neutral Power which allows -belligerent prizes access to its ports under the rule of article 23 -would indirectly render assistance to the naval operations of the -belligerent concerned. For this reason, Great Britain as well as Japan -and Siam entered a reservation against article 23. Be that as it may, -those Powers which have accepted article 23 will not, I believe, object -to the sale in the neutral port concerned of such sequestrated prizes, -provided they have previously been condemned by the proper Prize Court. - - -III - -NEUTRALS AND MILITARY PREPARATIONS - - Hall, §§ 217-218, 221-225--Lawrence, §§ 234-240--Westlake, II. pp. - 181-198--Manning, pp. 227-244--Phillimore, III. §§ - 142-151B--Twiss, II. §§ 223-225--Halleck, II. pp. 152-163--Taylor, - §§ 616, 619, 626-628--Walker, §§ 62-66--Wharton, III. §§ 392, - 395-396--Wheaton, §§ 436-439--Moore, VII. §§ 1293-1305--Heffter, - §§ 148-150--Geffcken in Holtzendorff, IV. pp. 658-660, - 676-684--Ullmann, § 191--Bonfils, Nos. 1458-1459, - 1464-1466--Despagnet, Nos. 692-693--Rivier, II. pp. - 395-408--Calvo, IV. §§ 2619-2627--Fiore, III. Nos. - 1551-1570--Kleen, I. §§ 76-89, 114--Mérignhac, pp. - 358-360--Pillet, pp. 288-290--Dupuis, Nos. 322-331, and _Guerre_, - Nos. 290-294--_Land Warfare_, §§ 472-476. - -[Sidenote: Depôts and Factories on Neutral Territory.] - -§ 329. Although according to the present intense conception of the duty -of impartiality neutrals need not[623] prohibit their subjects from -supplying belligerents with arms and the like in the ordinary way of -trade, a neutral must[624] prohibit belligerents from erecting and -maintaining on his territory depôts and factories of arms, ammunition, -and military provisions. However, belligerents can easily evade this by -not keeping depôts and factories, but contracting with subjects of the -neutral concerned in the ordinary way of trade for any amount of arms, -ammunition, and provisions.[625] - -[Footnote 623: See below, § 350.] - -[Footnote 624: See Bluntschli, § 777, and Kleen, I. § 114.] - -[Footnote 625: The distinction made by some writers between an -occasional supply on the one hand, and, on the other, an organised -supply in large proportions by subjects of neutrals, and the assertion -that the latter must be prohibited by the neutral concerned, is not -justified. See below, § 350.] - -[Sidenote: Levy of Troops, and the like.] - -§ 330. In former centuries neutrals were not required to prevent -belligerents from levying troops on their neutral territories, and a -neutral often used to levy troops himself on his territory for -belligerents without thereby violating his duty of impartiality as -understood in those times. In this way the Swiss Confederation -frequently used to furnish belligerents, and often both parties, with -thousands of recruits, although she herself always remained neutral. But -at the end of the eighteenth century a movement was started which tended -to change this practice. In 1793 the United States of America -interdicted the levy of troops on her territory for belligerents, and -by-and-by many other States followed the example. During the nineteenth -century the majority of writers maintained that the duty of impartiality -must prevent a neutral from allowing the levy of troops. The few[626] -writers who differed made it a condition that a neutral, if he allowed -such levy at all, must allow it to both belligerents alike. The -controversy is now finally settled, for articles 4 and 5 of Convention -V. lay down the rules that corps of combatants may not be formed, nor -recruiting offices opened, on the territory of a neutral Power, and that -neutral Powers must not allow these acts. - -[Footnote 626: See, for instance, Twiss, II. § 225, and Bluntschli, § -762.] - -The duty of impartiality must likewise prevent a neutral from allowing -a belligerent man-of-war reduced in her crew to enrol sailors in his -ports, with the exception of such few men as are absolutely necessary to -navigate the vessel to the nearest home port.[627] - -[Footnote 627: See article 18 of Convention XIII. and below, § 333 (3), -and § 346.] - -A pendant to the levy of troops on neutral territory was the granting of -Letters of Marque to vessels belonging to the merchant marine of -neutrals. Since privateering has practically disappeared, the question -as to whether neutrals must prohibit their subjects from accepting -Letters of Marque from a belligerent,[628] need not be discussed. - -[Footnote 628: See above, § 83. With the assertion of many writers that -a subject of a neutral who accepts Letters of Marque from a belligerent -may be treated as a pirate, I cannot agree. See above, vol. I. § 273.] - -[Sidenote: Passage of Bodies of Men intending to Enlist.] - -§ 331. A neutral is not obliged by his duty of impartiality to interdict -passage through his territory to men either singly or in numbers who -intend to enlist. Thus in 1870 Switzerland did not object to Frenchmen -travelling through Geneva for the purpose of reaching French corps or to -Germans travelling through Basle for the purpose of reaching German -corps, under the condition, however, that these men travelled without -arms and uniform. On the other hand, when France during the -Franco-German War organised an office[629] in Basle for the purpose of -sending bodies of Alsatian volunteers through Switzerland to the South -of France, Switzerland correctly prohibited this on account of the fact -that this _official_ organisation of the passage of whole bodies of -volunteers through her neutral territory was more or less equal to a -passage of troops. - -[Footnote 629: See Bluntschli, § 770.] - -The Second Peace Conference has sanctioned this distinction, for article -6 of Convention V. enacts that "the responsibility of a neutral Power is -not involved by the mere fact that persons cross the frontier -individually (_isolément_) in order to offer their services to one of -the belligerents." An _argumentum e contrario_ justifies the conclusion -that the responsibility of a neutral _is_ involved in case it does allow -men to cross the frontier in a body in order to enlist in the forces of -a belligerent. - -[Sidenote: Organisation of Hostile Expeditions.] - -§ 332. If the levy and passage of troops, and the forming of corps of -combatants, must be prevented by a neutral, he is all the more required -to prevent the organisation of a hostile expedition from his territory -against either belligerent. Such organisation takes place when a band of -men combine under a commander for the purpose of starting from the -neutral territory and joining the belligerent forces. The case, however, -is different, if a number of individuals, not organised into a body -under a commander, start in company from a neutral State for the purpose -of enlisting with one of the belligerents. Thus in 1870, during the -Franco-German War, 1200 Frenchmen started from New York in two French -steamers for the purpose of joining the French Army. Although the -vessels carried also 96,000 rifles and 11,000,000 cartridges, the United -States did not interfere, since the men were not organised in a body, -and since, on the other hand, the arms and ammunition were carried in -the way of ordinary commerce.[630] - -[Footnote 630: See Hall, § 222.] - -[Sidenote: Use of Neutral Territory as Base of Naval Operations.] - -§ 333. Although a neutral is not required by his duty of impartiality to -prohibit[631] the passage of belligerent men of-war through his maritime -belt, or the temporary stay of such vessels in his ports, it is -universally recognised that he must not allow admitted vessels to make -the neutral maritime belt and neutral ports the base of their naval -operations against the enemy. And article 5 of Convention XIII. enacts -that "belligerents are forbidden to use neutral ports and waters as a -base of naval operations against their adversaries." The following rules -may be formulated as emanating from the principle:-- - -(1) A neutral must, so far as is in his power, prevent belligerent -men-of-war from cruising within his portion of the maritime belt for the -purpose of capturing enemy vessels as soon as they leave this belt. It -must, however, be specially observed that a neutral is not required to -prevent this beyond his power. It is absolutely impossible to prevent -such cruising under all circumstances and conditions, especially in the -case of neutrals who own possessions in distant parts of the globe. How -many thousands of vessels would be necessary, if Great Britain, for -instance, were unconditionally obliged to prevent such cruising in every -portion of the maritime belt of all her numerous possessions scattered -over all parts of the globe? - -(2) A neutral must prevent a belligerent man-of-war from leaving a -neutral port at the same time as an enemy man-of-war or an enemy -merchantman, or must make other arrangements which prevent an attack so -soon as both reach the Open Sea.[632] Article 16 of Convention XIII. -enacts that there must be an interval of at least twenty-four hours -between the departure of a belligerent warship and a ship of the other -belligerent. - -(3) A neutral must prevent a belligerent man-of-war, whose crew is -reduced from any cause whatever, from enrolling sailors in his neutral -ports, with the exception of such few hands as are necessary for the -purpose of safely navigating the vessel to the nearest port of her home -State.[633] - -(4) A neutral must prevent belligerent men-of-war admitted to his ports -or maritime belt from taking in such a quantity of provisions and coal -as would enable them to continue their naval operations, for otherwise -he would make it possible for them to cruise on the Open Sea near his -maritime belt for the purpose of attacking enemy vessels. - -There is, however, no unanimity of the Powers concerning the quantity of -provisions and coal which belligerent men-of-war may be allowed to take -in. Articles 19 and 20 of Convention XIII. of the Second Peace -Conference enact the following:-- - -Article 19: "Belligerent war-ships may only revictual in neutral ports -or roadsteads to bring up their supplies to the peace standard. -Similarly these vessels may only ship sufficient fuel to enable them to -reach the nearest port in their own country. They may, on the other -hand, fill up their bunkers built to carry fuel, when in neutral -countries which have adopted this method of determining the amount of -fuel to be supplied. If in accordance with the law of the neutral Power, -the ships are not supplied with coal within twenty-four hours of their -arrival, the duration of their permitted stay is extended by twenty-four -hours." - -Article 20: "Belligerent war-ships which have shipped fuel in a port -belonging to a neutral Power may not within the succeeding three months -replenish their supply in a port of the same Power." - -Great Britain, Japan, and Siam, while they have accepted article -20,[634] have entered a reservation against article 19. Great Britain -upholds her rule that belligerent warships shall not be allowed to take -in more provisions and fuel in neutral ports than is necessary to bring -them safely to the nearest port of their own country. - -While, therefore, the matter is not settled, it is agreed that it makes -no difference whether the man-of-war concerned intends to buy provisions -and coal on land or to take them in from transport vessels which -accompany or meet her in neutral waters. - -(5) A neutral must prevent belligerent men-of-war admitted into his -ports or maritime belt from replenishing with ammunition and armaments, -and from adding to their armaments, as otherwise he would indirectly -assist them in preparing for hostilities (article 18 of Convention -XIII.). And it makes no difference whether the ammunition and armaments -are to come from the shore or are to be taken in from transport vessels. - -Similarly a neutral must prevent belligerent men-of-war in his ports and -roadsteads from carrying out such repairs as would add in any manner -whatever to their fighting force. The local authorities of the neutral -Power must decide what repairs are absolutely necessary to make these -vessels seaworthy, and such repairs are allowed, but they must be -carried out with the least possible delay (article 17 of Convention -XIII.). - -(6) A neutral must prevent belligerent men-of-war admitted into his -ports from remaining there longer than is necessary for ordinary and -legitimate purposes.[635] It cannot be said that the rule adopted in -1862 by Great Britain, and followed by some other maritime States, not -to allow a longer stay than twenty-four hours, is a rule of -International Law. It is left to the consideration of neutrals to adopt -by their Municipal Law any rule they think fit so long as the admitted -men-of-war do not prolong their stay for any other than ordinary and -legitimate purposes. Article 12 of Convention XIII. prescribes the -twenty-four hours rule only for those neutral countries which have not -special provisions to the contrary in their Municipal Laws.[636] But it -is agreed--and article 14 of Convention XIII. enacts it--that -belligerent men-of-war, except those exclusively for the time devoted to -religious, scientific, or philanthropic purposes, must not prolong their -stay in neutral ports and waters beyond the time permitted, except on -account of damage or stress of weather. A neutral would certainly -violate his duty of impartiality if he were to allow belligerent -men-of-war to winter in his ports or to stay there for the purpose of -waiting for other vessels of the fleet or transports. - -The rule that a neutral must prevent belligerent men-of-war from staying -too long in his ports or waters, became of considerable importance -during the Russo-Japanese War, when the Russian Baltic Fleet was on its -way to the Far East. Admiral Rojdestvensky is said to have stayed in the -French territorial waters of Madagascar from December 1904 till March -1905, for the purpose of awaiting there a part of the Baltic Fleet that -had set out at a later date. The Press likewise reported a prolonged -stay by parts of the Baltic Fleet during April 1905 at Kamranh Bay and -Hon-kohe Bay in French Indo-China. Provided the reported facts be true, -France would seem to have violated her duty of impartiality by not -preventing such an abuse of her neutral ports. - -(7) A neutral must prevent more than three men-of-war belonging to the -same belligerent from being simultaneously in one of his ports or -roadsteads unless his Municipal Law provides the contrary (article 15 of -Convention XIII.). - -(8) At the outbreak of war a neutral must warn all belligerent -men-of-war which were in his ports or roadsteads or in his territorial -waters before the outbreak of war, to depart within twenty-four hours or -within such time as the local law prescribes (article 13[637] of -Convention XIII.). - -[Footnote 631: See Curtius, _Des navires de guerre dans les eaux -neutres_ (1907).] - -[Footnote 632: See below, § 347 (1).] - -[Footnote 633: See article 18 of Convention XIII. and above, § 330.] - -[Footnote 634: But Germany has entered a reservation against article -20.] - -[Footnote 635: See below, § 347.] - -[Footnote 636: Germany, Domingo, Siam, and Persia have entered a -reservation against article 12.] - -[Footnote 637: Germany has entered a reservation against article 13.] - -[Sidenote: Building and Fitting-out of Vessels intended for Naval -Operations.] - -§ 334. Whereas a neutral is in no[638] wise obliged by his duty of -impartiality to prevent his subjects from selling armed vessels to the -belligerents, such armed vessels being merely contraband of war, a -neutral is bound to employ the means at his disposal to prevent his -subjects from building, fitting out, or arming, to the order of either -belligerent, vessels intended to be used as men-of-war, and to prevent -the departure from his jurisdiction of any vessel which, by order of -either belligerent, has been adapted to warlike use.[639] The difference -between selling armed vessels to belligerents, on the one hand, and -building them to order, on the other hand, is usually defined in the -following way:-- - -An armed ship, being contraband of war, is in no wise different from -other kinds of contraband, provided she is not manned in a neutral port -so that she can commit hostilities at once after having reached the Open -Sea. A subject of a neutral who builds an armed ship or arms a -merchantman, not to order of a belligerent but intending to sell her to -a belligerent, does not differ from a manufacturer of arms who intends -to sell them to a belligerent. There is nothing to prevent a neutral -from allowing his subjects to sell armed vessels, and to deliver them to -belligerents, either in a neutral port or in a port of the belligerent. -In the case of the _La Santissima Trinidad_[640] (1822), as in that of -the _Meteor_[641] (1866), American courts have recognised this.[642] - -[Footnote 638: See below, §§ 350 and 397.] - -[Footnote 639: See article 8 of Convention XIII.] - -[Footnote 640: 7 Wheaton, § 340.] - -[Footnote 641: See Wharton, III. § 396, p. 561.] - -[Footnote 642: See Phillimore, III. § 151B, and Hall, § 224.] - -On the other hand, if a subject of a neutral builds armed ships to order -of a belligerent, he prepares the means of naval operations, since the -ships on sailing outside the territorial waters of the neutral and -taking in a crew and ammunition can at once commit hostilities. Thus, -through carrying out the order of the belligerent, the neutral territory -concerned has been made the base of naval operations. And as the duty -of impartiality includes the obligation of the neutral to prevent either -belligerent from making neutral territory the base of military or naval -operations, a neutral violates his neutrality by not preventing his -subjects from carrying out an order of a belligerent for the building -and fitting out of men-of-war. - -This distinction, although of course logically correct, is -hair-splitting. It only shows that neutral States ought[643] to be -required to prevent their subjects from supplying arms, ammunition, and -the like, to belligerents. But so long as this progress is not made, the -above distinction will probably continue to be drawn, in spite of its -hair-splitting character. - -[Footnote 643: See below, § 350.] - -[Sidenote: The _Alabama_ Case and the Three Rules of Washington.] - -§ 335. The movement for recognition of the fact that the duty of -impartiality requires a neutral to prevent his subjects from building -and fitting out to order of belligerents vessels intended for naval -operations, began with the famous case of the _Alabama_. It is not -necessary to go into all the details[644] of this case. It suffices to -say that in 1862, during the American Civil War, the attention of the -British Government was drawn by the Government of the United States to -the fact that a vessel for warlike purposes was built in England to -order of the insurgents. This vessel, afterwards called the _Alabama_, -left Liverpool in July 1862 unarmed, but was met at the Azores by three -other vessels, also coming from England, which supplied her with guns -and ammunition, so that she could at once begin to prey upon the -merchantmen of the United States. On the conclusion of the Civil War, -the United States claimed damages from Great Britain for the losses -sustained by her merchant marine through the operations of the -_Alabama_ and other vessels likewise built in England. Negotiations went -on for several years, and finally the parties entered, on May 8, 1871, -into the Treaty of Washington[645] for the purpose of having their -difference settled by arbitration, five arbitrators to be -nominated--Great Britain, the United States, Brazil, Italy, and -Switzerland, each choosing one. The treaty contained three rules, since -then known as "The Three Rules of Washington," to be binding upon the -arbitrators, namely:[646]-- - -"A neutral Government is bound-- - -"_Firstly._ To use due diligence to prevent the fitting out, arming, or -equipping within its jurisdiction, of any vessel which it has reasonable -ground to believe is intended to cruise or carry on war against a Power -with which it is at peace, and also to use like diligence to prevent the -departure from its jurisdiction of any vessel intended to cruise or -carry on war as above, such vessel having been specially adapted in -whole or in part, within such jurisdiction, to warlike use. - -"_Secondly._ Not to permit or suffer either belligerent to make use of -its ports or waters as the base of naval operations against the other, -or for the purpose of the renewal or augmentation of military supplies -or arms, or the recruitment of men. - -"_Thirdly._ To exercise due diligence in its waters, and as to all -persons within its jurisdiction, to prevent any violations of the -foregoing obligations and duties." - -[Footnote 644: See Mountague Bernard, _Neutrality of Great Britain -during the American Civil War_ (1870), pp. 338-496; Geffcken, _Die -Alabama Frage_ (1872); Pradier-Fodéré, _La Question de l'Alabama_ -(1872); Caleb Cushing, _Le Traité de Washington_ (1874); Bluntschli in -_R.I._ II. (1870), pp. 452-485; Balch, _L'Évolution de l'arbitrage -international_ (1908), pp. 43-70.] - -[Footnote 645: Martens, _N.R.G._ XX. p. 698.] - -[Footnote 646: See Moore, VII. § 1330.] - -In consenting that these rules should be binding upon the arbitrators, -Great Britain expressly declared that, in spite of her consent, she -maintained that these rules were not recognised rules of International -Law at the time when the case of the _Alabama_ occurred, and the treaty -contains also the stipulation that the parties-- - -"Agree to observe these rules as between themselves in future, and to -bring them to the knowledge of other Maritime Powers, and to invite them -to accede to them." - -The appointed arbitrators[647] met at Geneva in 1871, held thirty-two -conferences there, and gave decision[648] on September 14, 1872, -according to which England had to pay 15,500,000 dollars damages to the -United States. - -[Footnote 647: See Moore, _Arbitrations_, I. pp. 495-682.] - -[Footnote 648: The award is printed in full in Moore, _Arbitrations_, I. -pp. 653-659, and in Phillimore, III. § 151.] - -The arbitrators put a construction upon the term _due diligence_[649] -and asserted other opinions in their decision which are very much -contested and to which Great Britain never consented. Thus, Great -Britain and the United States, although they agreed upon the three -rules, did not at all agree upon the interpretation thereof, and they -could, therefore, likewise not agree upon the contents of the -communication to other maritime States stipulated by the Treaty of -Washington. It ought not, therefore, to be said that the Three Rules of -Washington[650] have literally become universal rules of International -Law. Nevertheless, they were the starting-point of the movement for the -universal recognition of the fact that the duty of impartiality obliges -neutrals to prevent their subjects from building and fitting out, to -order of belligerents, vessels intended for warlike purposes, and to -prevent the departure from their jurisdiction of any vessel, which, by -order of a belligerent, has been adapted to warlike use. Particular -attention must be paid to the fact that, although article 8 of -Convention XIII. in other respects copies almost verbally the first of -the Three Rules of Washington, it differs from it in so far as it -replaces the words "to use due diligence" by "to employ the means at its -disposal." For this reason the construction put by the Geneva -arbitrators upon the term _due diligence_ cannot find application to the -rule of article 8, the employment of the means at the disposal of a -neutral to prevent the acts concerned being a mere question of fact. - -[Footnote 649: See below, § 363.] - -[Footnote 650: As regards the seven rules adopted by the Institute of -International Law, at its meeting at the Hague in 1875, as emanating -from the Three Rules of Washington, see _Annuaire_, I. (1877), p. 139.] - - -IV - -NEUTRAL ASYLUM TO LAND FORCES AND WAR MATERIAL - - Vattel, III. §§ 132-133--Hall, §§ 226 and 230--Halleck, II. p. - 150--Taylor, § 621--Wharton, III. § 394--Moore, VII. §§ - 1314-1318--Bluntschli, §§ 774, 776-776A, 785--Heffter, § - 149--Geffcken in Holtzendorff, IV. pp. 662-665--Ullmann, § - 191--Bonfils, Nos. 1461-1462--Rivier, II. pp. 395-398--Calvo, IV. - §§ 2668-2669--Fiore, III. Nos. 1576, 1582, 1583--Martens, II. § - 133--Mérignhac, pp. 370-376--Pillet, pp. 286-287--Kleen, II. §§ - 151-157--Holland, War, Nos. 131-133--Zorn, pp. 316-352--Heilborn, - _Rechte und Pflichten der neutralen Staaten in Bezug auf die - während des Krieges auf ihr Gebiet übertretenden Angehörigen einer - Armee und das dorthingebrachte Kriegsmaterial der kriegführenden - Parteien_ (1888), pp. 12-83--Rolin-Jaequemyns in _R.I._ III. - (1871), pp. 352-366--_Land Warfare_, §§ 485-501. - -[Sidenote: On Neutral Asylum in general.] - -§ 336. Neutral territory, being outside the region of war,[651] offers -an asylum to members of belligerent forces, to the subjects of the -belligerents and their property, and to war material of the -belligerents. Since, according to the present rules of International -Law, the duty of either belligerent to treat neutrals according to their -impartiality must--the case of extreme necessity for self-preservation -excepted--prevent them from violating the territorial supremacy of -neutrals, enemy persons as well as enemy goods are perfectly safe on -neutral territory. It is true that neither belligerent has a right to -demand from a neutral[652] such asylum for his subjects, their property, -and his State property. But neither has he, on the other hand, any right -to demand that a neutral refuse such asylum to the enemy. The -territorial supremacy of the neutral enables him to use his discretion, -and either to grant or to refuse asylum. However, the duty of -impartiality incumbent upon him must induce a neutral granting asylum to -take all such measures as are necessary to prevent his territory from -being used as a base of hostile operations. - -[Footnote 651: See above, §§ 70 and 71.] - -[Footnote 652: The generally recognised usage for a neutral to grant -temporary hospitality in his ports to vessels in distress of either -belligerent is an exception to be discussed below in § 344.] - -Now, neutral territory may be an asylum, first, for private enemy -property; secondly, for public enemy property, especially war material, -cash, and provisions; thirdly, for private subjects of the enemy; -fourthly, for enemy land forces; and, fifthly, for enemy naval forces. -Details, however, need only be given with regard to asylum to land -forces, war material, and naval forces. For with regard to private -property and private subjects it need only be mentioned that private war -material brought into neutral territory stands on the same footing as -public war material of a belligerent brought there, and, further, that -private enemy subjects are safe on neutral territory even if they are -claimed by a belligerent for the committal of war crimes. - -Only asylum to land forces and war material will be discussed here in §§ -337-341, asylum to naval forces being reserved for separate discussion -in §§ 342-348. As regards asylum to land forces, a distinction must be -made between (1) prisoners of war, (2) single fugitive soldiers, and (3) -troops or whole armies pursued by the enemy and thereby induced to take -refuge on neutral territory. - -[Sidenote: Neutral Territory and Prisoners of War.] - -§ 337. Neutral territory is an asylum to prisoners of war of either -belligerent in so far as they become free _ipso facto_ by their coming -into neutral territory. And it matters not in which way they come there, -whether they escape from a place of detention and take refuge on neutral -territory, or whether they are brought as prisoners into such territory -by enemy troops who themselves take refuge there.[653] - -[Footnote 653: The case of prisoners on board a belligerent man-of-war -which enters a neutral port is different; see below, § 345.] - -The principle that prisoners of war regain their liberty by coming into -neutral territory has been generally recognised for centuries. An -illustration occurred in 1558, when several Turkish and Barbary captives -escaped from one of the galleys of the Spanish Armada which was wrecked -near Calais, and, although the Spanish Ambassador claimed them, France -considered them to be freed by the fact of their coming on her -territory, and sent them to Constantinople.[654] But has the neutral on -whose territory a prisoner has taken refuge the duty to retain such -fugitives and thereby prevent them from rejoining the enemy army? -Formerly this question was not settled. In 1870, during the -Franco-German War, Belgium answered the question in the affirmative, and -detained a French non-commissioned officer who had been a prisoner in -Germany and had escaped into Belgian territory with the intention of -rejoining at once the French forces. Whereas this case was -controversial,[655] all writers agreed that the case was different if -escaped prisoners wanted to remain on the neutral territory. As such -refugees might at any subsequent time wish to rejoin their forces, the -neutral was by his duty of impartiality considered to be obliged to take -adequate measures to prevent their so doing. There was likewise no -unanimity regarding prisoners brought into neutral territory by enemy -forces taking refuge there. It was agreed that such prisoners became -free by being brought into neutral territory; but whereas some -writers[656] maintained that they could not be detained in case they -intended at once to leave the neutral territory, others asserted that -they must always be detained and that they must comply with such -measures as the neutral considers necessary to prevent them from -rejoining their forces. - -[Footnote 654: See Hall, § 226, p. 641, note 1.] - -[Footnote 655: See Rolin-Jaequemyns in _R.I._ III. (1871), p. 556; -Bluntschli, § 776; Heilborn, _Rechte_, pp. 32-34.] - -[Footnote 656: For instance, Heilborn, _Rechte_, pp. 51-52.] - -Article 13 of Convention V. settles the controversy by enacting that a -neutral who receives prisoners of war who have escaped or who are -brought there by troops of the enemy taking refuge on neutral territory, -shall leave them at liberty, but that, if he allows them to remain on -his territory, he _may_--he need not!--assign them a place of residence -so as to prevent them from rejoining their forces. Since, therefore, -everything is left to the discretion of the neutral, he will have to -take into account the merits and needs of every case and to take such -steps as he thinks adequate. But so much is certain that a belligerent -may not in every case categorically demand from a neutral who receives -escaped prisoners, or such as have been brought there by troops who take -refuge, that he should detain them. - -The case of prisoners who, with the consent of the neutral, are -transported through neutral territory is different. Such prisoners do -not become free on entering the neutral territory, but there is no doubt -that a neutral, by consenting to the transport, violates his duty of -impartiality, because such transport is equal to passage of troops -through neutral territory (article 2 of Convention V.). - -Attention must, lastly, be drawn to the case where enemy soldiers are -amongst the wounded whom a belligerent is allowed by a neutral to -transport through neutral territory. Such wounded prisoners become -free, but they must, according to article 14 of Convention V., be -guarded by the neutral so as to insure their not again taking part in -military operations.[657] - -[Footnote 657: See also article 15 of Convention X. and below, § -348_a_.] - -[Sidenote: Fugitive Soldiers on Neutral Territory.] - -§ 338. A neutral may grant asylum to single soldiers of belligerents who -take refuge on his territory, although he need not do so, and may at -once send them back to the place they came from. If he grants such -asylum, his duty of impartiality obliges him to disarm the fugitives and -to take such measures as are necessary to prevent them from rejoining -their forces. But it must be emphasised that it is practically -impossible for a neutral to be so watchful as to detect every single -fugitive who enters his territory. It will always happen that such -fugitives steal into neutral territory and leave it again later on to -rejoin their forces without the neutral being responsible. And, before -he can incur responsibility for not doing so, a neutral must actually be -in a position to detain such fugitives. Thus Luxemburg, during the -Franco-German War, could not prevent hundreds of French soldiers, who, -after the capitulation of Metz, fled into her territory, from rejoining -the French forces; because, according to the condition[658] of her -neutralisation, she is not allowed to keep an army, and therefore, in -contradistinction to Switzerland and Belgium, was unable to mobilise -troops for the purpose of fulfilling her duty of impartiality. - -[Footnote 658: See above, vol. I. § 100.] - -[Sidenote: Neutral Territory and Fugitive Troops.] - -§ 339. On occasions during war large bodies of troops, or even a whole -army, are obliged to cross the neutral frontier for the purpose of -escaping captivity. A neutral need not permit this, and may repulse them -on the spot, but he may also grant asylum. It is, however, obvious that -the presence of such troops on neutral territory is a danger for the -other party. The duty of impartiality incumbent upon a neutral obliges -him, therefore, to disarm such troops at once, and to guard them so as -to insure their not again performing military acts against the enemy -during the war. Convention V. enacts the following rules:-- - -Article 11: "A neutral Power which receives in its territory troops -belonging to the belligerent armies shall detain them, if possible, at -some distance from the theatre of war. It may keep them in camps, and -even confine them in fortresses or localities assigned for the purpose. -It shall decide whether officers are to be left at liberty on giving -their parole that they will not leave the neutral territory without -authorisation." - -Article 12: "In the absence of a special Convention, the neutral Power -shall supply the interned with the food, clothing, and relief which the -dictates of humanity prescribe. At the conclusion of peace, the expenses -caused by internment shall be made good." - -It is usual for troops who are not actually pursued by the enemy--for if -pursued they have no time for it--to enter through their commander into -a convention with the representative of the neutral concerned, -stipulating the conditions upon which they cross the frontier and give -themselves into the custody of the neutral. Such conventions are valid -without needing ratification, provided they contain only such -stipulations as do not disagree with International Law and as concern -only the requirements of the case. - -Stress must be laid on the fact that, although the detained troops are -not prisoners of war captured by the neutral, they are nevertheless in -his custody, and therefore under his disciplinary power, just as -prisoners of war are under the disciplinary power of the State which -keeps them in captivity. They do not enjoy the exterritoriality--see -above, Vol. I. § 445--due to armed forces abroad because they are -disarmed. As the neutral is required to prevent them from escaping, he -must apply stern measures, and he may punish severely every member of -the detained force who attempts to frustrate such measures or does not -comply with the disciplinary rules regarding order, sanitation, and the -like. - -The most remarkable instance known in history is the asylum granted by -Switzerland during the Franco-German War to a French army of 85,000 men -with 10,000 horses which crossed the frontier on February 1, 1871.[659] -France had, after the conclusion of the war, to pay about eleven million -francs for the maintenance of this army in Switzerland during the rest -of the war. - -[Footnote 659: See the Convention regarding this asylum between the -Swiss General Herzog and the French General Clinchant in Martens, -_N.R.G._ XIX. p. 639.] - -[Sidenote: Neutral Territory and Non-combatant Members of Belligerent -Forces.] - -§ 340. The duty of impartiality incumbent upon a neutral obliges him to -detain in the same way as soldiers such non-combatant[660] members of -belligerent forces as cross his frontier. He may not, however, detain -army surgeons and other non-combatants who are privileged according to -article 2 of the Geneva Convention. - -[Footnote 660: See Heilborn, _Rechte_, pp. 43-46. Convention V. does not -mention any rule concerning this matter.] - -[Sidenote: Neutral Territory and War Material of Belligerents.] - -§ 341. It can happen during war that war material belonging to one of -the belligerents is brought into neutral territory for the purpose of -saving it from capture by the enemy. Such war material can be brought by -troops crossing the neutral frontier for the purpose of evading -captivity, or it can be purposely sent there by order of a commander. -Now, a neutral is by no means obliged to admit such material, just as he -is not obliged to admit soldiers of belligerents. But if he admits it, -his duty of impartiality obliges him to seize and retain it till after -the conclusion of peace. War material includes, besides arms, -ammunition, provisions, horses, means of military transport such as -carts and the like, and everything else that belongs to the equipment -of troops. But means of military transport belong to war material only -so far as they are the property of a belligerent. If they are hired or -requisitioned from private individuals, they may not be detained by the -neutral. - -It can likewise happen during war that war material, originally the -property of one of the belligerents but seized and appropriated by the -enemy, is brought by the latter into neutral territory. Does such -material, through coming into neutral territory, become free, and must -it be restored to its original owner, or must it be retained by the -neutral and after the war be restored to the belligerent who brought it -into the neutral territory? In analogy with prisoners of war who become -free through being brought into neutral territory, it is maintained[661] -that such war material becomes free and must be restored to its original -owner. To this however, I cannot agree.[662] Since war material becomes -through seizure by the enemy his property and remains his property -unless the other party re-seizes and thereby re-appropriates it, there -is no reason for its reverting to its original owner upon transportation -into neutral territory.[663] - -[Footnote 661: See Hall, § 226.] - -[Footnote 662: See Heilborn, _Rechte_, p. 60, and _Land Warfare_, § 492. -The Dutch Government at the Second Peace Conference proposed a rule -according to which captured war material brought by the captor into -neutral territory should be restored, after the war, to its original -owner, but--see _Deuxième Conférence, Actes_, vol. i. p. 145--this -proposal was not accepted.] - -[Footnote 663: See Heilborn, _Rechte_, pp. 61-65, where the question is -discussed as to whether a neutral may claim a lien on war material -brought into his territory for expenses incurred for the maintenance of -detained troops belonging to the owner of the war material.] - - -V - -NEUTRAL ASYLUM TO NAVAL FORCES - - Vattel, III. § 132--Hall, § 231--Twiss, II. § 222--Halleck, II. p. - 151--Taylor, §§ 635, 636, 640--Wharton, III. § 394--Wheaton, § - 434--Moore, VII. §§ 1314-1318--Bluntschli, §§ 775-776B--Heffter, § - 149--Geffcken in Holtzendorff, IV. pp. 665-667, 674--Ullmann, § - 191--Bonfils, No. 1463--Despagnet, No. 692 _ter_--Rivier, II. p. - 405--Calvo, IV. §§ 2669-2684--Fiore, III. Nos. 1576-1581, 1584, - and Code, Nos. 1788-1792--Martens, II. § 133--Kleen, II. § - 155--Pillet, pp. 305-307--Perels, § 39, p. 231--Testa, pp. - 173-187--Dupuis, Nos. 308-314, and _Guerre_, Nos. - 304-328--Ortolan, II. pp. 247-291--Hautefeuille, I. pp. - 344-405--Takahashi, pp. 418-484--Bajer in _R.I._ 2nd Ser. II. - (1900), pp. 242-244--Lapradelle in _R.G._ XI. (1904), p. 531. - -[Sidenote: Asylum to Naval Forces in contradistinction to Asylum to Land -Forces.] - -§ 342. Whereas asylum granted by a neutral to land forces and single -members of them is conditioned by the obligation of the neutral to -disarm such forces and to detain them for the purpose of preventing them -from joining in further military operations, a neutral may grant -temporary asylum to men-of-war of belligerents without being obliged to -disarm and detain them.[664] The reason is that the sea is considered an -international highway, that the ports of all nations serve more or less -the interests of international traffic on the sea, and that the -conditions of navigation make a certain hospitality of ports to vessels -of all nations a necessity. Thus the rules of International Law -regarding asylum of neutral ports to men-of-war of belligerents have -developed on somewhat different lines from the rules regarding asylum to -land forces. But the rule, that the duty of impartiality incumbent upon -a neutral must prevent him from allowing belligerents to use his -territory as a base of operations of war, is nevertheless valid -regarding asylum granted to their men-of-war. - -[Footnote 664: See, however, below, § 347, concerning the abuse of -asylum, which must be prohibited.] - -[Sidenote: Neutral Asylum to Naval Forces optional.] - -§ 343. Although a neutral may grant asylum to belligerent men-of-war in -his ports, he has no duty to do so. He may prohibit all belligerent -men-of-war from entering any of his ports, whether these vessels are -pursued by the enemy or desire to enter for other reasons. However, his -duty of impartiality must prevent him from denying to the one party what -he grants to the other, and he may not, therefore, allow entry to -men-of-war of one belligerent without giving the same permission to -men-of-war of the other belligerent (article 9 of Convention XIII.). -Neutrals as a rule admit men-of-war of both parties, but they frequently -exclude all men-of-war of both parties from entering certain ports. Thus -Austria prohibited during the Crimean War all belligerent men-of-war -from entering the port of Cattaro. Thus, further, Great Britain -prohibited during the American Civil War the access of all belligerent -men-of-war to the ports of the Bahama Islands, the case of stress of -weather excepted. - -Be that as it may, since a neutral must prevent belligerents from making -his territory the base of military operations, he must not allow an -unlimited number of men-of-war belonging to one of the belligerents to -stay simultaneously in one of his ports. Article 15 of Convention XIII. -limits the number of such men-of-war to three, unless there are special -provisions to the contrary in the Municipal Law of the neutral -concerned. - -[Sidenote: Asylum to Naval Forces in Distress.] - -§ 344. To the rule that a neutral need not admit men-of-war of the -belligerents to neutral ports there is no exception in strict law. -However, there is an international usage that belligerent men-of-war in -distress should never be prevented from making for the nearest port. In -accordance with this usage vessels in distress have always been allowed -entry even to such neutral ports as were totally closed to belligerent -men-of-war. There are even instances known of belligerent men-of-war in -distress having asked for and been granted asylum by the enemy in an -enemy port.[665] - -[Footnote 665: See above, § 189.] - -[Sidenote: Exterritoriality of Men-of-War during Asylum.] - -§ 345. The exterritoriality, which according to a universally recognised -rule of International Law men-of-war must enjoy[666] in foreign ports, -obtains even in time of war during their stay in neutral ports. -Therefore, prisoners of war on board do not become free by coming into -the neutral port[667] so long as they are not brought on shore, nor do -prizes[668] brought into neutral ports by belligerents. On the other -hand, belligerent men-of-war are expected to comply with all orders -which the neutral makes for the purpose of preventing them from making -his ports the base of their operations of war, as, for instance, with -the order not to leave the ports at the same time as vessels of the -other belligerent. And, if they do not comply voluntarily, they may be -made to do so through application of force, for a neutral has the duty -to prevent by all means at hand the abuse of the asylum granted. - -[Footnote 666: See above, vol. I. § 450.] - -[Footnote 667: See above, § 337.] - -[Footnote 668: See articles 21-23 of Convention XIII.] - -Special provision is made by article 24 of Convention XIII. for the case -of a belligerent man-of-war which refuses to leave a neutral port. This -article enacts:--"If, notwithstanding the notification of the neutral -Power, a belligerent ship of war does not leave a port where it is not -entitled to remain, the neutral Power is entitled to take such measures -as it considers necessary to render the ship incapable of putting to sea -so long as the war lasts, and the commanding officer of the ship must -facilitate the execution of such measures. When a belligerent ship is -detained by a neutral Power, the officers and crew are likewise -detained. The officers and crew so detained may be left in the ship or -kept either on another vessel or on land, and may be subjected to such -measures of restriction as it may appear necessary to impose upon them. -A sufficient number of men must, however, be always left on board for -looking after the vessel. The officers may be left at liberty on giving -their word not to quit neutral territory without permission." - -If a vessel is granted asylum for the whole time of the war--see below, -§ 347 (3 and 4)--and is, therefore, dismantled, she loses the character -of a man-of-war, no longer enjoys the privilege of exterritoriality due -to men-of-war in foreign waters, and prisoners on board become free, -although they must be detained by the neutral concerned. - -[Sidenote: Facilities to Men-of-War during Asylum.] - -§ 346. A belligerent man-of-war, to which asylum is granted in a neutral -port, is not only not disarmed and detained, but facilities may even be -rendered to her as regards slight repairs, and the supply of provisions -and coal. However, a neutral may only allow small repairs of the vessel -herself and not of her armaments;[669] for he would render assistance to -one of the belligerents, to the detriment of the other, if he were to -allow the damaged armaments of a belligerent man-of-war to be repaired -in a neutral port. And, further, a neutral may only allow a limited -amount of provisions and coal to be taken in by a belligerent man-of-war -in neutral ports;[670] for, if he did otherwise, he would allow the -belligerent to use the neutral ports as a base for operations of war. -And, lastly, a neutral may allow a belligerent man-of-war in his ports -to enrol only such a small number of sailors as is necessary to navigate -her safely to the nearest port of her home State.[671] - -[Footnote 669: See above, § 333 (5), and below, § 347 (3).] - -[Footnote 670: See above, § 333 (4).] - -[Footnote 671: See above, §§ 330 and 333 (3).] - -[Sidenote: Abuse of Asylum to be prohibited.] - -§ 347. It would be easy for belligerent men-of-war to which asylum is -granted in neutral ports to abuse such asylum if neutrals were not -required to prohibit such abuse. - -(1) A belligerent man-of-war can abuse asylum, firstly, by ascertaining -whether and what kind of enemy vessels are in the same neutral port, -accompanying them when they leave, and attacking them immediately they -reach the Open Sea. To prevent such abuse, in the eighteenth century -several neutral States arranged that, if belligerent men-of-war or -privateers met enemy vessels in a neutral port, they were not to be -allowed to leave together, but an interval of at least twenty-four hours -was to elapse between the sailing of the vessels. During the nineteenth -century this so-called twenty-four hours rule was enforced by the -majority of States, and the Second Peace Conference, by article 16 of -Convention XIII., has made it a general rule[672] by enacting:--"When -war-ships belonging to both belligerents are present simultaneously in a -neutral port or roadstead, a period of not less than twenty-four hours -must elapse between the departure of the ship belonging to one -belligerent and the departure of the ship belonging to the other. The -order of departure is determined by the order of arrival, unless the -ship which arrived first is so circumstanced that an extension of its -stay is permissible. A belligerent war-ship may not leave a neutral port -or roadstead until twenty-four hours after the departure of a merchant -ship flying the flag of its adversary." - -(2) Asylum can, secondly, be abused by wintering in a port in order to -wait for other vessels of the same fleet, or by similar intentional -delay. There is no doubt that neutrals must prohibit this abuse by -ordering such belligerent men-of-war to leave the neutral ports. -Following the example set by Great Britain in 1862,[673] several -maritime States have adopted the rule of not allowing a belligerent -man-of-war to stay in their neutral ports for more than twenty-four -hours, except on account of damage or stress of weather. Other States, -such as France, do not, however, object to a more prolonged stay in -their ports. Article 12 of Convention XIII. prescribes the twenty-four -hours rule only for those neutral countries which have not special -provisions to the contrary in their Municipal Laws.[674] - -(3) Asylum can, thirdly, be abused by repairing a belligerent man-of-war -which has become unseaworthy. Although small repairs are allowed,[675] a -neutral would violate his duty of impartiality by allowing such repairs -as would make good the unseaworthiness of a belligerent man-of-war. -During the Russo-Japanese War this was generally recognised, and the -Russian men-of-war _Askold_ and _Grossovoi_ in Shanghai, the _Diana_ in -Saigon, and the _Lena_ in San Francisco had therefore to be disarmed and -detained. The crews of these vessels had likewise to be detained for the -time of the war. - -(4) Asylum can, lastly, be abused by remaining in a neutral port an -undue length of time in order to escape attack and capture by the other -belligerent. Neutral territorial waters are in fact an asylum for -men-of-war which are pursued by the enemy, but, since nowadays a right -of pursuit into neutral waters, as asserted by Bynkershoek,[676] is no -longer recognised, it would be an abuse of asylum if the escaped vessel -were allowed to make a prolonged stay in the neutral waters. A neutral -who allowed such abuse of asylum would violate his duty of impartiality, -for he would assist one of the belligerents to the disadvantage of the -other.[677] Therefore, when after the battle off Port Arthur in August -1904 the Russian battleship _Cesarewitch_, the cruiser _Novik_, and -three destroyers escaped, and took refuge in the German port of -Tsing-Tau in Kiao-Chau, the _Novik_, which was uninjured, had to leave -the port after a few hours,[678] whereas the other vessels, which were -too damaged to leave the port, were disarmed and, together with their -crews, detained till the conclusion of peace. And when, at the end of -May 1905, after the battle of Tsu Shima, three injured Russian -men-of-war, the _Aurora_, _Oleg_, and _Jemchug_, escaped into the -harbour of Manila, the United States of America ordered them to be -disarmed and, together with their crews, to be detained during the war. - -[Footnote 672: See above, § 333 (2), and Hall, § 231, p. 651.] - -[Footnote 673: See Hall, § 231, p. 653.] - -[Footnote 674: See above, § 333 (6)--Germany, Domingo, Siam, and Persia -have entered a reservation against article 12.] - -[Footnote 675: See above, § 333 (5) and § 346.] - -[Footnote 676: _Quaest. jur. publ._ I. c. 8. See also above, § 288, p. -352, and § 320, p. 387.] - -[Footnote 677: It was only during the Russo-Japanese War in 1904 that -this became generally recognised, and article 24 of Convention XIII. -places it beyond all doubt. Until the Russo-Japanese War it was still a -controverted question whether a neutral is obliged either to dismiss or -to disarm and detain such men-of war as had fled into his ports for the -purpose of escaping attack and capture. See Hall, § 231, p. 651, and -Perels, § 39, p. 213, in contradistinction to Fiore, III. No. 1578. The -"Règlement sur le régime légal des navires et de leurs équipages dans -les ports étrangers," adopted by the Institute of International Law in -1898 at its meeting at the Hague--see _Annuaire_, XVII. (1898), p. -273--answers (article 42) the question in the affirmative.] - -[Footnote 678: This case marks the difference between the duties of -neutrals as regards asylum to land and naval forces. Whereas land forces -crossing neutral frontiers must either be at once repulsed or detained, -men-of-war may be granted the right to stay for some limited time within -neutral harbours and to leave afterwards unhindered; see above, § 342. -The supply of a small quantity of coal to the _Novik_ in Tsing-Tau was -criticised by writers in the Press, but unjustly. For--see above, § -346--a neutral may allow a belligerent man-of-war in his port to take in -so much coal as is necessary to navigate her to her nearest home port.] - -[Sidenote: Neutral Men-of-War as an Asylum.] - -§ 348. It can happen during war that neutral men-of-war pick up and save -from drowning soldiers and sailors of belligerent men-of-war sunk by the -enemy, or that they take belligerent marines on board for other reasons. -Such neutral men-of-war being an asylum for the rescued marines, the -question has arisen whether such rescued marines must be given up to the -enemy, or must be detained during the war, or may be brought to their -home country. Two cases are on record which illustrate this matter. - -(1) At the beginning of the Chino-Japanese War, on July 25, 1894, after -the Japanese cruiser _Naniwa_ had sunk the British ship _Kow-shing_, -which served as transport carrying Chinese troops,[679] forty-five -Chinese soldiers who clung to the mast of the sinking ship were rescued -by the French gunboat _Lion_ and brought to the Korean harbour of -Chemulpo. Hundreds of others saved themselves on some islands near the -spot where the incident occurred, and 120 of these were taken on board -the German man-of-war _Iltis_ and brought back to the Chinese port of -Tientsin.[680] - -(2) At the beginning of the Russo-Japanese War, on February 9, 1904, -after the Russian cruisers _Variag_ and _Korietz_ had accepted the -challenge[681] of a Japanese fleet, fought a battle outside the harbour -of Chemulpo, and returned, crowded with wounded, to Chemulpo, the -British cruiser _Talbot_, the French _Pascal_, and the Italian _Elba_ -received large numbers of the crews of the disabled Russian cruisers. -The Japanese demanded that the neutral ships should give up the rescued -men as prisoners of war, but the neutral commanders demurred, and an -arrangement was made according to which the rescued men were handed over -to the Russians under the condition that they should not take part in -hostilities during the war.[682] - -[Footnote 679: See above, § 89, p. 114, note 1.] - -[Footnote 680: See Takahashi, _Cases on International Law during the -Chino-Japanese War_ (1899), pp. 36 and 51.] - -[Footnote 681: See above, § 320 (1).] - -[Footnote 682: See Lawrence, _War_, pp. 63-75, and Takahashi, pp. -462-466.] - -The Second Peace Conference has settled the question, for article 13 of -Convention X. enacts:--"If wounded, sick, or shipwrecked are taken on -board a neutral man-of-war, precaution must be taken, so far as -possible, that they do not again take part in the operations of the -war." - -[Sidenote: Neutral Territory and Shipwrecked Soldiers.] - -§ 348_a_. Just as in war on land members of the belligerent forces may -find themselves on neutral territory, so in war on sea shipwrecked or -wounded or sick belligerent soldiers can be brought into neutral -territory. Two cases of this kind must be distinguished:-- - -(1) According to article 14 of Convention X. it is left to the -belligerent man-of-war who captures shipwrecked, wounded, or sick enemy -soldiers to send them to a neutral port. The neutral Power concerned -need not receive them, but, on the other hand, may grant them asylum. If -asylum is granted, the neutral Power is, according to article 15 of -Convention X., obliged--unless there is an arrangement to the contrary -between the neutral Power and both belligerents--to guard them so as to -prevent them from again taking part in the war,[683] the expenses for -tending and interning them to be paid by the belligerent to whom they -belong. - -(2) Neutral merchantmen[684] can either of their own accord have rescued -wounded, sick, or shipwrecked men, or they can have taken them on board -on appeal by belligerent men-of-war. The surrender of these men may, -according to article 12 of Convention X., be demanded at any time by any -belligerent man-of-war. But if such demand be not made and the men be -brought into a neutral port, they need not be detained by the neutral -concerned. - -[Footnote 683: See above, § 205.] - -[Footnote 684: See above, § 208 (2).] - - -VI - -SUPPLIES AND LOANS TO BELLIGERENTS - - Vattel, III. § 110--Hall, §§ 216-217--Lawrence, § 235--Westlake, - II. pp. 217-219--Phillimore, III. § 151--Twiss, II. § - 227--Halleck, II. p. 163--Taylor, §§ 622-625--Walker, § - 67--Wharton, III. §§ 390-391--Moore, VII. §§ - 1307-1312--Bluntschli, §§ 765-768--Heffter, § 148--Geffcken in - Holtzendorff, IV. pp. 687-700--Ullmann, §§ 191-192--Bonfils, Nos. - 1471-1474--Despagnet, Nos. 693-694--Rivier, II. pp. - 385-411--Calvo, IV. §§ 2624-2630--Fiore, III. Nos. - 1559-1563--Martens, II. § 134--Kleen, I. §§ 66-69, - 96-97--Mérignhac, pp. 360-364--Pillet, pp. 289-293--Dupuis, Nos. - 317-319--_Land Warfare_, §§ 477-480. - -[Sidenote: Supply on the part of Neutrals.] - -§ 349. The duty of impartiality must prevent a neutral from supplying -belligerents with arms, ammunition, vessels, and military -provisions.[685] And it matters not whether such supply takes place for -money or gratuitously. A neutral who sold arms and ammunition to a -belligerent at a profit would violate his duty of impartiality as also -would one who transferred such arms and ammunition to a belligerent as a -present. This is a settled rule so far as direct transactions regarding -such supply between belligerents and neutrals are concerned. The case is -different where a neutral does not directly and knowingly deal with a -belligerent, although he may, or ought to, be aware that he is -indirectly supplying a belligerent. Different States have during -neutrality taken up different attitudes regarding such cases. Thus in -1825, during the War of Independence which the Spanish South American -Colonies waged against their mother country, the Swedish Government sold -three old men-of-war, the _Försigtigheten_, _Euridice_, and _Camille_ to -two merchants, who on their part sold them to English merchants, -representatives of the Government of the Mexican insurgents. When Spain -complained, Sweden rescinded the contract.[686] Further, the British -Government in 1863, during the American Civil War, after selling an old -gunboat, the _Victor_, to a private purchaser and subsequently finding -that the agents of the Confederate States had obtained possession of -her, gave the order that during the war no more Government ships should -be sold.[687] On the other hand, the Government of the United States of -America, in pursuance of an Act passed by Congress in 1868 for the sale -of arms which the end of the Civil War had rendered superfluous, sold in -1870, notwithstanding the Franco-German War, thousands of arms and other -war material which were shipped to France.[688] This attitude of the -United States is now generally condemned, and article 6 of Convention -XIII. may be quoted against a repetition of such a practice on the part -of a neutral State. This article prohibits the supply in any manner, -directly or _indirectly_, by a neutral to a belligerent, of warships, -ammunition, or war material of any kind whatever. - -[Footnote 685: See article 6 of Convention XIII.] - -[Footnote 686: See Martens, _Causes Célèbres_, V. pp. 229-254.] - -[Footnote 687: See Lawrence, § 235.] - -[Footnote 688: See Wharton, III. § 391, and Moore, VII. § 1309.] - -[Sidenote: Supply on the part of Subjects of Neutrals.] - -§ 350. In contradistinction to supply to belligerents by neutrals, such -supply by subjects of neutrals is lawful, and neutrals are not, -therefore, obliged according to their duty of impartiality to prevent -such supply. Article 7 of Convention V. and article 7 of Convention -XIII. concur in enacting the old customary rule that "A neutral Power is -not bound to prevent the export or transit, on behalf of one or other of -the belligerents, of arms, munitions of war, or, in general, of anything -which can be of use to an army or fleet." And article 18[689] of -Convention V. recognises the fact that the furnishing of supplies to a -belligerent by such subjects of neutrals as do not live on the territory -of the other party, or on the territory occupied by that party, does -not invest these individuals with enemy character. When in August 1870, -during the Franco-German War, Germany lodged complaints with the British -Government for not prohibiting its subjects from supplying arms and -ammunition to the French Government, Great Britain correctly replied -that she was not by International Law under the obligation to prevent -her subjects from committing such acts. Of course, such neutral as is -anxious to avoid all controversy and friction can by his Municipal Law -order his subjects to abstain from such acts, as for instance -Switzerland and Belgium did during the Franco-German War. But such -injunctions arise from political prudence, and not from any obligation -imposed by International Law. - -[Footnote 689: That Great Britain has entered a reservation against -article 18, and the portent of this reservation, has been pointed out -above, in § 88, p. 109, note 1.] - -The endeavour to make a distinction between supply in single cases and -on a small scale on the one hand, and, on the other, supply on a large -scale, and to consider only the former lawful,[690] has neither in -theory nor in practice found recognition. As International Law stands, -belligerents may make use of visit, search, and seizure to protect -themselves against conveyance of contraband by sea to the enemy by -subjects of neutrals. But so far as their neutral home State is -concerned, such subjects may, at the risk of having their property -seized during such conveyance, supply either belligerent with any amount -of arms, ammunition, coal, provisions, and even with armed ships,[691] -provided always that they deal with the belligerents in the ordinary way -of commerce. - -[Footnote 690: See Bluntschli, § 766.] - -[Footnote 691: See above, § 334, and below, § 397.] - -The case is different when there is no ordinary commerce with a -belligerent Government and when subjects of neutrals directly supply a -belligerent army or navy, or parts of them. If, for instance, a -belligerent fleet is cruising outside the maritime belt of a neutral, -the latter must prevent vessels of his subjects from bringing coal, -arms, ammunition, and provisions to that fleet, for otherwise he would -allow the belligerent to make use of neutral resources for naval -operations.[692] But he need not prevent vessels of his subjects from -bringing coal, arms, ammunition, and provisions to belligerent ports, -although the supply is destined for the navy and the army of the -belligerent. He need not prevent belligerent merchantmen from coming -into his ports and carrying arms and the like, bought from his subjects, -over to the ports of their home State. And he need not prevent vessels -of his subjects from following a belligerent fleet and supplying it _en -route_[693] with coal, ammunition, provisions, and the like, provided -such supply does not take place in the neutral maritime belt. - -[Footnote 692: See above, § 333 (4).] - -[Footnote 693: See above, § 311, p. 375, note 4.] - -There is no doubt that, as the law stands at present, neutrals need not -prevent their subjects from supplying belligerents with arms and -ammunition. Yet, on the other hand, there is no doubt either that such -supply is apt to prolong a war which otherwise would come to an end at -an earlier date. But it will be a long time, if ever it happens, before -it is made a duty of neutrals to prevent such supply as far as is in -their power, and to punish such of their subjects as engage in it. The -profit derived from such supply being enormous, the members of the -Family of Nations are not inclined to cripple the trade of their -subjects by preventing it. And belligerents want to have the opportunity -of replenishing with arms and ammunition if they run short of them -during war. The question is merely one of the standard of public -morality.[694] If this standard rises, and it becomes the conviction of -the world at large that supply of arms and ammunition by subjects of -neutrals is apt to lengthen wars, the rule will appear that neutrals -must prevent such supply. - -[Footnote 694: See above, vol. I. § 51 (6) p. 83.] - -[Sidenote: Loans and Subsidies on the part of Neutrals.] - -§ 351. His duty of impartiality must prevent a neutral from granting a -loan to either belligerent. Vattel's (III. § 110) distinction between -such loans as are granted on interest and such as are not so granted, -and his assertion that loans on the part of neutrals are lawful if they -are granted on interest with the pure intention of making money, have -not found favour with other writers. Nor do I know any instance of such -loan on interest having occurred during the nineteenth century. - -What is valid regarding a loan is all the more valid regarding subsidies -in money granted to a belligerent on the part of a neutral. Through the -granting of subsidies a neutral becomes as much the ally of the -belligerent as he would by furnishing him with a number of troops.[695] - -[Footnote 695: See above, §§ 305, 306, 321.] - -[Sidenote: Loans and Subsidies on the part of Subjects of Neutrals.] - -§ 352. It was formerly a moot point in the theory of International Law -whether a neutral is obliged by his duty of impartiality to prevent his -subjects from granting subsidies and loans to belligerents for the -purpose of enabling them to continue the war. Several writers[696] -maintained either that a neutral was obliged to prevent such loans and -subsidies altogether, or at least that he must prohibit a public -subscription on neutral territory for such loans and subsidies. On the -other hand, a number of writers asserted that, since money is just as -much an article of commerce as goods, a neutral was in no wise obliged -to prevent on his territory public subscription by his subjects to loans -for the belligerents. In contradistinction to the theory of -International Law, the practice of the States has beyond doubt -established the fact that neutrals need not prevent on their territory -subscription to loans for belligerents. Thus in 1854, during the Crimean -War, France protested in vain against a Russian loan being raised in -Amsterdam, Berlin, and Hamburg. In 1870, during the Franco-German War, a -French loan was raised in London. In 1877, during the Russo-Turkish War, -no neutral prevented his subjects from subscribing to the Russian loan. -Again, in 1904, during the Russo-Japanese War, Japanese loans were -raised in London and Berlin, and Russian loans in Paris and Berlin. The -Second Peace Conference, by enacting in article 7 of Convention V. that -a neutral is not bound to prevent the export ... of anything which can -be of use to an army or fleet, has indirectly recognised that a neutral -need not prevent the subscription on his territory to loans for -belligerents. - -[Footnote 696: See Phillimore, III. § 151; Bluntschli, § 768; Heffter, § -148; Kleen, I. § 68. The case of _De Wütz_ v. _Hendricks_ (9 Moore, 586) -quoted by Phillimore in support of his assertion that neutrals must -prevent their subjects from subscribing to a loan for belligerents, is -not decisive, for Lord Chief Justice Best declared only "that it was -contrary to the Law of Nations for persons residing in this country to -enter into any agreements to raise money by way of a loan for the -purpose of _supporting subjects of a foreign State in arms against a -Government in alliance with our own_."] - -But matters differ somewhat in regard to subsidies to belligerents by -subjects of neutrals. A neutral is not indeed obliged to prevent -individual subjects from granting subsidies to belligerents, just as he -is not obliged to prevent them from enlisting with either belligerent. -But if he were to allow on his territory a public appeal for -subscriptions to such subsidy, he would certainly violate his duty of -impartiality; for loans are a matter of commerce, subsidies are not. It -must, however, be emphasised that public appeals for subscriptions of -money for charitable purposes in favour of the wounded, the prisoners, -and the like, need not be prevented, even if they are only made in -favour of one of the belligerents. - -The distinction between loans and subsidies is certainly correct as the -law stands at present. But there is no doubt that the fact of -belligerents having the opportunity of getting loans from subjects of -neutrals is apt to lengthen wars. The Russo-Japanese War, for instance, -would have come to an end much sooner if either belligerent could have -been prevented from borrowing money from subjects of neutrals. -Therefore, what has been said above in § 350 with regard to the supply -of arms and ammunition on the part of subjects of neutrals applies -likewise to loans: they will no longer be considered lawful when the -standard of public morality rises. - - -VII - -SERVICES TO BELLIGERENTS - - Westlake, II. pp. 219-220--Despagnet, No. 696 _bis_--Bonfils, No. - 1475[1]--Ullmann, § 192--Rivier, II. pp. 388-391--Calvo, IV. §§ - 2640-2641--Martens, II. § 134--Perels, § 43--Kleen, I. §§ - 103-108--Lawrence, _War_, pp. 83-92, 218-220--Scholz, _Drahtlose - Telegraphie und Neutralität_ (1905), _passim_, and _Krieg und - Seekabel_ (1904), pp. 122-133--_Land Warfare_, §§ - 481-484--Kebedgy, in _R.I._ 2nd Ser. IV. (1904), pp. 445-451. - -[Sidenote: Pilotage.] - -§ 353. Since pilots are in the service of littoral States the question -as to whether neutrals may permit their pilots to render services to -belligerent men-of-war and transport vessels, is of importance. Article -11[697] of Convention XIII. enacts that "a neutral Power may allow -belligerent war-ships to employ its licensed pilots." Since, therefore, -everything is left to the discretion of neutrals, they will have to take -the merits and needs of every case into account. There would certainly -be no objection to a neutral allowing belligerent vessels to which -asylum is legitimately granted, to be piloted into his ports, and -likewise such vessels to be piloted through his maritime belt if their -passage is not prohibited. But a belligerent might justly object to the -men-of-war of his adversary being piloted on the Open Sea by pilots of a -neutral Power, except in a case of distress. - -[Footnote 697: Germany has entered a reservation against article 11.] - -It is worth mentioning that Great Britain during the Franco-German War -in 1870, prohibited her pilots from conducting German and French -men-of-war which were outside the maritime belt, except when in -distress. - -[Sidenote: Transport on the part of Neutrals.] - -§ 354. It is generally recognised that the duty of impartiality -incumbent upon a neutral obliges him to prevent his men-of-war and other -public vessels from rendering transport services to either belligerent. -Therefore, such vessels must neither carry soldiers nor sailors -belonging to belligerent forces, nor their prisoners of war, nor -ammunition, military or naval provisions, nor despatches. The question -as to how far such vessels are prevented from carrying enemy subjects -other than members of the forces depends upon the question whether by -carrying those individuals they render such service to one of the -belligerents as is detrimental to the other. Thus, when the Dutch -Government in 1901, during the South African War, intended to send a -man-of-war, the _Gelderland_, to President Kruger for the purpose of -conveying him to Europe, they made sure in advance that Great Britain -did not object. - -The question has been raised[698] as to whether a neutral whose rolling -stock runs on the railway lines of a belligerent, may continue to leave -such rolling stock there although it is being used for the transport of -troops, war material, and the like. The answer, I believe, ought to be -in the negative, for there is no doubt that, if the rolling stock -remains on the railway lines of a belligerent, the neutral concerned is -indirectly rendering transport services to the belligerent. It is for -this reason that article 19 of Convention V. enacts that railway -material coming from the territory of neutrals shall not be -requisitioned or used by a belligerent except in the case and to the -extent required by absolute necessity.[699] - -[Footnote 698: See Nowacki, _Die Eisenbahnen im Kriege_ (1906), p. 126.] - -[Footnote 699: See below, § 365.] - -[Sidenote: Transport on the part of Neutral Merchantmen and by neutral -rolling stock.] - -§ 355. Just as a neutral is not obliged to prevent his merchantmen from -carrying contraband, so he is not obliged to prevent them from rendering -services to belligerents by carrying in the way of trade enemy troops, -and the like, and enemy despatches. Neutral merchantmen rendering such -services to belligerents do so at their own risk, for these are -unneutral services for which the merchantmen may be punished[700] by the -belligerents, but for which the neutral State under whose flag such -merchantmen sail bears no responsibility whatever. - -[Footnote 700: See below, §§ 407-413.] - -And the same is valid with regard to rolling stock belonging to private -railway companies of a neutral State. That such rolling stock may not, -without the consent of the companies owning it, be made use of by a -belligerent for the transport of troops, war material, and the like, -except in the case of and to the extent required by absolute necessity, -follows from article 19 of Convention V. But, if a private railway -company gives its consent, and if its rolling stock is made use of for -warlike purposes, it acquires enemy character, article 19 of Convention -V. does not apply, and the other belligerent may seize and appropriate -it as though it were the property of the enemy State.[701] - -[Footnote 701: See Nowacki, _Die Eisenbahnen im Kriege_ (1906), p. 128.] - -[Sidenote: Information regarding Military and Naval Operations.] - -§ 356. Information regarding military and naval operations may be given -and obtained in so many various ways that several cases must be -distinguished:-- - -(1) It is obvious that the duty of impartiality incumbent upon a neutral -obliges him to prevent his men-of-war from giving any information to a -belligerent concerning naval operations of the other party. But a -neutral bears no responsibility whatever for private vessels sailing -under his flag which give such information. Such vessels run, however, -the risk of being punished for rendering unneutral service.[702] - -[Footnote 702: See below, §§ 409 and 410, and articles 45, Nos. 1 and 2, -and 46, No. 4, of the Declaration of London.] - -(2) It is likewise obvious that his duty of impartiality must prevent a -neutral from giving information concerning the war to a belligerent -through his diplomatic envoys, couriers, and the like. But the question -has been raised as to whether a neutral is obliged to prevent -couriers[703] from carrying despatches for a belligerent over his -neutral territory. I believe the answer must be in the negative, at -least so far as those couriers in the service of diplomatic envoys and -such agents as carry despatches from a State to its head or to -diplomatic envoys abroad are concerned. Since they enjoy--as stated -above, Vol. I. §§ 405 and 457--inviolability for their persons and -official papers, a neutral cannot interfere and find out whether these -individuals carry information to the disadvantage of the enemy. - -[Footnote 703: See Calvo, § 2640.] - -(3) According to article 8 of Convention V. "a neutral Power is not -bound to forbid or restrict the employment, on behalf of belligerents, -of telegraph or telephone cables, or of wireless telegraphy apparatus -whether belonging to it, or to companies, or to private individuals." -Since, therefore, everything is left to the discretion of the neutral -concerned, he will have to take the merits and needs of every case into -consideration, and act accordingly. But so much is certain that a -belligerent may not categorically request neutrals to forbid or restrict -such employment of their telegraph wires and the like on the part of his -adversary. - -The case is different when a belligerent intends to arrange the -transmitting of messages through a submarine cable purposely laid over -neutral territory or through telegraph and telephone wires purposely -erected on neutral territory. This would seem to be an abuse of neutral -territory, and the neutral must prevent it. Accordingly, when in 1870, -during the Franco-German War, France intended to lay a telegraph cable -from Dunkirk to the North of France, the cable to go across the Channel -to England and from there back to France, Great Britain refused her -consent on account of her neutrality. And again in 1898, during war -between Spain and the United States of America, when the latter intended -to land at Hong Kong a cable proposed to be laid from Manila, Great -Britain refused her consent.[704] - -[Footnote 704: See Lawrence, _War_, p. 219.] - -The case is likewise different when a belligerent intends to erect in a -neutral country, or in a neutral port or neutral waters, a wireless -telegraphy station or any apparatus intended as a means of communication -with belligerent forces on land or sea, or to make use of any -installation of this kind established by him before the outbreak of war -for purely military purposes, and not previously opened for the service -of the public generally. According to articles 3 and 5 of Convention V. -and article 5 of Convention XIII., a neutral is bound to prohibit this. -The case which occurred in 1904, during the Russo-Japanese War and the -siege of Port Arthur, when the Russians installed an apparatus for -wireless telegraphy in Chifu and communicated thereby with the besieged, -constituted a violation of neutrality. - -(4) It is obvious that his duty of impartiality must prevent a neutral -from allowing belligerents to establish intelligence bureaux on his -territory. On the other hand, a neutral is not obliged to prevent his -subjects from giving information to belligerents, be it by letter, -telegram, telephone, or wireless telegraphy. In especial a neutral is -not obliged to prevent his subjects from giving information to -belligerents by wireless telegraphy apparatus installed on a neutral -merchantman. Such individuals run, however, the risk of being punished -as spies, provided they act clandestinely or under false pretences, and -the vessel concerned is subject to the risk of being captured and -confiscated for rendering unneutral service. - -Stress must be laid on the fact that newspaper correspondents making use -of wireless telegraphy from on board neutral merchantmen for the purpose -of sending news to their papers,[705] may not be treated as spies, and -the merchantmen concerned may not be confiscated, although belligerents -need by no means allow the presence of such vessels at the seat of war. -Thus, during the Russo-Japanese War, the _Haimun_, a vessel fitted with -a wireless telegraphy apparatus for the service of the _Times_, was -ordered away by the Japanese. But, of course, an individual can at the -same time be a correspondent for a neutral newspaper and a spy, and he -may then be punished for espionage. - -[Footnote 705: See Lawrence, _War_, pp. 84-88. On newspaper -correspondents generally in naval warfare, see Higgins, _War and the -Private Citizen_ (1912), pp. 91-114, and in _Z.V._ VI. (1912), pp. -19-28, and the literature and cases there cited.] - - -VIII - -VIOLATION OF NEUTRALITY - - Hall, §§ 227-229--Lawrence, §§ 233, 238, 239--Phillimore, III. §§ - 151A-151B--Taylor, §§ 630 and 642--Wharton, III. §§ 402, - 402A--Wheaton, §§ 429-433--Moore, VII. §§ 1319-1328, - 1334-1335--Bluntschli, §§ 778-782--Heffter, § 146--Geffcken in - Holtzendorff, IV. pp. 667-676, 700-709--Ullmann, § 191--Bonfils, - No. 1476--Despagnet, No. 697--Pradier-Fodéré, No. 3235--Rivier, - II. pp. 394-395--Calvo, IV. §§ 2654-2666--Fiore, III. Nos. - 1567-1570--Martens, II. § 138--Kleen, I. § 25--Dupuis, Nos. - 332-337. - -[Sidenote: Violation of Neutrality in the narrower and in the wider -sense of the Term.] - -§ 357. Many writers who speak of violation of neutrality treat under -this head only of violations of the duty of impartiality incumbent upon -neutrals. And indeed such violations only are meant, if one speaks of -violation of neutrality in the narrower sense of the term. However, it -is necessary for obvious reasons to discuss not only violations of the -duty of impartiality of neutrals, but violations of all duties deriving -from neutrality, whether they are incumbent upon neutrals or upon -belligerents. In the wider sense of the term violation of neutrality -comprises, therefore, every performance or omission of an act contrary -to the duty of a neutral towards either belligerent as well as contrary -to the duty of either belligerent towards a neutral. Everywhere in this -treatise the term is used in its wider sense. - -It is important to remember that violations of neutrality on the part of -belligerents must not be confounded with violations of the laws of war -by which subjects of neutral States suffer damage. If, for instance, an -occupant levies excessive contributions from subjects of neutral States -domiciled in enemy country in contravention of article 49 of the Hague -Regulations, this is a violation of the Laws of War, for which, -according to article 3 of Convention IV., the belligerent concerned -must pay compensation, but it is not a violation of neutrality. - -[Sidenote: Violation in contradistinction to End of Neutrality.] - -§ 358. Violation of neutrality must not be confounded with the ending of -neutrality,[706] for neither a violation on the part of a neutral[707] -nor a violation on the part of a belligerent brings _ipso facto_ -neutrality to an end. If correctly viewed, the condition of neutrality -continues to exist between a neutral and a belligerent in spite of a -violation of neutrality. It must be emphasised that a violation of -neutrality contains nothing more than a breach of a duty deriving from -the condition of neutrality. This applies not only to violations of -neutrality by negligence, but also to those by intention. Even in an -extreme case in which the violation of neutrality is so great that the -offended party considers war the only adequate measure in answer to it, -it is not the violation which brings neutrality to an end, but the -determination of the offended party. For there is no violation of -neutrality so great as to oblige the offended party to make war in -answer to it, such party having always the choice whether it will keep -up the condition of neutrality or not. - -[Footnote 706: See above, § 312.] - -[Footnote 707: But this is almost everywhere asserted, as the -distinction between the violation of the duty of impartiality incumbent -upon neutrals on the one hand, and on the other, the ending of -neutrality, is usually not made.] - -But this applies only to mere violations of neutrality, and not to -hostilities. The latter are acts of war and bring neutrality to an end; -they have been characterised in contradistinction to mere violations -above in § 320. - -[Sidenote: Consequences of Violations of Neutrality.] - -§ 359. Violations of neutrality, whether committed by a neutral against -a belligerent or by a belligerent against a neutral, are international -delinquencies.[708] They may at once be repulsed, the offended party may -require the offender to make reparation, and, if this is refused, it may -take such measures as it thinks adequate to exact the necessary -reparation.[709] If the violation is only slight and unimportant, the -offended State will often merely complain. If, on the other hand, the -violation is very substantial and grave, the offended State will perhaps -at once declare that it considers itself at war with the offender. In -such case it is not the violation of neutrality which brings neutrality -to an end, but the declaration of the offended State that it considers -the violation of so grave a character as to oblige it to regard itself -at war with the offender. - -[Footnote 708: See above, vol. I. § 151.] - -[Footnote 709: See above, vol. I. § 156.] - -That a violation of neutrality can only, like any other international -delinquency, be committed by malice or culpable negligence,[710] and -that it can be committed through a State's refusing to comply with the -consequences of its "vicarious" responsibility for acts of its agents or -subjects,[711] is a matter of course. Thus, if a belligerent fleet -attacks enemy vessels in neutral territorial waters without an order -from its Government, the latter bears "vicarious" responsibility for -this violation of neutral territory on the part of its fleet. If the -Government concerned refuses to disown the act of its fleet and to make -the necessary reparation, this "vicarious" responsibility turns into -"original" responsibility, for a case of violation of neutrality and an -international delinquency has then arisen. And the same is valid if an -agent of a neutral State without an order of his Government commits such -an act as would constitute a violation of neutrality in case it were -ordered by the Government; for instance, if the head of a province of a -neutral, without thereto being authorised by his Government, allows -forces of a belligerent to march through this neutral territory. - -[Footnote 710: See above, vol. I. § 154.] - -[Footnote 711: See above, vol. I. § 150.] - -[Sidenote: Neutrals not to acquiesce in Violations of Neutrality -committed by a Belligerent.] - -§ 360. It is entirely within the discretion of a belligerent whether he -will acquiesce in a violation of neutrality committed by a neutral in -favour of the other belligerent. On the other hand, a neutral may not -exercise the same discretion regarding a violation of neutrality -committed by one belligerent and detrimental to the other. His duty of -impartiality rather obliges him in the first instance to prevent, with -the means at his disposal, the belligerent concerned from committing -such violation; for instance, to repulse an attack of men-of-war of a -belligerent on enemy vessels in neutral ports. Thus article 3 of -Convention XIII. enacts:--"When a ship has been captured in the -territorial waters of a neutral Power, such Power must, if the prize is -still within its jurisdiction, employ the means at its disposal to -release the prize with its officers and crew, and to intern the prize -crew." And in case he could not prevent and repulse a violation of his -neutrality, the same duty obliges him to exact due reparation from the -offender,[712] for otherwise he would favour the one party to the -detriment of the other. If a neutral neglects this obligation, he is -thereby committing a violation of neutrality on his part for which he -may be made responsible by such belligerent as has suffered through the -violation of neutrality committed by the other belligerent and -acquiesced in by the neutral. For instance, if belligerent men-of-war -seize enemy vessels in ports of a neutral, and if the neutral, who could -not or did not prevent this, exacts no reparation from the belligerent -concerned, the other party may make the neutral responsible for the -losses sustained. - -[Footnote 712: See articles 25 and 26 of Convention XIII. This duty is -nowadays universally recognised, but before the nineteenth century it -did not exist, although the rule that belligerents must not commit -hostilities on neutral territory, and in especial in neutral ports and -waters, was well recognised. That in spite of its recognition this rule -was in the eighteenth century frequently infringed by commanders of -belligerent fleets, may be illustrated by many cases. Thus, for -instance, in 1793, the French frigate _Modeste_ was captured in the -harbour of Genoa by two British men-of-war (see Hall, § 220). And in -1801, during war against Sweden, a British frigate captured the _Freden_ -and three other Swedish vessels in the Norwegian harbour of Oster-Risoer -(see Ortolan, II. pp. 413-418).] - -[Sidenote: Case of the _General Armstrong_.] - -§ 361. Some writers[713] maintain that a neutral is freed from -responsibility for a violation of neutrality through a belligerent -attacking enemy forces in neutral territory, in case the attacked -forces, instead of trusting for protection or redress to the neutral, -defend themselves against the attack. This rule is adopted from the -arbitral award in the case of the _General Armstrong_. In 1814, during -war between Great Britain and the United States of America, the American -privateer _General Armstrong_, lying in the harbour of Fayal, an island -belonging to the Portuguese Azores, defended herself against an attack -of an English squadron, but was nevertheless captured. The United States -claimed damages from Portugal because the privateer was captured in a -neutral Portuguese port. Negotiations went on for many years, and the -parties finally agreed in 1851 upon arbitration to be given by Louis -Napoleon, then President of the French Republic. In 1852 Napoleon gave -his award in favour of Portugal, maintaining that, although the attack -on the privateer in neutral waters comprised a violation of neutrality, -Portugal could not be made responsible, on account of the fact that the -attacked privateer chose to defend herself instead of demanding -protection from the Portuguese authorities.[714] It is, however, not at -all certain that the rule laid down in this award will find general -recognition in theory and practice.[715] - -[Footnote 713: See, for instance, Hall, § 228, and Geffcken in -Holtzendorff, IV. p. 701.] - -[Footnote 714: See Moore, _Arbitrations_, II. pp. 1071-1132; Calvo, IV. -§ 2662; and Dana's note 208 in Wheaton, § 429.] - -[Footnote 715: The case of the _Reshitelni_, which occurred in 1904, -during the Russo-Japanese War, and is somewhat similar to that of the -_General Armstrong_, is discussed above in § 320 (2). That no violation -of neutrality took place in the case of the _Variag_ and _Korietz_, is -shown above in § 320 (1).] - -[Sidenote: Mode of exacting Reparation from Belligerents for Violations -of Neutrality.] - -§ 362. It is obvious that the duty of a neutral not to acquiesce in -violations of neutrality committed by one belligerent to the detriment -of the other obliges him to repair, so far as he can, the result of such -wrongful acts. Thus, he must liberate[716] a prize taken in his neutral -waters, or prisoners made on his territory, and the like. In so far, -however, as he cannot, or not sufficiently, undo the wrong done, he must -exact reparation from the offender. Now, no general rule can be laid -down regarding the mode of exacting such reparation, since everything -depends upon the merits of the individual case. Only as regards capture -of enemy vessels in neutral waters has a practice grown up, which must -be considered binding, and according to which the neutral must claim the -prize, and eventually damages, from the belligerent concerned, and must -restore her to the other party. Thus in 1800, during war between Great -Britain and the Netherlands, Prussia claimed before the British Prize -Court the _Twee Gebroeders_,[717] a Dutch vessel captured by the British -cruiser _L'Espiègle_ in the neutral maritime belt of Prussia. Sir -William Scott ordered restoration of the vessel, yet he refused costs -and damages, because the captor had not violated Prussian neutrality -intentionally but only by mistake and misapprehension. Thus again, in -1805, during war between Great Britain and Spain, the United States -claimed before the British Prize Court the _Anna_,[718] a Spanish vessel -captured by the English privateer _Minerva_ within their neutral -maritime belt. Thus, further, in 1864, during the American Civil War, -when the Confederate cruiser _Florida_ was captured by the Federal -cruiser _Wachuset_ in the neutral Brazilian port of Bahia, Brazil -claimed the prize. As the latter had sunk while at anchor in Hampton -Roads, she could not be restored, but the United States expiated the -violation of neutrality committed by her cruiser by court-martialing -the commander; further, by dismissing her Consul at Bahia for having -advised the capture; and, finally, by sending a man-of-war to the spot -where the violation of neutrality had taken place for the special -purpose of delivering a solemn salute to the Brazilian flag.[719] - -[Footnote 716: See article 3 of Convention XIII.] - -[Footnote 717: 3 C. Rob. 162.] - -[Footnote 718: 5 C. Rob. 373. See above, vol. I. § 234.] - -[Footnote 719: See Moore, VII. § 1334, p. 1090.] - -[Sidenote: Negligence on the part of Neutrals.] - -§ 363. Apart from intentional violations of neutrality, a neutral can be -made responsible only for such acts favouring or damaging a belligerent -as he could by due diligence have prevented, and which by culpable -negligence he failed to prevent. It is by no means obligatory for a -neutral to prevent such acts under all circumstances and conditions. -This is in fact impossible, and it becomes more obviously so the larger -a neutral State, and the longer its boundary lines. So long as a neutral -exercises due diligence for the purpose of preventing such acts, he is -not responsible in case they are nevertheless performed. However, the -term _due diligence_ has become controversial through the definition -proffered by the United States of America in interpreting the Three -Rules of Washington, and through the Geneva Court of Arbitration -adopting such interpretation.[720] According to this interpretation the -_due diligence_ of a neutral _must be in proportion to the risks to -which either belligerent may be exposed from failure to fulfil the -obligations of neutrality on his part_. Had this interpretation been -generally accepted, the most oppressive obligations would have become -incumbent upon neutrals. But no such general acceptance has taken place. -The fact is that _due diligence_ in International Law can have no other -meaning than it has in Municipal Law. It means _such diligence as can -reasonably be expected when all the circumstances and conditions of the -case are taken into consideration_. - -[Footnote 720: See above, § 335.] - -Be that as it may, the Second Peace Conference has taken a step which -certainly excludes for the future the continuation of the controversy -regarding the interpretation of _due diligence_, for articles 8 and 25 -of Convention XIII., instead of stipulating due diligence on the part of -neutrals, stipulate _the employment of the means at their disposal_. - -[Sidenote: Laying of Submarine Contact Mines by Neutrals.] - -§ 363_a_. In order to defend themselves against possible violations of -their neutral territory, neutrals may lay automatic contact mines off -their coasts. If they do this, they must, according to article 4 of -Convention VIII., observe the same rules and take the same precautions -as are imposed upon belligerents, and as have been expounded above, § -182_a_. Moreover they must, according to paragraph 2 of article 4 of -Convention VIII., give notice in advance to mariners of the place where -automatic contact mines have been laid, and this notice must be -communicated at once to the Governments through the diplomatic channels. - -Convention VIII. is quite as unsatisfactory in its rules concerning -mines laid by neutrals as in its rules concerning mines laid by -belligerents, and the danger to neutral shipping created by mines laid -by neutrals is very great, all the more as the laying of mines by -neutrals is not restricted to their maritime belt. For article 4 of -Convention VIII. speaks of the laying of contact mines on the part of -neutral Powers _off their coasts_, without limiting the laying within -the three-mile wide maritime belt as was proposed at the Second Peace -Conference, and as article 6[721] of the _Règlementation internationale -de l'Usage des Mines sous-marines et torpilles_ of the Institute of -International Law likewise proposes. - -[Footnote 721: See _Annuaire_, XXIV. (1911), p. 302.] - - -IX - -RIGHT OF ANGARY - - Hall, § 278--Lawrence, § 233--Westlake, II. p. 119--Phillimore, - III. § 29--Halleck, I. p. 485--Taylor, § 641--Walker, § - 69--Bluntschli, § 795A--Heffter, § 150--Bulmerincq in - Holtzendorff, IV. pp. 98-103--Geffcken in Holtzendorff, IV. pp. - 771-773--Ullmann, § 192--Bonfils, No. 1440--Despagnet, No. - 494--Rivier, II. pp. 327-329--Kleen, II. §§ 165 and 230--Perels, § - 40--Hautefeuille, III. pp. 416-426--Holland, _War_, Nos. - 139-140--_Land Warfare_, §§ 507-510--Albrecht, _Requisitionen von - neutralem Privateigenthum, insbesondere von Schiffen_ (1912), pp. - 24-66. - -[Sidenote: The Obsolete Right of Angary.] - -§ 364. Under the term _jus angariae_[722] many writers on International -Law place the right, often claimed and practised in former times, of a -belligerent deficient in vessels to lay an _embargo_ on and seize -neutral merchantmen in his harbours, and to compel them and their crews -to transport troops, ammunition, and provisions to certain places on -payment of freight in advance.[723] This practice arose in the Middle -Ages,[724] and was made much use of by Louis XIV. of France. To save the -vessels of their subjects from seizure under the right of angary, States -began in the seventeenth century to conclude treaties by which they -renounced such right with regard to each other's vessels. Thereby the -right came into disuse during the eighteenth century. Many writers[725] -assert, nevertheless, that it is not obsolete, and might be exercised -even to-day. But I doubt whether the Powers would concede to one another -the exercise of such a right. The facts that no case happened in the -nineteenth century and that International Law with regard to rights and -duties of neutrals has become much more developed during the eighteenth -and nineteenth centuries, would seem to justify the opinion that such -angary is now probably obsolete,[726] although some writers[727] deny -this. - -[Footnote 722: The term _angaria_, which in medieval Latin means _post -station_, is a derivation from the Greek term [Greek: angaros] 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. - - - - -CHAPTER III - -BLOCKADE - - -I - -CONCEPTION OF BLOCKADE - - Grotius, III. c. 1, § 5--Bynkershoek, _Quaest. jur. publ._ I. c. - 2-15--Vattel, III. § 117--Hall, §§ 233, 237-266--Lawrence, §§ - 246-252--Westlake, II. pp. 228-239--Maine, pp. 107-109--Manning, - pp. 400-412--Phillimore, III. §§ 285-321--Twiss, II. §§ - 98-120--Halleck, II. pp. 182-213--Taylor, §§ 674-684--Walker, §§ - 76-82--Wharton, III. §§ 359-365--Moore, VII. §§ - 1266-1286--Wheaton, §§ 509-523--Bluntschli, §§ 827-840--Heffter, - §§ 154-157--Geffcken in Holtzendorff, IV. pp. 738-771--Ullmann, § - 182--Bonfils, Nos. 1608-1659--Despagnet, Nos. - 620-640--Pradier-Fodéré, VI. Nos. 2676-2679, and VIII. Nos. - 3109-3152--Nys, III. pp. 224-244, 693-694--Rivier, II. pp. - 288-298--Calvo, V. §§ 2827-2908--Fiore, III. Nos. - 1606-1629--Martens, II. § 124--Pillet, pp. 129-144--Kleen, I. §§ - 124-139--Ortolan, II. pp. 292-336--Hautefeuille, II. pp. - 189-288--Gessner, pp. 145-227--Perels, §§ 48-51--Testa, pp. - 221-229--Dupuis, Nos. 159-198, and _Guerre_, Nos. 113-136--Boeck, - Nos. 670-726--Holland, _Prize Law_, §§ 106-140--U.S. Naval War - Code, articles 37-43--Bernsten, § 10--Nippold, II. § 32--Bargrave - Deane, _The Law of Blockade_ (1870)--Fauchille, _Du blocus - maritime_ (1882)--Carnazza-Amari, _Del blocco maritimo_ - (1897)--Frémont, _De la saisie des navires en cas de blocus_ - (1899)--Guynot-Boissière, _Du blocus maritime_ (1899)--§§ 35-44 of - the "Règlement international des prises maritimes" (_Annuaire_, - IX. 1887, p. 218), adopted by the Institute of International - Law--Atherley-Jones, _Commerce in War_ (1906) pp. - 92-252--Söderquist, _Le Blocus Maritime_ (1908)--Hansemann, _Die - Lehre von der einheitlichen Reise im Rechte der Blockade und - Kriegskonterbande_ (1910)--Güldenagel, _Verfolgung und - Rechtsfolgen des Blockadebruches_ (1911)--Hirschmann, _Das - internationale Prisenrecht_ (1912) §§ 17-23--Kennedy in _The - Journal of the Society of Comparative Legislation_, New Series, - IX. (1908), pp. 239-251--Myers in _A.J._ IV. pp. 571-595--General - Report presented to the Naval Conference of London by its Drafting - Committee, articles 1-21. - -[Sidenote: Definition of Blockade.] - -§ 368. Blockade is the blocking by men-of-war[733] of the approach to -the enemy coast or a part of it for the purpose of preventing ingress -and egress of vessels of all nations. Blockade must not be confounded -with siege, although it may take place concurrently with siege. Whereas -siege aims at the capture of the besieged place, blockade endeavours -merely to intercept all intercourse, and especially commercial -intercourse, by sea between the coast and the world at large. Although -blockade is, as shown above in §§ 173 and 174, a means of warfare -against the enemy, it concerns neutrals as well, because the ingress and -egress of neutral vessels are thereby interdicted and may be punished. - -[Footnote 733: When in 1861, during the American Civil War, the Federal -Government blocked the harbour of Charleston by sinking ships laden with -stone, the question arose whether a so-called stone-blockade is lawful. -There ought to be no doubt--see below, § 380--that such a stone-blockade -is not a blockade in the ordinary sense of the term, and that neutral -ships may not be seized and confiscated for having attempted egress or -ingress. But, on the other hand, there ought to be no doubt either that -this mode of obstructing an enemy port is as lawful as any other means -of sea warfare, provided the blocking of the harbour is made known so -that neutral vessels can avoid the danger of being wrecked. See Wharton, -III. § 361A; Fauchille, _Blocus_, pp. 143-145; Perels, § 35, p. 187.] - -Blockade in the modern sense of the term is an institution which could -not develop until neutrality was in some form a recognised institution -of the Law of Nations, and until the freedom of neutral commerce was in -some form guaranteed. The institution of blockade dates from the -sixteenth century,[734] but it has taken several hundred years for the -institution to reach its present condition, since, until the beginning -of the nineteenth century, belligerents frequently made use of so-called -paper blockades, which are no longer valid, a blockade now being binding -only if effective. - -[Footnote 734: See Fauchille, _Blocus_, pp. 2-6.] - -It is on account of the practical importance of blockade for the -interests of neutrals that the matter is more conveniently treated with -neutrality than with war. And it must be noted that blockade as a means -of warfare must not be confounded with so-called pacific blockade, which -is a means of compulsive settlement of State differences. - -Apart from the stipulation of the Declaration of Paris that a blockade -to be binding must be effective, no conventional rules concerning -blockade were in existence until the Declaration of London, nor was the -practice of the States governed by common rules covering all the points -concerned. But articles 1-21 of the Declaration of London now offer a -code of the law of blockade and will, should this Declaration be -ratified, in time produce a common practice of all maritime States. - -[Sidenote: Blockade, Strategic and Commercial.] - -§ 369. A blockade is termed strategic if it forms part of other military -operations directed against the coast which is blockaded, or if it be -declared in order to cut off supply to enemy forces on shore. In -contradistinction to blockade strategic, one speaks of a commercial -blockade, when a blockade is declared simply in order to cut off the -coast from intercourse with the outside world, although no military -operations take place on shore. That blockades commercial are, according -to the present rules of International Law, as legitimate as blockades -strategic, is not generally denied. But several writers[735] maintain -that blockades purely commercial ought to be abolished as not in -accordance with the guaranteed freedom of neutral commerce during war. - -[Footnote 735: See Hall, § 233.] - -[Sidenote: Blockade to be Universal.] - -§ 370. A blockade is really in being when vessels of all nations are -interdicted and prevented from ingress or egress. Blockade as a means of -warfare is admissible only in the form of a _universal_ blockade, that -is--as article 5 of the Declaration of London stipulates--it "must be -applied impartially to the vessels of all nations." If the blockading -belligerent were to allow the ingress or egress of vessels of one -nation, no blockade would exist.[736] - -[Footnote 736: The _Rolla_ (1807), 6 C. Rob. 364; the _Franciska_ -(1855), Spinks, 287. See also below, § 382.] - -On the other hand, provided a blockade is universal, a special licence -of ingress or egress may be given to a special vessel and for a -particular purpose,[737] and men-of-war of all neutral nations may be -allowed to pass to and fro unhindered.[738] Thus, when during the -American Civil War the Federal Government blockaded the coast of the -Confederate States, neutral men-of-war were not prevented from ingress -and egress. But it must be specially observed that a belligerent has a -right to prevent neutral men-of-war from passing through the line of -blockade, and it is entirely within his discretion whether or not he -will admit or exclude them; nor is he compelled to admit them all, even -though he has admitted one or more of them. - -[Footnote 737: This exception to the general rule is not mentioned by -the Declaration of London, but I have no doubt that the International -Prize Court would recognise it.] - -[Footnote 738: Recognised by article 6 of the Declaration of London.] - -[Sidenote: Blockade, Outwards and Inwards.] - -§ 371. As a rule a blockade is declared for the purpose of preventing -ingress as well as egress. But sometimes only ingress or only egress is -prevented. In such cases one speaks of "Blockade inwards" and of -"Blockade outwards" respectively. Thus the blockade of the mouth of the -Danube declared by the Allies in 1854 during the Crimean War was a -"blockade inwards," since the only purpose was to prevent supply -reaching the Russian Army from the sea.[739] - -[Footnote 739: The _Gerasimo_ (1857), 11 Moore, P.C. 88.] - -[Sidenote: What Places can be Blockaded.] - -§ 372. In former times it was sometimes asserted that only ports, or -even only fortified[740] ports, could be blockaded, but the practice of -the States has always shown that single ports and portions of an enemy -coast as well as the whole of the enemy coast may be blockaded. Thus -during the American Civil War the whole of the coast of the Confederate -States to the extent of about 2500 nautical miles was blockaded. And -attention must be drawn to the fact, that such ports of a belligerent -as are in the hands of the enemy may be the object of a blockade. Thus -during the Franco-German War the French blockaded[741] their own ports -of Rouen, Dieppe, and Fécamp, which were occupied by the Germans. -Article 1 of the Declaration of London indirectly sanctions the practice -of the States by enacting that "a blockade must not extend beyond the -ports and coasts belonging to or occupied by the enemy." - -[Footnote 740: Napoleon I. maintained in his Berlin Decrees: "Le droit -de blocus, d'après la raison et l'usage de tous les peuples policés, -n'est applicable qu'aux places fortes."] - -[Footnote 741: See Fauchille, _Blocus_, p. 161.] - -[Sidenote: Blockade of International Rivers.] - -§ 373. It is a moot question whether the mouth of a so-called -international river may be the object of a blockade, in case the -riparian States are not all belligerents. Thus, when in 1854, during the -Crimean War, the allied fleets of Great Britain and France blockaded the -mouth of the Danube, Bavaria and Württemberg, which remained neutral, -protested. When in 1870 the French blockaded the whole of the German -coast of the North Sea, they exempted the mouth of the river Ems, -because it runs partly through Holland. And when in 1863, during the -blockade of the coast of the Confederate States, the Federal cruiser -_Vanderbilt_ captured the British vessel _Peterhoff_[742] destined for -Matamaros, on the Mexican shore of the Rio Grande, the American Courts -released the vessel on the ground that trade with Mexico, which was -neutral, could not be prohibited. - -[Footnote 742: 5 Wallace, 49. See Fauchille, _Blocus_, pp. 171-183; -Phillimore, III. § 293A; Hall, § 266; Rivier, II. p. 291.] - -The Declaration of London would seem to settle the controversy only as -regards one point. By enacting that "the blockading forces must not bar -access to neutral ports or coasts," article 18 certainly prohibits the -blockade of the whole mouth of a boundary river between a neutral and a -belligerent State, as, for instance, the River Rio Grande in case of war -with the United States of America, provided Mexico remained neutral. But -no provision is made for the case of the blockade of the mouths of -rivers, such as the Danube or the Rhine, for example, which pass through -several States between their sources and their mouths at the sea coast, -if one or more upper riparian States remain neutral. - -[Sidenote: Justification of Blockade.] - -§ 374. The question has been raised in what way blockade, which vests a -belligerent with a certain jurisdiction over neutral vessels and which -has detrimental consequences for neutral trade, could be justified.[743] -Several writers, following Hautefeuille,[744] maintain that the -establishment of a blockade by a belligerent stationing a number of -men-of-war so as to block the approach to the coast includes conquest of -that part of the sea, and that such conquest justifies a belligerent in -prohibiting ingress and egress of vessels of all nations. In -contradistinction to this artificial construction of a conquest of a -part of the sea, some writers[745] try to justify blockade by the -necessity of war. I think, however, no special justification of blockade -is necessary at all. The fact is that the detrimental consequences of -blockade to neutrals stand in the same category as the many other -detrimental consequences of war to neutrals. Neither the one nor the -other need be specially justified. A blockade interferes indeed with the -recognised principle of the freedom of the sea, and, further, with the -recognised freedom of neutral commerce. But all three have developed -together, and when the freedom of the sea in time of peace and war, and, -further, when the freedom of neutral commerce became generally -recognised, the exceptional restrictions of blockade became at the same -time recognised as legitimate. - -[Footnote 743: The matter is thoroughly treated by Fauchille, _Blocus_, -pp. 13-36, and Güldenagel, _op. cit._ pp. 39-86.] - -[Footnote 744: See Hautefeuille, II. pp. 190-191.] - -[Footnote 745: See Gessner, p. 151; Bluntschli, § 827; Martens, II. § -124.] - - -II - -ESTABLISHMENT OF BLOCKADE - - See the literature quoted above at the commencement of § 368. - -[Sidenote: Competence to establish Blockade.] - -§ 375. A declaration of blockade being "a high[746] act of sovereignty" -and having far-reaching consequences upon neutral trade, it is generally -recognised not to be in the discretion of a commander of a naval force -to establish blockade without the authority of his Government. Article 9 -of the Declaration of London precisely enacts that "a Declaration of -blockade is made by the blockading Power or by the naval authorities -acting in its name." The authority of his Government to establish a -blockade can be granted to a commander of a naval force purposely for a -particular blockade, the Government ordering the commander of a squadron -to blockade a certain port or coast. Or a Government can expressly -delegate its power to blockade to a commander for use at his discretion. -And if operations of war take place at great distance[747] from the seat -of Government and a commander finds it necessary to establish a -blockade, the latter can become valid through his Government giving its -immediate consent after being informed of the act of the commander. And, -further, the powers vested in the hands of the supreme commander of a -fleet are supposed to include the authority to establish a blockade in -case he finds it necessary, provided that his Government acquiesces as -soon as it is informed of the establishment of the blockade.[748] - -[Footnote 746: The _Henrik_ and _Maria_ (1799), 1 C. Rob. 146.] - -[Footnote 747: The _Rolla_ (1807), 6 C. Rob. 364.] - -[Footnote 748: As regards the whole matter, see Fauchille, _Blocus_, pp. -68-73.] - -[Sidenote: Declaration and Notification of Blockade.] - -§ 376. A blockade is not in being _ipso facto_ by the outbreak of war. -And even the actual blocking of the approach to an enemy coast by -belligerent men-of-war need not by itself mean that the ingress and -egress of _neutral_ vessels are to be prohibited, since it can take -place for the purpose of preventing the egress and ingress of _enemy_ -vessels only. Continental writers, therefore, have always considered -notification to be essential for the establishment of a blockade. -English, American, and Japanese writers, however, have not hitherto held -notification to be essential, although they considered knowledge on the -part of a neutral vessel of an existing blockade to be necessary for her -condemnation for breach of blockade.[749] - -[Footnote 749: See below, § 384.] - -But although Continental writers have always held notification to be -essential for the establishment of blockade, they differed with regard -to the kind of notification that is necessary. Some writers[750] -maintained that three different notifications must take place--namely, -first, a local notification to the authorities of the blockaded ports or -coast; secondly, a diplomatic or general notification to all maritime -neutral States by the blockading belligerent; and, thirdly, a special -notification to every approaching neutral vessel. Other writers[751] -considered only diplomatic and special notification essential. Others -again[752] maintained that special notification to every approaching -neutral vessel is alone required, although they recommended diplomatic -notification as a matter of courtesy. - -[Footnote 750: See, for instance, Kleen, I. § 131.] - -[Footnote 751: See, for instance, Bluntschli, 831-832; Martens, II. § -124, Gessner, p. 181.] - -[Footnote 752: See, for instance, Hautefeuille, II. pp. 224 and 226; -Calvo, V. § 2846; Fauchille, pp. 219-221.] - -As regards the practice of States, it has always been usual for the -commander who established a blockade to send a notification of the -blockade to the authorities of the blockaded ports or coast and the -foreign consuls there. It has, further, always been usual for the -blockading Government to notify the fact diplomatically to all neutral -maritime States. And some States, as France and Italy, have always -ordered their blockading men-of-war to board every approaching neutral -vessel and notify her of the establishment of the blockade. But Great -Britain, the United States of America, and Japan did not formerly -consider notification to be essential for the institution of a blockade. -They held the simple fact that the approach was blocked, and egress and -ingress of neutral vessels actually prevented, to be sufficient to make -the existence of a blockade known, and when no diplomatic notification -had taken place, they did not seize a vessel for breach of blockade -whose master had no actual notice of the existence of the blockade. -English,[753] American,[754] and Japanese[755] practice, accordingly, -made a distinction between a so-called _de facto_ blockade on the one -hand, and, on the other, a notified blockade. - -[Footnote 753: The _Vrouw Judith_ (1799), 1 C. Rob. 150.] - -[Footnote 754: See U.S. Naval War Code, articles 39-40.] - -[Footnote 755: See Japanese Prize Law, article 30.] - -The Declaration of London, when ratified, will create a common practice, -for articles 8 to 12 represent an agreement of the Powers on the -following points:-- - -(1) There must be a _declaration_ as well as a _notification_ in order -to make a blockade binding (article 8). If there is either no proper -declaration or no proper notification, the blockade is not binding. - -(2) A _declaration_ of blockade is made either by the blockading Power -or by the naval authorities acting in its name. The declaration of -blockade must specify (_a_) the date when the blockade begins; (_b_) the -geographical limits of the coastline under blockade; and (_c_) the -period within which neutral vessels may come out (article 9). If the -commencement of the blockade or its geographical limits are given -inaccurately in the declaration, or if no mention is made of the period -within which neutral vessels may come out, or if this period is given -inaccurately, the declaration is void, and a new declaration is -necessary in order to make the blockade binding (article 10). - -(3) _Notification_ of the declaration of blockade must at once be made. -Two notifications are necessary (article 11):-- - -The first notification must be made by the Government of the blockading -fleet to all neutral Governments either through the diplomatic channel, -or otherwise, for instance by telegraph. The purpose of this -notification is to enable neutral Governments to inform merchantmen -sailing under their flag of the establishment of a blockade. - -The second notification must be made to the local authorities by the -officer commanding the blockading force; these authorities have on their -part to notify, as soon as possible, the foreign consuls at the -blockaded port or coastline. The purpose of this notification is to -enable neutral merchantmen in the blockaded port or ports to receive -knowledge of the establishment of the blockade and to prepare themselves -to leave the port within the period specified in the declaration of -blockade. - -(4) The rules as to declaration and notification of blockade apply to -cases where the limits of a blockade have been extended, or where a -blockade is re-established after having been raised (article 12). - -[Sidenote: Length of Time for Egress of Neutral Vessels.] - -§ 377. As regards _ingress_, a blockade becomes valid the moment it is -established; even vessels in ballast have no right of ingress. As -regards _egress_, it has always been usual for the blockading commander -to grant a certain length of time within which neutral vessels might -leave the blockaded ports unhindered, but no rule existed respecting the -length of such time, although fifteen days were frequently -granted.[756] This usage of granting to neutral vessels a period within -which they may leave the blockaded port, has been made a binding rule by -the Declaration of London. For, since article 9 enacts that a -declaration of blockade must specify the period within which neutral -vessels may come out, it implicitly enacts that the granting of such a -period is compulsory, although it may only be long enough to enable -neutral vessels to make their way out as quickly as possible. - -[Footnote 756: According to U.S. Naval War Code, article 43, thirty days -are allowed "unless otherwise specially ordered."] - -[Sidenote: End of Blockade.] - -§ 378. Apart from the conclusion of peace, a blockade can come to an end -in three different ways. - -It may, firstly, be raised, or restricted in its limits, by the -blockading Power for any reason it likes. In such a case it has always -been usual to notify the end of blockade to all neutral maritime States, -and article 13 of the Declaration of London turns this usage into a -binding rule by enacting that the voluntary raising of a blockade, as -also any restrictions in its limits, must, in the same way as the -declaration of a blockade, be notified to all neutral Governments by the -blockading Power, as well as to the local authorities by the officer -commanding the blockading fleet. - -A blockade can, secondly, come to an end through an enemy force driving -off the blockading squadron or fleet. In such case the blockade ends -_ipso facto_ by the blockading squadron being driven away, whatever -their intention as to returning may be. Should the squadron return and -resume the blockade, it must be considered as new, and not simply the -continuation of the former blockade, and another declaration and -notification are necessary (article 12 of the Declaration of London). - -The third ground for the ending of a blockade is its failure to be -effective, a point which will be treated below in § 382. - - -III - -EFFECTIVENESS OF BLOCKADE - - See the literature quoted above at the commencement of § 368. - -[Sidenote: Effective in contradistinction to Fictitious Blockade.] - -§ 379. The necessity for effectiveness in a blockade by means of the -presence of a blockading squadron of sufficient strength to prevent -egress and ingress of vessels became gradually recognised during the -first half of the nineteenth century; it became formally enacted as a -principle of the Law of Nations through the Declaration of Paris in -1856, and the Declaration of London enacts it by article 2. Effective -blockade is the contrast to so-called fictitious or paper blockade, -which was frequently practised during the seventeenth, eighteenth, and -at the beginning of the nineteenth century.[757] Fictitious blockade -consists in the declaration and notification that a port or a coast is -blockaded without, however, posting a sufficient number of men-of-war on -the spot to be really able to prevent egress and ingress of every -vessel. It was one of the principles of the First and of the Second -Armed Neutrality that a blockade should always be effective, but it was -not till after the Napoleonic wars that this principle gradually found -universal recognition. During the second half of the nineteenth century -even those States which had not acceded to the Declaration of Paris did -not dissent regarding the necessity for effectiveness of blockade. - -[Footnote 757: See Fauchille, _Blocus_, pp. 74-109.] - -[Sidenote: Condition of Effectiveness of Blockade.] - -§ 380. The condition of effectiveness of blockade, as defined by the -Declaration of Paris, is its maintenance _by such a force as is -sufficient really to prevent access to the coast_. But no unanimity -exists respecting what is required to constitute an effective blockade -according to this definition. Apart from differences of opinion -regarding points of minor interest, it may be stated that in the main -there are two conflicting opinions. - -According to one opinion, the definition of an effective blockade -pronounced by the First Armed Neutrality of 1780 is valid, and a -blockade is effective only when the approach to the coast is barred by a -chain of men-of-war anchored on the spot and so near to one another that -the line cannot be passed without obvious danger to the passing -vessel.[758] This corresponds to the practice hitherto followed by -France. - -[Footnote 758: See Hautefeuille, II. p. 194; Gessner, p. 179; Kleen, I. -§ 129; Boeck, Nos. 676-681; Dupuis, Nos. 173-174; Fauchille, _Blocus_, -pp. 110-142. Phillimore, III. § 293, takes up the same standpoint in so -far as a blockade _de facto_ is concerned:--"A blockade _de facto_ -should be effected by stationing a number of ships, and forming as it -were an arch of circumvallation round the mouth of the prohibited port, -where, if the arch fails in any one part, the blockade itself fails -altogether."] - -According to another opinion, a blockade is effective when the approach -is watched--to use the words of Dr. Lushington[759]--"by a force -sufficient to render the egress and ingress dangerous, or, in other -words, save under peculiar circumstances, as fogs, violent winds, and -some necessary absences, sufficient to render the capture of vessels -attempting to go in or come out most probable." According to this -opinion there need be no chain of anchored men-of-war to expose any -vessels attempting to break the blockade to a cross fire, but a real -danger of capture suffices, whether the danger is caused by cruising or -anchored men-of-war. This is the standpoint of theory and practice of -Great Britain and the United States, and it seems likewise to be that of -Germany and several German writers.[760] The blockade during the -American War of the whole coast of the Confederate States to the extent -of 2500 nautical miles by four hundred Federal cruisers could, of -course, only be maintained by cruising vessels; and the fact that all -neutral maritime States recognised it as effective shows that the -opinion of dissenting writers has more theoretical than practical -importance. - -[Footnote 759: In his judgment in the case of the _Franciska_ (1855), -Spinks, 287.] - -[Footnote 760: See Perels, § 49; Bluntschli, § 829; Liszt, § 41, III.] - -The Declaration of London has settled the controversy in so far as -article 3 enacts that "the question whether a blockade is effective, is -a question of fact." Each case must, therefore, be judged according to -its merits, and the before mentioned decision of Dr. Lushington would -seem to have found implied recognition by article 3. - -The question of effectiveness being one of fact, and the real danger to -passing vessels being the characteristic of effectiveness of blockade, -it must be recognised that in certain cases and in the absence of a -sufficient number of men-of-war a blockade may be made effective through -planting land batteries within range of any vessel attempting to -pass,[761] provided there be at least one man-of-war on the spot. But a -stone blockade,[762] so called because vessels laden with stones are -sunk in the channel to block the approach, is not an effective blockade. - -[Footnote 761: The _Nancy_ (1809), 1 Acton, 63; the _Circassian_ (1864), -2 Wallace, 135; the _Olinde Rodrigues_ (1898), 174, United States, 510. -See also Bluntschli, § 829; Perels, § 49; Geffcken in Holtzendorff, IV. -p. 750; Walker, _Manual_, § 78.] - -[Footnote 762: See above, § 368, p. 450, note 1. It ought to be -mentioned here also that according to article 2 of Convention VIII. "it -is forbidden to lay automatic contact mines off the ports and coasts of -the enemy, with the sole object of intercepting commercial navigation."] - -And it must, lastly, be mentioned that the distance of the blockading -men-of war from the blockaded port or coast is immaterial so long as the -circumstances and conditions of the special case justify such distance. -Thus during the Crimean War the port of Riga was blockaded by a -man-of-war stationed at a distance of 120 miles from the town, in the -Lyser Ort, a channel three miles wide forming the only approach to the -gulf.[763] - -[Footnote 763: The _Franciska_ (1855), Spinks, 287. See Hall, § 260, and -Holland, _Studies_, pp. 166-167.] - -[Sidenote: Amount of Danger which creates Effectiveness.] - -§ 381. It is impossible to state exactly what degree of danger to a -vessel attempting to pass is necessary to prove an effective blockade. -It is recognised that a blockade does not cease to be effective in case -now and then a vessel succeeds in passing the line unhindered, provided -there was so much danger as to make her capture probable. Dr. Lushington -strikingly dealt with the matter in the following words:[764]--"The -maintenance of a blockade must always be a question of degree--of the -degree of danger attending ships going into or leaving a port. Nothing -is further from my intention, nor indeed more opposed to my notions, -than any relaxation of the rule that a blockade must be sufficiently -maintained; but it is perfectly obvious that no force could bar the -entrance to absolute certainty; that vessels may get in and get out -during the night, or fogs, or violent winds, or occasional absence; that -it is most difficult to judge from numbers alone. Hence, I believe that -in every case the inquiry has been, whether the force was competent and -present, and, if so, the performance of the duty was presumed; and I -think I may safely assert that in no case was a blockade held to be void -when the blockading force was on the spot or near thereto on the ground -of vessels entering into or escaping from the port, where such ingress -or egress did not take place with the consent of the blockading -squadron." - -[Footnote 764: In his judgment in the case of the _Franciska_ (1855), -Spinks, 287.] - -[Sidenote: Cessation of Effectiveness.] - -§ 382. A blockade is effective so long as the danger lasts which makes -probable the capture of such vessels as attempt to pass the approach. A -blockade, therefore, ceases _ipso facto_ by the absence of such danger, -whether the blockading men-of-war are driven away, or are sent away for -the fulfilment of some task which has nothing to do with the blockade, -or voluntarily withdraw, or allow the passage of vessels in other cases -than those which are exceptionally admissible. Thus, when in 1861, -during the American Civil War, the Federal cruiser _Niagara_, which -blockaded Charleston, was sent away and her place was taken after five -days by the _Minnesota_, the blockade ceased to be effective, although -the Federal Government refused to recognise this.[765] Thus, further, -when during the Crimean War Great Britain allowed Russian vessels to -export goods from blockaded ports, and accordingly the egress of such -vessels from the blockaded port of Riga was permitted, the blockade of -Riga ceased to be effective, because it tried to interfere with neutral -commerce only; therefore, the capture of the Danish vessel -_Franciska_[766] for attempting to break the blockade was not upheld. - -[Footnote 765: See Mountague Bernard, _Neutrality of Great Britain -during the American Civil War_ (1870), pp. 237-239.] - -[Footnote 766: Spinks, 287. See above, § 370.] - -On the other hand, practice[767] and the majority of writers have always -recognised the fact that a blockade does not cease to be effective in -case the blockading force is driven away for a short time through stress -of weather, and article 4 of the Declaration of London precisely enacts -that "a blockade is not regarded as raised if the blockading force is -temporarily withdrawn on account of stress of weather." English[768] -writers, further, have hitherto denied that a blockade loses -effectiveness through a blockading man-of-war being absent for a short -time for the purpose of chasing a vessel which succeeded in passing the -approach unhindered,[769] but the Declaration of London does not -recognise this.[770] - -[Footnote 767: The _Columbia_ (1799), 1 C. Rob. 154.] - -[Footnote 768: See Twiss, II. § 103, p. 201, and Phillimore, III. § -294.] - -[Footnote 769: See article 37 of U.S. Naval War Code.] - -[Footnote 770: See the Report of the Drafting Committee on article 4 of -the Declaration of London.] - - -IV - -BREACH OF BLOCKADE - - See the literature quoted above at the commencement of § 368. - -[Sidenote: Definition of Breach of Blockade.] - -§ 383. Breach or violation of blockade is the unallowed ingress or -egress of a vessel in spite of the blockade. The attempted breach is, so -far as punishment is concerned, treated in the same way as the -consummated breach, but the practice of States has hitherto differed -with regard to the question at what time and by what act an attempt to -break a blockade commences. - -It must be specially observed that the blockade-runner violates -International Law as little as the contraband carrier. Both (see below, -§ 398) violate injunctions of the belligerent concerned. - -[Sidenote: No Breach without Notice of Blockade.] - -§ 384. Since breach of blockade is, from the standpoint of the -blockading belligerent, a criminal act, knowledge on the part of a -vessel of the existence of a blockade is essential for making her egress -or ingress a breach of blockade. - -It is for this reason that Continental theory and practice have never -considered a blockade established without local and diplomatic -notification, so that every vessel might have, or might be supposed to -have, notice of the existence of a blockade. And for the same reason -some States, as France and Italy, have never considered a vessel to have -committed a breach of blockade unless a special warning was given her -before her attempted ingress by one of the blockading cruisers stopping -her and recording the warning upon her log-book.[771] - -[Footnote 771: See above, § 376.] - -British, American, and Japanese practice regarding the necessary -knowledge of the existence of a blockade on the part of a vessel has -always made a distinction between actual and constructive notice, no -breach of blockade having been held to exist without either the one or -the other.[772] Actual notice has been considered knowledge acquired by -a direct warning from one of the blockading men-of-war or knowledge -acquired from any other public or private source of information. -Constructive knowledge has been presumed knowledge of the blockade on -the part of a vessel on the ground either of notoriety or of diplomatic -notification. The existence of a blockade has always been presumed to be -notorious to vessels within the blockaded ports, but it has been a -question of fact whether it was notorious to other vessels. And -knowledge of the existence of a blockade has always been presumed on the -part of a vessel in case sufficient time had elapsed after the home -State of the vessel had received diplomatic notification of the -blockade, so that it could inform thereof all vessels sailing under its -flag, whether or no they had actually received, or taken notice of, the -information.[773] - -[Footnote 772: See Holland, _Prize Law_, §§ 107, 114-127; U.S. Naval War -Code, article 39; Japanese Prize Law, article 30.] - -[Footnote 773: The _Vrouw Judith_ (1799), 1 C. Rob. 150; the _Neptunus_ -(1799), 2 C. Rob. 110; the _Calypso_ (1799), 2 C. Rob. 298; the -_Neptunus_ (1800), 3 C. Rob. 173; the _Hoffnung_ (1805), 6 C. Rob. 112.] - -The Declaration of London follows, to a certain extent, British, -American, and Japanese practice, but differs chiefly in the presumption -that knowledge of a blockade is never absolute, but may in every case be -rebutted. Article 14 enacts that "the liability of a neutral vessel to -capture for breach of blockade is contingent on her knowledge, actual or -presumptive, of the blockade." Knowledge of the blockade is presumed, -_failing proof to the contrary_, in case the vessel has left a neutral -port subsequent to the notification of the blockade to the Power to -which such port belongs, and provided that the notification was made in -sufficient time (article 15). But in case a neutral vessel _approaching_ -a blockaded port has neither actual nor presumptive knowledge of the -blockade, she is not considered _in delicto_, and notification must be -made to her by recording a warning on her log-book, stating the day and -hour and the geographical position of the vessel at the time (article -16, first paragraph). Further, if a neutral vessel is _coming out_ of a -blockaded port, she must be allowed to pass free, in case, through the -negligence of the officer commanding the blockading fleet, no -declaration of blockade was notified to the local authorities, or in -case, in the declaration as notified, no period was mentioned within -which neutral vessels might come out (article 16, second paragraph). - -[Sidenote: The former practice as to what constitutes an Attempt to -break Blockade.] - -§ 385. The practice of States as well as the opinions of writers have -hitherto differed much regarding such acts of a vessel as constitute an -attempt to break blockade. - -(1) The Second Armed Neutrality of 1800 intended to restrict an attempt -to break blockade to the employment of force or ruse by a vessel on the -line of blockade for the purpose of passing through. This was, on the -whole, the practice of France, which moreover, as stated before, -required that the vessel should previous to the attempt have received -special warning from one of the blockading men-of-war. Many writers[774] -took the same standpoint. - -(2) The practice of other States, as Japan, approved by many -writers,[775] went beyond this and considered it an attempt to break -blockade when a vessel, with or without force or ruse, endeavoured to -pass the line of blockade. This practice frequently saw an attempt -complete in the fact that a vessel destined for a blockaded place was -found anchoring or cruising near the line of blockade. - -(3) The practice of Great Britain and the United States of America went -furthest, since it considered it an attempted breach of blockade when a -vessel, not destined according to her ship papers for a blockaded port, -was found near it and steering for it; and, further, when a vessel -destined for a port, the blockade of which was diplomatically notified, -started on her journey knowing that the blockade had not been raised, -except when the port from which the vessel sailed was so distant from -the scene of war as to justify her master in starting for a destination -known to be blockaded, on the chance of finding that the blockade had -been removed, and with an intention of changing her destination should -that not prove to be the case.[776] This practice, further, applied the -doctrine of continuous voyages[777] to blockade, for it considered an -attempt of breach of blockade to have been committed by such vessel as, -although ostensibly destined for a neutral or an unblockaded port, is in -reality intended, after touching there, to go on to a blockaded -port.[778] - -(4) During the Civil War the American Prize Courts carried the practice -further by condemning such vessels for breach of blockade as knowingly -carried to a neutral port cargo ultimately destined for a blockaded -port, and by condemning for breach of blockade such cargo, but not the -vessel, as was ultimately destined for a blockaded port, when the -carrying vessel was ignorant of this ulterior destination of the cargo. -Thus the _Bermuda_,[779] a British vessel with a cargo, part of which -was, in the opinion of the American Courts, ultimately destined for the -blockaded ports of the Confederate States, was seized on her voyage to -the neutral British port of Nassau, in the Bahama Islands, and condemned -for breach of blockade by the American Courts. The same happened to the -British vessel _Stephen Hart_,[780] which was seized on her voyage to -the neutral port of Cardenas, in Cuba. And in the famous case of the -_Springbok_,[781] a British vessel also destined for Nassau, in the -Bahama Islands, which was seized on her voyage to this neutral British -port, the cargo alone was finally condemned for breach of blockade, -since, in the opinion of the Court, the vessel was not cognisant that -the cargo was intended to reach a blockaded port. The same happened to -the cargo of the British vessel _Peterhoff_[782] destined for the -neutral port of Matamaros, in Mexico. The British Government declined to -intervene in favour of the British owners of the respective vessels and -cargoes.[783] - -[Footnote 774: See Hautefeuille, II. p. 134; Kleen, I. § 137; Gessner, -p. 202; Dupuis, No. 185; Fauchille, _Blocus_, p. 322.] - -[Footnote 775: See Bluntschli, § 835; Perels, § 51; Geffcken in -Holtzendorff, IV. p. 763; Rivier, II. p. 431. See also § 25 of the -Prussian Regulations (1864) concerning Naval Prizes, and article 31 of -the Japanese Naval Prize Law.] - -[Footnote 776: See Holland, _Prize Law_, § 133, and U.S. Naval War Code, -article 42; the _Betsey_ (1799), 1 C. Rob. 332.] - -[Footnote 777: On this doctrine, see below, § 400, p. 499, note 1.] - -[Footnote 778: See Holland, _Prize Law_, § 134, and the case of the -_James Cook_ (1810), Edwards, 261.] - -[Footnote 779: 3 Wallace, § 14.] - -[Footnote 780: 3 Wallace, 559.] - -[Footnote 781: 5 Wallace, 1.] - -[Footnote 782: 5 Wallace, 28.] - -[Footnote 783: See _Parliamentary Papers_, Miscellaneous, N. 1 (1900), -"Correspondence regarding the Seizure of the British Vessels _Springbok_ -and _Peterhoff_ by the United States Cruisers in 1863."] - -It is true that the majority of authorities[784] assert the illegality -of these judgments of the American Prize Courts, but it is a fact that -Great Britain at the time recognised as correct the principles which are -the basis of these judgments. - -[Footnote 784: See, for instance, Holland, _Prize Law_, p. 38, note 2; -Phillimore, III. § 298; Twiss, _Belligerent Right on the High Seas_ -(1884), p. 19; Hall, § 263; Gessner, _Kriegführende und neutrale Mächte_ -(1877), pp. 95-100; Bluntschli, § 835; Perels, § 51; Fauchille, pp. -333-344; Martens, II. § 124. See also Wharton, III. § 362, p. 401, and -Moore, VII. § 1276.] - -[Sidenote: What constitutes an Attempt to break Blockade according to -the Declaration of London.] - -§ 385_a_. The Declaration of London proposes a settlement of this -controversial matter by enacting in article 17 that "neutral vessels may -not be captured for breach of blockade except within the area of -operations of the men-of-war detailed to render the blockade -effective," and in article 19 that "whatever may be the ulterior -destination of a vessel or of her cargo, she may not be captured for -breach of blockade, if, at the moment, she is on the way to a -non-blockaded port." - -Accordingly, a neutral vessel, to be guilty of an attempt to break -blockade, must actually have entered the _area of operations_ (_rayon -d'action_) of the blockading fleet. This _area of operations_ is a -question of fact in each case of a blockade. "When a Government decides -to undertake blockading operations against some part of the enemy coast -it details a certain number of men-of-war to take part in the blockade, -and entrusts the command to an officer whose duty it is to use them for -the purpose of making the blockade effective. The commander of the naval -force thus formed posts the vessels at his disposal according to the -line of the coast and the geographical position of the blockaded places, -and instructs each vessel as to the part which she has to play, and -especially as to the zone which she is to watch. All the zones watched -taken together and so organised as to make the blockade effective, form -the area of operations of the blockading force."[785] - -[Footnote 785: Report of the Drafting Committee on article 17.] - -But the fact alone that a neutral vessel has entered the area of -operations is not sufficient to justify her capture, she must also be -destined and be on her way to the blockaded port. If she passes through -the area of operations without being destined and on her way to the -blockaded port, she is not attempting to break the blockade. Even should -the ulterior destination of a vessel or her cargo be the blockaded port, -she is not considered to attempt to break the blockade, if, at the -moment of the visitation, she is really on her way to a non-blockaded -port (article 19). However, she must really, and not only apparently, be -on her way to a non-blockaded port; if it can be proved that in reality -her immediate destination is the blockaded port and that she only feigns -to be destined for a non-blockaded port, she may be captured, for she is -actually attempting to break the blockade.[786] - -[Footnote 786: See the Report of the Drafting Committee on article 19.] - -From these stipulations of the Declaration of London it becomes quite -apparent that the application to blockade of the doctrine of continuous -voyage in any form is not admissible. - -[Sidenote: When Ingress is not considered Breach of Blockade.] - -§ 386. Although blockade inwards interdicts ingress to all vessels, if -not especially licensed,[787] necessity makes exceptions to the rule. - -[Footnote 787: See above, § 370.] - -According to the practice which has hitherto been quite general, -whenever a vessel either by need of repairs,[788] stress of -weather,[789] want of water[790] or provisions, or upon any other ground -was absolutely obliged to enter a blockaded port, such ingress did not -constitute a breach of blockade. On the other hand, according to the -British practice at any rate, ingress did not cease to be breach of -blockade if caused by intoxication of the master,[791] ignorance[792] of -the coast, loss of compass,[793] endeavour to get a pilot,[794] and the -like, or an attempt to ascertain[795] whether the blockade was -raised.[796] - -[Footnote 788: The _Charlotta_ (1810), Edwards, 252.] - -[Footnote 789: The _Fortuna_ (1803), 5 C. Rob. 27.] - -[Footnote 790: The _Hurtige Hanne_ (1799), 2 C. Rob. 124.] - -[Footnote 791: The _Shepherdess_ (1804), 5 C. Rob. 262.] - -[Footnote 792: The _Adonis_ (1804), 5 C. Rob. 256.] - -[Footnote 793: The _Elizabeth_ (1810), Edwards, 198.] - -[Footnote 794: The _Neutralitet_ (1805), 6 C. Rob. 30.] - -[Footnote 795: The _Spes_ and _Irene_ (1804), 5 C. Rob. 76.] - -[Footnote 796: See Holland, _Prize Law_, §§ 135-136.] - -The Declaration of London recognises that necessity makes exceptions to -the rule that vessels may not enter a blockaded port. Article 7 enacts -that "in circumstances of distress, acknowledged by an officer of the -blockading force, a neutral vessel may enter a place under blockade, and -subsequently leave it, provided that she has neither discharged nor -shipped any cargo there." It has, however, to be kept in view that -article 7, firstly, does not define the term _circumstances of -distress_, and, secondly, makes it a condition that the circumstances -concerned must be acknowledged by an officer of the blockading force. -Everything is, therefore, _prima facie_ at any rate, left to the -consideration of the respective officer. A vessel in distress will have -to signal to the man-of-war of the blockading force which she meets -within the area of operations that she intends to enter the blockaded -port, and the commander of the man-of-war will have to convince himself -that circumstances of distress really exist, and that no fraud is -intended. The commander may deny the condition of distress, and then the -vessel may not proceed, although the State whose flag she flies may ask -for indemnities in case there really was distress and the vessel was -lost or damaged by not being allowed to enter the blockaded port. On the -other hand, when once the commander of the man-of-war has acknowledged -that the respective vessel is in a condition of distress, it is not in -his discretion, but he is in duty bound,[797] to allow her to enter the -blockaded port. - -[Footnote 797: See Report of the Drafting Committee on article 7.] - -[Sidenote: When Egress is not considered Breach of Blockade.] - -§ 387. There are a few cases of egress which, according to the hitherto -prevailing practice of Great Britain and most other States, were not -considered breaches of blockade outwards.[798] Thus, a vessel that was -in a blockaded port before the commencement of the blockade[799] was -allowed to sail from this port in ballast, as was also a vessel that had -entered during a blockade either in ignorance of it or with the -permission of the blockading squadron.[800] Thus, further, a vessel the -cargo of which was put on board before the commencement of the blockade -was allowed to leave the port afterwards unhindered.[801] Thus, again, a -vessel obliged by absolute necessity to enter a blockaded port was -afterwards allowed to leave it unhindered. And a vessel employed by the -diplomatic envoy of a neutral State for the exclusive purpose of sending -home from a blockaded port distressed seamen of his nationality was also -allowed to pass unhindered.[802] - -[Footnote 798: See Holland, _Prize Law_, § 130; Twiss, II. § 113; -Phillimore, III. § 313.] - -[Footnote 799: The _Frederick Moltke_ (1798), 1 C. Rob. 86.] - -[Footnote 800: The _Juno_ (1799), 2 C. Rob. 116.] - -[Footnote 801: The _Vrouw Judith_ (1799), 1 C. Rob. 150.] - -[Footnote 802: The _Rose in Bloom_ (1811), 1 Dodson, 55.] - -The Declaration of London recognises by article 7--see above, § -386--that a vessel which, on account of distress, entered a blockaded -port, must be allowed to leave it afterwards, provided she has neither -discharged nor shipped cargo there. And article 16, second -paragraph--see above, § 384--enacts that a vessel coming out of a -blockaded port must be allowed to pass free, if, through the negligence -of the commander of the blockading fleet, no declaration of blockade has -been notified to the local authorities, or if, in the declaration as -notified, no period has been mentioned within which neutral vessels -might come out. But beyond these the Declaration of London does not -specify any cases in which egress is not considered breach of blockade. -The International Prize Court will, if established, have to develop a -more detailed practice concerning the matter. - -[Sidenote: Passage through Unblockaded Canal no Breach of Blockade.] - -§ 388. A breach of blockade can only be committed by passing through the -blockaded approach. Therefore, if the maritime approach to a port is -blockaded whilst an inland canal leads to another unblockaded port of -the enemy or to a neutral port, no breach of blockade is committed by -the egress or the ingress of a vessel passing such canal for the purpose -of reaching the blockaded port.[803] - -[Footnote 803: The _Stert_ (1801), 4 C. Rob. 65. See Phillimore, III. § -314.] - -Although the Declaration of London does not mention this point, the -International Prize Court would surely decide it as stated, since this -decision is based on common sense. - - -V - -CONSEQUENCES OF BREACH OF BLOCKADE - - See the literature quoted above at the commencement of § 368. - -[Sidenote: Capture of Blockade-running Vessels.] - -§ 389. It is universally recognised that a vessel may be captured for a -breach of blockade _in delicto_ only, that means, during the time of an -attempt to break it, or of the breach itself. But here again practice as -well as theory hitherto have differed much, since there has been no -unanimity with regard to the extent of time during which an attempt of -breach and the breach itself could be said to be actually continuing. - -It has already been stated above in § 385 that it has been a moot point -from what moment a breach of blockade could be said to have been -attempted, and that according to the practice of Great Britain and the -United States an attempt was to be found in the fact that a vessel -destined for a blockaded port was starting on her voyage. It is obvious -that the controversy bore upon the question from what point of time a -blockade-running vessel must be considered _in delicto_. - -But it has been likewise a moot point as to when the period of time -during which a blockade-running vessel might be said to be _in delicto_ -came to an end. According to Continental theory and practice, such -vessel was considered to be _in delicto_ only so long as she was -actually on the line of blockade, or, having fled from there, so long as -she was pursued by one of the blockading cruisers. On the other hand, -according to the practice of Great Britain[804] and the United -States,[805] a blockade-running vessel was held to be _in delicto_ so -long as she _had not completed her voyage from the blockaded port to the -port of her destination and back to the port from which she started -originally_, the voyage out and home being considered one voyage. But a -vessel was held to be _in delicto_ so long only as the blockade -continued, capture being no longer admissible in case the blockade had -been raised or had otherwise come to an end. - -[Footnote 804: The _Welvaart van Pillaw_ (1799), 2 C. Rob. 128; _General -Hamilton_ (1805), 6 C. Rob. 61.] - -[Footnote 805: See U.S. Naval War Code, article 44.] - -The Declaration of London, when ratified, will settle the controversy, -for, according to article 20, a vessel is _in delicto_ so long only as -she is pursued by a man-of-war of the blockading force, and she may no -longer be captured if the pursuit is abandoned or if the blockade is -raised. Stress must be laid on two points. Firstly, the pursuit must be -carried out by a man-of-war belonging to the blockading force, and not -by any other cruiser. Secondly, a blockade-breaking vessel is liable to -capture so long as the pursuit lasts, whether or no she is still within -the area of operations; even if for a while she has taken refuge in a -neutral port, she may, on coming out, be captured, provided the captor -is one of the men-of-war of the blockading force which pursued her and -waited for her outside the port of refuge.[806] - -[Footnote 806: See the Report of the Drafting Committee on article 20.] - -[Sidenote: Penalty for Breach of Blockade.] - -§ 390. Capture being effected, the blockade-runner must be sent to a -port to be brought before a Prize Court. For this purpose the crew may -be temporarily detained, as they will have to serve as witnesses. In -former times the crew could be imprisoned, and it is said that even -capital[807] punishment could have been pronounced against them. But -since the eighteenth century this practice of imprisoning the crew has -been abandoned, and nowadays the crew may not even be made prisoners of -war, but must be released as soon as the Prize Court has pronounced its -verdict.[808] The only penalty which may be pronounced is confiscation -of the vessel and the cargo. But the practice[809] of the several States -has hitherto differed much concerning the penalty for breach of -blockade. According to British and American practice, confiscation of -both vessel and cargo used to take place in case the owners of the -vessel were identical with those of the cargo. In case vessel and cargo -had not the same owners, confiscation of both took place only when the -cargo consisted of contraband of war or the owners knew of the blockade -at the time the cargo was shipped for the blockaded port.[810] And it -mattered not whether the captured vessel which carried the cargo had -herself actually passed through the blockaded line, or the breach of -blockade was effected through a combined action of lighters and the -vessel, the lighters passing the line and discharging the cargo into the -vessel near the line, or _vice versa_.[811] The cargo alone was -confiscated according to the judgments of the American Prize Courts -during the Civil War in the case of the _Springbok_ and in similar -cases[812] when goods ultimately destined for a blockaded port were sent -to a neutral port on a vessel whose owners were ignorant of this -ulterior destination of the goods. - -[Footnote 807: See Bynkershoek, _Quaest. jur. publ._ I. c. 11.] - -[Footnote 808: See Calvo, V. §§ 2897-2898. U.S. Naval War Code, article -45.] - -[Footnote 809: See Fauchille, _Blocus_, pp. 357-394: Gessner, pp. -210-214; Perels, § 51, pp. 276-278.] - -[Footnote 810: The _Mercurius_ (1798), 1 C. Rob. 80; the _Columbia_ -(1799), 1 C. Rob. 154; the _Alexander_ (1801), 4 C. Rob. 93; the -_Adonis_ (1804), 5 C. Rob. 256; the _Exchange_ (1808), Edwards, 39; the -_Panaghia Rhomba_ (1858), 12 Moore, P.C. 168--See Phillimore, III. §§ -318-319.] - -[Footnote 811: The _Maria_ (1805), 6 C Rob. 201.] - -[Footnote 812: See above, § 385 (4).] - -The Declaration of London settles the matter by a very simple rule, for -according to article 21 the penalty for blockade-breaking is -condemnation of the vessel in all cases, and condemnation of the cargo -also, unless the owner proves that at the time of the shipment of the -goods the shipper _neither knew nor could have known_ of the intention -of the vessel to break the blockade. The case in which the whole or part -of the cargo consists of contraband, is not mentioned by article 21, but -its condemnation is a matter of course. - - - - -CHAPTER IV - -CONTRABAND - - -I - -CONCEPTION OF CONTRABAND - - Grotius, III. c. 1, § 5--Bynkershoek, _Quaest. jur. publ._ - I. cc, IX-XII--Vattel, III. §§ 111-113--Hall, §§ 236-247--Lawrence, §§ - 253-259--Westlake, II. pp. 240-265--Maine, pp. 96-122--Manning, pp. - 352-399--Phillimore, III. §§ 226-284--Twiss, II. §§ 121-151--Halleck, - II. pp. 214-238--Taylor, §§ 653-666--Walker, §§ 73-75--Wharton, III. - §§ 368-375--Moore, VII. §§ 1249--1263--Wheaton, §§ 476-508 - --Bluntschli, §§ 801-814--Heffter, §§ 158-161--Geffcken in - Holtzendorff, IV. pp. 713-731--Gareis, § 89--Liszt, § 42--Ullmann, §§ - 193-194--Bonfils, No. 1537-1588'15--Despagnet, Nos. 705-715 _ter_ - --Rivier, II pp. 416-423--Calvo, V. §§ 2708-2795--Fiore, III. Nos. - 1591-1601, and Code, Nos. 1827-1835--Martens, II. § 136--Kleen, I. §§ - 70-102--Boeck, Nos. 606-659--Pillet, pp. 315-330--Gessner, pp. - 70-144--Perels, §§ 44-46--Testa, pp. 201-220--Lawrence, _War_, pp. - 140-174--Ortolan, II. pp. 165-213--Hautefeuille, II. pp. 69-172 - --Dupuis, Nos. 199-230, and _Guerre_, Nos. 137-171--Bernsten, § - 9--Nippold, II. § 35--Takahashi, pp. 490-526--Holland, _Prize - Law_, §§ 57-87--U.S. Naval War Code, articles 34-36--Heineccius, - _De navibus ob vecturam vetitarum mercium commissis dissertatio_ - (1740)--Huebner, _De la saisie des bâtiments neutres_, 2 vols. - (1759)--Valin, _Traité des prises_, 2 vols. (1763)--Martens, _Essai - sur les armateurs, les prises, et surtout les reprises_ - (1795)--Lampredi, _Del commercio dei populi neutrali in tempo di - guerra_ (1801)--Tetens, _Considérations sur les droits réciproques - des puissances belligérantes et des puissances neutres sur mer_ - (1805)--Pistoye et Duverdy, _Traité des prises maritimes_, 2 vols. - (1855)--Pratt, _The Law of Contraband of War_ (1856)--Moseley, _What - is Contraband and what is not?_ (1861)--Upton, _The Law of Nations - affecting Commerce during War_ (1863)--Lehmann, _Die Zufuhr von - Kriegskonterbandewaren, etc._ (1877)--Kleen, _De contrebande de - guerre et des transports interdits aux neutres_ (1893)--Vossen, _Die - Konterbande des Krieges_ (1896)--Manceaux, _De la contrebande de - guerre_ (1899)--Brochet, _De la contrebande de guerre_ (1900)--Hirsch, - _Kriegskonterbande und verbotene Transporte in Kriegszeiten_ - (1901)--Pincitore, _Il contrabbando di guerra_ (1902)--Remy, _Théorie - de la continuauté du voyage en matière de blocus et de contrebande de - guerre_ (1902)--Knight, _Des états neutres au point de vue de la - contrebande de guerre_ (1903)--Wiegner, _Die Kriegskonterbande_ - (1904)--Atherley-Jones, _Commerce in War_ (1906), pp. 1-91 and - 253-283--Hold, _Die Kriegskonterbande_ (1907)--Hansemann, _Die - Lehre von der einheitlichen Reise im Rechte der Blockade und - Kriegskonterbande_ (1910)--Hirschmann, _Das internationale - Prisenrecht_ (1912), §§ 24-30--Westlake in _R.I._ II. (1870), pp. - 614-655--Kleen in _R.I._ XXV. (1893), pp. 7, 124, 209, 389, and XXVI. - pp. 214-217 (1894)--Bar in _R.I._ XXVI. (1894), pp. 401-414--Brocher - de la Fléchère, in _R.I._ 2nd Ser. I. (1899), pp. 337-353--Fauchille - in _R.G._ IV. (1897), pp. 297-323--Kleen in _R.G._ XI. (1904), pp. - 353-362--Gover in _The Journal of the Society of Comparative - Legislation_, new series, II. (1900), pp. 118-130--Kennedy and - Randall in _The Law Quarterly Review_, XXIV (1908), pp. 59-75, - 316-327, and 449-464--General Report presented to the Naval Conference - of London by its Drafting Committee, articles 22-44. - -[Sidenote: Definition of Contraband of War.] - -§ 391. The term contraband is derived from the Italian "contrabbando," -which, itself deriving from the Latin "contra" and "bannum" or "bandum," -means "in defiance of an injunction." Contraband of war[813] is the -designation of such goods as by either belligerent are forbidden to be -carried to the enemy on the ground that they enable the latter to carry -on the war with greater vigour. But this definition is only a formal -one, as it does not state what kinds of goods belong to the class of -contraband. This point was much controverted before the Declaration of -London. Throughout the seventeenth, eighteenth, and nineteenth centuries -the matter stood as Grotius had explained it. Although he does not -employ the term contraband, he treats of the matter. He[814] -distinguishes three different kinds of articles. Firstly, those which, -as arms for instance, can only be made use of in war, and which are, -therefore, always contraband. Secondly, those, as for example articles -of luxury, which can never be made use of in war and which, therefore, -are never contraband. Thirdly, those which, as money, provisions, ships, -and articles of naval equipment, can be made use of in war as well as in -peace, and which are on account of their ancipitous use contraband or -not according to the circumstances of the case. In spite of -Bynkershoek's decided opposition[815] to this distinction by Grotius, -the practice of most belligerents until the beginning of the twentieth -century has been in conformity with it. A great many treaties have from -the beginning of the sixteenth century been concluded between many -States for the purpose of fixing what articles belonging to the class of -ancipitous use should, and what should not, be regarded between the -parties as contraband, but these treaties disagree with one another. -And, so far as they were not bound by a treaty, belligerents formerly -exercised their discretion in every war according to the special -circumstances and conditions in regarding or not regarding certain -articles of ancipitous use as contraband. The endeavour of the First and -the Second Armed Neutrality of 1780 and 1800 to restrict the number and -kinds of articles that could be regarded as contraband failed, and the -Declaration of Paris of 1856 uses the term contraband without any -attempt to define it. - -[Footnote 813: Although--see above, §§ 173-174--prevention of carriage -of contraband is a means of sea warfare against the enemy, it chiefly -concerns neutral commerce and is, therefore, more conveniently treated -with neutrality.] - -[Footnote 814: See Grotius, III. c. I, § 5:--"Sunt res quae in bello -tantum usum habent, ut arma: sunt quae in bello nullum habent usum, ut -quae voluptati inserviunt: sunt quae et in bello et extra bellum usum -habent, ut pecuniae, commeatus, naves, et quae navibus adsunt.... In -tertio illo genere usus ancipitis, distinguendus erit belli status...."] - -[Footnote 815: See Bynkershoek, _Quaest. jur. publici._ I. c. X.] - -It is by the Declaration of London that the Powers have, for the first -time in history, come to an agreement concerning what articles are -contraband. The distinction which Grotius made between three classes of -goods, while still recognised, has been merged by the Declaration of -London into the distinction between articles of absolute contraband, -articles of conditional contraband, and such articles as may under no -circumstances or conditions be considered contraband. This Declaration, -moreover, has put the whole matter of contraband upon a new basis, since -the Powers have by articles 22 to 44 agreed upon a common code of rules -concerning contraband. - -[Sidenote: Absolute and conditional Contraband, and free Articles.] - -§ 392. Apart from the distinction between articles which can be made use -of only in war and those of ancipitous use, two different classes of -contraband must be distinguished. - -There are, firstly, articles which by their very character are destined -to be made use of in war. In this class are to be reckoned not only arms -and ammunition, but also such articles of ancipitous use as military -stores, naval stores, and the like. They are termed absolute contraband. - -There are, secondly, articles which by their very character are not -destined to be made use of in war, but which under certain circumstances -and conditions can be of the greatest use to a belligerent for the -continuation of the war. To this class belong, for instance, provisions, -coal, gold, and silver. These articles are termed conditional or -relative contraband. - -Although hitherto not all the States have made this distinction, -nevertheless they did make a distinction in so far as they varied the -list of articles which they declared contraband in their different wars; -certain articles, as arms and ammunition, have always been on the list, -whilst other articles were only considered contraband when the -circumstances of a particular war made it necessary. The majority of -writers have always approved of the distinction between absolute and -conditional contraband, although several insisted that arms and -ammunition only and exclusively could be recognised as contraband, and -that conditional contraband did not exist.[816] The distinction would -seem to have been important not only regarding the question whether or -no an article was contraband, but also regarding the consequences of -carrying contraband.[817] - -[Footnote 816: See, for instance, Hautefeuille, II. p. 157, and Kleen, -I. § 90.] - -[Footnote 817: See below, § 405, p. 510.] - -The Declaration of London has adopted (articles 22 and 24) the -distinction between absolute and conditional contraband, but it -distinguishes, besides these two classes of articles, a third class -(article 27). To this class belong all articles which are either not -susceptible of use in war, or the possibility of the use of which in war -is so remote as practically to make them not susceptible of use in war. -These articles are termed _free articles_.[818] - -[Footnote 818: But there are a number of other free articles, although -they do not belong to the articles characterised above; see below, § -396_a_.] - -[Sidenote: Articles absolutely Contraband.] - -§ 393. That absolute contraband cannot and need not be restricted to -arms and ammunition only and exclusively becomes obvious, if the fact is -taken into consideration that other articles, although of ancipitous -use, can be as valuable and essential to a belligerent for the -continuance of the war as arms and ammunition. The necessary machinery -and material for the manufacture of arms and ammunition are almost as -valuable as the latter themselves, and warfare on sea can as little be -waged without vessels and articles of naval equipment as without arms -and ammunition. But formerly no unanimity existed with regard to such -articles of ancipitous use as had to be considered as absolute -contraband, and States, when they went to war, increased or restricted, -according to the circumstances of the particular war, the list of -articles they considered absolute contraband. - -According to the British practice[819] which has hitherto -prevailed--subject, however, to the prerogative of the Crown to order -alterations of the list during a war--the following articles were -considered absolute contraband:-- - - Arms of all kinds, and machinery for manufacturing arms; - ammunition, and materials for ammunition, including lead, sulphate - of potash, muriate of potash (chloride of potassium), chlorate of - potash, and nitrate of soda; gunpowder and its materials, - saltpetre and brimstone, also guncotton; military equipments and - clothing; military stores; naval stores, such as masts, spars, - rudders, ship timbers, hemp and cordage, sail-cloth, pitch and - tar, copper for sheathing vessels, marine engines and the - component parts thereof (including screw propellers, - paddle-wheels, cylinders, cranks, shafts, boilers, tubes for - boilers, boiler-plates and fire bars), maritime cement and the - materials used for its manufacture (as blue lias and Portland - cement), iron in any of the following forms: anchors, rivet-iron, - angle-iron, round bars of from 3/4 to 5/8 of an inch diameter, - rivets, strips of iron, sheet plate-iron exceeding 1/4 of an inch, - and Low Moor and Bowling plates. - -[Footnote 819: See Holland, _Prize Law_, § 62.] - -By articles 22 and 23 of the Declaration of London an agreement has been -reached according to which two classes of absolute contraband must be -distinguished. Article 22 enumerates eleven groups of articles which may -_always_, without special declaration and notice, be treated as absolute -contraband. These constitute the first class. The second--see article -23--consists of such articles exclusively used for war as are not -enumerated[820] amongst the eleven groups of the first class; these may -be treated as absolute contraband also, but only _after special -declaration and notification_. Such declaration may be published during -time of peace, and notification thereof must then be addressed to all -other Powers; but if the declaration is published after the outbreak of -hostilities, a notification need only be addressed to the neutral -Powers. Should a Power--see article 26--waive, so far as itself is -concerned, the right to treat as absolute contraband an article -comprised in the first class, notification thereof must be made to the -other Powers. The following are the groups of articles comprised in the -first class:-- - - (1) Arms of all kinds, including arms for sporting purposes, and - their distinctive component parts. - - (2) Projectiles, charges, and cartridges of all kinds, and their - distinctive component parts. - - (3) Powder and explosives specially prepared for use in war. - - (4) Gun-mountings, limber boxes, limbers, military waggons, field - forges, and their distinctive component parts. - - (5) Clothing and equipment of a distinctively military character. - - (6) All kinds of harness of a distinctively military character. - - (7) Saddle, draught, and pack animals suitable for use in war. - - (8) Articles of camp equipment, and their distinctive component - parts. - - (9) Armour plates. - - (10) Warships, including boats, and their distinctive component - parts of such a nature that they can only be used on a vessel of - war. - - (11) Implements and apparatus designed exclusively for the - manufacture of munitions of war, for the manufacture or repair of - arms, or war material for use on land or sea. - -[Footnote 820: The Report of the Drafting Committee on article 23 -recognises that at present it would be difficult to mention any articles -which could under article 23 be declared absolute contraband, but since -future contingencies cannot be foreseen, it was considered necessary to -stipulate the possibility of increasing the list of absolute contraband. -That only such additional articles could be declared absolute contraband -as by their very character are destined to be made use of in war, is a -matter of course.] - -It is apparent that this list embodies a compromise, for it includes -several articles--such as saddle, draught, and pack animals suitable for -use in war--which Great Britain and other Powers formerly only -considered as conditional contraband. - -[Sidenote: Articles conditionally Contraband.] - -§ 394. There are many articles which are not by their character destined -to be made use of in war, but which are nevertheless of great value to -belligerents for the continuance of war. Such articles are conditionally -contraband, which means that they are contraband when it is clearly -apparent--see below, § 395--that they are intended to be made use of for -military or naval purposes. This intention becomes apparent on -considering either the destination of the vessel carrying the articles -concerned, or the consignee of the articles. - -Before the Declaration of London neither the practice of States nor the -opinion of writers agreed upon the matter, and it was in especial -controversial[821] whether or no foodstuffs, horses and other beasts of -burden, coal and other fuel, money and the like, and cotton could -conditionally be declared contraband. - -(1) That _foodstuffs_ should not under ordinary circumstances be -declared contraband there ought to be no doubt. There are even -several[822] writers who emphatically deny that foodstuffs could ever be -conditional contraband. But the majority of writers has always admitted -that foodstuffs destined for the use of the enemy army or navy might be -declared contraband. This has been the practice of Great Britain,[823] -the United States of America, and Japan. But in 1885, during her -hostilities against China, France declared rice in general as -contraband, on the ground of the importance of this article to the -Chinese population. And Russia in 1904, during the Russo-Japanese war, -declared rice and provisions in general as contraband; on the protest of -Great Britain and the United States of America, however, she altered her -decision and declared these articles conditional contraband only. - -(2) The importance of _horses and other beasts of burden_ for cavalry, -artillery, and military transport explains their frequently being -declared as contraband by belligerents. No argument against their -character as conditional contraband can have any basis. But they were -frequently declared absolute contraband, as, for instance, by article 36 -of the United States Naval War Code of 1900. Russia, which during the -Russo-Japanese War altered the standpoint taken up at first by her, and -recognised the distinction between absolute and conditional contraband, -nevertheless maintained her declaration of horses and beasts of burden -as absolute contraband. The Declaration of London, by article 22, No. 7, -declares them as absolute contraband. - -(3) Since men-of-war are nowadays propelled by steam power, the -importance of _coal_, and eventually other fuel for waging war at sea is -obvious. For this reason, Great Britain has ever since 1854 maintained -that coal, if destined for belligerent men-of-war or belligerent naval -ports, is contraband. But in 1859 France and Italy did not take up the -same standpoint. Russia, although in 1885 she declared that she would -never consent to coal being regarded as contraband, in 1904 declared -coal, naphtha, alcohol, and every other kind of fuel, absolute -contraband. And she adhered to this standpoint, although she was made to -recognise the distinction between absolute and conditional contraband. - -(4) As regards _money_, unwrought precious metals which may be coined -into money, bonds and the like, the mere fact that a neutral is -prohibited by his duty of impartiality from granting a loan to a -belligerent ought to bring conviction that these articles are contraband -if destined for the enemy State or its forces. However, the case seldom -happens that these articles are brought by neutral vessels to -belligerent ports, since under the modern conditions of trade -belligerents can be supplied in other ways with the necessary funds. - -(5) As regards _raw cotton_, it is asserted[824] that in 1861, during -the Civil War, the United States declared it absolute contraband under -quite peculiar circumstances, since it took the place of money sent -abroad for the purpose of paying for vessels, arms, and ammunition. But -this assertion is erroneous.[825] Be that as it may, raw cotton should -not, under ordinary circumstances, be able to be considered absolute -contraband. For this reason Great Britain protested when Russia, in 1904 -during the Russo-Japanese War, declared cotton in general as contraband; -Russia altered her standpoint and declared cotton conditional contraband -only.[826] - -[Footnote 821: See Perels, § 45, and Hall, §§ 242-246, who give -bird's-eye views of the controversy.] - -[Footnote 822: See, for instance, Bluntschli, § 807.] - -[Footnote 823: The _Jonge Margaretha_ (1799), 1 C. Rob. 189.] - -[Footnote 824: See Hall, § 246, p. 690, note 2; Taylor, § 662; Wharton, -III. § 373.] - -[Footnote 825: See Moore, VII. § 1254, and Holland, _Letters to the -"Times" upon War and Neutrality_ (1909) pp. 108-112.] - -[Footnote 826: According to the British practice which has hitherto -prevailed--see Holland, _Prize Law_, § 64--the list of conditional -contraband comprises:--Provisions and liquors for the consumption of -army and navy; money, telegraphic materials, such as wire, porous cups, -platina, sulphuric acid, and zinc; materials for the construction of a -railway, as iron bars, sleepers, and the like; coal, hay, horses, rosin, -tallow, timber. But it always was in the prerogative of the Crown to -extend or reduce this list during a war according to the requirements of -the circumstances.] - -By articles 24 to 28 of the Declaration of London an agreement has been -reached by the Powers according to which two classes of conditional -contraband must be distinguished. Article 24 enumerates fourteen groups -of articles which may _always_, without special declaration and notice, -be treated as conditional contraband; these constitute the first class. -The second--see article 25--consists of articles which are not -enumerated either amongst the eleven groups of absolute contraband -contained in article 22 or amongst the fourteen groups of conditional -contraband contained in article 24, but which are nevertheless -susceptible of use in war as well as for purposes of peace; these may be -treated as conditional contraband also, but _only after special -declaration and notification_. Such declaration may be published during -time of peace, and notification thereof must then be addressed to all -other Powers; but if the declaration is published after the outbreak of -hostilities a notification need be addressed to the neutral Powers only. -Should a Power--see article 26--waive, so far as itself is concerned, -the right to treat as conditional contraband an article comprised in the -first class, notification thereof must be made to the other Powers. But -it is of course obvious, although not specially stated in article 26, -that a Power may treat as conditional contraband any article belonging -either to the first or second class of absolute contraband; in such a -case, however, special declaration and notification would seem to be -necessary. The following are the groups of articles comprised in the -first class of conditional contraband:-- - - (1) Foodstuffs. - - (2) Forage and grain, suitable for feeding animals. - - (3) Clothing, fabrics for clothing, and boots and shoes, suitable - for use in war. - - (4) Gold and silver in coin or bullion; paper money. - - (5) Vehicles of all kinds available for use in war, and their - component parts. - - (6) Vessels, craft, and boats of all kinds; floating docks, parts - of docks and their component parts. - - (7) Railway material, both fixed and rolling-stock, and material - for telegraphs, wireless telegraphs, and telephones. - - (8) Balloons and flying machines and their distinctive component - parts, together with accessories and articles recognisable as - intended for use in connection with balloons and flying machines. - - (9) Fuel; lubricants. - - (10) Powder and explosives not specially prepared for use in war. - - (11) Barbed wire and implements for fixing and cutting the same. - - (12) Horseshoes and shoeing materials. - - (13) Harness and saddlery. - - (14) Field glasses, telescopes, chronometers, and all kinds of - nautical instruments. - -This list represents a compromise, just as does the list of absolute -contraband of article 22. Those opponents of the Declaration of London -who object to foodstuffs being on the list of conditional contraband -forget that several times in the past--see above, p. 486 -(1)--belligerents have declared foodstuffs absolute contraband. - -[Sidenote: Hostile Destination essential to Contraband.] - -§ 395. Whatever may be the nature of articles, they are never contraband -unless they are destined for the use of a belligerent in war. Arms and -ammunition destined for a neutral are as little contraband as other -goods with the same destination. As this hostile destination is -essential even for articles which are obviously used in war, such -hostile destination is all the more important for such articles of -ancipitous use as are only conditionally contraband. Thus, for instance, -provisions and coal are perfectly innocent and not at all contraband if -they are not purposely destined for enemy troops and naval forces, but -are destined for use by a neutral. However, the destination of the -articles must not be confounded with the destination of the vessel which -carries them. For, on the one hand, certain articles with a hostile -destination are considered contraband although the carrying vessel is -destined for a neutral port, and, on the other hand, certain articles, -although they are without a hostile destination, are considered -contraband because the carrying vessel is to touch at an intermediate -enemy port and is, therefore, destined for such port, although her -ultimate destination is a neutral port. - -The Declaration of London, by articles 30 to 36, enacts very detailed -rules with regard to hostile destination, distinguishing clearly between -the characteristics of hostile destination of absolute contraband and -those of hostile destination of conditional contraband. - -(1) The destination of articles of _absolute_ contraband is, according -to article 30, to be considered hostile if it be shown that they are -being sent either to enemy territory, or to territory occupied by the -enemy, or, further, to the armed forces of the enemy. And, according to -article 31, hostile destination of absolute contraband is considered to -be completely proved, firstly, when the goods are consigned to an enemy -port or to the armed forces of the enemy, and, secondly, when the -vessel is to call either at enemy ports only, or when she is to touch at -an enemy port or meet the armed forces of the enemy before reaching the -neutral port to which the cargo concerned is consigned. - -(2) The destination of articles of _conditional_ contraband, on the -other hand, is, according to article 33, considered to be hostile if -they are intended for the use of the armed forces or of a government -department of the enemy State, unless in this latter case the -circumstances show that the articles concerned cannot in fact be used -for warlike purposes. Gold and silver in coin or bullion and paper -money, however, are in every case considered to have a hostile -destination if intended for a government department of the enemy State. -And, according to article 34, hostile destination of articles of -conditional contraband is, if the contrary be not proved, presumed when -the articles are consigned, firstly, to enemy authorities or to an enemy -contractor[827] established in the enemy country, who as a matter of -common knowledge supplies articles of this kind to the enemy, or, -secondly, to a fortified place of the enemy or to another place serving -as a base[828]--whether of operations or supply--for the armed forces of -the enemy. On the other hand, if the articles are not so consigned and -if the contrary be not proved, their destination is presumed to be -non-hostile. And in the case of a merchantman which can herself be -conditional contraband if bound to a fortified place of the enemy or to -another place serving as a base for the armed forces of the enemy, there -is no presumption of a hostile destination, but a direct proof is -necessary that she is destined for the use of the armed forces or of a -government department of the enemy State. - -[Footnote 827: The French text of article 34 contains the words _à un -commerçant établi en pays ennemi et lorsqu'il est notoire que ce -commerçant fournit à l'ennemi des objets et materiaux de cette nature_. -The translation _to an enemy contractor_ has been objected to by -opponents of the Declaration of London, but it is absolutely correct -because it meets the meaning of the French text.] - -[Footnote 828: The Report of the Drafting Committee on article 34 states -that the base concerned may be one of operations or supply. Opponents of -the Declaration of London object to article 34 on account of the alleged -ambiguity of the words _place serving as a base for the armed forces of -the enemy_, and assert that all seaports of Great Britain might be -treated as bases of supply for the armed forces because railways connect -them with other places which actually serve as bases of supply or -operations. This is surely erroneous, because the doctrine of continuous -voyages is not--see article 35 in contradistinction to article 30, and -below, § 403_a_--to be applied to conditional contraband.] - -[Sidenote: Free Articles.] - -§ 396. It is obvious that such articles as are not susceptible of use in -war may never be declared contraband, whether their destination be -hostile or not. - -The Declaration of London, by article 27, expressly recognises this and, -in article 28--the so-called _free list_--enumerates seventeen groups of -articles which may never be declared contraband in spite of their -hostile destination, namely:-- - - (1) Raw cotton, wool, silk, jute, flax, hemp, and other raw - materials of the textile industries, and yarns of the same. - - (2) Oil seeds and nuts; copra. - - (3) Rubber, resins, gums, and lacs; hops. - - (4) Raw hides and horns, bones, and ivory. - - (5) Natural and artificial manures, including nitrates and - phosphates for agricultural purposes. - - (6) Metallic ores. - - (7) Earths, clays, lime, chalk, stone, including marble, bricks, - slates, and tiles. - - (8) Chinaware and glass. - - (9) Paper and paper-making materials. - - (10) Soap, paint and colours, including articles exclusively used - in their manufacture, and varnish. - - (11) Bleaching powder, soda, ash, caustic soda, salt cake, - ammonia, sulphate of ammonia, and sulphate of copper. - - (12) Agricultural, mining, textile, and printing machinery. - - (13) Precious and semi-precious stones, pearls, mother-of-pearl, - and coral. - - (14) Clocks and watches, other than chronometers. - - (15) Fashion and fancy goods. - - (16) Feathers of all kinds, hairs, and bristles. - - (17) Articles of household furniture and decoration, office - furniture and requisites. - -This free list is of great importance to neutral trade, more -particularly as it not only comprises such articles as are not -susceptible of use in war, but likewise a number of articles, the -possibility of the use of which in war is so remote as practically to -make them not susceptible of use in war. The list guarantees to a number -of industries and trades of neutral States freedom from interference on -the part of belligerents, and it is to be expected that in time the list -will be increased. - -[Sidenote: Articles destined for the use of the carrying Vessel, or to -aid the Wounded.] - -§ 396_a_. Besides the seventeen groups of articles contained in the free -list, there are two other groups of free articles. - -Firstly, those articles which serve exclusively to aid the sick and -wounded. They, according to article 29, No. 1, of the Declaration of -London, may never be treated as contraband even if their destination is -hostile. They may, however, in case of urgent military necessity and, -subject to the payment of compensation, be requisitioned if they are -destined to territory belonging to or occupied by the enemy or to the -armed forces of the enemy. - -Secondly, articles intended for the use of the vessel in which they are -found or for the use of her crew and passengers during the voyage. -Hostile destination being essential before any kinds of articles may be -considered contraband, those articles which are carried by a vessel -evidently for her own use or for the use of her crew and passengers can -never be contraband, as is now specially stipulated by article 29, No. -2, of the Declaration of London. Merchantmen frequently carry a gun and -a certain amount of ammunition for the purpose of signalling, and, if -they navigate in parts of the sea where there is danger of piracy, they -frequently carry a certain amount of arms and ammunition for defence -against an attack by pirates. It will not be difficult either for the -searching belligerent man-of-war or for the Prize Court to ascertain -whether or no such arms and ammunition are carried _bona fide_. - -[Sidenote: Contraband Vessels.] - -§ 397. A neutral vessel, whether carrying contraband or not, can herself -be contraband. Such is the case when she has been built or fitted out -for use in war and is on her way to the enemy. Although it is the duty -of neutrals--see article 8 of Convention XIII., and above §§ 334 and -350--to employ the means at their disposal to prevent the fitting out, -arming, or the departure of any vessel within their jurisdiction, which -they have reason to believe is intended to cruise or to engage in -hostile operations against a belligerent, their duty of impartiality -does not compel them to prevent their subjects from supplying a -belligerent with vessels fit for use in war except where the vessel -concerned has been built or fitted out by order of a belligerent. -Subjects of neutrals may therefore--unless prevented from so doing by -Municipal Law, as, for instance, subjects of the British Crown by §§ 8 -and 9 of the Foreign Enlistment Act, 1870--by way of trade supply -belligerents with vessels of any kind, provided these vessels have not -been built or fitted out by order of the belligerent concerned. -According to the practice which has hitherto prevailed, such vessels, -being equivalent to arms, used to be considered as absolute -contraband.[829] And it made no difference whether or no they were fit -for use as men-of-war, it sufficed that they were fit to be used for the -transport of troops and the like. - -[Footnote 829: The _Richmond_ (1804), 5 C. Rob. 325. See also Twiss, II. -§ 148, and Holland, _Prize Law_, § 86.] - -According to article 22, No. 10, article 24, No. 6, and article 34 of -the Declaration of London the law concerning contraband vessels will be -the following:--A distinction is made between warships on the one hand, -and, on the other, vessels and the like generally. According to article -22, No. 10, warships, including their boats and their distinctive -component parts of such a nature that they can only be used on a vessel -of war, may be treated as absolute contraband without notice. On the -other hand, according to article 24, No. 6, vessels, craft, and boats of -all kinds, and, further, floating docks, parts of docks and their -component parts may only be treated as conditional contraband, but may -be so treated without notice. And it must be specially observed that -whereas with regard to articles of conditional contraband generally, -there is a legal presumption established as to their hostile destination -in case they are consigned to enemy authorities or to a contractor -established in the enemy country, who, as a matter of common knowledge, -supplies articles of this kind to the enemy, article 34 expressly -exempts merchant vessels from this presumption in case it is sought to -prove that they themselves are contraband. - - -II - -CARRIAGE OF CONTRABAND - - See the literature quoted above at the commencement of § 391. - -[Sidenote: Carriage of Contraband Penal by the Municipal Law of -Belligerents.] - -§ 398. The guaranteed freedom of commerce making the sale of articles of -all kinds to belligerents by subjects of neutrals legitimate, articles -of conditional as well as absolute contraband may be supplied by sale to -either belligerent by these individuals. And the carriage of such -articles by neutral merchantmen on the Open Sea is, as far as -International Law is concerned, quite as legitimate as their sale. The -carrier of contraband by no means violates an injunction of the Law of -Nations. But belligerents have by the Law of Nations the right to -prohibit and punish the carriage of contraband by neutral merchantmen, -and the carrier of contraband violates, for this reason, an injunction -of the belligerent concerned. It is not International Law, but the -Municipal Law of the belligerents, which makes carriage of contraband -illegitimate and penal.[830] The question why the carriage of contraband -articles may nevertheless be prohibited and punished by the -belligerents, although it is quite legitimate so far as International -Law is concerned, can only be answered by a reference to the historical -development of the Law of Nations. In contradistinction to former -practice, which interdicted all trade between neutrals and the enemy, -the principle of freedom of commerce between subjects of neutrals and -either belligerent has gradually become universally recognised; but this -recognition included from the beginning the right of either belligerent -to punish carriage of contraband on the sea. And the reason obviously is -the necessity for belligerents in the interest of self-preservation to -prevent the import of such articles as may strengthen the enemy, and to -confiscate the contraband cargo, and eventually the vessel also, as a -deterrent to other vessels. - -[Footnote 830: See above, § 296.] - -The present condition of the matter of carriage of contraband[831] is -therefore a compromise. In the interest of the generally recognised -principle of freedom of commerce between belligerents and subjects of -neutrals, International Law does not require neutrals to prevent their -subjects from carrying contraband; on the other hand, International Law -empowers either belligerent to prohibit and punish carriage of -contraband just as it--see above, § 383--empowers either belligerent to -prohibit and punish breach of blockade. - -[Footnote 831: The same applies to blockade-running and rendering -unneutral service.] - -The Declaration of London has in no way altered the existing condition -of the matter. The fact that articles 22 and 24 give a list of articles -which, without special declaration and notice, may always be treated as -absolute and conditional contraband respectively, does not involve the -forbidding by International Law of the carriage of the articles. -Articles 22 and 24 are certainly part of International Law, yet they -merely embody an agreement as to what goods may--but they need not--be -treated as contraband. - -[Sidenote: Direct Carriage of Contraband.] - -§ 399. Carriage of contraband commonly occurs where a vessel is engaged -in carrying to an enemy port such goods as are contraband when they have -a hostile destination. In such cases it makes no difference whether the -fact that the vessel is destined for an enemy port becomes apparent from -her papers, she being bound to such port, or whether she is found at sea -sailing on a course for an enemy port, although her papers show her to -be bound to a neutral port. And, further, it makes no difference, -according to the hitherto prevailing practice of Great Britain and the -United States of America at any rate, that she is bound to a neutral -port and that the articles concerned are, according to her papers, -destined for a neutral port, if only she is to call at an intermediate -enemy port or is to meet enemy naval forces at sea in the course of her -voyage to the neutral port of destination;[832] for otherwise the door -would be open to deceit, and it would always be pretended that goods -which a vessel is engaged in carrying to such intermediate enemy places -were intended for the neutral port of ultimate destination. For the same -reason a vessel carrying such articles as are contraband when they have -a hostile destination is considered to be carrying contraband if her -papers show that her destination is dependent upon contingencies under -which she may have to call at an enemy port, unless she proves that she -has abandoned the intention of eventually calling there.[833] - -[Footnote 832: See Holland, _Prize Law_, § 69.] - -[Footnote 833: The _Imina_ (1800), 3 C. Rob. 167; and the _Trende -Sostre_ (1800), cited in the _Lisette_ (1806), 6 C. Rob. 391, note. See -also Holland, _Prize Law_, § 70.] - -The Declaration of London distinguishes between carriage of absolute and -conditional contraband:-- - -As regards _absolute_ contraband, a vessel is, according to article 32, -considered to be carrying contraband whether the fact that she is -destined for an enemy port becomes evident from her papers, she being -bound for such port, or whether she is found at sea sailing for an enemy -port, although her papers show her to be bound for a neutral port. And, -according to article 31, No. 2, it makes no difference that the vessel -is bound for a neutral port and that the articles concerned are, -according to her papers, destined for a neutral port, if only she is to -touch at an intermediate enemy port or is to meet armed forces of the -enemy before reaching the neutral port for which the goods in question -are consigned. - -As regards _conditional_ contraband, a vessel is, according to article -35, considered to be carrying contraband whether her papers show her to -be destined to an enemy port, or, being clearly found out of the course -to a neutral port indicated by her papers, she is unable to give -adequate reasons to justify such deviation. - -Article 32 as well as article 35 stipulates that ship papers are -conclusive proof as to the destination of the vessel and of the cargo, -unless the vessel is clearly found out of the course indicated by her -papers, but the Report of the Drafting Committee of the Naval Conference -of London emphasises the fact that the rule of the conclusiveness of -ship papers must not be interpreted too literally, since otherwise fraud -would be made easy. Ship papers are conclusive proof--says the -Report--_unless facts show their evidence to be false_. - -[Sidenote: Circuitous Carriage of Contraband.] - -§ 400. On occasions a neutral vessel carrying such articles as are -contraband if they have a hostile destination is, according to her -papers, ostensibly bound for a neutral port, but is intended, after -having called and eventually having delivered her cargo there, to carry -the same cargo from there to an enemy port. There is, of course, no -doubt that such vessels are carrying contraband whilst engaged in -carrying the articles concerned from the neutral to the enemy port. But -during the American Civil War the question arose whether they may -already be considered to be carrying contraband when on their way from -the port of starting to the neutral port from which they are afterwards -to carry the cargo to an enemy port, since they are really intended to -carry the cargo from the port of starting to an enemy port, although not -directly, but circuitously, by a roundabout way. The American Prize -Courts answered the question in the affirmative by applying to the -carriage of contraband the principle of _dolus non purgatur circuitu_ -and the so-called doctrine of continuous voyages.[834] This attitude of -the American Prize Courts has called forth protests from many -authorities,[835] British as well as foreign, but Great Britain has not -protested, and from the attitude of the British Government in the case -of the _Bundesrath_ and other vessels in 1900 during the South African -War it could safely, although indirectly only, be concluded that Great -Britain considered the practice of the American Prize Courts correct and -just, and that, when a belligerent, she intended to apply the same -principles. This could also be inferred from § 71 of Holland's _Manual -of Naval Prize Law_, which established the rule: "The ostensible -destination of a vessel is sometimes a neutral port, while she is in -reality intended, after touching, and even landing and colourably -delivering over her cargo there, to proceed with the same cargo to an -enemy port. In such a case the voyage is held to be 'continuous,' and -the destination is held to be hostile throughout." And provided that the -intention of the vessel is really to carry the cargo circuitously, by a -roundabout way, to an enemy port, and further provided, that a mere -suspicion is not held for a proof of such intention, I cannot see why -this application of the doctrine of continuous voyages should not be -considered reasonable, just, and adequate. - -[Footnote 834: The so-called doctrine of continuous voyages dates from -the time of the Anglo-French wars at the end of the eighteenth century, -and is connected with the application of the so-called rule of 1756. -(See above, § 289.) Neutral vessels engaged in French and Spanish -colonial trade, thrown open to them during the war, sought to evade -seizure by British cruisers and condemnation by British Prize Courts, -according to the rule of 1756, by taking their cargo to a neutral port, -landing it and paying import duties there, and then re-lading it and -carrying it to the mother country of the respective colony. Thus in the -case of the _William_ (1806), 5 C. Rob. 385, it was proved that this -neutral vessel took a cargo from the Spanish port La Guira to the port -of Marblehead in Massachusetts--the United States being neutral--landed -the cargo, paid import duties there, then took in the chief part of this -cargo besides other goods, and sailed after a week for the Spanish port -of Bilbao. In all such cases the British Prize Courts considered the -voyages from the colonial port to the neutral port and from there to the -enemy port as one continuous voyage and confirmed the seizure of the -ships concerned. See Remy, _Théorie de la continuauté du voyage en -matière de blocus et de contrebande_ (1902); Hansemann, _Die Lehre von -der einheitlichen Reise im Rechte der Blockade und Kriegskonterbande_ -(1910), and Fauchille in _R.G._ IV. (1897), pp. 297-323. The American -Courts have applied the doctrine of continuous voyages not only to -carriage of contraband but also to blockade; see above, § 385 (4), where -the cases of the _Bermuda_ and the _Stephen Hart_ are quoted.] - -[Footnote 835: See, for instance, Hall, § 247. But Phillimore, III. § -227, p. 391, says of the judgments of the Supreme Court of the United -States in the cases of the _Bermuda_ and the _Peterhoff_, that they -"contain very valuable and sound expositions of the law, professedly, -and for the most part really, in harmony with the earlier decisions of -English Prize Courts." On the other hand, Phillimore, III. § 298, p. -490, disagrees with the American Courts regarding the application of the -doctrine of continuous voyages to breach of blockade, and reprobates the -decision in the case of the _Springbok_.] - -[Sidenote: Indirect Carriage of Contraband (Doctrine of Continuous -Transports).] - -§ 401. It also happens in war that neutral vessels carry to neutral -ports such articles as are contraband if bound for a hostile -destination, the vessel being cognisant or not of the fact that -arrangements have been made for the articles to be afterwards brought by -land or sea into the hands of the enemy. And the question has arisen -whether such vessels on their voyage to the neutral port may be -considered to be carrying contraband of war.[836] As early as 1855, -during the Crimean War, the French Conseil-Général des Prises, in -condemning the cargo of saltpetre of the Hanoverian neutral vessel _Vrow -Houwina_, answered the question in the affirmative;[837] but it was not -until the American Civil War that the question was decided on principle. -Since from the British port of Nassau, in the Bahamas, and from other -neutral ports near the coast of the Confederate States, goods, first -brought to these nearer neutral ports by vessels coming from more -distant neutral ports were carried to the blockaded coast of the -Southern States, Federal cruisers seized several vessels destined and -actually on their voyage to Nassau and other neutral ports because all -or parts of their cargoes were ultimately destined for the enemy. And -the American Courts considered those vessels to be carrying contraband, -although they were sailing from one neutral port to another, on clear -proof that the goods concerned were destined to be transported by land -or sea from the neutral port of landing into the enemy territory. The -leading cases are those of the _Springbok_ and _Peterhoff_, which have -been mentioned above in § 385 (4), for the Courts found the seizure of -these and other vessels justified on the ground of carriage of -contraband as well as on the ground of breach of blockade. Thus, another -application of the doctrine of continuous voyages came into existence, -since vessels whilst sailing between two neutral ports could only be -considered to be carrying contraband when the transport first from one -neutral port to another and afterwards from the latter to the enemy -territory had been regarded as one continuous voyage. This application -of the doctrine of continuous voyages is fitly termed "doctrine of -continuous transports." - -[Footnote 836: The question is treated with special regard to the case -of the _Bundesrath_, in two able articles in _The Law Quarterly Review_, -XVII. (1901), under the titles "The Seizure of the _Bundesrath_" (Mr. I. -Dundas White) and "Contraband Goods and Neutral Ports" (Mr. E. L. de -Hart). See also Baty, _International Law in South Africa_ (1900), pp. -1-44.] - -[Footnote 837: See Calvo, V. § 2767, p. 52. The case of the Swedish -neutral vessel _Commercen_, which occurred in 1814, and which is -frequently quoted with that of the _Vrow Houwina_ (1 Wheaton, 382), is -not a case of indirect carriage of contraband. The _Commercen_ was on -her way to Bilbao, in Spain, carrying a cargo of provisions for the -English army in Spain, and she was captured by a privateer commissioned -by the United States of America, which was then at war with England. -When the case, in 1816, came before Mr. Justice Story, he reprobated the -argument that the seizure was not justified because a vessel could not -be considered to be carrying contraband when on her way to a neutral -port, and he asserted that the hostile destination of goods was -sufficient to justify the seizure of the vessel.] - -[Sidenote: The Case of the _Bundesrath_.] - -§ 402. This application of the doctrine of continuous voyages under the -new form of continuous transports has likewise been condemned by many -British and foreign authorities; but Great Britain did not protest in -this case either--on the contrary, as was mentioned above in § 385 (4), -she declined to interfere in favour of the British owners of the vessels -and cargoes concerned. And that she really considered the practice of -the American Courts just and sound became clearly apparent by her -attitude during the South African War. When, in 1900, the _Bundesrath_, -_Herzog_, and _General_, German vessels sailing from German neutral -ports to the Portuguese neutral port of Lorenzo Marques in Delagoa Bay, -were seized by British cruisers under the suspicion of carrying -contraband, Germany demanded their release, maintaining that no carriage -of contraband could be said to take place by vessels sailing from one -neutral port to another. But Great Britain refused to admit this -principle, maintaining that articles ultimately destined for the enemy -were contraband, although the vessels carrying them were bound for a -neutral port.[838] - -[Footnote 838: See _Parliamentary Papers_, Africa, No. 1 (1900); -Correspondence respecting the action of H.M.'s naval authorities with -regard to certain foreign vessels.] - -There is no doubt that this attitude of the British Government was -contrary to the opinion of the prominent English[839] writers on -International Law. Even the _Manual of Naval Prize Law_, edited by -Professor Holland[840] in 1888, and "issued by authority of the Lords -Commissioners of the Admiralty," reprobated the American practice, for -in § 72 it lays down the following rule: "... If the destination of the -vessel be neutral, then the destination of the goods on board should be -considered neutral, notwithstanding it may appear from the papers or -otherwise that the goods themselves have an ulterior destination by -transhipment, overland conveyance, or otherwise." And the practice of -British Prize Courts in the past would seem to have been in accordance -with this rule. In 1798, during war between England and the Netherlands, -the neutral ship _Imina_,[841] which had left the neutral port of -Dantzig for Amsterdam carrying ship's timber, but on hearing of the -blockade of Amsterdam by the British had changed her course for the -neutral port of Emden, was seized on her voyage to Emden by a British -cruiser; she was, however, released by Sir William Scott because she had -no intention of breaking blockade, and because a vessel could only be -considered as carrying contraband whilst on a voyage to an enemy port. -"The rule respecting contraband, as I have always understood it, is that -the articles must be taken _in delicto_, in the actual prosecution of -the voyage to an enemy port," said Sir William Scott.[842] - -[Footnote 839: See, for instance, Hall, § 247, and Twiss in _The Law -Magazine and Review_, XII. (1877), pp. 130-158.] - -[Footnote 840: In a letter to the _Times_ of January 3, 1900, Professor -Holland points out that circumstances had so altered since 1888 that the -attitude of the British Government in the case of the _Bundesrath_ was -quite justified; see Holland, _Letters to the "Times" upon War and -Neutrality_ (1909), pp. 114-119.] - -[Footnote 841: 3 C. Rob. 167.] - -[Footnote 842: It is frequently maintained--see Phillimore, III. § 227, -pp. 397-403--that in 1864, in the case of _Hobbs_ v. _Henning_, Lord -Chief Justice Erle repudiated the doctrine of continuous transports, but -Westlake shows that this is not the case. See Westlake's Introduction in -Takahashi, _International Law during the Chino-Japanese War_ (1899), pp. -xx-xxiii, and in _The Law Quarterly_ _Review_, XV. (1899), pp. 23-30. -See also Hart, _ibidem_, XXIII. (1907), p. 199, who discusses the case -of _Seymour_ v. _London and Provincial Marine Insurance Co._ (41 -L.J.C.P. 193) in which the Court recognised the doctrine of continuous -transports.] - -[Sidenote: Continental support to the Doctrine of Continuous -Transports.] - -§ 403. Although the majority of Continental writers condemn the doctrine -of continuous transports, several eminent Continental authorities -support it. Thus, Gessner (p. 119) emphatically asserts that the -destination of the carrying vessel is of no importance compared with the -destination of the carried goods themselves. Bluntschli, although he -condemns in § 835 the American practice regarding breach of blockade -committed by a vessel sailing from one neutral port to another, -expressly approves in § 813 of the American practice regarding carriage -of contraband by a vessel sailing between two neutral ports, yet -carrying goods with a hostile destination. Kleen (I. § 95, p. 388) -condemns the rule that the neutral destination of the vessel makes the -goods appear likewise neutral, and defends seizure in the case of a -hostile destination of the goods on a vessel sailing between two neutral -ports; he expressly states that such goods are contraband from the -moment the carrying vessel leaves the port of loading. Fiore (III. No. -1649) reprobates the theory of continuous voyages as applied by British -and American Courts, but he asserts nevertheless that the hostile -destination of certain goods carried by a vessel sailing to a neutral -port justifies the vessel being regarded as carrying contraband, and the -seizure thereof. Bonfils (No. 1569) takes up the same standpoint as -Bluntschli, admitting the application of the theory of continuous -voyages to carriage of contraband, but reprobating its application to -breach of blockade. And the Institute of International Law adopted the -rule:[843] "_La destination pour l'ennemi est présumée lorsque le -transport va à l'un de ses ports, ou bien à un port neutre qui, -d'après_ _des preuves évidentes et de fait incontestable, n'est qu'une -étape pour l'ennemi, comme but final de la même opération commerciale._" -Thus this representative body of authorities of all nations has fully -adopted the American application of the doctrine of continuous voyages -to contraband, and thereby recognised the possibility of circuitous as -well as indirect carriage of contraband. - -[Footnote 843: See § 1 of the _Règlementation internationale de la -contrebande de guerre_, _Annuaire_, XV. (1896), p. 230.] - -And it must be mentioned that the attitude of several Continental States -has hitherto been in favour of the American practice. Thus, according to -§§ 4 and 6 of the Prussian Regulations of 1864 regarding Naval Prizes, -it was the hostile destination of the goods or the destination of the -vessel to an enemy port which made a vessel appear as carrying -contraband and which justified her seizure. In Sweden the same was -valid.[844] Thus, further, an Italian Prize Court during the war with -Abyssinia in 1896 justified the seizure in the Red Sea of the Dutch -vessel _Doelwijk_,[845] which sailed for the neutral French port of -Djibouti, carrying a cargo of arms and ammunition destined for the -Abyssinian army and to be transported to Abyssinia after having been -landed at Djibouti. - -[Footnote 844: See Kleen, I. p. 389, note 2.] - -[Footnote 845: See Martens, _N.R.G._ 2nd Ser. XXVIII. p. 66. See also -below, § 436.] - -[Sidenote: Partial Recognition by the Declaration of London of the -Doctrine of Continuous Voyages.] - -§ 403_a_. The Declaration of London offers a compromise in order to -settle the controversy respecting the application of the doctrine of -continuous voyages to the carriage of contraband, whether circuitous or -indirect carriage be concerned. - -(1) On the one hand, article 30 recognises with regard to _absolute_ -contraband the application of the doctrine of continuous voyages--both -to circuitous and indirect carriage of contraband--by enacting that: -"absolute contraband is liable to capture if it is shown to be destined -to territory belonging to or occupied by the enemy or to the armed -forces of the enemy. _It is_ _immaterial whether the carriage of the -goods is direct or entails transhipment or a subsequent transport by -land._" - -(2) On the other hand, article 35 categorically rejects the doctrine of -continuous voyages with regard to _conditional_ contraband by enacting -that "conditional contraband is not liable to capture except when found -on board a vessel bound for territory belonging to or occupied by the -enemy, or for the armed forces of the enemy,[846] and when it is not to -be discharged in an intervening neutral port." - -(3) However, in cases where the enemy country has no seaboard, article -36--in contradistinction to the provisions of article 35--expressly -recognises the doctrine of continuous voyages for _conditional_ -contraband also by enacting that "notwithstanding the provisions of -article 35, conditional contraband, if shown to have the destination -referred to in article 33, is liable to capture in cases where the enemy -country has no seaboard." - -[Footnote 846: The rule of article 35 came into question for the first -time during the Turco-Italian war. In January 1912, the _Carthage_, a -French mail-steamer plying between Marseilles and Tunis, was captured -for carriage of contraband by an Italian torpedo-boat and taken to -Cagliari, because she had an aeroplane destined for Tunis on board. As -the destination of the vessel was neutral, and as, according to article -24, No. 8, of the Declaration of London aeroplanes are conditional -contraband, France protested against the capture of the vessel, Italy -agreed to release her, and the parties arranged to have the question as -to whether the capture of the vessel was justified settled by the -Permanent Court of Arbitration at the Hague.] - - -III - -CONSEQUENCES OF CARRIAGE OF CONTRABAND - - See the literature quoted above at the commencement of § 391. - -[Sidenote: Capture for Carriage of Contraband.] - -§ 404. It has always been universally recognised by theory and practice -that a vessel carrying contraband may be seized by the cruisers of the -belligerent concerned. But seizure is allowed only so long as a vessel -is _in delicto_, which commences when she leaves the port of starting -and ends when she has deposited the contraband goods, whether with the -enemy or otherwise. The rule is generally recognised, therefore, that a -vessel which has deposited her contraband may not be seized on her -return voyage. British and American practice, however, has hitherto -admitted one exception to this rule--namely, in the case in which a -vessel has carried contraband on her outward voyage with simulated and -false papers.[847] But no exception has been admitted by the practice of -other countries. Thus, when in 1879, during war between Peru and Chili, -the German vessel _Luxor_, after having carried a cargo of arms and -ammunition from Monte Video to Valparaiso, was seized in the harbour of -Callao, in Peru, and condemned by the Peruvian Prize Courts for carrying -contraband, Germany interfered and succeeded in getting the vessel -released. - -[Footnote 847: The _Nancy_ (1800), 3 C. Rob. 122; the _Margaret_ (1810), -1 Acton, 333. See Holland, _Prize Law_, § 80. Wheaton, I. § 506, note 2, -condemns this practice; Hall, § 247, p. 696, calls it "undoubtedly -severe"; Halleck, II. p. 220, defends it. See also Calvo, V. §§ -2756-2758.] - -It must be specially observed that seizure for carriage of contraband is -only admissible on the Open Sea and in the maritime territorial belts of -the belligerents. Seizure within the maritime belt of neutrals would be -a violation of neutrality. - -The Declaration of London entirely confirms these old customary rules, -but does not recognise the above-mentioned British exception. Article 37 -enacts that a vessel carrying goods liable to capture as absolute or -conditional contraband may be captured on the high seas or in the -territorial waters of the belligerents throughout the whole of her -voyage even if she is to touch at a port of call before reaching the -hostile destination. Article 38 enacts that a vessel may not be captured -on the ground that she has carried contraband on a previous occasion if -such carriage is in point of fact at an end. - -[Sidenote: Penalty for Carriage of Contraband according to the Practice -hitherto prevailing.] - -§ 405. In former times neither in theory nor in practice have similar -rules been recognised with regard to the penalty of carriage of -contraband. The penalty was frequently confiscation not only of the -contraband cargo itself, but also of all other parts of the cargo, -together with the vessel. Only France made an exception, since according -to an _ordonnance_ of 1584 she did not even confiscate the contraband -goods themselves, but only seized them against payment of their value, -and it was not until 1681 that an _ordonnance_ proclaimed confiscation -of contraband, but with exclusion of the vessel and the innocent part of -the cargo.[848] During the seventeenth century this distinction between -contraband on the one hand, and, on the other, the innocent goods and -the vessel was clearly recognised by Zouche and Bynkershoek, and -confiscation of the contraband only became more and more the rule, -certain cases excepted. During the eighteenth century the right to -confiscate contraband was frequently contested, and it is remarkable as -regards the change of attitude of some States that by article 13 of the -Treaty of Friendship and Commerce[849] concluded in 1785 between Prussia -and the United States of America all confiscation was abolished. This -article provided that the belligerent should have the right to stop -vessels carrying contraband and to detain them for such length of time -as might be necessary to prevent possible damage by them, but such -detained vessels should be paid compensation for the arrest imposed upon -them. It further provided that the belligerent could seize all -contraband against payment of its full value, and that, if the captain -of a vessel stopped for carrying contraband should deliver up all -contraband, the vessel should at once be set free. I doubt whether any -other treaty of the same kind was entered into by either Prussia or the -United States.[850] And it is certain that, if any rule regarding -penalty for carriage of contraband was generally recognised at all, it -was the rule that contraband goods could be confiscated. But there -always remained the difficulty that it was controversial what articles -were contraband, and that the practice of States varied much regarding -the question as to whether the vessel herself and innocent cargo carried -by her could be confiscated. For beyond the rule that absolute -contraband could be confiscated, there was no unanimity regarding the -fate of the vessel and the innocent part of the cargo. Great Britain and -the United States of America hitherto confiscated the vessel when the -owner of the contraband was also the owner of the vessel; they also -confiscated such part of the innocent cargo as belonged to the owner of -the contraband goods; they, lastly, confiscated the vessel, although her -owner was not the owner of the contraband, provided he knew of the fact -that his vessel was carrying contraband, or provided the vessel sailed -with false or simulated papers for the purpose of carrying -contraband.[851] Some States allowed such vessel carrying contraband as -was not herself liable to confiscation to proceed with her voyage on -delivery of her contraband goods to the seizing cruiser,[852] but Great -Britain[853] and other States insisted upon the vessel being brought -before a Prize Court in every case. - -[Footnote 848: See Wheaton, _Histoire des Progrès du Droit des gens en -Europe_ (1841), p. 82.] - -[Footnote 849: Martens, _R._ IV. p. 42. The stipulation was renewed by -article 12 of the Treaty of Commerce and Navigation concluded between -the two States in 1828; Martens, _N.R._ VII. p. 619.] - -[Footnote 850: Article 12 of the Treaty of Commerce, between the United -States of America and Italy, signed at Florence on February 26, -1871--see Martens, _N.R.G._ 2nd Ser. I. p. 57--stipulates immunity from -seizure of such private property only as does not consist of contraband: -"The high contracting parties agree that in the unfortunate event of war -between them, the private property of their respective citizens and -subjects, with the exception of contraband of war, shall be exempt from -capture, or seizure, on the high seas or elsewhere, by the armed vessels -or by the military forces of either party; it being understood that this -exemption shall not extend to vessels and their cargoes which may -attempt to enter a port blockaded by the naval forces of either party." -See above, § 178.] - -[Footnote 851: See Holland, _Prize Law_, §§ 82-87.] - -[Footnote 852: See Calvo, V. § 2779.] - -[Footnote 853: See Holland, _Prize Law_, § 81.] - -As regards conditional contraband, those States which made any -distinction at all between absolute and conditional contraband, as a -rule confiscated neither the conditional contraband nor the carrying -vessel, but seized the former and paid for it. According to British -practice[854] hitherto prevailing, freight was paid to the vessel, and -the usual compensation for the conditional contraband was the cost price -plus 10 per cent. profit. States acting in this way asserted a right to -confiscate conditional contraband, but exercised pre-emption in -mitigation of such a right. Those Continental writers who refused to -recognise the existence of conditional contraband, denied, consequently, -that there was a right to confiscate articles not absolutely contraband, -but they maintained that every belligerent had, according to the -so-called right of angary,[855] a right to stop all such neutral vessels -as carried provisions and other goods with a hostile destination of -which he might have made use and to seize such goods against payment of -their full value. - -[Footnote 854: See Holland, _Prize Law_, § 84. Great Britain likewise -exercised pre-emption instead of confiscation with regard to such -absolute contraband as was in an unmanufactured condition and was at the -same time the produce of the country exporting it.] - -[Footnote 855: See above, § 365.] - -The Institute of International Law, whose rules regarding contraband, -adopted at its meeting at Venice in 1896, restrict contraband to arms, -ammunition, articles of military equipment, vessels fitted for naval -operations, and instruments for the immediate fabrication of ammunition, -proposed a compromise regarding articles of ancipitous use. Although the -rules state that those articles may not be considered contraband, they -nevertheless give the choice to a belligerent of either exercising -pre-emption or seizing and temporarily retaining such articles against -payment of indemnities.[856] - -[Footnote 856: It is of value to print here the _Règlementation -internationale de la contrebande de guerre_ adopted by the Institute of -International Law (_Annuaire_, XV. [1896] p. 230):-- - -§ 1. Sont articles de contrebande de guerre: (1) les armes de toute -nature; (2) les munitions de guerre et les explosifs; (3) le matériel -militaire (objets d'équipement, affûts, uniformes, etc.); (4) les -vaisseaux équipés pour la guerre; (5) les instruments spécialement faits -pour la fabrication immédiate des munitions de guerre; lorsque ces -divers objets sont transportés par mer pour le compte ou à la -destination d'un belligérant. - -La destination pour l'ennemi est présumée lorsque le transport va à l'un -de ses ports, ou bien à un port neutre qui, d'après des preuves -évidentes et de fait incontestable, n'est qu'une étape pour l'ennemi, -comme but final de la même opération commerciale. - -§ 2. Sous la dénomination de _munitions de guerre_ doivent être compris -les objets qui, pour servir immédiatement à la guerre, n'exigent qu'une -simple réunion ou juxtaposition. - -§ 3. Un objet ne saurait être qualifié de contrebande à raison de la -seule intention de l'employer à aider ou favoriser un ennemi, ni par -cela seul qu'il pourrait être, dans un but militaire, utile à un ennemi -ou utilisé par lui, ou qu'il est destiné à son usage. - -§ 4. Sont et demeurent abolies les prétendues contrebandes désignées -sous les noms soit de contrebande _relative_, concernant des articles -(_usus ancipitis_) susceptibles d'être utilisés par un belligérant dans -un but militaire, mais dont l'usage est essentiellement pacifique, soit -de contrebande _accidentelle_, quand lesdits articles ne servent -spécialement aux buts militaires que dans une circonstance particulière. - -§ 5. Néanmoins le belligérant a, à son choix et à charge d'une équitable -indemnité, le droit de séquestre ou de préemption quant aux objets qui, -en chemin vers un port de son adversaire, peuvent également servir à -l'usage de la guerre et à des usages pacifiques. - - * * * * * - -§ 9. En cas de saisies ou répressions non justifiées pour cause de -contrebande ou de transport, l'État du capteur sera tenu aux -dommages-intérêts et à la restitution des objets. - -§ 10. Un transport parti avant la déclaration de la guerre et sans -connaissance obligée de son imminence n'est pas punissable.] - -[Sidenote: Penalty according to the Declaration of London for Carriage -of Contraband.] - -§ 406. The Declaration of London offers by articles 39 to 44 a -settlement of the controversy respecting the penalty for carriage of -contraband which represents a fair compromise. - -The chief rule is (article 39) that contraband goods, whether absolute -or conditional contraband, may be confiscated. The carrying vessel may -(article 40) likewise be confiscated if the contraband reckoned either -by value, weight, volume, or freight, forms more than half the cargo. If -the latter be not the case, and if the carrying vessel be therefore -released, she may (article 41) be condemned to pay the costs and -expenses incurred by the captor in respect of the proceedings in the -national Prize Court and the custody of the ship and cargo during the -proceedings. But whatever be the proportion between contraband and -innocent goods on a vessel, innocent goods (article 42) which belong to -the owner of the contraband and are on board the same carrying vessel, -may be confiscated. - -If a vessel carrying contraband sails before the outbreak of war -(article 43), or is unaware of a declaration of contraband which applies -to her cargo, or has no opportunity of discharging her cargo after -receiving such knowledge, the contraband may only be confiscated on -payment of compensation, and the vessel herself and her innocent cargo -may not be confiscated nor may the vessel be condemned to pay any costs -and expenses incurred by the captor.[857] But there is a presumption -which is not rebuttable with regard to the _mens rea_ of the vessel. For -according to the second paragraph of article 43 a vessel is considered -to have knowledge of the outbreak of war or of a declaration of -contraband if she leaves an enemy port after the outbreak of -hostilities, or if she leaves a neutral port subsequent to the -notification of the outbreak of hostilities or of the declaration of -contraband to the Power to which such port belongs, provided such -notification was made in sufficient time. - -[Footnote 857: It is obvious that the vessel must be brought into a port -and before a Prize Court if the captor desires to seize the contraband -against compensation. The question as to whether article 44 applies to -such a case, and whether, therefore, the neutral vessel may be allowed -to continue her voyage if the master is willing to hand over the -contraband to the captor, must be answered in the affirmative, provided -that the contraband, reckoned either by value, weight, volume, or -freight, forms less than half the cargo. For article 44 precisely treats -of a case in which the vessel herself is not liable to condemnation _on -account of the proportion of the contraband on board_ (see article 40).] - -The question of pre-emption of conditional contraband is not mentioned -by the Declaration of London. There is, however, nothing to prevent the -several maritime Powers from exercising pre-emption in mitigation of -their right of confiscation; the future must show whether or no they -will be inclined to do this. - -[Sidenote: Seizure of Contraband without Seizure of the Vessel.] - -§ 406_a_. Hitherto the practice of the several States has differed--see -above, § 405--with regard to the question as to whether a vessel which -was not herself liable to condemnation might be allowed to proceed on -her voyage on condition that she handed over the contraband carried by -her to the captor. Great Britain and some other States answered it in -the negative, but several States in the affirmative. The Declaration of -London, although it upholds the general rule that, whatever may be the -ultimate fate of the vessel, she must be taken into a port of a Prize -Court, admits two exceptions to the rule:-- - -(1) According to article 44, a vessel which has been stopped for -carrying contraband and which is not herself liable to be confiscated on -account of the proportion of contraband on board, may--not must--when -the circumstances permit it, be allowed to continue her voyage in case -she hands over the contraband cargo to the captor. In such a case the -captor is at liberty to destroy the contraband handed over to him. But -the matter must in any case be brought before a Prize Court. The captor -must therefore enter the delivery of the contraband on the log-book of -the vessel so stopped, and the master of the latter must give duly -certified copies of all relevant papers to the captor. - -(2) According to article 54, the captor may--see below, § -431--exceptionally, in case of necessity, demand the handing over, or -may proceed himself to the destruction, of any absolute or conditional -contraband goods found on a vessel which is not herself liable to -condemnation, if the taking of the vessel into the port of a Prize Court -would involve danger to the safety of the capturing cruiser or to the -success of the operations in which she is engaged at the time. But the -captor must, nevertheless, bring the case before a Prize Court. He must, -therefore, enter the captured goods on the log-book of the stopped -vessel, and must obtain duly certified copies of all relevant papers. If -the captor cannot establish the fact before the Prize Court that he was -really compelled to abandon the intention of bringing in the carrying -vessel, he must be condemned (see article 51) to pay the value of the -goods to their owners if the goods were contraband or if they were not. -And the same is valid in case (article 52) the seizure or destruction of -the goods is held by the Prize Court to have been justifiable, but not -the capture itself of the carrying vessel. - - - - -CHAPTER V - -UNNEUTRAL SERVICE - - -I - -THE DIFFERENT KINDS OF UNNEUTRAL SERVICE - - Hall, §§ 248-253--Lawrence, §§ 260-262--Westlake, II. pp. - 261-265--Phillimore, III. §§ 271-274--Halleck, II. pp. - 289-301--Taylor, §§ 667-673--Walker, § 72--Wharton, III. § - 374--Wheaton, §§ 502-504 and Dana's note No. 228--Moore, VII. §§ - 1264-1265--Bluntschli, §§ 815-818--Heffter, § 161A--Geffcken in - Holtzendorff, IV. pp. 731-738--Ullmann, § 192--Bonfils, Nos. - 1584-1588--Despagnet, Nos. 716-716 _bis_--Rivier, II. pp. - 388-391--Nys, III. pp. 675-681--Calvo, V. §§ 2796-2820--Fiore, - III. Nos. 1602-1605, and Code, Nos. 1836-1840--Martens, II. § - 136--Kleen, I. §§ 103-106--Boeck, Nos. 660-669--Pillet, p. - 330--Gessner, pp. 99-111--Perels, § 47--Testa, p. 212--Dupuis, - Nos. 231-238, and _Guerre_, Nos. 172-188--Bernsten, § 9--Nippold, - II. § 35--Holland, _Prize Law_, §§ 88-105--U.S. Naval War Code, - articles 16 and 20--Hautefeuille, II. pp. 173-188--Ortolan, II. - pp. 209-213--Mountague Bernard, _Neutrality of Great Britain - during the American Civil War_ (1870), pp. 187-205--Marquardsen, - _Der Trent-Fall_ (1862), pp. 58-71--Hirsch, _Kriegskonterbande und - verbotene Transporte in Kriegszeiten_ (1897), pp. - 42-55--Takahashi, _International Law during the Chino-Japanese - War_ (1899), pp. 52-72--Vetzel, _De la contrebande par analogie en - droit maritime internationale_ (1901)--Atherley-Jones, _Commerce - in War_ (1906), pp. 304-315--Hirschmann, _Das internationale - Prisenrecht_ (1912), §§ 31-32--See also the monographs quoted - above at the commencement of § 391, and the General Report - presented to the Naval Conference of London on behalf of the - Drafting Committee, articles 45-47. - -[Sidenote: Unneutral service in general.] - -§ 407. Before the Declaration of London the term _unneutral service_ was -used by several writers with reference to the carriage of certain -persons and despatches for the enemy on the part of neutral vessels. The -term has been introduced in order to distinguish the carriage of persons -and despatches for the enemy from the carriage of contraband, as these -were often confounded with each other. Since contraband consists of -certain goods only and never of persons or despatches, a vessel carrying -persons and despatches for the enemy is not thereby actually carrying -contraband.[858] And there is another important difference between the -two. Carriage of contraband need not necessarily, and in most cases -actually does not, take place in the direct service of the enemy. On the -other hand, carriage of persons and despatches for the enemy always -takes place in the direct service of the enemy, and, consequently, -represents a much more intensive assistance of, and a much more intimate -connection with, the enemy than carriage of contraband. For these -reasons a distinct treatment of carriage of contraband, on the one hand, -and carriage of persons and despatches, on the other, was certainly -considered desirable by many publicists. Those writers who did not adopt -the term _unneutral service_, on account of its somewhat misleading -character, preferred[859] the expression _analogous of contraband_, -because in practice maritime transport for the enemy was always treated -in analogy with, although not as, carriage of contraband. - -[Footnote 858: This was recognised in the case of the _Yangtsze -Insurance Association_ v. _Indemnity Mutual Marine Assurance Company_, -L.R. (1908), 1 K.B. 910 and 2 K.B. 504.] - -[Footnote 859: It was also preferred in the first edition of this work. -But it was necessary to abandon further resistance on account of the -fact that after the official adoption, in the translation of the -Declaration of London, of the term _unneutral service_ it was useless to -oppose it.] - -The Declaration of London puts the whole matter upon a new and very much -enlarged basis, for Chapter III. treats in articles 45 to 47, under the -heading _De l'assistance hostile_--the official English translation of -which is _unneutral service_--not only of the carriage of persons for -the enemy on the part of a neutral vessel, but also of the transmission -of intelligence in the interest of the enemy, the taking of a direct -part in the hostilities, and a number of other acts on the part of a -neutral vessel. Accordingly the Declaration of London makes a -distinction between two kinds of unneutral service, meting out for the -one a treatment analogous in a general way to contraband, and for the -other a treatment analogous to that of enemy merchant vessels. Carriage -of individual members of the armed forces of the enemy and a certain -case of transmission of intelligence in the interest of the enemy -constitute the first kind, and four groups of acts creating enemy -character for the vessel concerned constitute the second kind.[860] - -[Footnote 860: Although--see above, §§ 173 and 174--prevention of -unneutral service to the enemy is a means of sea warfare, it chiefly -concerns neutral commerce, and is, therefore, more conveniently treated -with neutrality.] - -[Sidenote: Carriage of Persons for the Enemy.] - -§ 408. Either belligerent may punish neutral vessels for carrying, in -the service of the enemy, certain persons. - -Such persons included, according to the customary rules of International -Law hitherto prevailing, not only members of the armed forces of the -enemy, but also individuals who were not yet members of the armed forces -but who would have become so as soon as they reached their place of -destination, and, thirdly, non-military individuals in the service of -the enemy either in such a prominent position that they could be made -prisoners of war, or who were going abroad as agents for the purpose of -fostering the cause of the enemy. Thus, for instance, if the head of the -enemy State or one of his cabinet ministers fled the country to avoid -captivity, the neutral vessel that carried him could have been punished, -as could also the vessel carrying an agent of the enemy sent abroad to -negotiate a loan and the like. However, the mere fact that enemy persons -were on board a neutral vessel did not in itself prove that these -persons were carried by the vessel for the enemy and in his service. -This was the case only when either the vessel knew of the character of -the persons and nevertheless carried them, thereby acting in the service -of the enemy, or when the vessel was directly hired by the enemy for -the purpose of transport of the individuals concerned. Thus, for -instance, if able-bodied men booked their passages on a neutral vessel -to an enemy port with the secret intention of enlisting in the forces of -the enemy, the vessel could not be considered as carrying persons for -the enemy; but she could be so considered if an agent of the enemy -openly booked their passages. Thus, further, if the fugitive head of the -enemy State booked his passage under a false name, and concealed his -identity from the vessel, she could not be considered as carrying a -person for the enemy; but she could be so considered if she knew whom -she was carrying, because she was then aware that she was acting in the -service of the enemy. As regards a vessel directly hired by the enemy, -there could be no doubt that she was acting in the service of the enemy. -Thus the American vessel _Orozembo_[861] was in 1807, during war between -England and the Netherlands, captured and condemned, because, although -chartered by a merchant in Lisbon ostensibly to sail in ballast to Macao -and to take from there a cargo to America, she received by order of the -charterer three Dutch officers and two Dutch civil servants, and sailed, -not to Macao, but to Batavia. And the American vessel _Friendship_[862] -was likewise in 1807, during war between England and France, captured -and condemned, because she was hired by the French Government to carry -ninety shipwrecked officers and sailors home to a French port. - -[Footnote 861: 6 C. Rob. 430.] - -[Footnote 862: 6 C. Rob. 420.] - -According to British practice hitherto prevailing, a neutral vessel was -considered as carrying persons in the service of the enemy even if she -were, through the application of force, constrained by the enemy to -carry the persons, or if she were in _bona-fide_ ignorance of the status -of her passengers. Thus, in 1802, during war between Great Britain and -France, the Swedish vessel _Carolina_[863] was condemned by Sir William -Scott for having carried French troops from Egypt to Italy, although the -master endeavoured to prove that the vessel was obliged by force to -render the transport service. And the above-mentioned vessel _Orozembo_ -was condemned[864] by Sir William Scott, although her master was -ignorant of the service for the enemy on which he was engaged: "... In -cases of _bona-fide_ ignorance there may be no actual delinquency; but -if the service is injurious, that will be sufficient to give the -belligerent a right to prevent the thing from being done or at least -repeated," said Sir William Scott.[865] - -[Footnote 863: 4 C. Rob. 256.] - -[Footnote 864: See Phillimore, III. § 274, and Holland, _Prize Law_, §§ -90-91. Hall, § 249, p. 700, note 2, reprobates the British practice. -During the Russo-Japanese War only one case of condemnation of a neutral -vessel for carrying persons for the enemy is recorded, that of the -_Nigretia_, a vessel which endeavoured to carry into Vladivostock the -escaped captain and lieutenant of the Russian destroyer _Ratzoporni_; -see Takahashi, pp. 639-641.] - -[Footnote 865: It should be mentioned that, according to the customary -law hitherto prevailing, the case of diplomatic agents sent by the enemy -to neutral States was an exception to the rule that neutral vessels may -be punished for carrying agents sent by the enemy. The importance of -this exception became apparent in the case of the _Trent_ which occurred -during the American War. On November 8, 1861, the Federal cruiser _San -Jacinto_ stopped the British mail steamer _Trent_ on her voyage from -Havana to the British port of Nassau, in the Bahamas, forcibly took off -Messrs. Mason and Slidell, together with their secretaries, political -agents sent by the Confederate States to Great Britain and France, and -then let the vessel continue her voyage. Great Britain demanded their -immediate release, and the United States at once granted this, although -the ground on which release was granted was not identical with the -ground on which release was demanded. The Government of the United -States maintained that the removal of these men from the vessel without -bringing her before a Prize Court for trial was irregular, and, -therefore, not justified, whereas release was demanded on the ground -that a neutral vessel could not be prevented from carrying diplomatic -agents sent by the enemy to neutrals. Now diplomatic agents in the -proper sense of the term these gentlemen were not, because although they -were sent by the Confederate States, the latter were not recognised as -such, but only as a belligerent Power. Yet these gentlemen were -political agents of a quasi-diplomatic character, and the standpoint of -Great Britain was for this reason perhaps correct. The fact that the -Governments of France, Austria, and Prussia protested through their -diplomatic envoys in Washington shows at least that neutral vessels may -carry unhindered diplomatic agents sent by the enemy to neutrals, -however doubtful it may be whether the same is valid regarding agents -with a quasi-diplomatic character. See _Parliamentary Papers_, 1862, -North America, N. 5; Marquardsen, _Der Trent Fall_ (1862); Wharton, § -374; Moore, VII. § 1265; Phillimore, II. §§ 130-130A; Mountague Bernard, -_Neutrality of Great Britain during the American Civil War_ (1870), pp. -187-205; Harris, _The Trent Affair_ (1896).] - -According to the Declaration of London neutral merchantmen may, apart -from the case of the carriage of persons who in the course of the voyage -directly assist the operations of the enemy, only be considered to -render unneutral service by carrying such enemy persons as are actually -already members of the armed forces of the enemy. Article 45 makes it -quite apparent, through using the words "_embodied_ in the armed -forces," that reservists and the like who are on their way to the enemy -country for the purpose of there joining the armed forces, do not belong -to such enemy persons as a neutral vessel may not carry without exposing -herself to punishment for rendering unneutral service to the enemy. And -four different cases of carrying enemy persons must be distinguished -according to the Declaration of London, namely: that of a neutral vessel -exclusively engaged in the transport of enemy troops; that of a vessel -transporting a military detachment of the enemy; that of a vessel -transporting one or more persons who in the course of the voyage -directly assist the operations of the enemy; that of a vessel -transporting, on a voyage specially undertaken, individual members of -the armed forces of the enemy. - -(1) According to article 46, No. 4, a neutral vessel exclusively -intended at the time for the transport of enemy troops acquires thereby -enemy character. This case will be considered with others of the same -kind below in § 410. - -(2) In case a vessel, although she is not exclusively therefor destined, -and although she is not on a voyage specially undertaken for that -purpose, transports, to the knowledge of either the owner or the -charterer or the master, a military detachment of the enemy, she is, -according to article 45, No. 2, considered to render unneutral service -for which she may be punished. Accordingly, if to the knowledge of -either the owner or the charterer or the master, a neutral vessel _in -the ordinary course of her voyage_ carries a military detachment of the -enemy, she is liable to be seized for unneutral service. - -(3) In case a neutral vessel, to the knowledge of either the owner or -the charterer or the master, carries one or more persons--subjects of -one of the belligerents or of a neutral Power--who in the course of the -voyage directly assist the operations of the enemy in any way, for -instance by signalling or sending message by wireless telegraphy, she -is, according to article 45, No. 2, likewise liable to seizure for -rendering unneutral service. - -(4) In case a neutral vessel carries individual members of the armed -forces of the enemy, she is, according to article 45, No. 1, then only -liable to seizure if she is on a voyage specially undertaken for such -transport, that means, if she has been turned from her ordinary course -and has touched at a port outside her ordinary course for the purpose of -embarking, or is going to touch at a port outside her ordinary course -for the purpose of disembarking, the enemy persons concerned. A liner, -therefore, carrying individual members of the armed forces of the enemy -in the ordinary course of her voyage may not be considered to be -rendering unneutral service and may not be seized. However, according to -article 47, a neutral vessel carrying members of the armed forces of the -enemy while pursuing her ordinary course, may be stopped for the purpose -of taking off such enemy persons and making them prisoners of war (see -below, § 413). - -[Sidenote: Transmission of Intelligence to the Enemy.] - -§ 409. Either belligerent may punish neutral merchantmen for -transmission of intelligence to the enemy. - -According to customary rules hitherto in force, either belligerent might -punish neutral vessels for the carriage of political despatches from or -to the enemy, and especially for such despatches as were in relation to -the war. But to this rule there were two exceptions. Firstly, on the -ground that neutrals have a right to demand that their intercourse with -either belligerent be not suppressed: a neutral vessel might not, -therefore, be punished for carrying despatches from the enemy to neutral -Governments, and _vice versa_,[866] and, further, despatches from the -enemy Government to its diplomatic agents and consuls abroad in neutral -States, and _vice versa_.[867] Secondly, on account of article 1 of -Convention XI., by which postal correspondence is inviolable, except in -the case of violation of blockade, the correspondence destined for, or -proceeding from, the blockaded port. However, the mere fact that a -neutral vessel had political despatches to or from the enemy on board -did not by itself prove that she was carrying them _for and in the -service of the enemy_. Just as in the case of certain enemy persons on -board, so in the case of despatches, the vessel was only considered to -be carrying them in the service of the enemy if either she knew of their -character and had nevertheless taken them on board, or if she was -directly hired for the purpose of carrying them. Thus, the American -vessel _Rapid_,[868] which was captured in 1810 during the war between -Great Britain and the Netherlands, on her voyage from New York to -Tonningen, for having on board a despatch for a Cabinet Minister of the -Netherlands hidden under a cover addressed to a merchant at Tonningen, -was released by the Prize Court. On the other hand, the _Atalanta_,[869] -which carried despatches in a tea chest hidden in the trunk of a -supercargo, was condemned.[870] - -[Footnote 866: The _Caroline_ (1808), 6 C. Rob. 461.] - -[Footnote 867: The _Madison_ (1810), Edwards, 224.] - -[Footnote 868: Edwards, 228.] - -[Footnote 869: 6 C. Rob. 440.] - -[Footnote 870: British practice seems unsettled on the question as to -whether the vessel must know of the character of the despatch which she -is carrying. In spite of the case of the _Rapid_, quoted above, Holland, -_Prize Law_, § 100, maintains that ignorance of the master of the vessel -is no excuse, and Phillimore, III. § 272, seems to be of the same -opinion.] - -According to the Declaration of London the carriage of despatches for -the enemy may only be punished in case it falls under the category of -transmitting intelligence to the enemy on the part of a neutral vessel. -Two kinds of such transmission of intelligence must be distinguished:-- - -Firstly, according to article 46, No. 4, a neutral vessel exclusively -intended for the transmission of intelligence to the enemy acquires -thereby enemy character; this will be considered with other cases of the -same kind below in § 410. - -Secondly, according to article 45, No. 1, a neutral vessel may be seized -for transmitting intelligence to the enemy if she is on a voyage -specially undertaken for such transmission, that is to say, if she has -been turned from her ordinary course and has touched or is going to -touch at a port outside her ordinary course for the purpose of -transmitting intelligence to the enemy. A liner, therefore, transmitting -intelligence to the enemy in the ordinary course of her voyage may not -be considered to be rendering unneutral service and may not be punished. -However, self-preservation would in a case of necessity justify a -belligerent in temporarily detaining such a liner for the purpose of -preventing the intelligence from reaching the enemy.[871] - -[Footnote 871: See below, § 413.] - -The conception "transmission of intelligence" is not defined by the -Declaration of London. It certainly means not only oral transmission of -intelligence, but also the transmission of despatches containing -intelligence. The transmission of any political intelligence of value to -the enemy, whether or no the intelligence is in relation to the war, -must be considered unneutral service, the case excepted in which -intelligence is transmitted from the enemy to neutral Governments, and -vice versa, and, further, from the enemy Government to its diplomatic -agents and consuls abroad in neutral States. And it must be emphasised -that, although a vessel may be seized and punished for unneutral -service, according to article 1 of Convention XI. of the Second Hague -Peace Conference the postal correspondence of neutrals or belligerents, -whatever its character, found on board is inviolable. - -[Sidenote: Unneutral Service creating Enemy Character.] - -§ 410. In contradistinction to cases of unneutral service which are -similar to carriage of contraband, the Declaration of London enumerates -in article 46 four cases of such kinds of unneutral service as vest -neutral vessels with enemy character.[872] - -(1) There is, firstly, the case of a neutral merchantman taking a direct -part in the hostilities. This may occur in several ways, but such vessel -in every case loses her neutral and acquires enemy character, just as a -subject of a neutral Power who enlists in the ranks of the enemy armed -forces. But a distinction must be made between taking a direct part in -the hostilities, for instance rendering assistance to the enemy fleet -during battle, on the one hand, and, on the other, acts of a piratical -character. If a neutral merchantman--see above, §§ 85, 181, and -254--without Letters of Marque during war and from hatred of one of the -belligerents, were to attack and sink merchantmen of such belligerent, -she would have to be considered, and could therefore be treated as, a -pirate. - -(2) There is, secondly, the case of a neutral vessel which sails under -the orders or the control of an agent placed on board by the enemy -Government. The presence of such agent, and the fact that the vessel -sails under his orders or control shows clearly that she is really for -all practical purposes part and parcel of the enemy forces. - -(3) There is, thirdly, the case of a neutral vessel in the exclusive -employment of the enemy. This may occur in two different ways: either -the vessel may be rendering a specific service in the exclusive -employment of the enemy, as, for instance, did those German merchantmen -during the Russo-Japanese War which acted as colliers for the Russian -fleet _en route_ for the Far East; or the vessel may be chartered by the -enemy so that she is entirely at his disposal for any purpose he may -choose, whether such purpose is or is not connected with the war.[873] - -(4) There is, fourthly and lastly, the case of a neutral merchantman -exclusively intended at the time either for the transport of enemy -troops or for the transmission of intelligence for the enemy. This case -is different from the case--provided for by article 45, No. 1--of a -vessel on a voyage specially undertaken with a view to the carriage of -individual members of the armed forces of the enemy. Whereas the latter -is a case of unneutral service rendered by a vessel which turns from her -course for the purpose of rendering specific service, the former is a -case in which the vessel is exclusively and for the time being -permanently intended and devoted to the rendering of unneutral service. -For the time being she is, therefore, actually part and parcel of the -enemy marine. For this reason she is considered to be rendering -unneutral service, and to have lost her neutral character, even if, at -the moment an enemy cruiser searches her, she is engaged neither in the -transport of troops nor in the transmission of intelligence. The fact is -decisive that she is for the time being exclusively intended for such -unneutral service, whether or no she is at every moment really engaged -in rendering such service. And it makes no difference, whether the -vessel is engaged by the enemy and paid for the transport of troops or -the transmission of intelligence, or whether she renders the -service[874] gratuitously. - -[Footnote 872: See above, § 89 (1), p. 113.] - -[Footnote 873: Two cases of interest occurred in 1905, during the -Russo-Japanese War. The _Industrie_, a German vessel, and the -_Quang-nam_, a French vessel, were captured and condemned by the -Japanese for being in the employ of Russia as reconnoitring vessels, -although the former pretended to collect news in the service of the -Chefoo _Daily News_, and the latter pretended to be a cargo vessel -plying between neutral ports. See Takahashi, pp. 732 and 735.] - -[Footnote 874: As regards the meaning of the term transmission of -intelligence, see above, § 409.] - - -II - -CONSEQUENCES OF UNNEUTRAL SERVICE - - See the literature quoted above at the commencement of § 407. - -[Sidenote: Capture for Unneutral Service.] - -§ 411. According to customary rules hitherto prevailing, as well as -according to the Declaration of London, a neutral vessel may be captured -if visit or search establish the fact, or grave suspicion of the fact, -that she is rendering unneutral service to the enemy. And such capture -may take place anywhere throughout the range of the Open Sea and the -territorial maritime belt of either belligerent. - -Stress must be laid on the fact that mail steamers are on principle not -exempt from capture for unneutral service. Although, according to -article 1 of Convention XI., the postal correspondence of belligerents -as well as of neutrals, whatever its official or private character, -found on board a vessel on the sea is inviolable,[875] and a vessel may -never, therefore, be considered to be rendering unneutral service by -carrying amongst her postal correspondence despatches containing -intelligence for the enemy, a mail steamer is nevertheless--see article -2 of Convention XI.--not exempt from the laws and customs of naval war -respecting neutral merchantmen. A mail boat is, therefore, quite as much -as any other merchantman, exposed to capture for rendering unneutral -service. - -[Footnote 875: See above, §§ 191 and 319.] - -However this may be, capture is allowed only so long as the vessel is -_in delicto_, that is during the time in which she is rendering the -unneutral service concerned or immediately afterwards while she is being -chased for having rendered unneutral service. A neutral vessel may not, -therefore, be captured after the completion of a voyage specially -undertaken for the purpose of transporting members of the armed forces -of the enemy, or of transmitting intelligence for the enemy, or after -having disembarked the military detachment of the enemy and the persons -directly assisting the operations of the enemy in the course of the -voyage whom she was transporting. And it must be specially emphasised -that even such neutral vessel as had acquired--see article 46 of the -Declaration of London--enemy character by rendering unneutral service, -ceases to be _in delicto_ after her unneutral service has come to an -end. Thus, for instance, a neutral vessel which took a direct part in -hostilities[876] may not afterwards be captured, nor may a vessel which -has disembarked the agent of the enemy Government under whose orders or -control she was navigating. - -[Footnote 876: Provided she did not--see above, § 410 (1)--commit acts -of a piratical character; for such acts she may always be punished.] - -[Sidenote: Penalty for Unneutral Service.] - -§ 412. According to the practice hitherto prevailing, a neutral vessel -captured for carriage of persons or despatches in the service of the -enemy could be confiscated. Moreover, according to British[877] -practice, such part of the cargo as belonged to the owner of the vessel -was likewise confiscated.[878] And if the vessel was not found guilty of -carrying persons or despatches in the service of the enemy, and was not -therefore condemned, the Government of the captor could nevertheless -detain the persons as prisoners of war and confiscate the despatches, -provided the persons and despatches concerned were in any way of such a -character as to make a vessel, which was cognisant of this character, -liable to punishment for transporting them for the enemy. - -[Footnote 877: The _Friendship_ (1807), 6 C. Rob. 420; the _Atalanta_ -(1808), 6 C. Rob. 440. See Holland, _Prize Law_, §§ 95 and 105.] - -[Footnote 878: See, however, the _Hope_ (1808), 6 C. Rob. 463, note.] - -The Declaration of London recognises these three rules. Articles 45 and -46 declare any vessel rendering any kind of unneutral service to the -enemy liable to confiscation, and likewise declare such part of the -cargo as belongs to the owner of the confiscated vessel liable to -confiscation. And article 47 enacts that, although a neutral vessel may -not be condemned because there are no grounds for her capture, the -capturing State may nevertheless detain as prisoners of war any members -of the armed forces of the enemy who were found on board the vessel. The -case of despatches found on board is not mentioned by article 47, but -there ought to be no doubt--see below, § 413--that the old customary -rule that, although the vessel may not be condemned because there is no -ground for capture, any despatches for the enemy found on board may, in -analogy with article 47, be confiscated, provided such despatches are -not part of the postal correspondence carried on board. - -It must be emphasised that the mere fact that a neutral vessel is -rendering unneutral service, is not sufficient for her condemnation; for -in addition _mens rea_ is required. Now as regards the four kinds of -unneutral service which create enemy character, _mens rea_ is obviously -always in existence, and therefore always presumed to be present. For -this reason article 46, in contradistinction to article 45, does not -mention anything concerning the knowledge by the vessel of the outbreak -of hostilities. But as regards the other cases of unneutral service, -article 45 provides that the vessel may not be confiscated if the vessel -is encountered at sea while unaware of the outbreak of hostilities, or -if the master, after becoming aware of the outbreak of hostilities, has -had no opportunity of disembarking the passengers concerned. On the -other hand, a vessel is deemed, according to article 45, to be aware of -the existence of a state of war if she left an enemy port subsequent to -the outbreak of hostilities, or a neutral port subsequent to the -notification of the outbreak of hostilities to the Power to which such -port belongs, provided that such notification was made in sufficient -time. - -Although the Declaration of London metes out the same punishment for the -several kinds of unneutral service which it enumerates, it nevertheless -makes a distinction, apart from the penalty, with regard to the -treatment of the vessels captured for rendering unneutral service. - -Article 45 provides for a neutral vessel captured for having rendered -either of the two kinds of unneutral service mentioned in this article a -treatment which is, in a general way, the same as that for a neutral -vessel captured for the carriage of contraband. This means that the -vessel does not lose her neutral character, and must under all -circumstances and conditions be taken before a Prize Court, unless--see -article 49 of the Declaration of London--the taking of her into a port -of the capturing State would involve danger to the safety of the -capturing vessel or to the success of the military operations in which -she is engaged at the time. And an appeal from the national Prize Courts -may be brought to the International Prize Court. - -Article 46, on the other hand, provides, apart from the penalty, a -treatment for a vessel captured for having rendered any of the four -kinds of unneutral service enumerated in this article which, in a -general way, is the same as that for a captured enemy merchantman. This -means that such vessel acquires enemy character. Accordingly (see above, -§ 89) all enemy goods on the vessel may be seized, all goods on board -will be presumed to be enemy goods, and the owners of neutral goods on -board will have to prove the neutral character of their goods. Further, -the rules of articles 48 and 49 of the Declaration of London concerning -the destruction of neutral vessels do not apply. Again, no appeal may be -brought from the national Prize Courts to the International Prize Court -by the owner of the ship except concerning the one question only, -namely, whether the act of which she is accused has the character of -unneutral service.[879] - -[Footnote 879: The question as to whether, if the vessel has been -destroyed by the captor, the innocent owners of the neutral goods on -board may claim compensation, has to be decided in the same way as the -question as to whether the owners of neutral goods on a destroyed enemy -merchantman have a claim to compensation; see above, § 194.] - -[Sidenote: Seizure of Enemy Persons and Despatches without Seizure of -Vessel.] - -§ 413. According to the British[880] and American practice, as well as -that of some other States, which has hitherto prevailed, whenever a -neutral vessel was stopped for carrying persons or despatches for the -enemy, these could not be seized unless the vessel were seized at the -same time. The release, in 1861, during the American Civil War, of -Messrs. Mason[881] and Slidell, who had been forcibly taken off the -_Trent_, while the ship herself was allowed to continue her voyage, was -based, by the United States, on the fact that the seizure of these men -without the seizure of the vessel was illegal. Since, according to the -Declaration of London, a neutral vessel rendering unneutral service of -any kind is liable to be confiscated, it is evident that in such a case -the enemy persons and despatches concerned may not be taken off the -vessel unless the vessel herself is seized and brought into a port of a -Prize Court. However, article 47 provides that any member of the armed -forces of the enemy found on board a neutral merchant vessel may be -taken off and made a prisoner of war, although there may be no ground -for the capture of the vessel. Therefore, if a vessel carries individual -members of the armed forces of the enemy in the ordinary course of her -voyage,[882] or if she transports a military detachment of the enemy and -the like without being aware of the outbreak of hostilities, the members -of the armed forces of the enemy on board may be seized, although the -vessel herself may not be seized, as she is not rendering unneutral -service. - -[Footnote 880: See Holland, _Prize Law_, § 104.] - -[Footnote 881: See above, § 408, p. 519, note 3.] - -[Footnote 882: Accordingly, in January 1912, during the Turco-Italian -War, the Italian gunboat _Volturno_, after having overhauled, in the Red -Sea, the British steamer _Africa_ going from Hodeida to Aden, took off -and made prisoners of war Colonel Riza Bey and eleven other Turkish -officers. Although the Declaration of London is not yet ratified by -Great Britain, she did not protest. The case of the _Manouba_ ought -likewise to be mentioned here. This French steamer, which plies between -Marseilles and Tunis, was stopped on January 16, 1912, by an Italian -cruiser in the Mediterranean, and twenty-nine Turkish passengers, who -were supposed to be Turkish officers on their way to the theatre of war, -were forcibly taken off and made prisoners. On the protest of France, -the captives were handed over to her in order to ascertain whether they -were members of the Turkish forces, and it was agreed between the -parties that the case should be settled by an arbitral award of the -Permanent Court of Arbitration at the Hague, Italy asserting that she -had only acted in accordance with article 47 of the Declaration of -London.] - -The Declaration of London does not mention the case of enemy despatches -embodying intelligence found on board such a neutral vessel as may not -herself be captured for such carriage. For instance, in the case of a -mail steamer pursuing her ordinary course and carrying a despatch of the -enemy not in her mail bags but separately, the vessel may not, according -to article 45, be seized. In this, and similar cases, may despatches be -seized without the seizure of the vessel? It has been pointed out above, -§ 409, that, in a case of necessity, self-preservation would justify a -belligerent in temporarily detaining such a liner for the purpose of -preventing the intelligence from reaching the enemy. This certainly fits -the case of a vessel transmitting oral intelligence. But if a vessel -carried despatches, the necessity of detaining her ceases through -seizure of the despatches themselves. The question--see above, § -412--as to whether in such cases the despatches may be seized without -seizure of the vessel ought, therefore, in analogy with article 47 of -the Declaration of London, to be answered in the affirmative. - -Quite different from the case of seizure of such enemy persons and -despatches as a vessel cannot carry without exposing herself to -punishment, is the case[883] where a vessel has such enemy persons and -despatches on board as she is allowed to carry, but whom a belligerent -believes it to be necessary in the interest of self-preservation to -seize. Since necessity in the interest of self-preservation is, -according to International Law, an excuse[884] for an illegal act, a -belligerent may seize such persons and despatches, provided that such -seizure is not merely desirable, but absolutely necessary[885] in the -interest of self-preservation, as, for instance, in the case where an -Ambassador of the enemy on board a neutral vessel is on the way to -submit to a neutral a draft treaty of alliance injurious to the other -belligerent. - -[Footnote 883: See Hall, § 253; Rivier, II. p. 390.] - -[Footnote 884: See above, vol. I. § 129.] - -[Footnote 885: See above, vol. I. § 130.] - - - - -CHAPTER VI - -VISITATION, CAPTURE, AND TRIAL OF NEUTRAL VESSELS - - -I - -VISITATION - - Bynkershoek, _Quaest. jur. pub._ I. c. 14--Vattel, III. § - 114--Hall, §§ 270-276--Manning, pp. 433-460--Phillimore, III. §§ - 322-344--Twiss, II. §§ 91-97--Halleck, II. pp. 255-271--Taylor, §§ - 685-689--Wharton, III. §§ 325 and 346--Wheaton, §§ 524-537--Moore, - VII. §§ 1199-1205--Bluntschli, §§ 819-826--Heffter, §§ - 167-171--Geffcken in Holtzendorff, IV. pp. 773-781--Klüber, §§ - 293-294--G. F. Martens, II. §§ 317 and 321--Ullmann, § - 196--Bonfils, Nos. 1674-1691--Despagnet, Nos. 717-721--Rivier, II. - pp. 423-426--Nys, III. pp. 682-692--Calvo, V. §§ 2939-2991--Fiore, - III. Nos. 1630-1641, and Code, Nos. 1853-1877--Martens, II. § - 137--Kleen, II. §§ 185-199, 209--Gessner, pp. 278-332--Boeck, Nos. - 767-769--Dupuis, Nos. 239-252, and _Guerre_, Nos. - 189-204--Bernsten, § 11--Nippold, II. § 35--Perels, §§ - 52-55--Testa, pp. 230-242--Ortolan, II. pp. 214-245--Hautefeuille, - III. pp. 1-299--Holland, _Prize Law_, §§ 1-17, 155-230--U.S. Naval - War Code, articles 30-33--Schlegel, _Sur la visite des vaisseaux - neutres sous convoi_ (1800)--Mirbach, _Die völkerrechtlichen - Grundsätze des Durchsuchungsrechts zur See_ (1903)--Loewenthal, - _Das Untersuchungsrecht des internationalen Seerechts im Krieg und - Frieden_ (1905)--Atherley-Jones, _Commerce in War_ (1906), pp. - 299-360--Hirschmann, _Das internationale Prisenrecht_ (1912), §§ - 33-34--Duboc in _R.G._ IV. (1897), pp 382-403--See also the - monographs quoted above at the commencement of § 391, Bulmerincq's - articles on _Le droit des prises maritimes_ in _R.I._ X-XIII. - (1878-1881), and the General Report presented to the Naval - Conference of London on behalf of the Drafting Committee, article - 63. - -[Sidenote: Conception of Right of Visitation.] - -§ 414. Right of visitation[886] is the right of belligerents to visit -and eventually search neutral merchantmen for the purpose of -ascertaining whether these vessels really belong to the merchant marine -of neutrals, and, if this is found to be the case, whether they are -attempting to break a blockade, or carry contraband, or render unneutral -service to the enemy. The right of visit and search was already -mentioned in the _Consolato del Mare_, and although it has often[887] -been contested, its _raison d'être_ is so obvious that it has long been -universally recognised in practice. It is indeed the only means by which -belligerents are able to ascertain whether neutral merchantmen intend to -bring assistance to the enemy and to render him unneutral services.[888] - -[Footnote 886: It must be borne in mind that this right of visitation is -not an independent right but is involved in the right of either -belligerent--see above, § 314--to punish neutral vessels breaking -blockade, carrying contraband, and rendering unneutral service.] - -[Footnote 887: See, for instance, Hübner, _De la saisie des bâtiments -neutres_ (1759), I. p. 227.] - -[Footnote 888: Attention should be drawn to the _Règlement international -des prises maritimes_, adopted at Heidelberg in 1887 by the Institute of -International Law; §§ 1-29 regulate visit and search. See _Annuaire_, -IX. (1888), p. 202.] - -[Sidenote: Right of Visitation, by whom, when, and where exercised.] - -§ 415. The right of visit and search may be exercised by all -warships[889] of belligerents. But since it is a belligerent right, it -may, of course, only be exercised after the outbreak and before the end -of war. The right of visitation on the part of men-of-war of all nations -in time of peace in a case of suspicion of piracy--see above, vol. I. § -266 (2)--has nothing to do with the right of visit and search on the -part of belligerents. And since an armistice does not bring war to an -end, and since, on the other hand, the exercise of the right of -visitation is not an act of warfare, this right may be exercised during -the time of a partial as well as of a general armistice.[890] The region -where the right may be exercised is the maritime territorial belt of -either belligerent, and, further, the Open Sea, but not the maritime -territorial belt of neutrals. Whether the part of the Open Sea in which -a belligerent man-of-war meets with a neutral merchantman is near or far -away from that part of the world where hostilities are actually taking -place makes no difference so long as there is suspicion against the -vessel. The question as to whether the men-of-war of a belligerent may -exercise the right of visitation in the maritime territorial belt of an -ally is one between the latter and the belligerent exclusively, provided -such an ally is already a belligerent. - -[Footnote 889: It should be mentioned that privateers could also -exercise the right of visit and search. But since even such States as -have not acceded to the Declaration of Paris in practice no longer issue -Letters of Marque, such a case will no longer occur.] - -[Footnote 890: But this is not universally recognised. Thus, -Hautefeuille, III. p. 91, maintains that during a general armistice the -right of visitation may not be exercised, and § 5 of the _Règlement -international des prises maritimes_ of the Institute of International -Law takes up the same attitude. It ought, likewise, to be mentioned that -in strict law the right of visit and search may be exercised even after -the conclusion of peace before the treaty of peace is ratified. But the -above-mentioned § 5 of the _Règlement international des prises -maritimes_ declares this right to cease "avec les préliminaires de la -paix." See below, § 436.] - -[Sidenote: Only Private Vessels may be Visited.] - -§ 416. During the nineteenth century it became universally recognised -that neutral men-of-war are not objects of the right of visit and search -of belligerents.[891] And the same is valid regarding public neutral -vessels which sail in the service of armed forces, such as transport -vessels, for instance. Doubt exists as to the position of public neutral -vessels which do not sail in the service of armed forces, but sail for -other purposes, as, for instance, mail-boats belonging to a neutral -State. It is asserted[892] that, if commanded by an officer of the Navy, -they must be treated in the same way as men-of-war, but that it is -desirable to ask the commanders to give their word of honour assuring -the absence of contraband and unneutral service. - -[Footnote 891: In former times Great Britain tried to extend visitation -to neutral men-of-war. See Manning, p. 455.] - -[Footnote 892: See, for instance, Gessner, p. 297, and Perels, § 52, -IV.] - -[Sidenote: Vessels under Convoy.] - -§ 417. Sweden in 1653, during war between Great Britain and the -Netherlands, claimed that the belligerents ought to waive their right of -visitation over Swedish merchantmen if the latter sailed under the -convoy of a Swedish man-of-war whose commander asserted the absence of -contraband on board the convoyed vessels. The Peace of Westminster in -1654 brought this war to an end, and in 1756 the Netherlands, then -neutral, claimed the right of convoy. But it was not until the last -quarter of the eighteenth century that the right of convoy was more and -more insisted upon by Continental neutrals. During the American War of -Independence in 1780, the Netherlands again claimed that right, and when -they themselves in 1781 waged war against Great Britain, they ordered -their men-of-war and privateers to respect the right of convoy. Between -1780 and 1800 treaties were concluded, in which Russia, Austria, -Prussia, Denmark, Sweden, France, the United States of America, and -other States recognised that right. But Great Britain always refused to -recognise it, and in July 1800 the action of a British squadron in -capturing a Danish man-of-war and her convoy of six merchantmen for -resistance to visitation called the Second Armed Neutrality into -existence. Yet Great Britain still resisted, and by article 4 of the -"Maritime Convention" of St. Petersburg of June 17, 1801, she conceded -to Russia only that vessels under convoy should not be visited by -privateers. During the nineteenth century more and more treaties -stipulating the right of convoy were concluded, but this right was not -mentioned in the Declaration of Paris of 1856, and Great Britain refused -to recognise it throughout the century. However, Great Britain abandoned -her opposition at the Naval Conference of London of 1908-9, and the -Declaration of London proposes to settle the matter by articles 61 and -62 in the following way:-- - -Neutral vessels under the convoy of a man-of-war flying the same flag -are exempt from search and may not be visited if the commander of the -convoy, at the request of the commander of the belligerent cruiser which -desires to visit, gives, in writing, all information as to the character -of the convoyed vessels and their cargoes which could be obtained by -search. Should the commander of the belligerent man-of-war have reason -to suspect that the confidence of the commander of the convoy has been -abused, he may not himself resort to visit and search, but must -communicate with the commander of the convoy. The latter must -investigate the matter, and must record the result of his investigation -in a report, a copy of which must be given to the commander of the -belligerent cruiser. Should, in the opinion of the commander of the -convoy, the facts stated in the report justify the capture of one or -more of the convoyed vessels, he must withdraw protection from the -offending vessels, and the belligerent cruiser may then capture them. - -In case a difference of opinion arises between the commander of the -convoy and the commander of the belligerent cruiser--for instance, with -regard to the question as to whether certain goods are absolute or -conditional contraband or as to whether the port of destination of a -convoyed vessel is an ordinary commercial port or a port which serves as -a base of supply for the armed forces of the enemy and the like--the -commander of the belligerent cruiser has no power of overruling the -decision of the commander of the convoy. He can only protest and report -the case to his Government, which will settle the matter by means of -diplomacy. - -[Sidenote: No Universal Rules regarding Mode of Visitation.] - -§ 418. There are no rules of International Law which lay down all the -details of the formalities of the mode of visitation. A great many -treaties regulate them as between the parties, and all maritime nations -have given instructions to their men-of-war regarding these formalities. -Thereby uniform formalities are practised with regard to many points, -but regarding others the practice of the several States differs. Article -17 of the Peace Treaty of the Pyrenees of 1659 has served as a model of -many of the above-mentioned treaties regulating the formalities of -visitation: "Les navires d'Espagne, pour éviter tout désordre, -n'approcheront pas de plus près les Français que la portée du canon, et -pourront envoyer leur petite barque ou chaloupe à bord des navires -français et faire entrer dedans deux ou trois hommes seulement, à qui -seront montrés les passeports par le maître du navire français, par -lesquels il puisse apparoir, non seulement de la charge, mais aussi du -lieu de sa demeure et résidence, et du nom tant du maître ou patron que -du navire même, afin que, par ces deux moyens, on puisse connaître, s'il -porte des marchandises de contrebande; et qu'il apparaisse suffisamment -tant de la qualité du dit navire que de son maître ou patron; auxquelles -passeports on devra donner entière foi et créance." - -[Sidenote: Stopping of Vessels for the Purpose of Visitation.] - -§ 419. A man-of-war which wishes to visit a neutral vessel must stop her -or make her bring to. Although the chasing of vessels may take place -under false colours, the right colours must be shown when vessels are -stopped.[893] The order for stopping can be given[894] by hailing or by -firing one or two blank cartridges from the so-called affirming gun, -and, if necessary, by firing a shot across the bows of the vessel. If -nevertheless the vessel does not bring to, the man-of-war is justified -in using force to compel her to bring to. Once the vessel has been -brought to, the man-of-war also brings to, keeping a reasonable -distance. With regard to this distance, treaties very often stipulate -either the range of a cannon shot or half such width or even a range -beyond a cannon shot; but all this is totally impracticable.[895] The -distance must vary according to the requirements of the case, and -according to wind and weather. - -[Footnote 893: See above, § 211.] - -[Footnote 894: See above, vol. I. § 268.] - -[Footnote 895: See Ortolan, II. p. 220, and Perels, § 53, pp. 284, 285.] - -[Sidenote: Visit.] - -§ 420. The vessel, having been stopped or brought to, is visited[896] by -one or two officers sent in a boat from the man-of-war. These officers -examine the papers of the vessel to ascertain her nationality, the -character of her cargo and passengers, and, lastly, the ports from and -to which she is sailing. Instead of visiting the merchantman and -inspecting her papers on board, the practice is followed, by the -men-of-war of some States, of summoning the master of the merchantman -with his papers on board the former and examining the papers there. - -[Footnote 896: See above, vol. I. § 268, and Holland, _Prize Law_, §§ -195-216.] - -If everything is found in order and there is no suspicion of fraud, the -vessel is allowed to continue her course, a memorandum of the visit -having been entered in her log-book. On the other hand, if the -inspection of the papers shows that the vessel is carrying contraband or -rendering unneutral service, or that she is for another reason liable to -capture, she is at once seized. But it may be that, although ostensibly -everything is in order, there is nevertheless grave suspicion of fraud -against the vessel. In such case she may be searched. - -[Sidenote: Search.] - -§ 421. Search is effected[897] by one or two officers, and eventually a -few men, in presence of the master of the vessel. Care must be taken not -to damage the vessel or the cargo, and no force whatever must be -applied. No lock must be forcibly broken open by the search party, but -the master is to be required to unlock it. If he fails to comply with -the demand he is not to be forced thereto, since the master's refusal to -assist the search in general, or that of a locked part of the vessel or -of a locked box in particular, is at once sufficient cause for seizing -the vessel. Search being completed, everything removed has to be -replaced with care. If the search has satisfied the searching officers -and dispelled all suspicion, a memorandum is entered in the log-book of -the vessel, and she is allowed to continue her voyage. On the other -hand, if search brought contraband or another cause for capture to -light, the vessel is seized. But since search can never take place so -thoroughly on the sea as in a harbour, it may be that, although search -has disclosed no proof to bear out the suspicion, grave suspicion still -remains. In such case she may be seized and brought into a port for the -purpose of being searched there as thoroughly as possible. But the -commander of a man-of-war seizing a vessel in such case must bear in -mind that full indemnities must be paid to the vessel for loss of time -and other losses sustained if finally she is found innocent. Therefore, -after a search at sea has brought nothing to light against the vessel, -seizure should take place only in case of grave suspicion. - -[Footnote 897: See above, vol. I. § 269, and Holland, _Prize Law_, §§ -217-230.] - -[Sidenote: Consequences of Resistance to Visitation.] - -§ 422. If a neutral merchantman resists visit or search, she is at once -captured, and may be confiscated. The question as to whether the vessel -only, or also her cargo, could be confiscated for resistance has -hitherto been controversial. According to British[898] and American -theory and practice, the cargo as well as the vessel was liable to -confiscation. But Continental[899] writers emphatically argued against -this and maintained that the vessel only was liable to confiscation. - -[Footnote 898: The _Maria_ (1799), 1 C. Rob. 340.] - -[Footnote 899: See Gessner, pp. 318-321.] - -According to article 63 of the Declaration of London, resistance to the -legitimate exercise of the right of visit, search, and capture involves -in all cases the confiscation of the vessel, which by her forcible -resistance has acquired enemy character (see above, § 89). For this -reason such goods on board as belong to the master or owner of the -vessel are treated as enemy goods and may be confiscated. Enemy goods on -board may now likewise be confiscated, although when they were first -shipped the vessel bore neutral character. Further, all goods on board -are now presumed to be enemy goods, and the owners of neutral goods on -board will have to prove the neutral character of their goods. Lastly, -no appeal may be brought from the National Prize Courts to the -International Prize Court by the owner of the ship except concerning the -one question only, namely, as to whether there was justification for -capturing her on the grounds of forcible resistance. - -It must be emphasised that visit and search do not take place after a -vessel has been captured for resistance, for the mere fact of resisting -has imposed enemy character upon her, and the question is now irrelevant -whether visit and search would show her to be guilty or innocent. - -[Sidenote: What constitutes Resistance.] - -§ 423. According to the practice hitherto prevailing,[900] and also -according to the Declaration of London, a mere attempt on the part of a -neutral merchantman to escape visitation does not in itself constitute -resistance. Such vessel may be chased and compelled by force to bring -to, and she cannot complain if, in the endeavour forcibly to compel her -to bring to, she is damaged or accidentally sunk. If, after the vessel -has been compelled to bring to, visit and search show her to be -innocent, she must be allowed to proceed on her course. - -[Footnote 900: The _Maria_ (1799), 1 C. Rob. 340.] - -Resistance to be penal must be _forcible_ resistance. It constitutes -resistance, therefore, if a vessel applies force in resisting any -legitimate action by the belligerent cruiser which requires her to stop -and to be visited and searched. The term _forcible resistance_ is not -defined in detail by article 63 of the Declaration of London. It is, -consequently, not certain whether the actual application of force only, -or also the refusal, on the part of the master, to show the ship papers -or to open locked parts of the vessel or locked boxes, and similar acts, -constitutes forcible resistance. The International Prize Court, if -established, would have to develop a practice which would decide these -points. - -[Sidenote: Sailing under Enemy Convoy equivalent to Resistance.] - -§ 424. Wheaton excepted, all writers would seem to agree that the fact -of neutral merchantmen sailing under a convoy of enemy men-of-war is -equivalent to forcible resistance on their part, whether they themselves -intend to resist by force or not. But the Government of the United -States of America in 1810 contested this principle. In that year, during -war between Great Britain and Denmark, many American vessels sailing -from Russia used to seek protection under the convoy of British -men-of-war, whereupon Denmark declared all such American vessels to be -good and lawful prizes. Several were captured without making any -resistance whatever, and were condemned by Danish Prize Courts. The -United States protested, and claimed indemnities from Denmark, and in -1830 a treaty between the parties was signed at Copenhagen,[901] -according to which Denmark had to pay 650,000 dollars as indemnity. But -in article 5 of this treaty the parties "expressly declare that the -present convention is only applicable to the cases therein mentioned, -and, having no other object, may never hereafter be invoked by one party -or the other as a precedent or a rule for the future."[902] - -[Footnote 901: Martens, _N.R._ VIII. p. 350.] - -[Footnote 902: See Wheaton, §§ 530-537, and Taylor, § 693, p. 790. -Wheaton was the negotiator of this treaty on the part of the United -States.--With the case of neutral merchantmen sailing under enemy -convoy, the other case--see above, § 185--in which neutral goods are -placed on board an armed enemy vessel is frequently confused. In the -case of the _Fanny_ (1814), 1 Dodson, 443, Sir William Scott condemned -neutral Portuguese property on the ground that placing neutral property -on board an armed vessel was equal to resistance against visitation. But -the Supreme Court of the United States of America, in the of the -_Nereide_ (1815), 9 Cranch, 388, held the contrary view. The Court was -composed of four judges, of whom Story was one, and the latter dissented -from the majority and considered the British practice correct. See -Phillimore, III. § 341, and Wheaton, § 529.] - -Article 63 of the Declaration of London does not--as was pointed out -above in § 423--define the term forcible resistance, but it is to be -expected that the practice of the International Prize Court would -consider the sailing under enemy convoy equivalent to forcible -resistance. - -[Sidenote: Resistance by Neutral Convoy.] - -§ 425. Since Great Britain did not, before agreeing to the Declaration -of London, recognise the right of convoy and had always insisted upon -the right of visitation to be exercised over neutral merchantmen sailing -under the convoy of neutral men-of-war, the question has arisen as to -whether such merchantmen are considered resisting visitation in case the -convoying men-of-war only, and not the convoyed vessels themselves, -offer resistance. British practice has answered the question in the -affirmative. The rule was laid down in 1799[903] and in 1804[904] by Sir -William Scott in the cases of Swedish vessels captured while sailing -under the convoy of a Swedish man-of-war. - -[Footnote 903: The _Maria_, 1 C. Rob. 340.] - -[Footnote 904: The _Elsebe_, 5 C Rob. 173.] - -Since Great Britain--see above, § 417--has abandoned her opposition to -the right of convoy and has agreed to articles 61 and 62 of the -Declaration of London which lay down rules concerning the matter, the -resistance by a neutral convoy to visitation may not, under ordinary -circumstances, be considered to be resistance on the part of the -convoyed neutral merchantman. If, however, the commander of a convoy, -after having refused to give the written information mentioned in -article 61 or to allow the investigation mentioned in article 62, -forcibly resists visitation of the convoyed merchantmen by a belligerent -cruiser, the question as to whether resistance by a convoy is equivalent -to resistance by a convoyed vessel, may even under the Declaration of -London arise. - -[Sidenote: Deficiency of Papers.] - -§ 426. Since the purpose of visit is to ascertain the nationality of a -vessel, the character of her cargo and passengers, and the ports from -and to which she is sailing, it is obvious that this purpose cannot be -realised in case the visited vessel is deficient in her papers. As -stated above in Vol. I. § 262, every merchantman ought to carry the -following papers: (1) A certificate of registry or a sea-letter -(passport); (2) the muster-roll; (3) the log-book; (4) the manifest of -cargo; (5) bills of lading, and (6) if chartered, the charter-party. -Now, if a vessel is visited and cannot produce one or more of the papers -mentioned, she is suspect. Search is, of course, admissible for the -purpose of verifying the suspicion, but it may be that, although search -has not produced any proof of guilt, the suspicion is not dispelled. In -such case she may be seized and brought to a port for thorough -examination. But, with the exception of the case that she cannot produce -either certificate of registry or a sea-letter (passport), she ought not -to be confiscated for deficiency in papers only. Yet, if the cargo is -also suspect, or if there are other circumstances which increase the -suspicion, confiscation would be, I believe, in the discretion of the -Prize Court. - -The Declaration of London does not mention the point, and the -International Prize Court would, therefore, have to evolve a system of -rules to be applied in cases concerned. - -[Sidenote: Spoliation, Defacement, and Concealment of Papers.] - -§ 427. Mere deficiency of papers does not arouse the same suspicion -which a vessel incurs if she destroys[905] or throws overboard any of -her papers, defaces them or conceals them, and in especial in case the -spoliation of papers takes place at the time when the visiting vessel -comes in sight. Whatever her cargo may be, a vessel may at once be -seized without further search so soon as it becomes apparent that -spoliation, defacement, or concealment of papers has taken place. The -practice of the several States has hitherto differed with regard to -other consequences of spoliation, and the like, of papers, but -confiscation is certainly admissible in case other circumstances -increase the suspicion.[906] - -[Footnote 905: The _Hunter_ (1815), 1 Dodson, 480.] - -[Footnote 906: See the case of the _Apollo_ in Calvo, V. § 2989.] - -The Declaration of London does not mention the case of spoliation of -papers, and it would therefore be the task of the International Prize -Court to evolve a uniform practice concerning the subject. - -[Sidenote: Double and False Papers.] - -§ 428. The highest suspicion is aroused through the fact that a visited -vessel carries double papers, or false[907] papers, and such vessel may -certainly be seized. But the practice of the several States has hitherto -differed with regard to the question whether confiscation is admissible -for the mere fact of carrying double or false papers. Whereas the -practice of some States, as Russia and Spain, answered the question in -the affirmative, British[908] and American[909] practice took a more -lenient view, and condemned such vessels only on a clear inference that -the false or double papers were carried for the purpose of deceiving the -belligerent by whom the capture was made, but not in other cases.[910] - -[Footnote 907: The _Sarah_ (1801), 3 C. Rob. 330.] - -[Footnote 908: The _Eliza and Katy_ (1805), 6 C. Rob. 192.] - -[Footnote 909: The _St. Nicholas_ (1816), 1 Wheaton, 417.] - -[Footnote 910: See Halleck, II. p. 271; Hall, § 276; Taylor, § 690.] - -Since the Declaration of London does not mention the case of double or -false papers, it would likewise be the task of the International Prize -Court to evolve a uniform practice. - - -II - -CAPTURE - - Hall, § 277--Lawrence, § 191--Phillimore, III. §§ 361-364--Twiss, - II. §§ 166-184--Halleck, II. pp. 362-391--Taylor, § 691--Moore, - VII. §§ 1206-1214--Bluntschli, § 860--Heffter, §§ 171, 191, - 192--Geffcken in Holtzendorff, IV. pp. 777-780--Ullmann, § - 196--Rivier, II. pp. 426-428--Nys, III. pp. 697-709--Calvo, V. §§ - 3004-3034--Fiore, III. Nos. 1644-1657, and Code, Nos. - 1878-1889--Martens, II. §§ 126-137--Kleen, II. §§ - 203-218--Gessner, pp. 333-356--Boeck, Nos. 770-777--Dupuis, Nos. - 253-281, and _Guerre_, Nos. 205-217--Bernsten, § 11--Nippold, II. - § 35--Perels, § 55--Testa, pp. 243-244--Hautefeuille, III. pp. - 214-299--Holland, _Prize Law_, §§ 231-314--U.S. Naval War Code, - articles 46-50--Atherley-Jones, _Commerce in War_ (1906), pp. - 361-646--Hirschmann, _Das internationale Prisenrecht_ (1912), §§ - 35-37--See also the monographs quoted above at the commencement of - § 391, Bulmerincq's articles on _Le droit des prises maritimes_ in - _R.I._ X-XIII. (1878-1881), and the General Report presented to - the Naval Conference of London on behalf of its Drafting - Committee, articles 48-54. - -[Sidenote: Grounds and Mode of Capture.] - -§ 429. From the statements given above in §§ 368-428 regarding blockade, -contraband, unneutral service, and visitation, it is obvious that -capture may take place either because the vessel, or the cargo, or both, -are liable to confiscation, or because grave suspicion demands a further -inquiry which can be carried out in a port only. Both cases are alike so -far as all details of capture are concerned, and in the latter case -Prize Courts may pronounce capture to be justified, although no ground -for confiscation of either vessel or cargo, or both, has been detected. - -The mode of capture is the same as described above in § 184 regarding -capture of enemy vessels.[911] - -[Footnote 911: The _Règlement international des prises maritimes_, -adopted by the Institute of International Law at its meeting at -Heidelberg in 1887, regulates capture in §§ 45-62; see _Annuaire_, IX. -(1888), p. 204.] - -[Sidenote: Effect of Capture of Neutral Vessels, and their Conduct to -Port.] - -§ 430. The effect of capture of neutral vessels is in every way -different from the effect of capture of enemy vessels,[912] since the -purpose of capture differs in these two cases. Capture of enemy vessels -is made for the purpose of appropriating them in the exercise of the -right of belligerents to appropriate all enemy property found on the -Open Sea or in the maritime territorial belt of either belligerent. On -the other hand, neutral merchantmen are captured for the purpose of -confiscation of vessel or cargo, or both, as punishment for certain -special acts, the punishment to be pronounced by a Prize Court after a -thorough investigation into all the circumstances of the special case. -Therefore, although the effect of capture of neutral vessels is that the -vessels, the individuals, and the goods thereon are placed under the -captor's authority, her officers and crew never become prisoners of war. -They are indeed to be detained as witnesses for the trial of the vessel -and cargo, but nothing stands in the way of releasing such of them as -are not wanted for that purpose. As regards passengers, if any, they -have to be released as soon as possible, with the exception of those -enemy persons who may be made prisoners of war. - -[Footnote 912: See above, § 185.] - -Regarding the conduct of captured neutral vessels to a port of a Prize -Court, the same is valid as regards conduct of captured enemy -vessels[913] to such port. - -[Footnote 913: See above, § 193.] - -[Sidenote: Destruction of Neutral Prizes.] - -§ 431. That as a rule captured neutral vessels may not be sunk, burned, -or otherwise destroyed has always been universally recognised just as -that captured enemy merchantmen may not as a rule be destroyed. But up -to the time of the agreement on the Declaration of London it was a moot -question whether the destruction of captured neutral vessels was -likewise exceptionally allowed instead of bringing them before a Prize -Court. British[914] practice did not, as regards the neutral owner of -the vessel, hold the captor justified in destroying a vessel, however -exceptional the case may have been, and however meritorious the -destruction of the vessel may have been from the point of view of the -Government of the captor. For this reason, should a captor, for any -motive whatever, have destroyed a neutral prize, full indemnities had to -be paid to the owner, although, if brought into a port of a Prize Court, -condemnation of vessel and cargo would have been pronounced beyond -doubt. The rule was, that a neutral prize must be abandoned in case it -could not, for any reason whatever, be brought to a port of a Prize -Court. But the practice of other States did not recognise this British -rule. The question became of great importance in 1905, during the -Russo-Japanese War, when Russian cruisers sank the British vessels -_Knight Commander_, _Oldhamia_, _Icona_, _St. Kilda_, and _Hipsang_, the -German vessels _Thea_, and _Tetardos_, and the Danish vessel _Princesse -Marie_. Russia paid damages to the owners of the vessels _Icona_, _St. -Kilda_, _Thea_, _Tetardos_, and _Princesse Marie_, because her Prize -Courts declared that the capture of these vessels was not justified, but -she refused to pay damages to the owners of the other vessels destroyed, -because her Prize Courts considered them to have been justly captured. - -[Footnote 914: The _Actaeon_ (1815), 2 Dodson, 48; the _Felicity_ -(1819), 2 Dodson, 381; the _Leucade_ (1855), Spinks, 217. See -Phillimore, III. § 333; Twiss, II. § 166; Hall, § 77; Holland, _Letters -to the "Times" upon War and Neutrality_ (1909), pp. 140-150.] - -The Declaration of London proposes to settle the matter by a compromise. -Recognising that neutral prizes may not as a rule be destroyed, and -admitting only one exception to the rule, it empowers the captor under -certain circumstances and conditions to demand the handing over, or to -proceed himself to the destruction, of contraband carried by a neutral -prize which he is compelled to abandon. - -The very first rule of Chapter IV. of the Declaration of London, headed -"Destruction of Neutral Prizes," is that of article 48, according to -which, as a matter of principle, captured neutral vessels may not be -destroyed, but must be taken into a port of a Prize Court. However, -article 49 permits, as an exception to the rule, the destruction of such -a captured neutral vessel as would herself be liable to condemnation, if -the taking of the vessel into a port of a Prize Court would involve -danger to the safety of the capturing cruiser, or to the success of the -operations in which she is at the time of capture engaged. - -There is, therefore, no doubt that a neutral prize may no longer be -destroyed because the captor cannot spare a prize crew or because a port -of a Prize Court is too far distant, or the like. The only justification -for destruction of a neutral prize is danger to the captor or his -operations at the time of capture. As regards the degree of danger -required, it cannot be denied that the wording of article 49 does not -provide any clue for a restrictive interpretation. But considering that -article 51 speaks of an "exceptional necessity," it is hoped and to be -expected that the International Prize Court would give such an -interpretation to article 49 as would permit a resort to the sinking of -neutral prizes in cases of absolute necessity only. Be that as it may, -according to article 49 only such neutral prizes may be sunk as would be -liable to confiscation if brought before a Prize Court. Sinking of -captured neutral vessels--apart from neutral vessels which have acquired -enemy character and may for this reason be sunk under the same -conditions as enemy vessels--is, therefore, chiefly admitted in -three[915] cases, namely: (1) When--see article 40 of the Declaration of -London--the vessel carries contraband the value of which forms more -than half the value of the cargo; (2) when a vessel has been captured -for rendering those kinds of unneutral service which are enumerated by -article 45 of the Declaration of London; (3) when--see article 21 of the -Declaration of London--a vessel has been captured for breach of -blockade. In no case, however, in which she is not liable to -confiscation, may a neutral vessel under any circumstances and -conditions be destroyed; she must always be abandoned if the capturing -cruiser cannot take her into a port of a Prize Court. - -[Footnote 915: Only such cases of possible confiscation of a neutral -vessel are mentioned in the text as are in accordance with the -Declaration of London. The practice of some States has hitherto admitted -confiscation in other cases also, for instance, in case of deficiency, -spoliation, or defacement of ship papers, and in case of double and -false papers; see above, §§ 426-428. It will be the task of the -International Prize Court to evolve a uniform practice with regard to -such cases. Likewise the text does not enumerate the cases in which the -sinking of a neutral vessel is permissible because she previously -acquired enemy character; concerning this, see above, § 89.] - -However this may be, when the captor feels compelled to resort to the -destruction of a neutral prize, he must place in safety all persons -found on the captured vessel, and he must take on board all the captured -ship's papers which are relevant for the purpose of deciding the -validity of the capture (article 50). And (article 51) if the captor -fails to establish the fact before the Prize Court that he destroyed the -prize in the face of an exceptional necessity, the owners of the vessel -and cargo must receive full compensation without any examination of, and -any regard to, the question as to whether or no the capture itself was -justifiable. Compensation must likewise be paid in case the capture is -held by the Prize Court to be invalid, although the act of destruction -has been held to be justifiable (article 52). And in any case, the -owners of neutral goods not liable to condemnation which have been -destroyed with the vessel, may always and under all circumstances and -conditions claim damages (article 53). - -Thus many safeguards have been established against arbitrariness in -resorting to the destruction of neutral prizes. On the other hand, it -would seem to be going too far to insist on the captor letting the prize -go with her contraband on board, if he be compelled to abandon the -prize. For this reason article 54 empowers the captor of a neutral -vessel herself not liable to confiscation, to demand the handing over, -or to proceed himself to the destruction, of any goods liable to -confiscation found on board, if the taking of the vessel into a port of -a Prize Court would involve danger to the captor or to the success of -the operations in which he is at the time of capture engaged. Details -concerning such destruction have been given above in § 406_a_ (2). - -[Sidenote: Ransom and Recapture of Neutral Prizes.] - -§ 432. Regarding ransom of captured neutral vessels, the same is valid -as regards ransom of captured enemy vessels.[916] - -[Footnote 916: See above, § 195.] - -As regards recapture of neutral prizes,[917] the rule ought to be that -_ipso facto_ by recapture the vessel becomes free without payment of any -salvage. Although captured, she was still the property of her neutral -owners, and if condemnation had taken place at all, it would have been a -punishment, and the recapturing belligerent has no interest whatever in -the punishment of a neutral vessel by the enemy. - -[Footnote 917: See Hautefeuille, III. pp. 366-406; Gessner, pp. 344-356; -Kleen, II. § 217; Geffcken in Holtzendorff, IV. pp. 778-780; Calvo, V. -§§ 3210-3216.] - -But the matter of recapture of neutral prizes is not settled, no rule of -International Law and no uniform practice of the several States being -formulated regarding it. Very few treaties touch upon it, and the -municipal regulations of the different States regarding prizes seldom -mention it. According to British practice,[918] the recaptor of a -neutral prize is entitled to salvage, in case the recaptured vessel -would have been liable to condemnation if brought into an enemy port. - -[Footnote 918: The _War Onskan_ (1799), 2 C. Rob. 299. See Holland, -_Prize Law_, § 270.] - -[Sidenote: Release after Capture.] - -§ 433. Besides the case in which captured vessels must be abandoned, -because they cannot for some reason or another be brought into a port, -there are cases in which they are released without a trial. The rule is -that a captured neutral vessel is to be tried by a Prize Court in case -the captor asserts her to be suspicious or guilty. But it may happen -that all suspicion is dispelled even before the trial, and then the -vessel is to be released at once. For this reason article 246 of -Holland's _Prize Law_ lays down the rule: "If, after the detention of -the vessel, there should come to the knowledge of the commander any -further acts tending to show that the vessel has been improperly -detained, he should immediately release her...." Even after she has been -brought into the port of a Prize Court, release can take place without a -trial. Thus the German vessels _Bundesrath_ and _Herzog_, which were -captured in 1900 during the South African War and taken to Durban, were, -after search had dispelled all suspicion, released without trial. - -That the released vessel may claim damages is a matter of course, and -article 64 of the Declaration of London precisely enacts it. But it -should be mentioned that, since Convention XII. stipulates only appeals -against judgments of National Prize Courts, the International Prize -Court would not have jurisdiction in a case of the release of a vessel -without trial, and that the question of compensation could, therefore, -be settled through the diplomatic channel only. - - -III - -TRIAL OF CAPTURED NEUTRAL VESSELS - - Lawrence, §§ 188-190--Maine, p. 96--Manning, pp. - 472-483--Phillimore, III. §§ 433-508--Twiss, II. §§ - 169-170--Halleck, II. pp. 393-429--Taylor, §§ 563-567--Wharton, - III. §§ 328-330--Moore, VII. §§ 1222-1248--Wheaton, §§ - 389-397--Bluntschli, §§ 841-862--Heffter, §§ 172-173--Geffcken in - Holtzendorff, IV. pp. 781-788--Ullmann, § 196--Bonfils, Nos. - 1676-1691--Despagnet, Nos. 677-682 _bis_--Rivier, II. pp. - 353-356--Nys, III. pp. 710-718--Calvo, V. §§ 3035-3087--Fiore, - III. Nos. 1681-1691, and Code, Nos. 1890-1929--Martens, II. §§ - 125-126--Kleen, II. §§ 219-234--Gessner, pp. 357-427--Boeck, Nos. - 740-800--Dupuis, Nos. 282-301, and _Guerre_, Nos. - 218-223--Nippold, II. § 35--Perels, §§ 56-57--Testa, pp. - 244-247--Hautefeuille, III. pp. 299-365--Atherley-Jones, _Commerce - in War_ (1906), pp. 361-594--Hirschmann, _Das internationale - Prisenrecht_ (1912), § 38--See also the monographs quoted above at - the commencement of § 391, and Bulmerincq's articles on _Le droit - des prises maritimes_ in _R.I._ X.-XIII. (1878-1881). - -[Sidenote: Trial of Captured Vessels a Municipal Matter.] - -§ 434. Although belligerents have, under certain circumstances, -according to International Law, the right to capture neutral vessels, -and although they have the duty to bring these vessels for trial before -a Prize Court, such trials are in no way an international matter. Just -as Prize Courts--apart from the proposed International Prize Court--are -municipal[919] institutions, so trials of captured neutral vessels by -these Prize Courts are municipal matters. The neutral home States of the -vessels are not represented and, directly at any rate, not concerned in -the trial. Nor is, as commonly maintained, the law administered by Prize -Courts International Law. These Courts apply the law of their country. -The best proof of this is the fact that the practice of the Prize Courts -of the several countries has hitherto differed in many points. Thus, for -instance, the question what is and what is not contraband, and, -further, the question when an attempt to break blockade begins and when -it ends, have hitherto been differently answered by the practice of -different States. - -[Footnote 919: See above, § 192. The matter is regulated so far as Great -Britain is concerned by the Naval Prize Act, 1864 (27 and 28 Vict. ch. -25) and the Prize Courts Act, 1894 (57 and 58 Vict. ch. 39). The -_Règlement international des prises maritimes_, adopted in 1887 at -Heidelberg by the Institute of International Law, provides in §§ 63-118 -detailed rules concerning the organisation of Prize Courts and the -procedure before them; see _Annuaire_, IX. (1888), p. 208.] - -Many writers, however, maintain that Prize Courts are International -Courts, and that the law administered by these courts is International -Law. Lord Stowell again and again[920] emphatically asserted it, and the -vast majority of English and American writers[921] follow him. But it is -to be expected that the recognition of the difference between Municipal -and International Law, as expounded above, Vol. I., §§ 20-25, and of the -fact that States only, and neither their Courts nor officials nor -citizens, are subjects of International Law, will lead to the general -recognition of the fact that the law applied by National Prize Courts is -not and cannot be International Law. - -[Footnote 920: The _Maria_ (1799), 1 C. Rob. 340; the _Recovery_ (1807), -6 C. Rob. 341; the _Fox and others_ (1811), Edwards, 311.] - -[Footnote 921: See, for instance, Halleck, II. p. 411; Maine, p. 96; -Manning, p. 472; Phillimore, III. §§ 433-436; Hall, § 277. On the other -hand, Holland, _Studies_, p. 199; Westlake, II. p. 289; and Scott, -_Conferences_, p. 467, distinctly agree with me.] - -And matters will remain as they are even after the establishment of the -International Prize Court and ratification of the Declaration of London. -The law of this Declaration is certainly International Law, but it will -be binding only upon the States, and they, on their part, must embody it -in their Municipal Law so that their Prize Courts are obliged to -administer such a law in prize cases as is in conformity with the -Declaration of London. It will be the task of the International Prize -Court[922] to control the National Prize Courts in that direction. A -State which is a party to the Declaration and would nevertheless order -its Prize Courts to apply a law which is in opposition to the -Declaration of London, would commit an international delinquency, but -its Prize Courts would be obliged to apply such law. - -[Footnote 922: Trial before this Court is, of course, an international -matter.] - -[Sidenote: Result of Trial.] - -§ 435. The trial of a captured neutral ship can have one or more of five -results:--vessel and cargo can be condemned,[923] or the vessel alone, -or the cargo alone; and the vessel and cargo can be released either with -or without costs and damages. Costs and damages must be allowed when -capture was not justified, and, after the ratification of the -Declaration of London and the establishment of the International Prize -Court, an appeal may, according to article 64 of the Declaration of -London and article 4 of Convention XII., be brought before the -International Prize Court if costs and damages are refused or -inadequately allowed by a Prize Court. But it must be emphasised that -capture might be justified, as, for instance, in the case of spoliation -of papers, although the Prize Court did not condemn the vessel, and, -further, that costs and damages are never allowed in case a part only of -the cargo is condemned, although the vessel herself and the greater part -of the cargo are released. That, in case the captor is unable to pay the -costs and damages allowed to a released neutral vessel, his Government -has to indemnify the vessel, there ought to be no doubt, for a State -bears "vicarious" responsibility[924] for internationally injurious acts -of its naval forces. - -[Footnote 923: It would seem to be obvious that condemnation of the -vessel involves the loss of the vessel at the date of capture; see -_Andersen_ v. _Marten_, L.R. (1907) 2 K.B. 248.] - -[Footnote 924: See above, vol. I. § 163.] - -[Sidenote: Trial after Conclusion of Peace.] - -§ 436. It is a moot question whether neutral vessels captured before -conclusion of peace may be tried after the conclusion of peace.[925] I -think that the answer must be in the affirmative, even if a special -clause is contained in the Treaty of Peace, which stipulates that -captured but not yet condemned vessels of the belligerents shall be -released. A trial of neutral prizes is in any case necessary for the -purpose of deciding the question whether capture was justified or not, -and whether, should condemnation not be justified, the neutral vessels -may claim costs and indemnities. Thus, after the conclusion of the -Abyssinian War, in December 1896, the Italian Prize Commission, in the -case of the _Doelwijk_,[926] claimed the right to try the vessel in -spite of the fact that peace had been concluded between the time of -capture and trial, declared the capture of the vessel and cargo to have -been justified, but pronounced that, peace having been concluded, -confiscation of vessel and cargo would no longer be lawful. - -[Footnote 925: See Perels, § 57, p. 309, in contradistinction to -Bluntschli, § 862. But there is, of course, no doubt that a belligerent -can exercise an act of grace and release such prizes. Thus, in November -1905, at the end of the Russo-Japanese War, the Mikado proclaimed the -unconditional release of all neutral prizes captured after the signing -but before the ratification of the Peace of Portsmouth. Thereby, three -German vessels, two English, and one Norwegian escaped confiscation, -which in strict law--see above, p. 534, note 4--would have been -justified.] - -[Footnote 926: See Martens, _N.R.G._ 2nd Ser. XXVIII. pp. 66-90.] - -Different from the question whether neutral prizes may be tried after -the conclusion of peace is the other question whether they may be -condemned to be confiscated. In the above-mentioned case of the -_Doelwijk_ the question was answered in the negative, but I believe it -ought to have been answered in the affirmative. Confiscation of vessel -and cargo having the character of a punishment, it would seem that the -punishment may be inflicted after the conclusion of peace provided the -criminal act concerned was consummated before peace was concluded. But -nothing, of course, stands in the way of a belligerent taking a more -lenient view and ordering his Prize Courts not to pronounce confiscation -of neutral vessels after the conclusion of peace. - -The Declaration of London does not settle either the former or the -latter question, and it would therefore be the task of the -International Prize Court to evolve a uniform practice in the cases -concerned. - -[Sidenote: Protests and Claims of Neutrals after Trial.] - -§ 437. Hitherto, if a trial led to condemnation, and if the latter was -confirmed by the Court of Appeal, the matter as between the captor and -the owner of the captured vessel and cargo was finally settled. But the -right of protection,[927] which a State exercises over its subjects and -their property abroad, may nevertheless have been the cause of -diplomatic protests and claims on the part of the neutral home State of -a condemned vessel or cargo, in case the verdict of the Prize Courts was -considered to be not in accordance with International Law or formally or -materially unjust. It is through such protests and claims that the -matter, which was hitherto a mere municipal one, became of -_international_ importance. And history records many instances of cases -of interposition of neutral States after trials of vessels which had -sailed under their flags. Thus, for instance, in the famous case of the -Silesian Loan,[928] it was the fact that Frederick II. of Prussia -considered the procedure of British Prize Courts regarding a number of -Prussian merchantmen captured during war between Great Britain and -France in 1747 and 1748 as unjust, which made him in 1752 resort to -reprisal and cease the payment of the interest of the Silesian Loan. The -matter was settled[929] in 1756, through the payment of £20,000 as -indemnity by Great Britain. Thus, further, after the American Civil War, -articles 12-17 of the Treaty of Washington[930] provided the appointment -of three Commissioners for the purpose, amongst others, of deciding all -claims against verdicts of the American Prize Courts. And when in 1879, -during war between Peru and Chili, the German vessel _Luxor_ was -condemned by the Peruvian Courts, Germany interposed and the vessel was -released.[931] - -[Footnote 927: See above, vol. I. § 319.] - -[Footnote 928: See above, § 37.] - -[Footnote 929: See Martens, _Causes Célèbres_, II. p. 167.] - -[Footnote 930: See Martens, _N.R.G._ XX. p. 698.] - -[Footnote 931: See above, § 404.] - -The ratification of the Declaration of London and the establishment of -the International Prize Court would finally do away with such grave -international disputes. - - - - -CHAPTER VII - -THE INTERNATIONAL PRIZE COURT - - -I - -PROPOSALS FOR INTERNATIONAL PRIZE COURTS - - Geffcken in Holtzendorff, IV. pp. 785-788--Boeck, Nos. - 743-764--Dupuis, No. 289, and _Guerre_, Nos. 224-231--Higgins, pp. - 432-435--Lémonon, pp. 280-293--Nippold, I. § 15--Trendelenburg, - _Lücken im Völkerrecht_ (1870), pp. 49-53--Gessner, _Kriegführende - und neutrale Mächte_ (1877), pp. 52-58--Bulmerincq and Gessner in - _R.I._ XI. (1879), pp. 173-191, and XIII. (1881), pp. 260-267. - -[Sidenote: Early Projects.] - -§ 438. Numerous inconveniences must naturally result from a condition of -International Law which has hitherto prevailed and according to which -the Courts of the belligerent whose forces had captured neutral vessels -exercised jurisdiction without any control by neutrals. Although, as -shown above in § 437, neutrals frequently interfered after a trial and -succeeded in obtaining recognition for their claims in face of the -verdicts of Prize Courts, great dissatisfaction has long been felt at -the condition of matters hitherto obtaining, and proposals have been -made for so-called mixed Prize Courts. - -The first proposal of this kind was made in 1759 by Hübner,[932] who -suggested a Prize Court composed of judges nominated by the belligerent -and of consuls or councillors nominated by the home State of the -captured neutral merchantmen. - -[Footnote 932: _De la saisie des bâtiments neutres_ (1759), vol. II. p. -21.] - -A somewhat similar proposal was made by Tetens[933] in 1805. - -[Footnote 933: _Considérations sur les droits réciproques des puissances -belligérantes et des puissances neutres sur mer, avec les principes du -droit de guerre en général_ (1805), p. 163.] - -Other proposals followed until the Institute of International Law took -up the matter in 1875, appointing, on the suggestion of Westlake, at its -meeting at the Hague, a Commission for the purpose of drafting a _Projet -d'organisation d'un tribunal international des prises maritimes_. In the -course of time there were mainly two proposals before the Institute, -Westlake's and Bulmerincq's. - -Westlake proposed[934] that Courts of Appeal should be instituted in -each case of war, and each Court should consist of three judges--one to -be nominated by the belligerent concerned, another by the home State of -the neutral prizes concerned, and the third by a neutral Power not -interested in the case. According to Westlake's proposal there would -therefore have to be instituted in every war as many Courts of Appeal as -neutrals concerned. - -[Footnote 934: See _Annuaire_, II. (1878), p. 114.] - -Bulmerincq proposed[935] that two Courts should be instituted in each -war for all prize cases, the one to act as Prize Court of the First -Instance, the other to act as Prize Court of Appeal; each Court to -consist of three judges, one judge to be appointed by each belligerent, -the third judge to be appointed in common by all neutral maritime -Powers. - -[Footnote 935: See _R.I._ XI. (1879), pp. 191-194.] - -Finally, the Institute agreed, at its meeting at Heidelberg in 1887, -upon the following proposal, which is embodied in §§ 100-109 of the -_Règlement international des prises maritimes_:[936]--At the beginning -of a war each belligerent institutes a Court of Appeal consisting of -five judges, the president and one of the other judges to be appointed -by the belligerent, the three remaining to be nominated by three neutral -Powers, and this Court to be competent for all prize cases. - -[Footnote 936: _Annuaire_, IX. (1887), p. 239.] - -No further step was taken in the matter during the nineteenth century. -But, during the South African War, the conviction became general that -the exclusive jurisdiction of belligerents over captured neutral vessels -is incompatible with the modern condition of the oversea commerce of -neutrals. At the Second Peace Conference of 1907, therefore, Germany, as -well as Great Britain, brought forward a project for real International -Prize Courts. - -[Sidenote: German Project of 1907.] - -§ 439. The German project[937] was embodied in a draft of thirty-one -articles dealing in three chapters with "Competence in Prize Cases," -"Organisation of the International Prize Court," and "Procedure -before the International Prize Court," and made the following -proposals:--National Prize Courts should only be competent in the first -instance, every appeal to go to the International Prize Court, and the -latter to be competent not only in case of capture of neutral vessels, -but in every case of capture of merchantmen. At the beginning of every -war an International Prize Court should be established, but, in case -there were more than two parties to a war, as many International Prize -Courts should be established as there were couples of States fighting -against each other. Each Court every time it sat should consist of five -judges, three of whom should be members of the Permanent Court of -Arbitration at the Hague, and two should be admirals. The admirals -should belong to the navies of the belligerents, but the three members -of the Permanent Court of Arbitration should be chosen by neutral -Powers, each belligerent authorising one neutral Power to select one -member, and these two neutrals to appoint a third neutral Power which -would select the third member. The Court should sit at the Hague, have -its first meeting when the first appeal case arose, and be dissolved -after the conclusion of peace. The International Bureau of the Permanent -Court of Arbitration should serve as the Registry of every International -Prize Court. Each belligerent and the owners of the captured vessels or -cargoes should have the right to bring an appeal before the -International Prize Court. - -[Footnote 937: _Deuxième Conférence, Actes_, II. p. 1071.] - -[Sidenote: British Project of 1907.] - -§ 440. The British project[938] was embodied in a draft of sixteen -articles, and made the following proposals:--The International Prize -Court should be competent in such cases only as directly concerned a -neutral Power or its subjects, an appeal to be brought before the -International Court only after the case had been decided by the highest -National Prize Court of the belligerent concerned. Neutral Powers only, -and not their subjects, should have the right to enter an appeal, and -each neutral Power should represent its subjects concerned in a prize -case. In contradistinction to the German project, the British draft -proposed the establishment once for all of a Permanent International -Prize Court, each Power whose mercantile marine at the date of the -signature of the proposed convention exceeded a total of 800,000 tons, -should, within three months from the date of ratification, nominate a -prominent jurist as a member of the Court, and another as his deputy. -The President of the Court should be nominated by the signatory Powers -in their alphabetical order, should remain in office one year only, and -should have a casting vote. If a legal question were to be decided which -had already been provided for in a convention between the parties in -dispute, the Court should base its decision on such convention. In the -absence of such a convention, and if all civilised nations were agreed -on a point of legal interest, the Court should base its decision -thereon, otherwise the Court should decide according to the principles -of International Law. - -[Footnote 938: _Deuxième Conférence de la Paix, Actes_, II. p. 1076.] - -[Sidenote: Convention XII. of the Second Peace Conference.] - -§ 441. The Second Peace Conference, after having studied and discussed -the German and the British projects, produced the "Convention (XII.) -respecting the establishment of an International Prize Court" which, on -the whole, follows more closely the lines of the British project, but -includes several features of the German, and others which originate -neither with the British nor the German project. It comprises -fifty-seven articles and is divided into four parts headed respectively -"General Provisions" (articles 1-9), "Constitution of the International -Prize Court" (articles 10-27), "Procedure in the International Prize -Court" (articles 28-50), and "Final Provisions" (articles 51-57). The -Convention was signed by all the Powers represented at the Conference, -except Brazil, China, Domingo, Greece, Luxemburg, Montenegro, Nicaragua, -Roumania, Russia, Servia, and Venezuela. Ten States--namely, Chili, -Cuba, Ecuador, Guatemala, Haiti, Persia, Salvador, Siam, Turkey, and -Uruguay--entered a reservation against article 15 of the Convention -because they did not agree with the principle of the composition of the -Court embodied in this article. - -As eleven States did not sign the Convention and ten of the signatory -States refused to accept the composition of the Court as regulated by -article 15, it cannot be said that the Convention is based on universal -agreement. Yet the fact that, with the exception of Russia, all the -Great Powers and a great number of the minor Powers have signed it -without a reservation, offers sufficient guarantee for the success of -the Court when once established. Nothing prevents a future Peace -Conference from making such alterations in the Convention as would meet -the wishes of the Powers which at present refuse to sign the Convention -or to accept article 15. - -It should be mentioned that, according to article 55, the Convention -remains in force for twelve years from the date it comes into force, and -is to be tacitly renewed for six years, unless denounced one year at -least before the expiry of the period for which it is in force. And -article 57 stipulates that two years before the expiration of the period -for which it is in force, any contracting Power may demand a -modification of the provisions concerning its own participation in the -composition of the Court. The demand must be addressed to the -Administrative Council which, on its part, must examine it and submit -proposals as to the measures to be adopted to all the contracting -Powers. These Powers must, with the least possible delay, inform the -Administrative Council of their decision. The result is at once, or at -any rate one year and thirty days before the expiry of the period of two -years, to be communicated to the Power which made the demand for a -modification of the provisions concerning its participation in the -composition of the Court. - - -II - -CONSTITUTION AND COMPETENCE OF THE INTERNATIONAL PRIZE COURT - - Westlake, II. pp. 288-297--Lawrence, § 192--Ullmann, § - 196--Bonfils, Nos. 1440'1-1440'3--Despagnet, Nos. 683-683 - _bis_--Fiore, Code, Nos. 1897-1901--Dupuis, _Guerre_, Nos. - 232-276--Bernsten, § 14--Lémonon, pp. 293-335--Higgins, pp. - 435-444--Barclay, _Problems_, pp. 105-108--Scott, _Conferences_, - pp. 466-511--Nippold, I. §§ 16-19--Fried, _Die zweite Haager - Konferenz_ (1908), pp. 121-130--Lawrence, _International Problems_ - (1908), pp. 132-159--Hirschmann, _Das internationale Prisenrecht_ - (1912), §§ 39-41--Gregory, White, and Scott in _A.J._ II. (1908), - pp. 458-475, and 490-506, and V. (1911), pp. 302-324--Donker - Curtius in _R.I._ 2nd Ser. XI. (1909), pp. 5-36. - -[Sidenote: Personnel.] - -§ 442. The International Prize Court consists of judges and deputy -judges, a judge who is absent or prevented from sitting being replaced -by a deputy (article 14). The judges and the deputies are appointed by -the contracting Powers from among jurists of known proficiency in -maritime International Law, and of the highest moral reputation, each -Power appointing one judge and one deputy for a period of six years -(articles 10 and 11). The judges are all of equal rank and have -precedence according to the date of the notification of their -appointment to the Administrative Council of the Permanent Court of -Arbitration at the Hague, but, if they sit by rota in conformity with -article 15, paragraph 2, they have precedence according to the date on -which they entered upon their duties, and, when the date is the same, -the senior takes precedence; deputies rank after the judges (article -12). The judges--and the deputies when taking the places of -judges--must, when outside their own country, be granted diplomatic -privileges and immunities in the performance of their duties; they must, -before taking their seats, take an oath, or make a solemn affirmation, -before the Administrative Council, that they will discharge their -duties impartially and conscientiously (article 13). No judge or deputy -judge may, during the tenure of his office, appear as agent or advocate -before the International Prize Court, nor act for one of the parties in -any capacity whatever (article 17). - -Attention should be drawn to the fact that the Court, if once -established, will be permanent, and the judges, if once appointed, will -always be at hand, although in time of peace they will not sit. - -[Sidenote: Deciding Tribunal.] - -§ 443. The judges appointed by the contracting Powers do not, as a body, -decide the appeal cases brought before the Court. From among the great -number of judges appointed, a deciding tribunal is formed which is -composed of fifteen judges, nine of whom constitute a quorum; and a -judge who is absent or prevented from sitting is replaced by a deputy -(article 14). The judges appointed by Great Britain, Germany, the United -States of America, Austria-Hungary, France, Italy, Japan, and Russia are -always summoned to sit, but the judges appointed by the remaining -contracting Powers are only in rotation summoned to sit, and their -duties may successively be performed by the same person, since the same -individual may be appointed as judge by several of these Powers (article -15). If a belligerent Power has, according to the rota, no judge sitting -in the deciding tribunal, it has a right to demand that the judge -appointed by it shall take part in the settlement of all cases arising -from the war, and lots shall then be drawn to decide which of the judges -entitled to sit by rota shall withdraw, but the judge of the other -belligerent party does not take part in the drawing of lots (article -16). No judge may sit who has been a party, in any way whatever, to the -sentence pronounced by the National Prize Court against which the appeal -has been made, or who has taken part in the case as counsel or advocate -for one of the parties (article 17). The summoning by rota of the -judges appointed by the minor Powers takes place according to the -following list:-- - - JUDGES DEPUTY JUDGES - - _First Year_ - - 1. Argentina Paraguay - 2. Colombia Bolivia - 3. Spain Spain - 4. Greece Roumania - 5. Norway Sweden - 6. Holland Belgium - 7. Turkey Persia - - _Second Year_ - - 1. Argentina Panama - 2. Spain Spain - 3. Greece Roumania - 4. Norway Sweden - 5. Holland Belgium - 6. Turkey Luxemburg - 7. Uruguay Costa Rica - - _Third Year_ - - 1. Brazil Domingo - 2. China Turkey - 3. Spain Portugal - 4. Holland Switzerland - 5. Roumania Greece - 6. Sweden Denmark - 7. Venezuela Haiti - - _Fourth Year_ - - 1. Brazil Guatemala - 2. China Turkey - 3. Spain Portugal - 4. Peru Honduras - 5. Roumania Greece - 6. Sweden Denmark - 7. Switzerland Holland - - _Fifth Year_ - - 1. Belgium Holland - 2. Bulgaria Montenegro - 3. Chili Nicaragua - 4. Denmark Norway - 5. Mexico Cuba - 6. Persia China - 7. Portugal Spain - - _Sixth Year_ - - 1. Belgium Holland - 2. Chili Salvador - 3. Denmark Norway - 4. Mexico Ecuador - 5. Portugal Spain - 6. Servia Bulgaria - 7. Siam China - -The deciding tribunal elects its President and Vice-President by an -absolute majority of the votes cast, but after two ballots the election -is made by a bare majority, and, in case the votes are equal, by lot -(article 19). - -The judges--as well as the deputies when they sit--receive, while -carrying out their duties, a salary of one hundred Netherland florins -(about £8, 4s.) _per diem_, besides travelling expenses. The salaries -and travelling expenses are to be paid by the International Bureau of -the Permanent Court of Arbitration, and the judges must not receive any -other remuneration either from their own Government or from any other -Power (article 20). - -The belligerent captor, as well as a neutral Power which is herself, or -whose national is, a party, may appoint a naval officer of high rank to -sit as _Assessor_, but he has no voice in the decision. If more than one -neutral Power is concerned in a case, they must agree among themselves, -if necessary by lot, on the naval officer to be appointed as Assessor -(article 18). - -The seat[939] of the deciding tribunal is at the Hague, and it may not, -except in the case of _force majeure_, be transferred elsewhere without -the consent of both belligerents (article 21). When the Court is not -sitting, the duties conferred on it by certain articles of Convention -XII. are discharged by a delegation of three judges appointed by the -Court; this delegation comes to a decision by a majority of votes, and -its members must, of course, reside at the Hague while they fulfil their -duties (article 48). - -[Footnote 939: The working-order (_ordre intérieur_) of the -International Prize Court is to be drawn up by the Court itself; see -details in article 49.] - -The deciding tribunal determines what language it will itself use and -what languages may be used before it, but in all cases the official -language of the National Courts which have had cognisance of the case -may be used before it (article 24). - -For all notices to be served, in particular on the parties, witnesses, -or experts, the deciding tribunal may apply direct to the Government of -the State on whose territory the service is to be carried out. The same -rule applies in the case of steps to be taken to procure evidence. The -Court is equally entitled to act through the Power on whose territory it -holds its sitting. Notices to be given to parties in the place where -the Court sits may be served through the International Bureau (article -27). - -[Sidenote: Administrative Council and International Bureau.] - -§ 444. The Administrative Council of the Permanent Court of Arbitration -at the Hague serves at the same time as the Administrative Council of -the International Prize Court, but only representatives of the Powers -who are parties to Convention XII. shall be members of it (article 22). - -The International Bureau of the Permanent Court of Arbitration acts as -Registry of the International Prize Court and must place its offices and -staff at the disposal of the Court. This Bureau has the custody of the -archives and carries out the administrative work, and its General -Secretary acts as Registrar of the International Prize Court. The -secretaries necessary to assist the Registrar, translators, and -shorthand writers are appointed by the International Prize Court -(article 23). - -[Sidenote: Agents, Counsel, Advocates, and Attorneys.] - -§ 445. Belligerent as well as neutral Powers concerned in a case may -appoint special Agents to act as intermediaries between themselves and -the International Prize Court, and they may also engage Counsel or -Advocates to defend their rights and interests (article 25). - -Private individuals concerned in a case are compelled to be represented -before the Court by an Attorney, who must either be an Advocate -qualified to plead before a Court of Appeal or a High Court of one of -the contracting States, or a lawyer practising before a similar Court, -or, lastly, a Professor of Law at one of the higher teaching centres of -those countries (article 26). - -[Sidenote: Competence.] - -§ 446. The general principle underlying the rules of Convention XII. -concerning the competence of the International Prize Court is that on -the whole, _although not exclusively_, the Court is competent in cases -where neutrals are directly or indirectly concerned. The International -Prize Court is, as a rule, a Court of Appeal, all prize cases must, in -the first instance, be decided by a National Prize Court of the captor, -although the Municipal Law of the country concerned may provide that a -first appeal must likewise be decided by a National Prize Court. The -second appeal may never by decided by a National, but must always be -decided by the International Prize Court. However, should the National -Court of the First Instance or the National Court of Appeal fail to give -final judgment within two years from the date of capture, the case may -be carried direct to the International Prize Court (articles 2 and 6). - -An appeal against the judgments of National Prize Courts may be brought -before the International Court: (1) when the judgment concerns the -property of a neutral Power or a neutral individual;[940] (2) when the -judgment concerns enemy property and relates to (_a_) cargo on board a -neutral vessel, (_b_) an enemy vessel captured in the territorial waters -of a neutral Power, provided such Power has not made the capture the -subject of diplomatic claim, and (_c_) a claim based upon the allegation -that the seizure has been effected in violation, either of the -provisions of a convention in force between the belligerent Powers, or -of an enactment issued by the belligerent captor. In any case, the -appeal may be based on the ground that the judgment was wrong either in -fact or in law (article 3). - -[Footnote 940: Since the question of enemy or neutral character of -individuals--see above, § 88--is for some parts controversial, the -International Prize Court would have to decide the controversy.] - -The following Powers and individuals are entitled[941] to bring an -appeal before the International Prize Court:-- - -(1) Neutral Powers, if the judgment injuriously affects their property -or the property of their subjects, or if the capture is alleged to have -taken place in the territorial waters of such Powers (article 4, No. 1). - -(2) Neutral individuals,[942] if the judgment injuriously affects their -property. But the home State of such an individual may intervene and -either forbid him to bring the appeal before the International Prize -Court, or itself undertake the proceedings in his place (article 4, No. -2). - -(3) Subjects of the enemy, if the judgment injuriously affects their -cargoes on neutral vessels, or if it injuriously affects their property -in case the seizure is alleged to have been effected in violation, -either of the provisions of a convention in force between the -belligerent Powers, or of an enactment issued by the belligerent captor -(article 4, No. 3). - -(4) Subjects of neutral Powers or of the enemy deriving rights from the -rights of such individuals as are themselves qualified to bring an -appeal before the International Prize Court, provided they have -intervened in the proceedings of the National Court or Courts concerned. -Individuals so entitled may appeal separately to the extent of their -interests (article 5, first paragraph). - -(5) Subjects of neutral Powers or of the enemy deriving rights from the -rights of a neutral Power whose property was the subject of the -judgment. Individuals so entitled may likewise appeal separately to the -extent of their interest, provided they have intervened in the -proceedings of the National Court or Courts concerned (article 5, second -paragraph). - -[Footnote 941: But note article 51 of Convention XII.] [Footnote 942: -See above, vol. I. § 289, p. 365.] - -[Sidenote: What Law to be applied.] - -§ 447. As regards the law to be applied by the International Prize -Court, article 7 of Convention XII. contains the following provisions -and distinctions:-- - -(1) If a question of law to be decided be covered by a treaty in force -between the belligerent captor and a Power which is itself, or whose -subject is, a party to the proceedings, the Court must apply the -provisions of such treaty. - -(2) In absence of such provisions, the Court must apply the rules of -International Law. - -(3) If there be no generally recognised rules of International Law which -could be applied, the Court must base its decision on the general -principles of justice and equity. - -(4) If--see article 3, No. 2 (_c_) of Convention XII.--the ground of -appeal be the violation of an enactment issued by the belligerent -captor, the Court must apply such enactment. - -(5) The Court is empowered to disregard failure, on the part of an -appellant, to comply with the procedure laid down by the Municipal Law -of the belligerent captor, if it is of opinion that the consequences of -such Municipal Law are unjust or inequitable. - -The very wide powers of the International Prize Court with regard to the -law to be applied by it, have been considerably narrowed down by the -fact that the Declaration of London provides a code of Prize Law, which -in time will be universally accepted, but those powers are still very -wide. - - -III - -PROCEDURE IN THE INTERNATIONAL PRIZE COURT - - See the literature quoted above at the commencement of § 442. - -[Sidenote: Entering of Appeal.] - -§ 448. As a rule there are two ways of entering an appeal against the -judgment of a National Prize Court, namely, either by a written -declaration made in the National Court against whose judgment the -appeal is directed, or by a written or telegraphic declaration -addressed to the International Bureau. In either case the appeal must be -entered within one hundred and twenty days from the day the judgment was -delivered or notified (article 28). But the appeal must be addressed to -the International Bureau only, if a party intends to carry a case direct -to the International Prize Court on account of the National Courts -having failed to give final judgment within two years from the date of -capture, and in such case the appeal must be entered within thirty days -from the expiry of the period of two years (article 30). - -If the appeal has been entered in the National Court, this Court must, -without considering the question as to whether the appeal was entered in -time, transmit within seven days the record of the case to the -International Bureau. On the other hand, if the declaration of appeal -has been sent to the International Bureau, this Bureau must immediately, -if possible by telegraph, send information to the National Court -concerned which must within seven days transmit the record of the case -to the Bureau. And should the appeal be entered by a neutral individual, -the International Bureau must immediately by telegraph inform the -Government of the respective individual in order to enable such -Government to come to a decision as to whether it will--see article 4, -No. 2--prevent the individual from going on with the appeal, or will -undertake proceedings in his stead (article 29). - -If the appeal has not been entered in time, the Court must reject it -without discussion of the merits of the case. But the Court may grant -relief from the effect of this rule and admit the appeal, if the -appellant is able to show that he was prevented by _force majeure_ from -entering the appeal in time, and that he has entered the appeal within -sixty days after the circumstances which prevented him from entering it -earlier ceased to operate (article 31). - -If the appeal has been entered in time, a certified copy of the notice -of appeal must officially be transmitted to the respondent by the Court; -if the Court is not sitting, its delegation of three judges must act for -it (articles 32 and 48). If in addition to the parties who are before -the Court through an appeal having been entered, there are other parties -concerned who are entitled to appeal, or if in the case referred to in -article 29, third paragraph, the Government which has received notice of -an appeal has not announced its decision, the Court may not deal with -the case until either the period of one hundred and twenty days from the -day the judgment of the National Prize Court has been delivered or -notified, or the period of thirty days from the expiry of two years from -the date of capture has expired (article 31). - -[Sidenote: Pleadings and Discussion.] - -§ 449. The procedure, which follows the entry of an appeal and the -preliminary steps in consequence thereof, comprises two distinct phases, -namely, written pleadings and oral discussion. - -(1) The written _pleadings_ consist of the deposit and exchange of -cases, counter-cases, and, if necessary, of replies, the order of which, -as also the periods within which they must be delivered, must be fixed -by the Court or its delegation of three judges (article 48), and to -which all papers and documents the parties intend to make use of must be -annexed. The Court must communicate a certified copy of every document -produced by one party to the other party (article 34). - -(2) After the close of the pleadings the Court must fix a day for a -public sitting on which the _discussion_ is to take place (article 35). -The discussion is under the direction of the President or -Vice-President, or, in case both of these are absent or cannot act, of -the senior judge present; but the judge appointed by a belligerent -party may never preside (article 38). The discussion takes place with -open doors, but a Government which is a party may demand that the -discussion take place with closed doors. In any case minutes must be -taken and must be signed by the President and Registrar, and these -minutes alone have an authentic character (article 39). During the -discussion the parties state their views of the case both as to the law -and as to the facts, but the Court may at any stage suspend the speeches -of counsel in order that supplementary evidence may be obtained (article -35). The Court may order the supplementary evidence to be taken, either -in the manner provided for by article 27, or before itself, or before -one or more members of the Court provided it can be done without -compulsion or intimidation; if steps are taken by members of the Court -outside the territory where it is sitting, the consent of the foreign -Government must be obtained (article 36). The parties must be summoned -to take part in all stages of the taking of supplementary evidence, and -they must receive certified copies of the minutes (article 37). If a -party does not appear in spite of having been duly summoned, or if a -party fails to comply with some step within the period fixed by the -Court, the case proceeds without that party and the Court makes its -decision on the basis of the material at its disposal, but the Court -must officially notify to the parties all decisions or orders made in -their absence (article 40). - -[Sidenote: Judgment.] - -§ 450. After the discussion follows the judgment of the Court. - -The deliberation of the Court in order to agree upon the judgment takes -place in private and must remain secret. The Court must take into -consideration all the documents, evidence, and oral statements. All -questions are decided by a majority of the judges present; if the number -of the judges is even and is equally divided, the vote of the junior -judge in the order of precedence is not counted (articles 42 and 43). -The judgment must be taken down in writing, state the reasons upon which -it is based, give the names of the judges taking part in it and of the -assessors, if any, and must be signed by the President and Registrar. - -The pronouncement of the judgment of the Court takes place in public, -the parties being present or having been duly summoned to attend. The -judgment must be officially communicated to the parties. After this -communication has been made, the Court must transmit to the National -Prize Court concerned the record of the case, together with copies of -the various decisions arrived at and of the minutes of the proceedings -(article 45). - -If the Court pronounces the capture of a vessel or cargo to be valid, -they may be disposed of in accordance with the Municipal Law of the -belligerent captor. If the Court pronounces the capture to be invalid, -restitution of the vessel or cargo must be ordered, and the amount of -damages, if any, must be fixed, especially in case the vessel or cargo -has been sold or destroyed. If the National Prize Court has already -declared the capture to be invalid, the International Prize Court must -decide on an appeal concerning the damages due to the owner of the -captured vessel or cargo (article 8). - -[Sidenote: Expenses and Costs.] - -§ 451. The _general expenses_ of the International Prize Court are borne -by the contracting Powers in proportion to their share in the -composition of the Court as laid down in article 15 of Convention XII.; -the appointment of deputy judges does not involve any contribution -(article 47). - -As regards _costs_, each party pays its own, but the party against whom -the Court has given its decision, must bear the costs of the trial and, -in addition, must pay one per cent. of the value of the subject matter -of the case as a contribution to the general expenses of the -International Prize Court. The amount of the payments must be fixed in -the judgment of the Court (article 46, first and second paragraphs). If -the appeal is brought by an individual, he must, after having entered -the appeal, furnish the International Bureau with security to an amount -fixed by the Court or--see article 48--by its delegation (article 46, -third paragraph). - - -IV - -ACTION IN DAMAGES INSTEAD OF APPEAL - - Scott in _A.J._ V. (1911), pp. 302-324. - -[Sidenote: Reason for Action in Damages instead of Appeal.] - -§ 452. According to the Constitution of the United States of America, -and probably that of some other States, no appeal may be brought against -a judgment of their Highest Courts. These States could not, therefore, -ratify Convention XII. and take part in the establishment of the -International Prize Court without previously having altered their -Constitution. As such alteration would be a very complicated and -precarious matter, the Naval Conference of London of 1908-9 included in -the Final Protocol of the Conference the following _voeu_:--"The -Delegates of the Powers represented at the Naval Conference and which -have signed or have expressed their intention to sign the Hague -Convention of October 18, 1907, concerning the establishment of an -International Prize Court, considering the constitutional difficulties -which, in certain States, stand in the way of the ratification of that -Convention in its actual form, agree to call the attention of their -Governments to the advantage of concluding an arrangement according to -which the said States would, in depositing their ratifications, have the -power to add thereto a reservation to the effect that the right of -recourse to the International Prize Court in connection with decisions -of their National Courts, shall take the form of a direct action for -damages, provided, however, that the effect of this reservation shall -not be such as to impair the rights guaranteed by the said Convention to -private individuals as well as to Governments, and that the terms of the -reservation shall form the subject of a subsequent understanding between -the signatory Powers of the same Convention." - -To carry out this recommendation, Great Britain, Germany, the United -States of America, Argentina, Austria-Hungary, Chili, Denmark, Spain, -France, Japan, Norway, Holland, and Sweden signed on September 19, 1910, -at the Hague the "Additional Protocol to the Convention relative to the -establishment of an International Prize Court" which comprises nine -articles, is (article 8) considered to be an integral part of that -Convention, and which will be ratified at the same time as the -Convention, accession to the Convention being subordinated (article 9) -to accession to the Protocol.[943] - -[Footnote 943: There is no doubt that, should the International Prize -Court be established, all the contracting Powers of Convention XII. -would accede to this additional protocol.] - -[Sidenote: Procedure if Action for Damages is brought.] - -§ 453. According to article 1 of the Protocol, those signatory or -acceding Powers of Convention XII. which are prevented by difficulties -of a constitutional nature from accepting the Convention in its -unaltered form, have, in ratifying the Convention or acceding to it, the -right to declare that in prize cases over which their National Courts -have jurisdiction, recourse to the International Prize Court may only be -had in the form of an action in damages for the injury caused by the -capture. In consequence thereof the procedure in the International -Prize Court, as described above, §§ 448-451, takes place with the -following modifications:-- - -(1) The action for damages may only be brought before the International -Prize Court by means of a written or telegraphic declaration addressed -to the International Bureau (article 5). This Bureau must directly -notify, if possible by telegraph, the Government of the belligerent -captor, which, without considering whether the prescribed periods of -time have been observed, must within seven days of the receipt of the -notification, transmit to the International Bureau the case and a -certified copy of the decision, if any, rendered by the National Prize -Court (article 6). - -(2) The International Prize Court does not, as in Appeal Cases, -pronounce upon the validity or nullity of the capture concerned, nor -confirm or reverse the judgment of the National Prize Court, but simply -fixes the amount of damages to be allowed, if any, to the plaintiff, if -the capture is considered to be illegal (article 3). - -(3) After having delivered judgment, the International Prize Court does -not transmit the record of the case, the various decisions arrived at, -and the minutes, to the National Prize Court, but directly to the -Government of the belligerent captor (article 7). - - - - -APPENDICES - - - - -APPENDIX I - - DECLARATION OF PARIS OF 1856 - - -Les Plénipotentiaires qui ont signé le Traité de Paris du trente mars, -mil huit cent cinquante-six, réunis en Conférence,-- - -Considérant: - -Que le droit maritime, en temps de guerre, a été pendant longtemps -l'objet de contestations regrettables; - -Que l'incertitude du droit et des devoirs en pareille matière, donne -lieu, entre les neutres et les belligérants, à des divergences d'opinion -qui peuvent faire naître des difficultés sérieuses et même des conflits; - -Qu'il y a avantage, par conséquent, à établir une doctrine uniforme sur -un point aussi important; - -Que les Plénipotentiaires assemblés au Congrès de Paris ne sauraient -mieux répondre aux intentions, dont leurs Gouvernements sont animés, -qu'en cherchant à introduire dans les rapports internationaux des -principes fixes à cet égard; - -Dûment autorisés, les susdits Plénipotentiaires sont convenus de se -concerter sur les moyens d'atteindre ce but; et étant tombés d'accord -ont arrêté la Déclaration solennelle ci-après:-- - -1. La course est et demeure abolie; - -2. Le pavillon neutre couvre la marchandise ennemie, à l'exception de la -contrebande de guerre; - -3. La marchandise neutre, à l'exception de la contrebande de guerre, -n'est pas saisissable sous pavillon ennemi; - -4. Les blocus, pour être obligatoires, doivent être effectifs, -c'est-à-dire, maintenus par une force suffisante pour interdire -réellement l'accès du littoral de l'ennemi. - -Les Gouvernements des Plénipotentiaires soussignés s'engagent à porter -cette Déclaration à la connaissance des États, qui n'ont pas été appelés -à participer au Congrès de Paris, et à les inviter à y accéder. - -Convaincus qui les maximes qu'ils viennent de proclamer ne sauraient -être accueillies qu'avec gratitude par le monde entier, les -Plénipotentiaires soussignés ne doutent pas, que les efforts de leurs -Gouvernements pour en généraliser l'adoption ne soient couronnés d'un -plein succès. - -La présente Déclaration n'est et ne sera obligatoire qu'entre les -Puissances, qui y ont, ou qui y auront accédé. - -Fait à Paris, le seize avril, mil huit cent cinquante-six. - - - - -APPENDIX II - - DECLARATION OF ST. PETERSBURG OF 1868 - - -Sur la proposition du Cabinet Impérial de Russie, une Commission -Militaire Internationale ayant été réunie à Saint-Pétersbourg, afin -d'examiner la convenance d'interdire l'usage de certains projectiles en -temps de guerre entre les nations civilisées, et cette Commission ayant -fixé d'un commun accord les limites techniques où les nécessités de la -guerre doivent s'arrêter devant les exigences de l'humanité, les -Soussignés sont autorisés par les ordres de leurs Gouvernements à -déclarer ce qui suit: - -Considérant que les progrès de la civilisation doivent avoir pour effet -d'atténuer autant que possible les calamités de la guerre; - -Que le seul but légitime que les États doivent se proposer durant la -guerre est l'affaiblissement des forces militaires de l'ennemi; - -Qu'à cet effet, il suffit de mettre hors de combat le plus grand nombre -d'hommes possible; - -Que ce but serait dépassé par l'emploi d'armes qui aggraveraient -inutilement les souffrances des hommes mis hors de combat, ou rendraient -leur mort inévitable; - -Que l'emploi de pareilles armes serait dès lors contraire aux lois de -l'humanité; - -Les Parties Contractantes s'engagent à renoncer mutuellement, en cas de -guerre entre elles, à l'emploi par leurs troupes de terre ou de mer, de -tout projectile d'un poids inférieur à 400 grammes, qui serait ou -explosible ou chargé de matières fulminantes ou inflammables. - -Elles inviteront tous les États, qui n'ont pas participé par l'envoi de -Délégués aux délibérations de la Commission Militaire Internationale -réunie à Saint-Pétersbourg, à accéder au présent engagement. - -Cet engagement n'est obligatoire que pour les Parties Contractantes ou -Accédantes en cas de guerre entre deux ou plusieurs d'entre elles: il -n'est pas applicable vis-à-vis de Parties non-Contractantes ou qui -n'auraient pas accédé. - -Il cesserait également d'être obligatoire du moment où, dans une guerre -entre Parties Contractantes ou Accédantes, une partie non-Contractante, -ou qui n'aurait pas accédé, se joindrait à l'un des belligérants. - -Les Parties Contractantes ou Accédantes se réservent de s'entendre -ultérieurement toutes les fois qu'une proposition précise serait -formulée en vue des perfectionnements à venir que la science pourrait -apporter dans l'armement des troupes, afin de maintenir les principes, -qu'elles ont posés et de concilier les nécessités de la guerre avec les -lois de l'humanité. - -Fait à Saint-Pétersbourg, le vingt-neuf novembre onze décembre, mil huit -cent soixante-huit. - - - - -APPENDIX III - - DECLARATION CONCERNING EXPANDING (DUM-DUM) BULLETS - _Signed at the Hague, July 29, 1899_ - - -Les Soussignés, Plénipotentiaires des Puissances représentées à la -Conférence Internationale de la Paix à La Haye, dûment autorisés à cet -effet par leurs Gouvernements, s'inspirant des sentiments qui ont trouvé -leur expression dans la Déclaration de Saint-Pétersbourg du 29 novembre -(11 décembre) 1868, - -Déclarent: - -Les Puissances Contractantes s'interdisent l'emploi de balles qui -s'épanouissent ou s'aplatissent facilement dans le corps humain, telles -que les balles à enveloppe dure dont l'enveloppe ne couvrirait pas -entièrement le noyau ou serait pourvue d'incisions. - -La présente Déclaration n'est obligatoire que pour les Puissances -Contractantes, en cas de guerre entre deux ou plusieurs d'entre elles. - -Elle cessera d'être obligatoire du moment où dans une guerre entre des -Puissances Contractantes, une Puissance non-Contractante se joindrait à -l'un des belligérants. - -La présente Déclaration sera ratifiée dans le plus bref délai possible. - -Les ratifications seront déposées à La Haye. - -Il sera dressé du dépôt de chaque ratification un procès-verbal, dont -une copie, certifiée conforme, sera remise par la voie diplomatique à -toutes les Puissances Contractantes. - -Les Puissances non-Signataires pourront adhérer à la présente -Déclaration. Elles auront, à cet effet, à faire connaître leur adhésion -aux Puissances Contractantes, au moyen d'une notification écrite, -adressée au Gouvernement des Pays-Bas et communiquée par celui-ci à -toutes les autres Puissances Contractantes. - -S'il arrivait qu'une des Hautes Parties Contractantes dénonçât la -présente Déclaration, cette dénonciation ne produirait ses effets qu'un -an après la notification faite par écrit au Gouvernement des Pays-Bas et -communiquée immédiatement par celui-ci à toutes les autres Puissances -Contractantes. - -Cette dénonciation ne produira ses effets qu'à l'égard de la Puissance -qui l'aura notifiée. - -En foi de quoi, les Plénipotentiaires ont signé la présente Déclaration -et l'ont revêtue de leurs cachets. - -Fait à La Haye, le 29 juillet 1899, en un seul exemplaire, qui restera -déposé dans les archives du Gouvernement des Pays-Bas et dont des -copies, certifiées conformes, seront remises par la voie diplomatique -aux Puissances Contractantes. - - - - -APPENDIX IV - - DECLARATION CONCERNING THE DIFFUSION OF ASPHYXIATING GASES - _Signed at the Hague, July 29, 1899_ - - -Les Soussignés, Plénipotentiaires des Puissances représentées à la -Conférence Internationale de la Paix à La Haye, dûment autorisés à cet -effet par leurs Gouvernements, s'inspirant des sentiments qui ont trouvé -leur expression dans la Déclaration de Saint-Pétersbourg du 29 novembre -(11 décembre) 1868, - -Déclarent: - -Les Puissances Contractantes s'interdisent l'emploi de projectiles qui -ont pour but unique de répandre des gaz asphyxiants ou délétères. - -La présente Déclaration n'est obligatoire que pour les Puissances -Contractantes, en cas de guerre entre deux ou plusieurs d'entre elles. - -Elle cessera d'être obligatoire du moment où dans une guerre entre des -Puissances Contractantes une Puissance non-Contractante se joindrait à -l'un des belligérants. - -La présente Déclaration sera ratifiée dans le plus bref délai possible. - -Les ratifications seront déposées à La Haye. - -Il sera dressé du dépôt de chaque ratification un procès-verbal, dont -une copie, certifiée conforme, sera remise par la voie diplomatique à -toutes les Puissances Contractantes. - -Les Puissances non-Signataires pourront adhérer à la présente -Déclaration. Elles auront, à cet effet, à faire connaître leur adhésion -aux Puissances Contractantes, au moyen d'une notification écrite, -adressée au Gouvernement des Pays-Bas et communiquée par celui-ci à -toutes les autres Puissances Contractantes. - -S'il arrivait qu'une des Hautes Parties Contractantes dénonçât la -présente Déclaration, cette dénonciation ne produirait ses effets qu'un -an après la notification faite par écrit au Gouvernement des Pays-Bas et -communiquée immédiatement par celui-ci à toutes les autres Puissances -Contractantes. - -Cette dénonciation ne produira ses effets qu'à l'égard de la Puissance -qui l'aura notifiée. - -En foi de quoi, les Plénipotentiaires ont signé la présente Déclaration -et l'ont revêtue de leurs cachets. - -Fait à La Haye, le 29 juillet 1899, en un seul exemplaire, qui restera -déposé dans les archives du Gouvernement des Pays-Bas et dont des -copies, certifiées conformes, seront remises par la voie diplomatique -aux Puissances Contractantes. - - - - -APPENDIX V - - GENEVA CONVENTION OF 1906 - - -CHAPITRE PREMIER.--_Des Blessés et Malades._ - -Article premier. - -Les militaires et les autres personnes officiellement attachées aux -armées, qui seront blessés ou malades, devront être respectés et -soignés, sans distinction de nationalité, par le belligérant qui les -aura en son pouvoir. - -Toutefois, le belligérant, obligé d'abandonner des malades ou des -blessés à son adversaire, laissera avec eux, autant que les -circonstances militaires le permettront, une partie de son personnel et -de son matériel sanitaires pour contribuer à les soigner. - -Article 2. - -Sous réserve des soins à leur fournir en vertu de l'article précédent, -les blessés ou malades d'une armée tombés au pouvoir de l'autre -belligérant sont prisonniers de guerre et les règles générales du droit -des gens concernant les prisonniers leur sont applicables. - -Cependant, les belligérants restent libres de stipuler entre eux, à -l'égard des prisonniers blessés ou malades, telles clauses d'exception -ou de faveur qu'ils jugeront utiles; ils auront, notamment, la faculté -de convenir: - -De se remettre réciproquement, après un combat, les blessés laissés sur -le champ de bataille; - -De renvoyer dans leur pays, après les avoir mis en état d'être -transportés ou après guérison, les blessés ou malades qu'ils ne voudront -pas garder prisonniers; - -De remettre à un État neutre, du consentement de celui-ci, des blessés -ou malades de la partie adverse, à la charge par l'État neutre de les -interner jusqu'à la fin des hostilités. - -Article 3. - -Après chaque combat, l'occupant du champ de bataille prendra des mesures -pour rechercher les blessés et pour les faire protéger, ainsi que les -morts, contre le pillage et les mauvais traitements. - -Il veillera à ce que l'inhumation ou l'incinération des morts soit -précédée d'un examen attentif de leurs cadavres. - -Article 4. - -Chaque belligérant enverra, dès qu'il sera possible, aux autorités de -leur pays ou de leur armée les marques ou pièces militaires d'identité -trouvées sur les morts et l'état nominatif des blessés ou malades -recueillis par lui. - -Les belligérants se tiendront réciproquement au courant des internements -et des mutations, ainsi que des entrées dans les hôpitaux et des décès -survenus parmi les blessés et malades en leur pouvoir. Ils recueilleront -tous les objets d'un usage personnel, valeurs, lettres, etc., qui seront -trouvés sur les champs de bataille ou délaissés par les blessés ou -malades décédés dans les établissements et formations sanitaires, pour -les faire transmettre aux intéressés par les autorités de leur pays. - -Article 5. - -L'autorité militaire pourra faire appel au zèle charitable des habitants -pour recueillir et soigner, sous son contrôle, des blessés ou malades -des armées, en accordant aux personnes ayant répondu à cet appel une -protection spéciale et certaines immunités. - - -CHAPITRE II.--_Des Formations et Établissements Sanitaires._ - -Article 6. - -Les formations sanitaires mobiles (c'est-à-dire celles qui sont -destinées à accompagner les armées en campagne) et les établissements -fixes du service de santé seront respectés et protégés par les -belligérants. - -Article 7. - -La protection due aux formations et établissements sanitaires cesse si -l'on en use pour commettre des actes nuisibles à l'ennemi. - -Article 8. - -Ne sont pas considérés comme étant de nature à priver une formation ou -un établissement sanitaire de la protection assurée par l'article 6: - -1'o. Le fait que le personnel de la formation ou de l'établissement est -armé et qu'il use de ses armes pour sa propre défense ou celle de ses -malades et blessés; - -2'o. Le fait qu'à défaut d'infirmiers armés, la formation ou -l'établissement est gardé par un piquet ou des sentinelles munis d'un -mandat régulier; - -3'o. Le fait qu'il est trouvé dans la formation ou l'établissement des -armes et cartouches retirées aux blessés et n'ayant pas encore été -versées au service compétent. - - -CHAPITRE III.--_Du Personnel._ - -Article 9. - -Le personnel exclusivement affecté à l'enlèvement, au transport et au -traitement des blessés et des malades, ainsi qu'à l'administration des -formations et établissements sanitaires, les aumôniers attachés aux -armées, seront respectés et protégés en toute circonstance; s'ils -tombent entre les mains de l'ennemi, ils ne seront pas traités comme -prisonniers de guerre. - -Ces dispositions s'appliquent au personnel de garde des formations et -établissements sanitaires dans le cas prévu à l'article 8, n'o 2. - -Article 10. - -Est assimilé au personnel visé à l'article précédent le personnel des -Sociétés de secours volontaires dûment reconnues et autorisées par leur -Gouvernement, qui sera employé dans les formations et établissements -sanitaires des armées, sous la réserve que ledit personnel sera soumis -aux lois et règlements militaires. - -Chaque État doit notifier à l'autre soit dès le temps de paix, soit à -l'ouverture ou au cours des hostilités, en tout cas avant tout emploi -effectif, les noms des Sociétés qu'il a autorisées à prêter leur -concours, sous sa responsabilité, au service sanitaire officiel de ses -armées. - -Article 11. - -Une Société reconnue d'un pays neutre ne peut prêter le concours de ses -personnels et formations sanitaires à un belligérant qu'avec -l'assentiment préalable de son propre Gouvernement et l'autorisation du -belligérant lui-même. - -Le belligérant qui a accepté le secours est tenu, avant tout emploi, -d'en faire la notification à son ennemi. - -Article 12. - -Les personnes désignées dans les articles 9, 10 et 11 continueront, -après qu'elles seront tombées au pouvoir de l'ennemi, à remplir leurs -fonctions sous sa direction. - -Lorsque leur concours ne sera plus indispensable, elles seront renvoyées -à leur armée ou à leur pays dans les délais et suivant l'itinéraire -compatibles avec les nécessités militaires. - -Elles emporteront, alors, les effets, les instruments, les armes et les -chevaux qui sont leur propriété particulière. - -Article 13. - -L'ennemi assurera au personnel visé par l'article 9, pendant qu'il sera -en son pouvoir, les mêmes allocations et la même solde qu'au personnel -des mêmes grades de son armée. - - -CHAPITRE IV.--_Du Matériel._ - -Article 14. - -Les formations sanitaires mobiles conserveront, si elles tombent au -pouvoir de l'ennemi, leur matériel, y compris les attelages, quels que -soient les moyens de transport et le personnel conducteur. - -Toutefois, l'autorité militaire compétente aura la faculté de s'en -servir pour les soins des blessés et malades; la restitution du matériel -aura lieu dans les conditions prévues pour le personnel sanitaire, et, -autant que possible, en même temps. - -Article 15. - -Les bâtiments et le matériel des établissements fixes demeurent soumis -aux lois de la guerre, mais ne pourront être détournés de leur emploi, -tant qu'ils seront nécessaires aux blessés et aux malades. - -Toutefois, les commandants des troupes d'opérations pourront en -disposer, en cas de nécessités militaires importantes, en assurant au -préalable le sort des blessés et malades qui s'y trouvent. - -Article 16. - -Le matériel des Sociétés de secours, admises au bénéfice de la -Convention conformément aux conditions déterminées par celle-ci, est -considéré comme propriété privée et, comme tel, respecté en toute -circonstance, sauf le droit de réquisition reconnu aux belligérants -selon les lois et usages de la guerre. - - -CHAPITRE V.--_Des Convois d'Évacuation._ - -Article 17. - -Les convois d'évacuation seront traités comme les formations sanitaires -mobiles, sauf les dispositions spéciales suivantes: - -1'o. Le belligérant interceptant un convoi pourra, si les nécessités -militaires l'exigent, le disloquer en se chargeant des malades et -blessés qu'il contient. - -2'o. Dans ce cas, l'obligation de renvoyer le personnel sanitaire, -prévue à l'article 12, sera étendue à tout le personnel militaire -préposé au transport ou à la garde du convoi et muni à cet effet d'un -mandat régulier. - -L'obligation de rendre le matériel sanitaire, prévue à l'article 14, -s'appliquera aux trains de chemins de fer et bateaux de la navigation -intérieure spécialement organisés pour les évacuations, ainsi qu'au -matériel d'aménagement des voitures, trains et bateaux ordinaires -appartenant au service de santé. - -Les voitures militaires, autres que celles du service de santé, pourront -être capturées avec leurs attelages. - -Le personnel civil et les divers moyens de transport provenant de la -réquisition, y compris matériel de chemin de fer et les bateaux utilisés -pour les convois, seront soumis aux règles générales du droit des gens. - - -CHAPITRE VI.--_Du Signe Distinctif._ - -Article 18. - -Par hommage pour la Suisse, le signe héraldique de la croix rouge sur -fond blanc, formé par interversion des couleurs fédérales, est maintenu -comme emblème et signe distinctif du service sanitaire des armées. - -Article 19. - -Cet emblème figure sur les drapeaux, les brassards, ainsi que sur tout -le matériel se rattachant au service sanitaire, avec la permission de -l'autorité militaire compétente. - -Article 20. - -Le personnel protégé en vertu des articles 9, alinéa 1'er, 10 et 11 -porte, fixé au bras gauche, un brassard avec croix rouge sur fond blanc, -délivré et timbré, par l'autorité militaire compétente, accompagné d'un -certificat d'identité pour les personnes rattachées au service de santé -des armées et qui n'auraient pas d'uniforme militaire. - -Article 21. - -Le drapeau distinctif de la Convention ne peut être arboré que sur les -formations et établissements sanitaires qu'elle ordonne de respecter et -avec le consentement de l'autorité militaire. Il devra être accompagné -du drapeau national du belligérant dont relève la formation ou -l'établissement. - -Toutefois, les formations sanitaires tombées au pouvoir de l'ennemi -n'arboreront pas d'autre drapeau que celui de la Croix-Rouge, aussi -longtemps qu'elles se trouveront dans cette situation. - -Article 22. - -Les formations sanitaires des pays neutres qui, dans les conditions -prévues par l'article 11, auraient été autorisées à fournir leurs -services, doivent arborer, avec le drapeau de la Convention, le drapeau -national du belligérant dont elles relèvent. - -Les dispositions du deuxième alinéa de l'article précédent leur sont -applicables. - -Article 23. - -L'emblème de la Croix-Rouge sur fond blanc et les mots _Croix-Rouge_ ou -_Croix de Genève_ ne pourront être employés, soit en temps de paix, soit -en temps de guerre, que pour protéger ou désigner les formations et -établissements sanitaires, le personnel et le matériel protégés par la -Convention. - - -CHAPITRE VII.--_De l'Application et de l'Exécution de la Convention._ - -Article 24. - -Les dispositions de la présente Convention ne sont obligatoires que pour -les Puissances contractantes, en cas de guerre entre deux ou plusieurs -d'entre elles. Ces dispositions cesseront d'être obligatoires du moment -où l'une des Puissances belligérantes ne serait pas signataire de la -Convention. - -Article 25. - -Les commandants en chef des armées belligérantes auront à pourvoir aux -détails d'exécution des articles précédents, ainsi qu'aux cas non -prévus, d'après les instructions de leurs Gouvernements respectifs et -conformément aux principes généraux de la présente Convention. - -Article 26. - -Les Gouvernements signataires prendront les mesures nécessaires pour -instruire leurs troupes, et spécialement le personnel protégé, des -dispositions de la présente Convention et pour les porter à la -connaissance des populations. - - -CHAPITRE VIII.--_De la Répression des Abus et des Infractions._ - -Article 27. - -Les Gouvernements signataires, dont la législation ne serait pas dès à -présent suffisante, s'engagent à prendre ou à proposer à leurs -législatures les mesures nécessaires pour empêcher en tout temps -l'emploi, par des particuliers ou par des sociétés autres que celles y -ayant droit en vertu de la présente Convention, de l'emblème ou de la -dénomination de _Croix-Rouge_ ou _Croix de Genève_, notamment, dans un -but commercial, par le moyen de marques de fabrique ou de commerce. - -L'interdiction de l'emploi de l'emblème ou de la dénomination dont il -s'agit produira son effet à partir de l'époque déterminée par chaque -législation et, au plus tard, cinq ans après la mise en vigueur de la -présente Convention. Dès cette mise en vigueur, il ne sera plus licite -de prendre une marque de fabrique ou de commerce contraire à -l'interdiction. - -Article 28. - -Les Gouvernements signataires s'engagent également à prendre ou à -proposer à leurs législatures, en cas d'insuffisance de leurs lois -pénales militaires, les mesures nécessaires pour réprimer, en temps de -guerre, les actes individuels de pillage et de mauvais traitements -envers des blessés et malades des armées, ainsi que pour punir, comme -usurpation d'insignes militaires, l'usage abusif du drapeau et du -brassard de la Croix-Rouge par des militaires ou des particuliers non -protégés par la présente Convention. - -Ils se communiqueront, par l'intermédiaire du Conseil fédéral suisse, -les dispositions relatives à cette répression, au plus tard dans les -cinq ans de la ratification de la présente Convention. - - -_Dispositions Générales._ - -Article 29. - -La présente Convention sera ratifiée aussitôt que possible. - -Les ratifications seront déposées à Berne. - -Il sera dressé du dépôt de chaque ratification un procès-verbal dont une -copie, certifiée conforme, sera remise par la voie diplomatique à -toutes les Puissances contractantes. - -Article 30. - -La présente Convention entrera en vigueur pour chaque Puissance six mois -après la date du dépôt de sa ratification. - -Article 31. - -La présente Convention, dûment ratifiée, remplacera la Convention du 22 -août 1864 dans les rapports entre les États contractants. - -La Convention de 1864 reste en vigueur dans les rapports entre les -Parties qui l'ont signée et qui ne ratifieraient pas également la -présente Convention. - -Article 32. - -La présente Convention pourra, jusqu'au 31 décembre prochain, être -signée par les Puissances représentées à la Conférence qui s'est ouverte -à Genève le 11 juin 1906, ainsi que par les Puissances non représentées -à cette Conférence qui ont signé la Convention de 1864. - -Celles de ces Puissances qui, au 31 décembre 1906, n'auront pas signé la -présente Convention, resteront libres d'y adhérer par la suite. Elles -auront à faire connaître leur adhésion au moyen d'une notification -écrite adressée au Conseil fédéral suisse et communiquée par celui-ci à -toutes les Puissances contractantes. - -Les autres Puissances pourront demander à adhérer dans la même forme, -mais leur demande ne produira effet que si, dans le délai d'un an à -partir de la notification au Conseil fédéral, celui-ci n'a reçu -d'opposition de la part d'aucune des Puissances contractantes. - -Article 33. - -Chacune des Parties contractantes aura la faculté de dénoncer la -présente Convention. Cette dénonciation ne produira ses effets qu'un an -après la notification faite par écrit au Conseil fédéral suisse; -celui-ci communiquera immédiatement la notification à toutes les autres -Parties contractantes. - -Cette dénonciation ne vaudra qu'à l'égard de la Puissance qui l'aura -notifiée. - -En foi de quoi, les Plénipotentiaires ont signé la présente Convention -et l'ont revêtue de leurs cachets. - -Fait à Genève, le six juillet mil neuf cent six, en un seul exemplaire, -qui restera déposé dans les archives de la Confédération suisse, et dont -des copies, certifiées conformes, seront remises par la voie -diplomatique aux Puissances contractantes. - - - - -APPENDIX VI - - FINAL ACT OF THE SECOND PEACE CONFERENCE - _Signed at the Hague, October 18, 1907_ - - -La Deuxième Conférence Internationale de la Paix, proposée d'abord par -Monsieur le Président des États-Unis d'Amérique, ayant été, sur -l'invitation de Sa Majesté l'Empereur de Toutes les Russies, convoquée -par Sa Majesté la Reine des Pays-Bas, s'est réunie le 15 juin 1907 à La -Haye, dans la Salle des Chevaliers, avec la mission de donner un -développement nouveau au principes humanitaires qui ont servi de base à -l'oeuvre de la Première Conférence de 1899. - -Les Puissances, dont l'énumeration suit, ont pris part à la Conférence, -pour laquelle Elles avaient désigné les Délégués nommés ci-après: - -[Here follow names.] - -Dans une série de réunions, tenues du 15 juin au 18 octobre 1907, où les -Délégués précités ont été constamment animés du désir de réaliser, dans -la plus large mesure possible, les vues généreuses de l'Auguste -Initiateur de la Conférence et les intentions de leurs Gouvernements, la -Conférence a arrêté, pour être soumis à la signature des -Plénipotentiaires, le texte des Conventions et de la Déclaration -énumérées ci-après et annexées au présent Acte: - -I. Convention pour le règlement pacifique des conflits internationaux. - -II. Convention concernant la limitation de l'emploi de la force pour le -recouvrement de dettes contractuelles. - -III. Convention relative à l'ouverture des hostilités. - -IV. Convention concernant les lois et coutumes de la guerre sur terre. - -V. Convention concernant les droits et les devoirs des Puissances et des -personnes neutres en cas de guerre sur terre. - -VI. Convention relative au régime des navires de commerce ennemis au -début des hostilités. - -VII. Convention relative à la transformation des navires de commerce en -bâtiments de guerre. - -VIII. Convention relative à la pose de mines sous-marines automatiques -de contact. - -IX. Convention concernant le bombardement par des forces navales en -temps de guerre. - -X. Convention pour l'adaptation à la guerre maritime des principes de la -Convention de Genève. - -XI. Convention relative à certaines restrictions à l'exercice du droit -de capture dans la guerre maritime. - -XII. Convention relative à l'établissement d'une Cour internationale des -prises. - -XIII. Convention concernant les droits et les devoirs des Puissances -neutres en cas de guerre maritime. - -XIV. Déclaration relative à l'interdiction de lancer des projectiles et -des explosifs du haut de ballons. - -Ces Conventions et cette Déclaration formeront autant d'actes séparés. -Ces actes porteront la date de ce jour et pourront être signés jusqu'au -30 juin 1908 à La Haye par les Plénipotentiaires des Puissances -représentées à la Deuxième Conférence de la Paix. - -La Conférence, se conformant à l'esprit d'entente et de concessions -réciproques qui est l'esprit même de ses délibérations, a arrêté la -déclaration suivante qui, tout en réservant à chacune des Puissances -représentées le bénéfice de ses votes, leur permet à toutes d'affirmer -les principes qu'Elles considèrent comme unanimement reconnus: - - Elle est unanime, - - 1'o. A reconnaître le principe de l'arbitrage obligatoire; - - 2'o. A déclarer que certains différends, et notamment ceux - relatifs à l'interprétation et à l'application des stipulations - conventionnelles internationales, sont susceptibles d'être soumis - à l'arbitrage obligatoire sans aucune restriction. - -Elle est unanime enfin à proclamer que, s'il n'a pas été donné de -conclure dès maintenant une Convention en ce sens, les divergences -d'opinion qui se sont manifestées n'ont pas dépassé les limites d'une -controverse juridique, et qu'en travaillant ici ensemble pendant quatre -mois, toutes les Puissances du monde, non seulement ont appris à se -comprendre et à se rapprocher davantage, mais ont su dégager, au cours -de cette longue collaboration, un sentiment très élevé du bien commun de -l'humanité. - -En outre, la Conférence a adopté à l'unanimité la Résolution suivante: - -La Deuxième Conférence de la Paix confirme la Résolution adoptée par la -Conférence de 1899 à l'égard de la limitation des charges militaires; -et, vu que les charges militaires se sont considérablement accrues dans -presque tous les pays depuis ladite année, la Conférence déclare qu'il -est hautement désirable de voir les Gouvernements reprendre l'étude -sérieuse de cette question. - -Elle a, de plus, émis les Voeux suivants: - - 1'o. La Conférence recommande aux Puissances signataires - l'adoption du projet ci-annexé de Convention pour l'établissement - d'une Cour de Justice arbitrale, et sa mise en vigueur dès qu'un - accord sera intervenu sur le choix des juges et la constitution de - la Cour. - - 2'o. La Conférence émet le voeu qu'en cas de guerre, les autorités - compétentes, civiles et militaires, se fassent un devoir tout - spécial d'assurer et de protéger le maintien des rapports - pacifiques et notamment des relations commerciales et - industrielles entre les populations des États belligérants et les - pays neutres. - - 3'o. La Conférence émet le voeu que les Puissances règlent, par - des Conventions particulières, la situation, au point de vue des - charges militaires, des étrangers établis sur leurs territoires. - - 4'o. La Conférence émet le voeu que l'élaboration d'un règlement - relatif aux lois et coutumes de la guerre maritime figure au - programme de la prochaine Conférence et que, dans tous les cas, - les Puissances appliquent, autant que possible, à la guerre sur - mer, les principes de la Convention relative aux lois et coutumes - de la guerre sur terre. - -Enfin, la Conférence recommande aux Puissances la réunion d'une -troisième Conférence de la Paix qui pourrait avoir lieu, dans une -période analogue à celle qui s'est écoulée depuis la précédente -Conférence, à une date à fixer d'un commun accord entre les Puissances, -et elle appelle leur attention sur la nécessité de préparer les travaux -de cette troisième Conférence assez longtemps à l'avance pour que ses -délibérations se poursuivent avec l'autorité et la rapidité -indispensables. - -Pour atteindre à ce but, la Conférence estime qu'il serait très -désirable que environ deux ans avant l'époque probable de la réunion, -un Comité préparatoire fût chargé par les Gouvernements de recueillir -les diverses propositions à soumettre à la Conférence, de rechercher les -matières susceptibles d'un prochain règlement international et de -préparer un programme que les Gouvernements arrêteraient assez tôt pour -qu'il pût être sérieusement étudié dans chaque pays. Ce Comité serait, -en outre, chargé, de proposer un mode d'organisation et de procédure -pour la Conférence elle-même. - -En foi de quoi, les Plénipotentiaires ont signé le présent acte et y ont -apposé leurs cachets. - -Fait à La Haye, le dix-huit octobre mil neuf cent sept, en un seul -exemplaire qui sera déposé dans les archives du Gouvernement des -Pays-Bas et dont les copies, certifiées conformes, seront délivrées à -toutes les Puissances représentées à la Conférence. - - -CONVENTION I. - - CONVENTION FOR THE PACIFIC SETTLEMENT OF INTERNATIONAL - DISPUTES.[944] - -[Footnote 944: Only the texts of this and the other Conventions of the -Second Peace Conference are here printed; the preambles, reservations, -and special declarations made in signing the Conventions are omitted.] - -_Titre I.--Du maintien de la paix générale._ - -Article premier. - -En vue de prévenir autant que possible le recours à la force dans les -rapports entre les États, les Puissances contractantes conviennent -d'employer tous leurs efforts pour assurer le règlement pacifique des -différends internationaux. - -_Titre II.--Des bons offices et de la médiation._ - -Article 2. - -En cas de dissentiment grave ou de conflit, avant d'en appeler aux -armes, les Puissances contractantes conviennent d'avoir recours, en tant -que les circonstances le permettront, aux bons offices ou à la médiation -d'une ou de plusieurs Puissances amies. - -Article 3. - -Indépendamment de ce recours, les Puissances contractantes jugent utile -et désirable qu'une ou plusieurs Puissances étrangères au conflit -offrent de leur propre initiative, en tant que les circonstances s'y -prêtent, leurs bons offices ou leur médiation aux Etats en conflit. - -Le droit d'offrir les bons offices ou la médiation appartient aux -Puissances étrangères au conflit, même pendant le cours des hostilités. - -L'exercice de ce droit ne peut jamais être considéré par l'une ou -l'autre des Parties en litige comme un acte peu amical. - -Article 4. - -Le rôle du médiateur consiste à concilier les prétentions opposées et à -apaiser les ressentiments qui peuvent s'être produits entre les États en -conflit. - -Article 5. - -Les fonctions du médiateur cessent du moment où il est constaté, soit -par l'une des Parties en litige, soit par le médiateur lui-même, que les -moyens de conciliation proposés par lui ne sont pas acceptés. - -Article 6. - -Les bons offices et la médiation, soit sur le recours des Parties en -conflit, soit sur l'initiative des Puissances étrangères au conflit, ont -exclusivement le caractère de conseil et n'ont jamais force obligatoire. - -Article 7. - -L'acceptation de la médiation ne peut avoir pour effet, sauf convention -contraire, d'interrompre, de retarder ou d'entraver la mobilisation et -autres mesures préparatoires à la guerre. - -Si elle intervient après l'ouverture des hostilités, elle n'interrompt -pas, sauf convention contraire, les opérations militaires en cours. - -Article 8. - -Les Puissances contractantes sont d'accord pour recommander -l'application, dans les circonstances qui le permettent, d'une médiation -spéciale sous la forme suivante. - -En cas de différend grave compromettant la paix, les États en conflit -choisissent respectivement une Puissance à laquelle ils confient la -mission d'entrer en rapport direct avec la Puissance choisie d'autre -part, à l'effet de prévenir la rupture des relations pacifiques. - -Pendant la durée de ce mandat dont le terme, sauf stipulation contraire, -ne peut excéder trente jours, les États en litige cessent tout rapport -direct au sujet du conflit, lequel est considéré comme déféré -exclusivement aux Puissances médiatrices. Celles-ci doivent appliquer -tous leurs efforts à régler le différend. - -En cas de rupture effective des relations pacifiques, ces Puissances -demeurent chargées de la mission commune de profiter de toute occasion -pour rétablir la paix. - -_Titre III.--Des Commissions internationales d'enquête._ - -Article 9. - -Dans les litiges d'ordre international n'engageant ni l'honneur ni des -intérêts essentiels et provenant d'une divergence d'appréciation sur des -points de fait, les Puissances contractantes jugent utile et désirable -que les Parties qui n'auraient pu se mettre d'accord par les voies -diplomatiques instituent, en tant que les circonstances le permettront, -une Commission internationale d'enquête chargée de faciliter la solution -de ces litiges en éclaircissant, par un examen impartial et -consciencieux, les questions de fait. - -Article 10. - -Les Commissions internationales d'enquête sont constituées par -convention spéciale entre les Parties en litige. - -La convention d'enquête précise les faits à examiner; elle détermine le -mode et le délai de formation de la Commission et l'étendue des pouvoirs -des commissaires. - -Elle détermine également, s'il y a lieu, le siège de la Commission et la -faculté de se déplacer, la langue dont la Commission fera usage et -celles dont l'emploi sera autorisé devant elle, ainsi que la date à -laquelle chaque Partie devra déposer son exposé des faits, et -généralement toutes les conditions dont les Parties sont convenues. - -Si les Parties jugent nécessaire de nommer des assesseurs, la convention -d'enquête détermine le mode de leur désignation et l'étendue de leurs -pouvoirs. - -Article 11. - -Si la convention d'enquête n'a pas désigné le siège de la Commission, -celle-ci siégera à La Haye. - -Le siège une fois fixé ne peut être changé par la Commission qu'avec -l'assentiment des Parties. - -Si la convention d'enquête n'a pas déterminé les langues à employer, il -en est décidé par la Commission. - -Article 12. - -Sauf stipulation contraire, les Commissions d'enquête sont formées de la -manière déterminée par les articles 45 et 57 de la présente Convention. - -Article 13. - -En cas de décès, de démission ou d'empêchement, pour quelque cause que -ce soit, de l'un des commissaires, ou éventuellement de l'un des -assesseurs, il est pourvu à son remplacement selon le mode fixé pour sa -nomination. - -Article 14. - -Les Parties ont le droit de nommer auprès de la Commission d'enquête des -agents spéciaux avec la mission de Les représenter et de servir -d'intermédiaires entre Elles et la Commission. - -Elles sont, en outre, autorisées à charger des conseils ou avocats -nommés par elles, d'exposer et de soutenir leurs intérêts devant la -Commission. - -Article 15. - -Le Bureau International de la Cour permanente d'arbitrage sert de greffe -aux Commissions qui siègent à La Haye, et mettra ses locaux et son -organisation à la disposition des Puissances contractantes pour le -fonctionnement de la Commission d'enquête. - -Article 16. - -Si la Commission siège ailleurs qu'à La Haye, elle nomme un Secrétaire -Général dont le bureau lui sert de greffe. - -Le greffe est chargé, sous l'autorité du Président, de l'organisation -matérielle des séances de la Commission, de la rédaction des -procès-verbaux et, pendant le temps de l'enquête, de la garde des -archives qui seront ensuite versées au Bureau International de La Haye. - -Article 17. - -En vue de faciliter l'institution et le fonctionnement des Commissions -d'enquête, les Puissances contractantes recommandent les règles -suivantes qui seront applicables à la procédure d'enquête en tant que -les Parties n'adopteront pas d'autres règles. - -Article 18. - -La Commission réglera les détails de la procédure non prévus dans la -convention spéciale d'enquête ou dans la présente Convention, et -procédera à toutes les formalités que comporte l'administration des -preuves. - -Article 19. - -L'enquête a lieu contradictoirement. - -Aux dates prévues, chaque Partie communique à la Commission et à l'autre -Partie les exposés des faits, s'il y a lieu, et, dans tous les cas, les -actes, pièces et documents qu'Elle juge utiles à la découverte de la -vérité, ainsi que la liste des témoins et des experts qu'elle désire -faire entendre. - -Article 20. - -La Commission a la faculté, avec l'assentiment des Parties, de se -transporter momentanément sur les lieux où elle juge utile de recourir à -ce moyen d'information ou d'y déléguer un ou plusieurs de ses membres. -L'autorisation de l'État sur le territoire duquel il doit être procédé à -cette information devra être obtenue. - -Article 21. - -Toutes constatations matérielles, et toutes visites des lieux doivent -être faites en présence des agents et conseils des Parties ou eux dûment -appelés. - -Article 22. - -La Commission a le droit de solliciter de l'une ou l'autre Partie telles -explications ou informations qu'elle juge utiles. - -Article 23. - -Les Parties s'engagent à fournir à la Commission d'enquête, dans la plus -large mesure qu'Elles jugeront possible, tous les moyens et toutes les -facilités nécessaires pour la connaissance complète et l'appréciation -exacte des faits en question. - -Elles s'engagent à user des moyens dont Elles disposent d'après leur -législation intérieure, pour assurer la comparution des témoins ou des -experts se trouvant sur leur territoire et cités devant la Commission. - -Si ceux-ci ne peuvent comparaître devant la Commission, Elles feront -procéder à leur audition devant leurs autorités compétentes. - -Article 24. - -Pour toutes les notifications que la Commission aurait à faire sur le -territoire d'une tierce Puissance contractante, la Commission -s'adressera directement au Gouvernement de cette Puissance. Il en sera -de même s'il s'agit de faire procéder sur place à l'établissement de -tous moyens de preuve. - -Les requêtes adressées à cet effet seront exécutées suivant les moyens -dont la Puissance requise dispose d'après Sa législation intérieure. -Elles ne peuvent être refusées que si cette Puissance les juge de nature -à porter atteinte à Sa souveraineté ou à Sa sécurité. - -La Commission aura aussi toujours la faculté de recourir à -l'intermédiaire de la Puissance sur le territoire de laquelle elle a son -siège. - -Article 25. - -Les témoins et les experts sont appelés à la requête des Parties ou -d'office par la Commission, et, dans tous les cas, par l'intermédiaire -du Gouvernement de l'État sur le territoire duquel ils se trouvent. - -Les témoins sont entendus, successivement et séparément, en présence des -agents et des conseils et dans un ordre à fixer par la Commission. - -Article 26. - -L'interrogatoire des témoins est conduit par le Président. - -Les membres de la Commission peuvent néanmoins poser à chaque témoin les -questions qu'ils croient convenables pour éclaircir ou compléter sa -déposition, ou pour se renseigner sur tout ce qui concerne le témoin -dans les limites nécessaires à la manifestation de la vérité. - -Les agents et les conseils des Parties ne peuvent interrompre le témoin -dans sa déposition, ni lui faire aucune interpellation directe, mais -peuvent demander au Président de poser au témoin telles questions -complémentaires qu'ils jugent utiles. - -Article 27. - -Le témoin doit déposer sans qu'il lui soit permis de lire aucun projet -écrit. Toutefois, il peut être autorisé par le Président à s'aider de -notes ou documents si la nature des faits rapportés en nécessite -l'emploi. - -Article 28. - -Procès-verbal de la déposition du témoin est dressé séance tenante et -lecture en est donnée au témoin. Le témoin peut y faire tels changements -et additions que bon lui semble et qui seront consignés à la suite de sa -déposition. - -Lecture faite au témoin de l'ensemble de sa déposition, le témoin est -requis de signer. - -Article 29. - -Les agents sont autorisés, au cours ou à la fin de l'enquête, à -présenter par écrit à la Commission et à l'autre Partie tels dires, -réquisitions ou résumés de fait, qu'ils jugent utiles à la découverte de -la vérité. - -Article 30. - -Les délibérations de la Commission ont lieu à huis clos et restent -secrètes. - -Toute décision est prise à la majorité des membres de la Commission. - -Le refus d'un membre de prendre part au vote doit être constaté dans le -procès-verbal. - -Article 31. - -Les séances de la Commission ne sont publiques et les procès-verbaux et -documents de l'enquête ne sont rendus publics qu'en vertu d'une décision -de la Commission, prise avec l'assentiment des Parties. - -Article 32. - -Les Parties ayant présenté tous les éclaircissements et preuves, tous -les témoins ayant été entendus, le Président prononce la clôture de -l'enquête et la Commission s'ajourne pour délibérer et rédiger son -rapport. - -Article 33. - -Le rapport est signé par tous les membres de la Commission. - -Si un des membres refuse de signer, mention en est faite; le rapport -reste néanmoins valable. - -Article 34. - -Le rapport de la Commission est lu en séance publique, les agents et les -conseils des Parties présents ou dûment appelés. - -Un exemplaire du rapport est remis à chaque Partie. - -Article 35. - -Le rapport de la Commission, limité à la constatation des faits, n'a -nullement le caractère d'une sentence arbitrale. Il laisse aux Parties -une entière liberté pour la suite à donner à cette constatation. - -Article 36. - -Chaque Partie supporte ses propres frais et une part égale des frais de -la Commission. - -_Titre IV.--De l'arbitrage international._ - -CHAPITRE I.--_De la Justice arbitrale._ - -Article 37. - -L'arbitrage international a pour objet le règlement de litiges entre les -États par des juges de leur choix et sur la base du respect du droit. - -Le recours à l'arbitrage implique l'engagement de se soumettre de bonne -foi à la sentence. - -Article 38. - -Dans les questions d'ordre juridique, et en premier lieu, dans les -questions d'interprétation ou d'application des Conventions -internationales, l'arbitrage est reconnu par les Puissances -contractantes comme le moyen le plus efficace et en même temps le plus -équitable de régler les litiges qui n'ont pas été résolus par les voies -diplomatiques. - -En conséquence, il serait désirable que, dans les litiges sur les -questions susmentionnées, les Puissances contractantes eussent, le cas -échéant, recours à l'arbitrage, en tant que les circonstances le -permettraient. - -Article 39. - -La Convention d'arbitrage est conclue pour des contestations déjà nées -ou pour des contestations éventuelles. - -Elle peut concerner tout litige ou seulement les litiges d'une catégorie -déterminée. - -Article 40. - -Indépendamment des Traités généraux ou particuliers qui stipulent -actuellement l'obligation du recours à l'arbitrage pour les Puissances -contractantes, ces Puissances se réservent de conclure des accords -nouveaux, généraux ou particuliers, en vue d'étendre l'arbitrage -obligatoire à tous les cas qu'Elles jugeront possible de lui soumettre. - -CHAPITRE II.--_De la Cour permanente d'arbitrage._ - -Article 41. - -Dans le but de faciliter le recours immédiat à l'arbitrage pour les -différends internationaux qui n'ont pu être réglés par la voie -diplomatique, les Puissances contractantes s'engagent à maintenir, telle -qu'elle a été établie par la Première Conférence de la Paix, la Cour -permanente d'arbitrage, accessible en tout temps et fonctionnant, sauf -stipulation contraire des Parties, conformément aux règles de procédure -insérées dans la présente Convention. - -Article 42. - -La Cour permanente est compétente pour tous les cas d'arbitrage, à moins -qu'il n'y ait entente entre les Parties pour l'établissement d'une -juridiction spéciale. - -Article 43. - -La cour permanente a son siège à La Haye. - -Un Bureau International sert de greffe à la Cour; il est l'intermédiaire -des communications relatives aux réunions de celle-ci; il a la garde des -archives et la gestion de toutes les affaires administratives. - -Les Puissances contractantes s'engagent à communiquer au Bureau, -aussitôt que possible, une copie certifiée conforme de toute stipulation -d'arbitrage intervenue entre Elles et de toute sentence arbitrale Les -concernant et rendue par des juridictions spéciales. - -Elles s'engagent à communiquer de même au Bureau les lois, règlements -et documents constatant éventuellement l'exécution des sentences rendues -par la Cour. - -Article 44. - -Chaque Puissance contractante désigne quatre personnes au plus, d'une -compétence reconnue dans les questions de droit international, jouissant -de la plus haute considération morale et disposées à accepter les -fonctions d'arbitre. - -Les personnes ainsi désignées sont inscrites, au titre de Membres de la -Cour, sur une liste qui sera notifiée à toutes les Puissances -contractantes par les soins du Bureau. - -Toute modification à la liste des arbitres est portée, par les soins du -Bureau, à la connaissance des Puissances contractantes. - -Deux ou plusieurs Puissances peuvent s'entendre pour la désignation en -commun d'un ou de plusieurs Membres. - -La même personne peut être désignée par des Puissances différentes. - -Les Membres de la Cour sont nommés pour un terme de six ans. Leur mandat -peut être renouvelé. - -En cas de décès ou de retraite d'un Membre de la Cour, il est pourvu à -son remplacement selon le mode fixé pour sa nomination, et pour une -nouvelle période de six ans. - -Article 45. - -Lorsque les Puissances contractantes veulent s'adresser à la Cour -permanente pour le règlement d'un différend survenu entre Elles, le -choix des arbitres appelés à former le Tribunal compétent pour statuer -sur ce différend, doit être fait dans la liste générale des Membres de -la Cour. - -A défaut de constitution du Tribunal arbitral par l'accord des Parties, -il est procédé de la manière suivante: - -Chaque Partie nomme deux arbitres, dont un seulement peut être son -national ou choisi parmi ceux qui ont été désignés par Elle comme -Membres de la Cour permanente. Ces arbitres choisissent ensemble un -surarbitre. - -En cas de partage des voix, le choix du surarbitre est confié à une -Puissance tierce, désignée de commun accord par les Parties. - -Si l'accord ne s'établit pas à ce sujet, chaque Partie désigne une -Puissance différente et le choix du surarbitre est fait de concert par -les Puissances ainsi désignées. - -Si, dans un délai de deux mois, ces deux Puissances n'ont pu tomber -d'accord, chacune d'Elles présente deux candidats pris sur la liste des -Membres de la Cour permanente, en dehors des Membres désignés par les -Parties et n'étant les nationaux d'aucune d'Elles. Le sort détermine -lequel des candidats ainsi présentés sera le surarbitre. - -Article 46. - -Dès que le Tribunal est composé, les Parties notifient au Bureau leur -décision de s'adresser à la Cour, le texte de leur compromis, et les -noms des arbitres. - -Le Bureau communique sans délai à chaque arbitre le compromis et les -noms des autres Membres du Tribunal. - -Le Tribunal se réunit à la date fixée par les Parties. Le Bureau -pourvoit à son installation. - -Les Membres du Tribunal, dans l'exercice de leurs fonctions et en dehors -de leur pays, jouissent des privilèges et immunités diplomatiques. - -Article 47. - -Le Bureau est autorisé à mettre ses locaux et son organisation à la -disposition des Puissances contractantes pour le fonctionnement de toute -juridiction spéciale d'arbitrage. - -La juridiction de la Cour permanente peut être étendue, dans les -conditions prescrites par les règlements, aux litiges existant entre des -Puissances non contractantes ou entre des Puissances contractantes et -des Puissances non contractantes, si les Parties sont convenues de -recourir à cette juridiction. - -Article 48. - -Les Puissances contractantes considèrent comme un devoir, dans le cas où -un conflit aigu menacerait d'éclater entre deux ou plusieurs d'entre -Elles, de rappeler à celles-ci que la Cour permanente leur est ouverte. - -En conséquence, Elles déclarent que le fait de rappeler aux Parties en -conflit les dispositions de la présente Convention, et le conseil donné, -dans l'intérêt supérieur de la paix, de s'adresser à la Cour permanente, -ne peuvent être considérés que comme actes de bons offices. - -En cas de conflit entre deux Puissances, l'une d'Elles pourra toujours -adresser au Bureau International une note contenant sa déclaration -qu'Elle serait disposée à soumettre le différend à un arbitrage. - -Le Bureau devra porter aussitôt la déclaration à la connaissance de -l'autre Puissance. - -Article 49. - -Le Conseil administratif permanent, composé des Représentants -diplomatiques des Puissances contractantes accrédités à La Haye et du -Ministre des Affaires Étrangères des Pays-Bas, qui remplit les fonctions -de Président, a la direction et le contrôle du Bureau International. - -Le Conseil arrête son règlement d'ordre ainsi que tous autres règlements -nécessaires. - -Il décide toutes les questions administratives qui pourraient surgir -touchant le fonctionnement de la Cour. - -Il a tout pouvoir quant à la nomination, la suspension ou la révocation -des fonctionnaires et employés du Bureau. - -Il fixe les traitements et salaires, et contrôle la dépense générale. - -La présence de neuf membres dans les réunions dûment convoquées suffit -pour permettre au Conseil de délibérer valablement. Les décisions sont -prises à la majorité des voix. - -Le Conseil communique sans délai aux Puissances contractantes les -règlements adoptés par lui. Il Leur présente chaque année un rapport sur -les travaux de la Cour, sur le fonctionnement des services -administratifs et sur les dépenses. Le rapport contient également un -résumé du contenu essentiel des documents communiqués au Bureau par les -Puissances en vertu de l'article 43 alinéas 3 et 4. - -Article 50. - -Les frais du Bureau seront supportés par les Puissances contractantes -dans la proportion établie pour le Bureau international de l'Union -postale universelle. - -Les frais à la charge des Puissances adhérentes seront comptés à partir -du jour où leur adhésion produit ses effets. - -CHAPITRE III.--_De la procédure arbitrale._ - -Article 51. - -En vue de favoriser le développement de l'arbitrage, les Puissances -contractantes ont arrêté les règles suivantes qui sont applicables à la -procédure arbitrale, en tant que les Parties ne sont pas convenues -d'autres règles. - -Article 52. - -Les Puissances qui recourent à l'arbitrage signent un compromis dans -lequel sont déterminés l'objet du litige, le délai de nomination des -arbitres, la forme, l'ordre et les délais dans lesquels la communication -visée par l'article 63 devra être faite, et le montant de la somme que -chaque Partie aura à déposer à titre d'avance pour les frais. - -Le compromis détermine également, s'il y a lieu, le mode de nomination -des arbitres, tous pouvoirs spéciaux éventuels du Tribunal, son siège, -la langue dont il fera usage et celles dont l'emploi sera autorisé -devant lui, et généralement toutes les conditions dont les Parties sont -convenues. - -Article 53. - -La Cour permanente est compétente pour l'établissement du compromis, si -les Parties sont d'accord pour s'en remettre à elle. - -Elle est également compétente, même si la demande est faite seulement -par l'une des Parties, après qu'un accord par la voie diplomatique a été -vainement essayé, quand il s'agit: - -1'o. d'un différend rentrant dans un Traité d'arbitrage général conclu -ou renouvelé après la mise en vigueur de cette Convention et qui prévoit -pour chaque différend un compromis et n'exclut pour l'établissement de -ce dernier ni explicitement ni implicitement la compétence de la Cour. -Toutefois, le recours à la Cour n'a pas lieu si l'autre Partie déclare -qu'à son avis le différend n'appartient pas à la catégorie des -différends à soumettre à un arbitrage obligatoire, à moins que le Traité -d'arbitrage ne confère au Tribunal arbitral le pouvoir de décider cette -question préalable; - -2'o. d'un différend provenant de dettes contractuelles réclamées à une -Puissance par une autre Puissance comme dues à ses nationaux, et pour la -solution duquel l'offre d'arbitrage a été acceptée. Cette disposition -n'est pas applicable si l'acceptation a été subordonnée à la condition -que le compromis soit établi selon un autre mode. - -Article 54. - -Dans les cas prévus par l'article précédent, le compromis sera établi -par une commission composée de cinq membres désignés de la manière -prévue à l'article 45 alinéas 3 à 6. - -Le cinquième membre est de droit Président de la commission. - -Article 55. - -Les fonctions arbitrales peuvent être conférées à un arbitre unique ou à -plusieurs arbitres désignés par les Parties à leur gré, ou choisis par -Elles parmi les Membres de la Cour permanente d'arbitrage établie par la -présente Convention. - -A défaut de constitution du Tribunal par l'accord des Parties, il est -procédé de la manière indiquée à l'article 45 alinéas 3 à 6. - -Article 56. - -Lorsqu'un Souverain ou un Chef d'Etat est choisi pour arbitre, la -procédure arbitrale est réglée par Lui. - -Article 57. - -Le surarbitre est de droit Président du Tribunal. - -Lorsque le Tribunal ne comprend pas de surarbitre, il nomme lui-même son -Président. - -Article 58. - -En cas d'établissement du compromis par une commission, telle qu'elle -est visée à l'article 54, et sauf stipulation contraire, la commission -elle-même formera le Tribunal d'arbitrage. - -Article 59. - -En cas de décès, de démission ou d'empêchement, pour quelque cause que -ce soit, de l'un des arbitres, il est pourvu à son remplacement selon le -mode fixé pour sa nomination. - -Article 60. - -A défaut de désignation par les Parties, le Tribunal siège à La Haye. - -Le Tribunal ne peut siéger sur le territoire d'une tierce Puissance -qu'avec l'assentiment de celle-ci. - -Le siège une fois fixé ne peut être changé par le Tribunal qu'avec -l'assentiment des Parties. - -Article 61. - -Si le compromis n'a pas déterminé les langues à employer, il en est -décidé par le Tribunal. - -Article 62. - -Les Parties ont le droit de nommer auprès du Tribunal des agents -spéciaux, avec la mission de servir d'intermédiaires entre Elles et le -Tribunal. - -Elles sont en outre autorisées à charger de la défense de leurs droits -et intérêts devant le Tribunal, des conseils ou avocats nommés par Elles -à cet effet. - -Les Membres de la Cour permanente ne peuvent exercer les fonctions -d'agents, conseils ou avocats, qu'en faveur de la Puissance qui les a -nommés Membres de la Cour. - -Article 63. - -La procédure arbitrale comprend en règle générale deux phases -distinctes: l'instruction écrite et les débats. - -L'instruction écrite consiste dans la communication faite par les agents -respectifs, aux membres du Tribunal et à la Partie adverse, des -mémoires, des contre-mémoires et, au besoin, des répliques; les Parties -y joignent toutes pièces et documents invoqués dans la cause. Cette -communication aura lieu, directement ou par l'intermédiaire du Bureau -International, dans l'ordre et dans les délais déterminés par le -compromis. - -Les délais fixés par le compromis pourront être prolongés de commun -accord par les Parties, ou par le Tribunal quand il le juge nécessaire -pour arriver à une décision juste. - -Les débats consistent dans le développement oral des moyens des Parties -devant le Tribunal. - -Article 64. - -Toute pièce produite par l'une des Parties doit être communiquée, en -copie certifiée conforme, à l'autre Partie. - -Article 65. - -A moins de circonstances spéciales, le Tribunal ne se réunit qu'après la -clôture de l'instruction. - -Article 66. - -Les débats sont dirigés par le Président. - -Ils ne sont publics qu'en vertu d'une décision du Tribunal, prise avec -l'assentiment des Parties. - -Ils sont consignés dans des procès-verbaux rédigés par des secrétaires -que nomme le Président. Ces procès-verbaux sont signés par le Président -et par un des secrétaires; ils ont seuls caractère authentique. - -Article 67. - -L'instruction étant close, le Tribunal a le droit d'écarter du débat -tous actes ou documents nouveaux qu'une des Parties voudrait lui -soumettre sans le consentement de l'autre. - -Article 68. - -Le Tribunal demeure libre de prendre en considération les actes ou -documents nouveaux sur lesquels les agents ou conseils des Parties -appelleraient son attention. - -En ce cas, le Tribunal a le droit de requérir la production de ces actes -ou documents, sauf l'obligation d'en donner connaissance à la Partie -adverse. - -Article 69. - -Le Tribunal peut, en outre, requérir des agents des Parties la -production de tous actes et demander toutes explications nécessaires. En -cas de refus, le Tribunal en prend acte. - -Article 70. - -Les agents et les conseils des Parties sont autorisés à présenter -oralement au Tribunal tous les moyens qu'ils jugent utiles à la défense -de leur cause. - -Article 71. - -Ils ont le droit de soulever des exceptions et des incidents. Les -décisions du Tribunal sur ces points sont définitives et ne peuvent -donner lieu à aucune discussion ultérieure. - -Article 72. - -Les membres du Tribunal ont le droit de poser des questions aux agents -et aux conseils des Parties et de leur demander des éclaircissements sur -les points douteux. - -Ni les questions posées, ni les observations faites par les membres du -Tribunal pendant le cours des débats ne peuvent être regardées comme -l'expression des opinions du Tribunal en général ou de ses membres en -particulier. - -Article 73. - -Le Tribunal est autorisé à déterminer sa compétence en interprétant le -compromis ainsi que les autres Traités qui peuvent être invoqués dans la -matière, et en appliquant les principes du droit. - -Article 74. - -Le Tribunal a le droit de rendre des ordonnances de procédure pour la -direction du procès, de déterminer les formes, l'ordre et les délais -dans lesquels chaque Partie devra prendre ses conclusions finales, et de -procéder à toutes les formalités que comporte l'administration des -preuves. - -Article 75. - -Les Parties s'engagent à fournir au Tribunal, dans la plus large mesure -qu'Elles jugeront possible, tous les moyens nécessaires pour la décision -du litige. - -Article 76. - -Pour toutes les notifications que le Tribunal aurait à faire sur le -territoire d'une tierce Puissance contractante, le Tribunal s'adressera -directement au Gouvernement de cette Puissance. Il en sera de même s'il -s'agit de faire procéder sur place à l'établissement de tous moyens de -preuve. - -Les requêtes adressées à cet effet seront exécutées suivant les moyens -dont la Puissance requise dispose d'après sa législation intérieure. -Elles ne peuvent être refusées que si cette Puissance les juge de nature -à porter atteinte à sa souveraineté ou à sa sécurité. - -Le Tribunal aura aussi toujours la faculté de recourir à l'intermédiaire -de la Puissance sur le territoire de laquelle il a son siège. - -Article 77. - -Les agents et les conseils des Parties ayant présenté tous les -éclaircissements et preuves à l'appui de leur cause, le Président -prononce la clôture des débats. - -Article 78. - -Les délibérations du Tribunal ont lieu à huis clos et restent secrètes. - -Toute décision est prise à la majorité de ses membres. - -Article 79. - -La sentence arbitrale est motivée. Elle mentionne les noms des arbitres; -elle est signée par le Président et par le greffier ou le secrétaire -faisant fonctions de greffier. - -Article 80. - -La sentence est lue en séance publique, les agents et les conseils des -Parties présents ou dûment appelés. - -Article 81. - -La sentence, dûment prononcée et notifiée aux agents des Parties, décide -définitivement et sans appel la contestation. - -Article 82. - -Tout différend qui pourrait surgir entre les Parties, concernant -l'interprétation et l'exécution de la sentence, sera, sauf stipulation -contraire, soumis au jugement du Tribunal qui l'a rendue. - -Article 83. - -Les Parties peuvent se réserver dans le compromis de demander la -révision de la sentence arbitrale. - -Dans ce cas, et sauf stipulation contraire, la demande doit être -adressée au Tribunal qui a rendu la sentence. Elle ne peut être motivée -que par la découverte d'un fait nouveau qui eût été de nature à exercer -une influence décisive sur la sentence et qui, lors de la clôture des -débats, était inconnu du Tribunal lui-même et de la Partie qui a demandé -la révision. - -La procédure de révision ne peut être ouverte que par une décision du -Tribunal constatant expressément l'existence du fait nouveau, lui -reconnaissant les caractères prévus par le paragraphe précédent et -déclarant à ce titre la demande recevable. - -Le compromis détermine le délai dans lequel la demande de révision doit -être formée. - -Article 84. - -La sentence arbitrale n'est obligatoire que pour les Parties en litige. - -Lorsqu'il s'agit de l'interprétation d'une convention à laquelle ont -participé d'autres Puissances que les Parties en litige, celles-ci -avertissent en temps utile toutes les Puissances signataires. Chacune de -ces Puissances a le droit d'intervenir au procès. Si une ou plusieurs -d'entre Elles ont profité de cette faculté, l'interprétation contenue -dans la sentence est également obligatoire à leur égard. - -Article 85. - -Chaque Partie supporte ses propres frais et une part égale des frais du -Tribunal. - -CHAPITRE IV.--_De la procédure sommaire d'arbitrage._ - -Article 86. - -En vue de faciliter le fonctionnement de la justice arbitrale, lorsqu'il -s'agit de litiges de nature à comporter une procédure sommaire, les -Puissances contractantes arrêtent les règles ci-après qui seront suivies -en l'absence de stipulations différentes, et sous réserve, le cas -échéant, de l'application des dispositions du chapitre III. qui ne -seraient pas contraires. - -Article 87. - -Chacune des Parties en litige nomme un arbitre. Les deux arbitres ainsi -désignés choisissent un surarbitre. S'ils ne tombent pas d'accord à ce -sujet, chacun présente deux candidats pris sur la liste générale des -Membres de la Cour permanente, en dehors des Membres indiqués par -chacune des Parties Elles-mêmes et n'étant les nationaux d'aucune -d'Elles; le sort détermine lequel des candidats ainsi présentés sera le -surarbitre. - -Le surarbitre préside le Tribunal, qui rend ses décisions à la majorité -des voix. - -Article 88. - -A défaut d'accord préalable, le Tribunal fixe, dès qu'il est constitué, -le délai dans lequel les deux Parties devront lui soumettre leurs -mémoires respectifs. - -Article 89. - -Chaque Partie est représentée devant le Tribunal par un agent qui sert -d'intermédiaire entre le Tribunal et le Gouvernement qui l'a désigné. - -Article 90. - -La procédure a lieu exclusivement par écrit. Toutefois, chaque Partie a -le droit demander la comparution de témoins et d'experts. Le Tribunal a, -de son côté, la faculté de demander des explications orales aux agents -des deux Parties, ainsi qu'aux experts et aux témoins dont il juge la -comparution utile. - -_Titre V.--Dispositions finales._ - -Article 91. - -La présente Convention dûment ratifiée remplacera, dans les rapports -entre les Puissances contractantes, la Convention pour le règlement -pacifique des conflits internationaux du 29 juillet 1899. - -Article 92. - -La présente Convention sera ratifiée aussitôt que possible. - -Les ratifications seront déposées à La Haye. - -Le premier dépôt de ratifications sera constaté par un procès-verbal -signé par les représentants des Puissances qui y prennent part et par le -Ministre des Affaires Etrangères des Pays-Bas. - -Les dépôts ultérieurs de ratifications se feront au moyen d'une -notification écrite, adressée au Gouvernement des Pays-Bas et -accompagnée de l'instrument de ratification. - -Copie certifiée conforme du procès-verbal relatif au premier dépôt de -ratifications, des notifications mentionnées à l'alinéa précédent, ainsi -que des instruments de ratification, sera immédiatement remise, par les -soins du Gouvernement des Pays-Bas et par la voie diplomatique aux -Puissances conviées à la Deuxième Conférence de la Paix, ainsi qu'aux -autres Puissances qui auront adhéré à la Convention. Dans les cas visés -par l'alinéa précédent, ledit Gouvernement Leur fera connaître en même -temps la date à laquelle il a reçu la notification. - -Article 93. - -Les Puissances non signataires qui ont été conviées à la Deuxième -Conférence de la Paix pourront adhérer à la présente Convention. - -La Puissance qui désire adhérer notifie par écrit son intention au -Gouvernement des Pays-Bas en lui transmettant l'acte d'adhésion qui sera -déposé dans les archives dudit Gouvernement. - -Ce Gouvernement transmettra immédiatement à toutes les autres Puissances -conviées à la Deuxième Conférence de la Paix copie certifiée conforme de -la notification ainsi que l'acte d'adhésion, en indiquant la date à -laquelle il a reçu la notification. - -Article 94. - -Les conditions auxquelles les Puissances qui n'ont pas été conviées à la -Deuxième Conférence de la Paix, pourront adhérer à la présente -Convention formeront l'objet d'une entente ultérieure entre les -Puissances contractantes. - -Article 95. - -La présente Convention produira effet, pour les Puissances qui auront -participé au premier dépôt de ratifications, soixante jours après la -date du procès-verbal de ce dépôt et, pour les Puissances qui -ratifieront ultérieurement ou qui adhéreront, soixante jours après que -la notification de leur ratification ou de leur adhésion aura été reçue -par le Gouvernement des Pays-Bas. - -Article 96. - -S'il arrivait qu'une des Puissances contractantes voulût dénoncer la -présente Convention, la dénonciation sera notifiée par écrit au -Gouvernement des Pays-Bas qui communiquera immédiatement copie certifiée -conforme de la notification à toutes les autres Puissances en leur -faisant savoir la date à laquelle il l'a reçue. - -La dénonciation ne produira ses effets qu'à l'égard de la Puissance qui -l'aura notifiée et un an après que la notification en sera parvenue au -Gouvernement des Pays-Bas. - -Article 97. - -Un registre tenu par le Ministère des Affaires Étrangères des Pays-Bas -indiquera la date du dépôt de ratifications effectué en vertu de -l'article 92 alinéas 3 et 4, ainsi que la date à laquelle auront été -reçues les notifications d'adhésion (article 93 alinéa 2) ou de -dénonciation (article 96 alinéa 1). - -Chaque Puissance contractante est admise à prendre connaissance de ce -registre et à en demander des extraits certifiés conformes. - - -CONVENTION II. - - CONVENTION RESPECTING THE LIMITATION OF THE EMPLOYMENT OF - FORCE FOR THE RECOVERY OF CONTRACT DEBTS. - -Article premier. - -Les Puissances contractantes sont convenues de ne pas avoir recours à la -force armée pour le recouvrement de dettes contractuelles réclamées au -Gouvernement d'un pays par le Gouvernement d'un autre pays comme dues à -ses nationaux. - -Toutefois, cette stipulation ne pourra être appliquée quand l'État -débiteur refuse ou laisse sans réponse une offre d'arbitrage, ou, en cas -d'acceptation, rend impossible l'établissement du compromis, ou, après -l'arbitrage, manque de se conformer à la sentence rendue. - -Article 2. - -Il est de plus convenu que l'arbitrage, mentionné dans l'alinéa 2 de -l'article précédent, sera soumis à la procédure prévue par le titre IV -chapitre 3 de la Convention de La Haye pour le règlement pacifique des -conflits internationaux. Le jugement arbitral détermine, sauf les -arrangements particuliers des Parties, le bien-fondé de la réclamation, -le montant de la dette, le temps et le mode de paiement. - -Article 3. - -La présente Convention sera ratifiée aussitôt que possible. - -Les ratifications seront déposées à La Haye. - -Le premier dépôt de ratifications sera constaté par un procès-verbal -signé par les représentants des Puissances qui y prennent part et par le -Ministre des Affaires Étrangères des Pays-Bas. - -Les dépôts ultérieurs de ratifications se feront au moyen d'une -notification écrite, adressée au Gouvernement des Pays-Bas et -accompagnée de l'instrument de ratification. - -Copie certifiée conforme du procès-verbal relatif au premier dépôt de -ratifications, des notifications mentionnées à l'alinéa précédent, ainsi -que des instruments de ratification, sera immédiatement remise, par les -soins du Gouvernement des Pays-Bas et par la voie diplomatique, aux -Puissances conviées à la Deuxième Conférence de la Paix, ainsi qu'aux -autres Puissances qui auront adhéré à la Convention. Dans les cas visés -par l'alinéa précédent, ledit Gouvernement leur fera connaître en même -temps la date à laquelle il a reçu la notification. - -Article 4. - -Les Puissances non signataires sont admises à adhérer à la présente -Convention. - -La Puissance qui désire adhérer notifie par écrit son intention au -Gouvernement des Pays-Bas en lui transmettant l'acte d'adhésion qui sera -déposé dans les archives dudit Gouvernement. - -Ce Gouvernement transmettra immédiatement à toutes les autres Puissances -conviées à la Deuxième Conférence de la Paix copie certifiée conforme de -la notification ainsi que de l'acte d'adhésion, en indiquant la date à -laquelle il a reçu la notification. - -Article 5. - -La présente Convention produira effet pour les Puissances qui auront -participé au premier dépôt de ratifications, soixante jours après la -date du procès-verbal de ce dépôt, pour les Puissances qui ratifieront -ultérieurement ou qui adhéreront, soixante jours après que la -notification de leur ratification ou de leur adhésion aura été reçue par -le Gouvernement des Pays-Bas. - -Article 6. - -S'il arrivait qu'une des Puissances contractantes voulût dénoncer la -présente Convention, la dénonciation sera notifiée par écrit au -Gouvernement des Pays-Bas qui communiquera immédiatement copie certifiée -conforme de la notification à toutes les autres Puissances en leur -faisant savoir la date à laquelle il l'a reçue. - -La dénonciation ne produira ses effets qu'à l'égard de la Puissance qui -l'aura notifiée et un an après que la notification en sera parvenue au -Gouvernement des Pays-Bas. - -Article 7. - -Un registre tenu par le Ministère des Affaires Étrangères des Pays-Bas -indiquera la date du dépôt de ratifications effectué en vertu de -l'article 3 alinéas 3 et 4, ainsi que la date à laquelle auront été -reçues les notifications d'adhésion (article 4 alinéa 2) ou de -dénonciation (article 6 alinéa 1). - -Chaque Puissance contractante est admise à prendre connaissance de ce -registre et à en demander des extraits certifiés conformes. - - -CONVENTION III. - - CONVENTION RELATIVE TO THE OPENING OF HOSTILITIES. - -Article premier. - -Les Puissances contractantes reconnaissent que les hostilités entre -elles ne doivent pas commencer sans un avertissement préalable et non -équivoque, qui aura, soit la forme d'une déclaration de guerre motivée, -soit celle d'un ultimatum avec déclaration de guerre conditionnelle. - -Article 2. - -L'état de guerre devra être notifié sans retard aux Puissances neutres -et ne produira effet à leur égard qu'après réception d'une notification -qui pourra être faite même par voie télégraphique. Toutefois les -Puissances neutres ne pourraient invoquer l'absence de notification, -s'il était établi d'une manière non douteuse qu'en fait elles -connaissaient l'état de guerre. - -Article 3. - -L'article 1 de la présente Convention produira effet en cas de guerre -entre deux ou plusieurs des Puissances contractantes. - -L'article 2 est obligatoire dans les rapports entre un belligérant -contractant et les Puissances neutres également contractantes. - -Article 4. - -La présente Convention sera ratifiée aussitôt que possible. - -Les ratifications seront déposées à La Haye. - -Le premier dépôt de ratifications sera constaté par un procès-verbal -signé par les représentants des Puissances qui y prennent part et par le -Ministre des Affaires Étrangères des Pays-Bas. - -Les dépôts ultérieurs de ratifications se feront au moyen d'une -notification écrite adressée au Gouvernement des Pays-Bas et accompagnée -de l'instrument de ratification. - -Copie certifiée conforme du procès-verbal relatif au premier dépôt de -ratifications, des notifications mentionnées à l'alinéa précédent ainsi -que des instruments de ratification, sera immédiatement remise par les -soins du Gouvernement des Pays-Bas et par la voie diplomatique aux -Puissances conviées à la Deuxième Conférence de la Paix, ainsi qu'aux -autres Puissances qui auront adhéré à la Convention. Dans les cas visés -par l'alinéa précédent, ledit Gouvernement leur fera connaître en même -temps la date à laquelle il a reçu la notification. - -Article 5. - -Les Puissances non signataires sont admises à adhérer à la présente -Convention. - -La Puissance qui désire adhérer notifie par écrit son intention au -Gouvernement des Pays-Bas en lui transmettant l'acte d'adhésion qui sera -déposé dans les archives dudit Gouvernement. - -Ce Gouvernement transmettra immédiatement à toutes les autres Puissances -copie certifiée conforme de la notification ainsi que de l'acte -d'adhésion, en indiquant la date à laquelle il a reçu la notification. - -Article 6. - -La présente Convention produira effet, pour les Puissances qui auront -participé au premier dépôt de ratifications, soixante jours après la -date du procès-verbal de ce dépôt, et, pour les Puissances qui -ratifieront ultérieurement ou qui adhéreront, soixante jours après que -la notification de leur ratification ou de leur adhésion aura été reçue -par le Gouvernement des Pays-Bas. - -Article 7. - -S'il arrivait qu'une des Hautes Parties contractantes voulût dénoncer la -présente Convention, la dénonciation sera notifiée par écrit au -Gouvernement des Pays-Bas qui communiquera immédiatement copie certifiée -conforme de la notification à toutes les autres Puissances en leur -faisant savoir la date à laquelle il l'a reçue. - -La dénonciation ne produira ses effets qu'à l'égard de la Puissance qui -l'aura notifiée et un an après que la notification en sera parvenue au -Gouvernement des Pays-Bas. - -Article 8. - -Un registre tenu par le Ministère des Affaires Étrangères des Pays-Bas -indiquera la date du dépôt de ratifications effectué en vertu de -l'article 4 alinéas 3 et 4, ainsi que la date à laquelle auront été -reçues les notifications d'adhésion (article 5 alinéa 2) ou de -dénonciation (article 7 alinéa 1). - -Chaque Puissance contractante est admise à prendre connaissance de ce -registre et à en demander des extraits certifiés conformes. - - -CONVENTION IV. - - CONVENTION CONCERNING THE LAWS AND CUSTOMS OF WAR ON LAND. - -Article premier. - -Les Puissances contractantes donneront à leurs forces armées de terre -des instructions qui seront conformes au Règlement concernant les lois -et coutumes de la guerre sur terre, annexé à la présente Convention. - -Article 2. - -Les dispositions contenues dans le Règlement visé à l'article 1'er ainsi -que dans la présente Convention, ne sont applicables qu'entre les -Puissances contractantes et seulement si les belligérants sont tous -parties à la Convention. - -Article 3. - -La Partie belligérante qui violerait les dispositions dudit Règlement -sera tenue à indemnité, s'il y a lieu. Elle sera responsable de tous -actes commis par les personnes faisant partie de sa force armée. - -Article 4. - -La présente Convention dûment ratifiée remplacera, dans les rapports -entre les Puissances contractantes, la Convention du 29 juillet 1899 -concernant les lois et coutumes de la guerre sur terre. - -La Convention de 1899 reste en vigueur dans les rapports entre les -Puissances qui l'ont signée et qui ne ratifieraient pas également la -présente Convention. - -Article 5. - -La présente Convention sera ratifiée aussitôt que possible. - -Les ratifications seront déposées à La Haye. - -Le premier dépôt de ratifications sera constaté par un procès-verbal -signé par les représentants des Puissances qui y prennent part et par le -Ministre des Affaires Étrangères des Pays-Bas. - -Les dépôts ultérieurs de ratifications se feront au moyen d'une -notification écrite adressée au Gouvernement des Pays-Bas et accompagnée -de l'instrument de ratification. - -Copie certifiée conforme du procès-verbal relatif au premier dépôt de -ratifications, des notifications mentionnées à l'alinéa précédent ainsi -que des instruments de ratification, sera immédiatement remise par les -soins du Gouvernement des Pays-Bas et par la voie diplomatique aux -Puissances conviées à la Deuxième Conférence de la Paix, ainsi qu'aux -autres Puissances qui auront adhéré à la Convention. Dans les cas visés -par l'alinéa précédent, ledit Gouvernement leur fera connaître en même -temps la date à laquelle il a reçu la notification. - -Article 6. - -Les Puissances non signataires sont admises à adhérer à la présente -Convention. - -La Puissance qui désire adhérer notifie par écrit son intention au -Gouvernement des Pays-Bas en lui transmettant l'acte d'adhésion qui sera -déposé dans les archives dudit Gouvernement. - -Ce Gouvernement transmettra immédiatement à toutes les autres Puissances -copie certifiée conforme de la notification ainsi que de l'acte -d'adhésion, en indiquant la date à laquelle il a reçu la notification. - -Article 7. - -La présente Convention produira effet, pour les Puissances qui auront -participé au premier dépôt de ratifications, soixante jours après la -date du procès-verbal de ce dépôt et, pour les Puissances qui -ratifieront ultérieurement ou qui adhéreront, soixante jours après que -la notification de leur ratification ou de leur adhésion aura été reçue -par le Gouvernement des Pays-Bas. - -Article 8. - -S'il arrivait qu'une des Puissances contractantes voulût dénoncer la -présente Convention, la dénonciation sera notifiée par écrit au -Gouvernement des Pays-Bas qui communiquera immédiatement copie certifiée -conforme de la notification à toutes les autres Puissances en leur -faisant savoir la date à laquelle il l'a reçue. - -La dénonciation ne produira ses effets qu'à l'égard de la Puissance qui -l'aura notifiée et un an après que la notification en sera parvenue au -Gouvernement des Pays-Bas. - -Article 9. - -Un registre tenu par le Ministère des Affaires Étrangères des Pays-Bas -indiquera la date du dépôt de ratifications effectué en vertu de -l'article 5 alinéas 3 et 4 ainsi que la date à laquelle auront été -reçues les notifications d'adhésion (article 6 alinéa 2) ou de -dénonciation (article 8 alinéa 1). - -Chaque Puissance contractante est admise à prendre connaissance de ce -registre et à en demander des extraits certifiés conformes. - -ANNEXE À LA CONVENTION. - -_Règlement concernant les lois et coutumes de la guerre sur terre._ - -SECTION I.--DES BELLIGÉRANTS. - -CHAPITRE I.--_De la qualité de belligérant._ - -Article premier. - -Les lois, les droits et les devoirs de la guerre ne s'appliquent pas -seulement à l'armée, mais encore aux milices et aux corps de volontaires -réunissant les conditions suivantes: - -1'o. d'avoir à leur tête une personne responsable pour ses subordonnés; - -2'o. d'avoir un signe distinctif fixe et reconnaissable à distance; - -3'o. de porter les armes ouvertement et - -4'o. de se conformer dans leurs opérations aux lois et coutumes de la -guerre. - -Dans les pays où les milices ou des corps de volontaires constituent -l'armée ou en font partie, ils sont compris sous la dénomination -d'_armée_. - -Article 2. - -La population d'un territoire non occupé qui, à l'approche de l'ennemi, -prend spontanément les armes pour combattre les troupes d'invasion sans -avoir eu le temps de s'organiser conformément à l'article premier, sera -considérée comme belligérante si elle porte les armes ouvertement et si -elle respecte les lois et coutumes de la guerre. - -Article 3. - -Les forces armées des parties belligérantes peuvent se composer de -combattants et de non-combattants. En cas de capture par l'ennemi, les -uns et les autres ont droit au traitement des prisonniers de guerre. - -CHAPITRE II.--_Des prisonniers de guerre._ - -Article 4. - -Les prisonniers de guerre sont au pouvoir du Gouvernement ennemi, mais -non des individus ou des corps qui les ont capturés. - -Ils doivent être traités avec humanité. - -Tout ce qui leur appartient personnellement, excepté les armes, les -chevaux et les papiers militaires, reste leur propriété. - -Article 5. - -Les prisonniers de guerre peuvent être assujettis à l'internement dans -une ville, forteresse, camp ou localité quelconque, avec obligation de -ne pas s'en éloigner au delà de certaines limites déterminées; mais ils -ne peuvent être enfermés que par mesure de sûreté indispensable, et -seulement pendant la durée des circonstances qui nécessitent cette -mesure. - -Article 6. - -L'État peut employer, comme travailleurs, les prisonniers de guerre, -selon leur grade et leurs aptitudes, à l'exception des officiers. Ces -travaux ne seront pas excessifs et n'auront aucun rapport avec les -opérations de la guerre. - -Les prisonniers peuvent être autorisés à travailler pour le compte -d'administrations publiques ou de particuliers, ou pour leur propre -compte. - -Les travaux faits pour l'État sont payés d'après les tarifs en vigueur -pour les militaires de l'armée nationale exécutant les mêmes travaux, -ou, s'il n'en existe pas, d'après un tarif en rapport avec les travaux -exécutés. - -Lorsque les travaux ont lieu pour le compte d'autres administrations -publiques ou pour des particuliers, les conditions en sont réglées -d'accord avec l'autorité militaire. - -Le salaire des prisonniers contribuera à adoucir leur position, et le -surplus leur sera compté au moment de leur libération, sauf défalcation -des frais d'entretien. - -Article 7. - -Le Gouvernement au pouvoir duquel se trouvent les prisonniers de guerre -est chargé de leur entretien. - -A défaut d'une entente spéciale entre les belligérants, les prisonniers -de guerre seront traités pour la nourriture, le couchage et -l'habillement, sur le même pied que les troupes du Gouvernement qui les -aura capturés. - -Article 8. - -Les prisonniers de guerre seront soumis aux lois, règlements et ordres -en vigueur dans l'armée de l'État au pouvoir duquel ils se trouvent. -Tout acte d'insubordination autorise, à leur égard, les mesures de -rigueur nécessaires. - -Les prisonniers évadés, qui seraient repris avant d'avoir pu rejoindre -leur armée ou avant de quitter le territoire occupé par l'armée qui les -aura capturés, sont passibles de peines disciplinaires. - -Les prisonniers qui, après avoir réussi à s'évader, sont de nouveau -faits prisonniers, ne sont passibles d'aucune peine pour la fuite -antérieure. - -Article 9. - -Chaque prisonnier de guerre est tenu de déclarer, s'il est interrogé à -ce sujet, ses véritables noms et grade et, dans le cas où il -enfreindrait cette règle, il s'exposerait à une restriction des -avantages accordés aux prisonniers de guerre de sa catégorie. - -Article 10. - -Les prisonniers de guerre peuvent être mis en liberté sur parole, si les -lois de leur pays les y autorisent, et, en pareil cas, ils sont obligés, -sous la garantie de leur honneur personnel, de remplir scrupuleusement, -tant vis-à-vis de leur propre Gouvernement que vis-à-vis de celui qui -les a faits prisonniers, les engagements qu'ils auraient contractés. - -Dans le même cas, leur propre Gouvernement est tenu de n'exiger ni -accepter d'eux aucun service contraire à la parole donnée. - -Article 11. - -Un prisonnier de guerre ne peut être contraint d'accepter sa liberté sur -parole; de même le Gouvernement ennemi n'est pas obligé d'accéder à la -demande du prisonnier réclamant sa mise en liberté sur parole. - -Article 12. - -Tout prisonnier de guerre, libéré sur parole et repris portant les armes -contre le Gouvernement envers lequel il s'était engagé d'honneur, ou -contre les alliés de celui-ci, perd le droit au traitement des -prisonniers de guerre et peut être traduit devant les tribunaux. - -Article 13. - -Les individus qui suivent une armée sans en faire directement partie, -tels que les correspondants et les reporters de journaux, les -vivandiers, les fournisseurs, qui tombent au pouvoir de l'ennemi et que -celui-ci juge utile de détenir, ont droit au traitement des prisonniers -de guerre, à condition qu'ils soient munis d'une légitimation de -l'autorité militaire de l'armée qu'ils accompagnaient. - -Article 14. - -Il est constitué, dès le début des hostilités, dans chacun des États -belligérants, et, le cas échéant, dans les pays neutres qui auront -recueilli des belligérants sur leur territoire, un bureau de -renseignements sur les prisonniers de guerre. Ce bureau, chargé de -répondre à toutes les demandes qui les concernent, reçoit des divers -services compétents toutes les indications relatives aux internements et -aux mutations, aux mises en liberté sur parole, aux échanges, aux -évasions, aux entrées dans les hôpitaux, aux décès, ainsi que les autres -renseignements nécessaires pour établir et tenir à jour une fiche -individuelle pour chaque prisonnier de guerre. Le bureau devra porter -sur cette fiche le numéro matricule, les nom et prénom, l'âge, le lieu -d'origine, le grade, le corps de troupe, les blessures, la date et le -lieu de la capture, de l'internement, des blessures et de la mort, ainsi -que toutes les observations particulières. La fiche individuelle sera -remise au Gouvernement de l'autre belligérant après la conclusion de la -paix. - -Le bureau de renseignements est également chargé de recueillir et de -centraliser tous les objets d'un usage personnel, valeurs, lettres, -etc., qui seront trouvés sur les champs de bataille ou délaissés par des -prisonniers libérés sur parole, échangés, évadés ou décédés dans les -hôpitaux et ambulances, et de les transmettre aux intéressés. - -Article 15. - -Les sociétés de secours pour les prisonniers de guerre, régulièrement -constituées selon la loi de leur pays et ayant pour objet d'être les -intermédiaires de l'action charitable, recevront, de la part des -belligérants, pour elles et pour leurs agents dûment accrédités, toute -facilité, dans les limites tracées par les nécessités militaires et les -règles administratives, pour accomplir efficacement leur tâche -d'humanité. Les délégués de ces sociétés pourront être admis à -distribuer des secours dans les dépôts d'internement, ainsi qu'aux lieux -d'étape des prisonniers rapatriés, moyennant une permission personnelle -délivrée par l'autorité militaire, et en prenant l'engagement par écrit -de se soumettre à toutes les mesures d'ordre et de police que celle-ci -prescrirait. - -Article 16. - -Les bureaux de renseignements jouissent de la franchise de port. Les -lettres, mandats et articles d'argent, ainsi que les colis postaux -destinés aux prisonniers de guerre ou expédiés par eux, seront -affranchis de toutes les taxes postales, aussi bien dans les pays -d'origine et de destination que dans les pays intermédiaires. - -Les dons et secours en nature destinés aux prisonniers de guerre seront -admis en franchise de tous droits d'entrée et autres, ainsi que des -taxes de transport sur les chemins de fer exploités par l'État. - -Article 17. - -Les officiers prisonniers recevront la solde à laquelle ont droit les -officiers de même grade du pays où ils sont retenus, à charge de -remboursement par leur Gouvernement. - -Article 18. - -Toute latitude est laissée aux prisonniers de guerre pour l'exercice de -leur religion, y compris l'assistance aux offices de leur culte, à la -seule condition de se conformer aux mesures d'ordre et de police -prescrites par l'autorité militaire. - -Article 19. - -Les testaments des prisonniers de guerre sont reçus ou dressés dans les -mêmes conditions que pour les militaires de l'armée nationale. - -On suivra également les mêmes règles en ce qui concerne les pièces -relatives à la constatation des décès, ainsi que pour l'inhumation des -prisonniers de guerre, en tenant compte de leur grade et de leur rang. - -Article 20. - -Après la conclusion de la paix, le rapatriement des prisonniers de -guerre s'effectuera dans le plus bref délai possible. - -CHAPITRE III.--_Des malades et des blessés._ - -Article 21. - -Les obligations des belligérants concernant le service des malades et -des blessés sont régies par la Convention de Genève. - -SECTION II.--DES HOSTILITÉS. - -CHAPITRE I.--_Des moyens de nuire à l'ennemi, des sièges et des -bombardements._ - -Article 22. - -Les belligérants n'ont pas un droit illimité quant au choix des moyens -de nuire à l'ennemi. - -Article 23. - -Outre les prohibitions établies par des conventions spéciales, il est -notamment interdit: - - (_a_) d'employer du poison ou des armes empoisonnées; - - (_b_) de tuer ou de blesser par trahison des individus appartenant - à la nation ou à l'armée ennemie; - - (_c_) de tuer ou de blesser un ennemi qui, ayant mis bas les armes - ou n'ayant plus les moyens de se défendre, s'est rendu à - discrétion; - - (_d_) de déclarer qu'il ne sera pas fait de quartier; - - (_e_) d'employer des armes, des projectiles ou des matières - propres à causer des maux superflus; - - (_f_) d'user indûment du pavillon parlementaire, du pavillon - national ou des insignes militaires et de l'uniforme de l'ennemi, - ainsi que des signes distinctifs de la Convention de Genève; - - (_g_) de détruire ou de saisir des propriétés ennemies, sauf les - cas où ces destructions ou ces saisies seraient impérieusement - commandées par les nécessités de la guerre; - - (_h_) de déclarer éteints, suspendus ou non recevables en justice, - les droits et actions des nationaux de la Partie adverse. - -Il est également interdit à un belligérant de forcer les nationaux de la -Partie adverse à prendre part aux opérations de guerre dirigées contre -leur pays, même dans le cas où ils auraient été à son service avant le -commencement de la guerre. - -Article 24. - -Les ruses de guerre et l'emploi des moyens nécessaires pour se procurer -des renseignements sur l'ennemi et sur le terrain sont considérés comme -licites. - -Article 25. - -Il est interdit d'attaquer ou de bombarder, par quelque moyen que ce -soit des villes, villages, habitations ou bâtiments qui ne sont pas -défendus. - -Article 26. - -Le commandant des troupes assaillantes, avant d'entreprendre le -bombardement, et sauf le cas d'attaque de vive force, devra faire tout -ce qui dépend de lui pour en avertir les autorités. - -Article 27. - -Dans les sièges et bombardements, toutes les mesures nécessaires doivent -être prises pour épargner, autant que possible, les édifices consacrés -aux cultes, aux arts, aux sciences et à la bienfaisance, les monuments -historiques, les hôpitaux et les lieux de rassemblement de malades et de -blessés, à condition qu'ils ne soient pas employés en même temps à un -but militaire. - -Le devoir des assiégés est de désigner ces édifices ou lieux de -rassemblement par des signes visibles spéciaux qui seront notifiés -d'avance à l'assiégeant. - -Article 28. - -Il est interdit de livrer au pillage une ville ou localité même prise -d'assaut. - -CHAPITRE II.--_Des espions._ - -Article 29. - -Ne peut être considéré comme espion que l'individu qui, agissant -clandestinement ou sous de faux prétextes, recueille ou cherche à -recueillir des informations dans la zone d'opérations d'un belligérant, -avec l'intention de les communiquer à la partie adverse. - -Ainsi les militaires non déguisés qui ont pénétré dans la zone -d'opérations de l'armée ennemie, à l'effet de recueillir des -informations, ne sont pas considérés comme espions. De même, ne sont pas -considérés comme espions: les militaires et les non militaires, -accomplissant ouvertement leur mission, chargés de transmettre des -dépêches destinées, soit à leur propre armée, soit à l'armée ennemie. A -cette catégorie appartiennent également les individus envoyés en ballon -pour transmettre les dépêches, et, en général, pour entretenir les -communications entre les diverses parties d'une armée ou d'un -territoire. - -Article 30. - -L'espion pris sur le fait ne pourra être puni sans jugement préalable. - -Article 31. - -L'espion qui, ayant rejoint l'armée à laquelle il appartient, est -capturé plus tard par l'ennemi, est traité comme prisonnier de guerre et -n'encourt aucune responsabilité pour ses actes d'espionnage antérieurs. - -CHAPITRE III.--_Des parlementaires._ - -Article 32. - -Est considéré comme parlementaire l'individu autorisé par l'un des -belligérants à entrer en pourparlers avec l'autre et se présentant avec -le drapeau blanc. Il a droit à l'inviolabilité ainsi que le trompette, -clairon ou tambour, le porte-drapeau et l'interprète qui -l'accompagneraient. - -Article 33. - -Le chef auquel un parlementaire est expédié n'est pas obligé de le -recevoir en toutes circonstances. - -Il peut prendre toutes les mesures nécessaires afin d'empêcher le -parlementaire de profiter de sa mission pour se renseigner. - -Il a le droit, en cas d'abus, de retenir temporairement le -parlementaire. - -Article 34. - -Le parlementaire perd ses droits d'inviolabilité, s'il est prouvé, d'une -manière positive et irrécusable, qu'il a profité de sa position -privilégiée pour provoquer ou commettre un acte de trahison. - -CHAPITRE IV.--_Des capitulations._ - -Article 35. - -Les capitulations arrêtées entre les parties contractantes doivent tenir -compte des règles de l'honneur militaire. - -Une fois fixées, elles doivent être scrupuleusement observées par les -deux parties. - -CHAPITRE V.--_De l'armistice._ - -Article 36. - -L'armistice suspend les opérations de guerre par un accord mutuel des -parties belligérantes. Si la durée n'en est pas déterminée, les parties -belligérantes peuvent reprendre en tout temps les opérations, pourvu -toutefois que l'ennemi soit averti en temps convenu, conformément aux -conditions de l'armistice. - -Article 37. - -L'armistice peut être général ou local. Le premier suspend partout les -opérations de guerre des États belligérants; le second, seulement entre -certaines fractions des armées belligérantes et dans un rayon déterminé. - -Article 38. - -L'armistice doit être notifié officiellement et en temps utile aux -autorités compétentes et aux troupes. Les hostilités sont suspendues -immédiatement après la notification ou au terme fixé. - -Article 39. - -Il dépend des parties contractantes de fixer, dans les clauses de -l'armistice, les rapports qui pourraient avoir lieu, sur le théâtre de -la guerre, avec les populations et entre elles. - -Article 40. - -Toute violation grave de l'armistice, par l'une des parties, donne à -l'autre le droit de le dénoncer et même, en cas d'urgence, de reprendre -immédiatement les hostilités. - -Article 41. - -La violation des clauses de l'armistice, par des particuliers agissant -de leur propre initiative, donne droit seulement à réclamer la punition -des coupables et, s'il y a lieu, une indemnité pour les pertes -éprouvées. - -SECTION III.--DE L'AUTORITÉ MILITAIRE SUR LE TERRITOIRE DE L'ÉTAT -ENNEMI. - -Article 42. - -Un territoire est considéré comme occupé lorsqu'il se trouve placé de -fait sous l'autorité de l'armée ennemie. - -L'occupation ne s'étend qu'aux territoires où cette autorité est établie -et en mesure de s'exercer. - -Article 43. - -L'autorité du pouvoir légal ayant passé de fait entre les mains de -l'occupant, celui-ci prendra toutes les mesures qui dépendent de lui en -vue de rétablir et d'assurer, autant qu'il est possible, l'ordre et la -vie publics en respectant, sauf empêchement absolu, les lois en vigueur -dans le pays. - -Article 44. - -Il est interdit à un belligérant de forcer la population d'un territoire -occupé à donner des renseignements sur l'armée de l'autre belligérant ou -sur ses moyens de défense. - -Article 45. - -Il est interdit de contraindre la population d'un territoire occupé à -prêter serment à la Puissance ennemie. - -Article 46. - -L'honneur et les droits de la famille, la vie des individus et la -propriété privée, ainsi que les convictions religieuses et l'exercice -des cultes, doivent être respectés. - -La propriété privée ne peut pas être confisquée. - -Article 47. - -Le pillage est formellement interdit. - -Article 48. - -Si l'occupant prélève, dans le territoire occupé, les impôts, droits et -péages établis au profit de l'État, il le fera, autant que possible, -d'après les règles de l'assiette et de la répartition en vigueur, et il -en résultera pour lui l'obligation de pourvoir aux frais de -l'administration du territoire occupé dans la mesure où le Gouvernement -légal y était tenu. - -Article 49. - -Si, en dehors des impôts visés à l'article précédent, l'occupant prélève -d'autres contributions en argent dans le territoire occupé, ce ne pourra -être que pour les besoins de l'armée ou de l'administration de ce -territoire. - -Article 50. - -Aucune peine collective, pécuniaire ou autre, ne pourra être édictée -contre les populations à raison de faits individuels dont elles ne -pourraient être considérées comme solidairement responsables. - -Article 51. - -Aucune contribution ne sera perçue qu'en vertu d'un ordre écrit et sous -la responsabilité d'un général en chef. - -Il ne sera procédé, autant que possible, à cette perception que d'après -les règles de l'assiette et de la répartition des impôts en vigueur. - -Pour toute contribution, un reçu sera délivré aux contribuables. - -Article 52. - -Des réquisitions en nature et des services ne pourront être réclamés des -communes ou des habitants, que pour les besoins de l'armée d'occupation. -Ils seront en rapport avec les ressources du pays et de telle nature -qu'ils n'impliquent pas pour les populations l'obligation de prendre -part aux opérations de la guerre contre leur patrie. - -Ces réquisitions et ces services ne seront réclamés qu'avec -l'autorisation du commandant dans la localité occupée. - -Les prestations en nature seront, autant que possible, payées au -comptant; sinon, elles seront constatées par des reçus, et le paiement -des sommes dues sera effectué le plus tôt possible. - -Article 53. - -L'armée qui occupe un territoire ne pourra saisir que le numéraire, les -fonds et les valeurs exigibles appartenant en propre à l'État, les -dépôts d'armes, moyens de transport, magasins et approvisionnements et, -en général, toute propriété mobilière de l'État de nature à servir aux -opérations de la guerre. - -Tous les moyens affectés sur terre, sur mer et dans les airs à la -transmission des nouvelles, au transport des personnes ou des choses, en -dehors des cas régis par le droit maritime, les dépôts d'armes et, en -général, toute espèce de munitions de guerre, peuvent être saisis, même -s'ils appartiennent à des personnes privées, mais devront être restitués -et les indemnités seront réglées à la paix. - -Article 54. - -Les câbles sous-marins reliant un territoire occupé à un territoire -neutre ne seront saisis ou détruits que dans le cas d'une nécessité -absolue. Ils devront également être restitués et les indemnités seront -réglées à la paix. - -Article 55. - -L'État occupant ne se considérera que comme administrateur et -usufruitier des édifices publics, immeubles, forêts et exploitations -agricoles appartenant à l'État ennemi et se trouvant dans le pays -occupé. Il devra sauvegarder le fonds de ces propriétés et les -administrer conformément aux règles de l'usufruit. - -Article 56. - -Les biens des communes, ceux des établissements consacrés aux cultes, à -la charité et à l'instruction, aux arts et aux sciences, même -appartenant à l'État seront traités comme la propriété privée. - -Toute saisie, destruction ou dégradation intentionnelle de semblables -établissements, de monuments historiques, d'oeuvres d'art et de science, -est interdite et doit être poursuivie. - - -CONVENTION V. - - CONVENTION RESPECTING THE RIGHTS AND DUTIES OF NEUTRAL POWERS - AND PERSONS IN WAR ON LAND. - -CHAPITRE I.--_Des Droits et des Devoirs des Puissances neutres._ - -Article premier. - -Le territoire des Puissances neutres est inviolable. - -Article 2. - -Il est interdit aux belligérants de faire passer à travers le territoire -d'une Puissance neutre des troupes ou des convois, soit de munitions, -soit d'approvisionnements. - -Article 3. - -Il est également interdit aux belligérants: - - (_a_) d'installer sur le territoire d'une Puissance neutre une - station radiotélégraphique ou tout appareil destiné à servir comme - moyen de communication avec des forces belligérantes sur terre ou - sur mer; - - (_b_) d'utiliser toute installation de ce genre établie par eux - avant la guerre sur le territoire de la Puissance neutre dans un - but exclusivement militaire, et qui n'a pas été ouverte au service - de la correspondance publique. - -Article 4. - -Des corps de combattants ne peuvent être formés, ni des bureaux -d'enrôlement ouverts, sur le territoire d'une Puissance neutre au profit -des belligérants. - -Article 5. - -Une Puissance neutre ne doit tolérer sur son territoire aucun des actes -visés par les articles 2 à 4. - -Elle n'est tenue de punir des actes contraires à la neutralité que si -ces actes ont été commis sur son propre territoire. - -Article 6. - -La responsabilité d'une Puissance neutre n'est pas engagée par le fait -que des individus passent isolément la frontière pour se mettre au -service de l'un des belligérants. - -Article 7. - -Une Puissance neutre n'est pas tenue d'empêcher l'exportation ou le -transit, pour le compte de l'un ou de l'autre des belligérants, d'armes, -de munitions, et, en général, de tout ce qui peut être utile à une armée -ou à une flotte. - -Article 8. - -Une Puissance neutre n'est pas tenue d'interdire ou de restreindre -l'usage, pour les belligérants, des câbles télégraphiques ou -téléphoniques, ainsi que des appareils de télégraphie sans fil, qui -sont, soit sa propriété, soit celle de compagnies ou de particuliers. - -Article 9. - -Toutes mesures restrictives ou prohibitives prises par une Puissance -neutre à l'égard des matières visées par les articles 7 et 8 devront -être uniformément appliquées par elle aux belligérants. - -La Puissance neutre veillera au respect de la même obligation par les -compagnies ou particuliers propriétaires de câbles télégraphiques ou -téléphoniques ou d'appareils de télégraphie sans fil. - -Article 10. - -Ne peut être considéré comme un acte hostile le fait, par une Puissance -neutre, de repousser, même par la force, les atteintes à sa neutralité. - -CHAPITRE II.--_Des belligérants internés et des blessés soignés chez les -neutres._ - -Article 11. - -La Puissance neutre qui reçoit sur son territoire des troupes -appartenant aux armées belligérantes, les internera, autant que -possible, loin du théâtre de la guerre. - -Elle pourra les garder dans des camps, et même les enfermer dans des -forteresses ou dans des lieux appropriés à cet effet. - -Elle décidera si les officiers peuvent être laissés libres en prenant -l'engagement sur parole de ne pas quitter le territoire neutre sans -autorisation. - -Article 12. - -A défaut de convention spéciale, la Puissance neutre fournira aux -internés les vivres, les habillements et les secours commandés par -l'humanité. - -Bonification sera faite, à la paix, des frais occasionnés par -l'internement. - -Article 13. - -La Puissance neutre qui reçoit des prisonniers de guerre évadés les -laissera en liberté. Si elle tolère leur séjour sur son territoire, elle -peut leur assigner une résidence. - -La même disposition est applicable aux prisonniers de guerre amenés par -des troupes se réfugiant sur le territoire de la Puissance neutre. - -Article 14. - -Une Puissance neutre pourra autoriser le passage sur son territoire des -blessés ou malades appartenant aux armées belligérantes, sous la réserve -que les trains qui les amèneront ne transporteront ni personnel, ni -matériel de guerre. En pareil cas, la Puissance neutre est tenue de -prendre les mesures de sûreté et de contrôle nécessaires à cet effet. - -Les blessés ou malades amenés dans ces conditions sur le territoire -neutre par un des belligérants, et qui appartiendraient à la partie -adverse, devront être gardés par la Puissance neutre de manière qu'ils -ne puissent de nouveau prendre part aux opérations de la guerre. Cette -Puissance aura les mêmes devoirs quant aux blessés ou malades de l'autre -armée qui lui seraient confiés. - -Article 15. - -La Convention de Genève s'applique aux malades et aux blessés internés -sur territoire neutre. - -CHAPITRE III.--_Des personnes neutres._ - -Article 16. - -Sont considérés comme neutres les nationaux d'un État qui ne prend pas -part à la guerre. - -Article 17. - -Un neutre ne peut pas se prévaloir de sa neutralité: - - (_a_) s'il commet des actes hostiles contre un belligérant; - - (_b_) s'il commet des actes en faveur d'un belligérant, notamment - s'il prend volontairement du service dans les rangs de la force - armée de l'une des Parties. - -En pareil cas, le neutre ne sera pas traité plus rigoureusement par le -belligérant contre lequel il s'est départi de la neutralité que ne -pourrait l'être, à raison du même fait, un national de l'autre État -belligérant. - -Article 18. - -Ne seront pas considérés comme actes commis en faveur d'un des -belligérants, dans le sens de l'article 17, lettre b: - - (_a_) les fournitures faites ou les emprunts consentis à l'un des - belligérants, pourvu que le fournisseur ou le prêteur n'habite ni - le territoire de l'autre Partie, ni le territoire occupé par elle, - et que les fournitures ne proviennent pas de ses territoires; - - (_b_) les services rendus en matière de police ou d'administration - civile. - -CHAPITRE IV.--_Du matériel des chemins de fer._ - -Article 19. - -Le matériel des chemins de fer provenant du territoire de Puissances -neutres, qu'il appartienne à ces Puissances ou à des sociétés ou -personnes privées, et reconnaisable comme tel, ne pourra être -réquisitionné et utilisé par un belligérant que dans le cas et la mesure -où l'exige une impérieuse nécessité. Il sera renvoyé aussitôt que -possible dans le pays d'origine. - -La Puissance neutre pourra de même, en cas de nécessité, retenir et -utiliser, jusqu'à due concurrence, le matériel provenant du territoire -de la Puissance belligérante. - -Une indemnité sera payée de part et d'autre, en proportion du matériel -utilisé et de la durée de l'utilisation. - -CHAPITRE V.--_Dispositions finales._ - -Article 20. - -Les dispositions de la présente Convention ne sont applicables qu'entre -les Puissances contractantes et seulement si les belligérants sont tous -parties à la Convention. - -Article 21. - -La présente Convention sera ratifiée aussitôt que possible. - -Les ratifications seront déposées à La Haye. - -Le premier dépôt de ratifications sera constaté par un procès-verbal -signé par les représentants des Puissances qui y prennent part et par le -Ministre des Affaires Étrangères des Pays-Bas. - -Les dépôts ultérieurs de ratifications se feront au moyen d'une -notification écrite, adressée au Gouvernement des Pays-Bas et -accompagnée de l'instrument de ratification. - -Copie certifiée conforme du procès-verbal relatif au premier dépôt de -ratifications, des notifications mentionnées à l'alinéa précédent, ainsi -que des instruments de ratification sera immédiatement remise par les -soins du Gouvernement des Pays-Bas et par la voie diplomatique aux -Puissances conviées à la Deuxième Conférence de la Paix, ainsi qu'aux -autres Puissances qui auront adhéré à la Convention. Dans les cas visés -par l'alinéa précédent, ledit Gouvernement leur fera connaître en même -temps la date à laquelle il a reçu la notification. - -Article 22. - -Les Puissances non signataires sont admises à adhérer à la présente -Convention. - -La Puissance qui désire adhérer notifie par écrit son intention au -Gouvernement des Pays-Bas en lui transmettant l'acte d'adhésion qui sera -déposé dans les archives dudit Gouvernement. - -Ce Gouvernement transmettra immédiatement à toutes les autres Puissances -copie certifiée conforme de la notification ainsi que de l'acte -d'adhésion, en indiquant la date à laquelle il a reçu la notification. - -Article 23. - -La présente Convention produira effet, pour les Puissances qui auront -participé au premier dépôt de ratifications, soixante jours après la -date du procès-verbal de ce dépôt et, pour les Puissances qui -ratifieront ultérieurement ou qui adhéreront, soixante jours après que -la notification de leur ratification ou de leur adhésion aura été reçue -par le Gouvernement des Pays-Bas. - -Article 24. - -S'il arrivait qu'une des Puissances contractantes voulût dénoncer la -présente Convention, la dénonciation sera notifiée par écrit au -Gouvernement des Pays-Bas qui communiquera immédiatement copie certifiée -conforme de la notification à toutes les autres Puissances, en leur -faisant savoir la date à laquelle il l'a reçue. - -La dénonciation ne produira ses effets qu'à l'égard de la Puissance qui -l'aura notifiée et un an après que la notification en sera parvenue au -Gouvernement des Pays-Bas. - -Article 25. - -Un registre tenu par le Ministère des Affaires Étrangères des Pays-Bas -indiquera la date du dépôt des ratifications effectué en vertu de -l'article 21 alinéas 3 et 4, ainsi que la date à laquelle auront été -reçues les notifications d'adhésion (article 22 alinéa 2) ou de -dénonciation (article 24 alinéa 1). - -Chaque Puissance contractante est admise à prendre connaissance de ce -registre et à en demander des extraits certifiés conformes. - - -CONVENTION VI. - - CONVENTION RELATIVE TO THE STATUS OF MERCHANTMEN AT THE - OUTBREAK OF HOSTILITIES. - -Article premier. - -Lorsqu'un navire de commerce relevant d'une des Puissances belligérantes -se trouve, au début des hostilités, dans un port ennemi, il est -désirable qu'il lui soit permis de sortir librement, immédiatement ou -après un délai de faveur suffisant, et de gagner directement, après -avoir été muni d'un laissez-passer, son port de destination ou tel autre -port qui lui sera désigné. - -Il en est de même du navire ayant quitté son dernier port de départ -avant le commencement de la guerre et entrant dans un port ennemi sans -connaître les hostilités. - -Article 2. - -Le navire de commerce qui, par suite de circonstances de force majeure -n'aurait pu quitter le port ennemi pendant le délai visé à l'article -précédent, ou auquel la sortie n'aurait pas été accordée, ne peut être -confisqué. - -Le belligérant peut seulement le saisir moyennant l'obligation de le -restituer après la guerre sans indemnité, ou le réquisitionner -moyennant indemnité. - -Article 3. - -Les navires de commerce ennemis, qui ont quitté leur dernier port de -départ, avant le commencement de la guerre et qui sont rencontrés en mer -ignorants des hostilités, ne peuvent être confisqués. Ils sont seulement -sujets à être saisis, moyennant l'obligation de les restituer après la -guerre sans indemnité, ou à être réquisitionnés, ou même à être -détruits, à charge d'indemnité et sous l'obligation de pourvoir à la -sécurité des personnes ainsi qu'à la conservation des papiers de bord. - -Après avoir touché à un port de leur pays ou à un port neutre, ces -navires sont soumis aux lois et coutumes de la guerre maritime. - -Article 4. - -Les marchandises ennemies se trouvant à bord des navires visés aux -articles 1 et 2 sont également sujettes à être saisies et restituées -après la guerre sans indemnité, ou à être réquisitionnées moyennant -indemnité, conjointement avec le navire ou séparément. - -Il en est de même des marchandises se trouvant à bord des navires visés -à l'article 3. - -Article 5. - -La présente Convention ne vise pas les navires de commerce dont la -construction indique qu'ils sont destinés à être transformés en -bâtiments de guerre. - -Article 6. - -Les dispositions de la présente Convention ne sont applicables qu'entre -les Puissances contractantes et seulement si les belligérants sont tous -parties à la Convention. - -Article 7. - -La présente Convention sera ratifiée aussitôt que possible. - -Les ratifications seront déposées à La Haye. - -Le premier dépôt de ratifications sera constaté par un procès-verbal -signé par les représentants des Puissances qui y prennent part et par le -Ministre des Affaires Étrangères des Pays-Bas. - -Les dépôts ultérieurs de ratifications se feront au moyen d'une -notification écrite, adressée au Gouvernement des Pays-Bas et -accompagnée de l'instrument de ratification. - -Copie certifiée conforme du procès-verbal relatif au premier dépôt de -ratifications, des notifications mentionnées à l'alinéa précédent, ainsi -que des instruments de ratifications, sera immédiatement remise par les -soins du Gouvernement des Pays-Bas et par la voie diplomatique aux -Puissances conviées à la Deuxième Conférence de la Paix, ainsi qu'aux -autres Puissances qui auront adhéré à la Convention. Dans les cas visés -par l'alinéa précédent, ledit Gouvernement leur fera connaître en même -temps la date à laquelle il a reçu la notification. - -Article 8. - -Les Puissances non signataires sont admises à adhérer à la présente -Convention. - -La Puissance qui désire adhérer notifie par écrit son intention au -Gouvernement des Pays-Bas en lui transmettant l'acte d'adhésion qui sera -déposé dans les archives dudit Gouvernement. - -Ce Gouvernement transmettra immédiatement à toutes les autres Puissances -copie certifiée conforme de la notification ainsi que de l'acte -d'adhésion, en indiquant la date à laquelle il a reçu la notification. - -Article 9. - -La présente Convention produira effet, pour les Puissances qui auront -participé au premier dépôt de ratifications, soixante jours après la -date du procès-verbal de ce dépôt et, pour les Puissances qui -ratifieront ultérieurement ou qui adhéreront, soixante jours après que -la notification de leur ratification ou de leur adhésion aura été reçue -par le Gouvernement des Pays-Bas. - -Article 10. - -S'il arrivait qu'une des Puissances contractantes voulût dénoncer la -présente Convention, la dénonciation sera notifiée par écrit au -Gouvernement des Pays-Bas qui communiquera immédiatement copie certifiée -conforme de la notification à toutes les autres Puissances en leur -faisant savoir la date à laquelle il l'a reçue. - -La dénonciation ne produira ses effets qu'à l'égard de la Puissance qui -l'aura notifiée et un an après que la notification en sera parvenue au -Gouvernement des Pays-Bas. - -Article 11. - -Un registre tenu par le Ministère des Affaires Étrangères des Pays-Bas -indiquera la date du dépôt de ratifications effectué en vertu de -l'article 7 alinéas 3 et 4, ainsi que la date à laquelle auront été -reçues les notifications d'adhésion (article 8 alinéa 2) ou de -dénonciation (article 10 alinéa 1). - -Chaque Puissance contractante est admise à prendre connaissance de ce -registre et à en demander des extraits certifiés conformes. - - -CONVENTION VII. - - CONVENTION RELATIVE TO THE CONVERSION OF MERCHANTMEN INTO - MEN-OF-WAR. - -Article premier. - -Aucun navire de commerce transformé en bâtiment de guerre ne peut avoir -les droits et les obligations attachés à cette qualité, s'il n'est placé -sous l'autorité directe, le contrôle immédiat et la responsabilité de la -Puissance dont il porte le pavillon. - -Article 2. - -Les navires de commerce transformés en bâtiments de guerre doivent -porter les signes extérieurs distinctifs des bâtiments de guerre de leur -nationalité. - -Article 3. - -Le commandant doit être au service de l'État et dûment commissionné par -les autorités compétentes. Son nom doit figurer sur la liste des -officiers de la flotte militaire. - -Article 4. - -L'équipage doit être soumis aux règles de la discipline militaire. - -Article 5. - -Tout navire de commerce transformé en bâtiment de guerre est tenu -d'observer dans ses opérations, les lois et coutumes de la guerre. - -Article 6. - -Le belligérant, qui transforme un navire de commerce en bâtiment de -guerre, doit, le plus tôt possible, mentionner cette transformation sur -la liste des bâtiments de sa flotte militaire. - -Article 7. - -Les dispositions de la présente Convention ne sont applicables qu'entre -les Puissances contractantes et seulement si les belligérants sont tous -parties à la Convention. - -Article 8. - -La présente Convention sera ratifiée aussitôt que possible. - -Les ratifications seront déposées à La Haye. - -Le premier dépôt de ratifications sera constaté par un procès-verbal -signé par les représentants des Puissances qui y prennent part et par le -Ministre des Affaires Étrangères des Pays-Bas. - -Les dépôts ultérieurs de ratifications se feront au moyen d'une -notification écrite, adressée au Gouvernement des Pays-Bas et -accompagnée de l'instrument de ratification. - -Copie certifiée conforme du procès-verbal relatif au premier dépôt de -ratifications, des notifications mentionnées à l'alinéa précédent, ainsi -que des instruments de ratification, sera immédiatement remise, par les -soins du Gouvernement des Pays-Bas, et par la voie diplomatique, aux -Puissances conviées à la Deuxième Conférence de la Paix, ainsi qu'aux -autres Puissances qui auront adhéré à la Convention. Dans les cas visés -par l'alinéa précédent, ledit Gouvernement leur fera connaître en même -temps la date à laquelle il a reçu la notification. - -Article 9. - -Les Puissances non signataires sont admises à adhérer à la présente -Convention. - -La Puissance qui désire adhérer notifie par écrit son intention au -Gouvernement des Pays-Bas en lui transmettant l'acte d'adhésion qui sera -déposé dans les archives dudit Gouvernement. - -Ce Gouvernement transmettra immédiatement à toutes les autres Puissances -copie certifiée conforme de la notification ainsi que de l'acte -d'adhésion, en indiquant la date à laquelle il a reçu la notification. - -Article 10. - -La présente Convention produira effet, pour les Puissances qui auront -participé au première dépôt de ratifications, soixante jours après la -date du procès-verbal de ce dépôt, et pour les Puissances qui -ratifieront ultérieurement ou qui adhéreront, soixante jours après que -la notification de leur ratification ou de leur adhésion aura été reçue -par le Gouvernement des Pays-Bas. - -Article 11. - -S'il arrivait qu'une des Puissances contractantes voulût dénoncer la -présente Convention, la dénonciation sera notifiée par écrit au -Gouvernement des Pays-Bas qui communiquera immédiatement copie certifiée -conforme de la notification à toutes les autres Puissances en leur -faisant savoir la date à laquelle il l'a reçue. - -La dénonciation ne produira ses effets qu'à l'égard de la Puissance qui -l'aura notifiée et un an après que la notification en sera parvenue au -Gouvernement des Pays-Bas. - -Article 12. - -Un registre tenu par le Ministère des Affaires Étrangères des Pays-Bas -indiquera la date du dépôt de ratifications effectué en vertu de -l'article 8 alinéas 3 et 4, ainsi que la date à laquelle auront été -reçues les notifications d'adhésion (article 9 alinéa 2) ou de -dénonciation (article 11 alinéa 1). - -Chaque Puissance contractante est admise à prendre connaissance de ce -registre et à en demander des extraits certifiés conformes. - - -CONVENTION VIII. - - CONVENTION RELATIVE TO THE LAYING OF AUTOMATIC SUBMARINE - CONTACT MINES. - -Article premier. - -Il est interdit: - -1'o. de placer des mines automatiques de contact non amarrées, à moins -qu'elles ne soient construites de manière à devenir inoffensives une -heure au maximum après que celui qui les a placées en aura perdu le -contrôle; - -2'o. de placer des mines automatiques de contact amarrées, qui ne -deviennent pas inoffensives dès qu'elles auront rompu leurs amarres; - -3'o. d'employer des torpilles, qui ne deviennent pas inoffensives -lorsqu'elles auront manqué leur but. - -Article 2. - -Il est interdit de placer des mines automatiques de contact devant les -côtes et les ports de l'adversaire, dans le seul but d'intercepter la -navigation de commerce. - -Article 3. - -Lorsque les mines automatiques de contact amarrées sont employées, -toutes les précautions possibles doivent être prises pour la sécurité de -la navigation pacifique. - -Les belligérants s'engagent à pourvoir, dans la mesure du possible, à ce -que ces mines deviennent inoffensives après un laps de temps limité, et, -dans le cas où elles cesseraient d'être surveillées, à signaler les -régions dangereuses, aussitôt que les exigences militaires le -permettront, par un avis à la navigation, qui devra être aussi -communiqué aux Gouvernements par la voie diplomatique. - -Article 4. - -Toute Puissance neutre qui place des mines automatiques de contact -devant ses côtes, doit observer les mêmes règles et prendre les mêmes -précautions que celles qui sont imposées aux belligérants. - -La Puissance neutre doit faire connaître à la navigation, par un avis -préalable, les régions où seront mouillées des mines automatiques de -contact. Cet avis devra être communiqué d'urgence aux Gouvernements par -voie diplomatique. - -Article 5. - -A la fin de la guerre, les Puissances contractantes s'engagent à faire -tout ce qui dépend d'elles pour enlever, chacune de son côté, les mines -qu'elles ont placées. - -Quant aux mines automatiques de contact amarrées, que l'un des -belligérants aurait posées le long des côtes de l'autre, l'emplacement -en sera notifié à l'autre partie par la Puissance qui les a posées et -chaque Puissance devra procéder dans le plus bref délai à l'enlèvement -des mines qui se trouvent dans ses eaux. - -Article 6. - -Les Puissances contractantes, qui ne disposent pas encore de mines -perfectionnées telles qu'elles sont prévues dans la présente Convention, -et qui, par conséquent, ne sauraient actuellement se conformer aux -règles établies dans les articles 1 et 3, s'engagent à transformer, -aussitôt que possible, leur matériel de mines, afin qu'il réponde aux -prescriptions susmentionnées. - -Article 7. - -Les dispositions de la présente Convention ne sont applicables qu'entre -les Puissances contractantes et seulement si les belligérants sont tous -parties à la Convention. - -Article 8. - -La présente Convention sera ratifiée aussitôt que possible. - -Les ratifications seront déposées à La Haye. - -Le premier dépôt de ratifications sera constaté par un procès-verbal -signé par les représentants des Puissances qui y prennent part et par le -Ministre des Affaires Étrangères des Pays-Bas. - -Les dépôts ultérieurs de ratifications se feront au moyen d'une -notification écrite, adressée au Gouvernement des Pays-Bas et -accompagnée de l'instrument de ratification. - -Copie certifiée conforme du procès-verbal relatif au premier dépôt de -ratifications, des notifications mentionnées à l'alinéa précédent, ainsi -que des instruments de ratification, sera immédiatement remise, par les -soins du Gouvernement des Pays-Bas et par la voie diplomatique, aux -Puissances conviées à la Deuxième Conférence de la Paix, ainsi qu'aux -autres Puissances qui auront adhéré à la Convention. Dans les cas visés -par l'alinéa précédent, ledit Gouvernement leur fera connaître en même -temps la date à laquelle il a reçu la notification. - -Article 9. - -Les Puissances non signataires sont admises à adhérer à la présente -Convention. - -La Puissance qui désire adhérer notifie par écrit son intention au -Gouvernement des Pays-Bas en lui transmettant l'acte d'adhésion qui sera -déposé dans les archives dudit Gouvernement. - -Ce Gouvernement transmettra immédiatement à toutes les autres Puissances -copie certifiée conforme de la notification ainsi que de l'acte -d'adhésion, en indiquant la date à laquelle il a reçu la notification. - -Article 10. - -La présente Convention produira effet, pour les Puissances qui auront -participé au premier dépôt de ratifications, soixante jours après la -date du procès-verbal de ce dépôt, et pour les Puissances qui -ratifieront ultérieurement ou qui adhéreront, soixante jours après que -la notification de leur ratification ou de leur adhésion aura été reçue -par le Gouvernement des Pays-Bas. - -Article 11. - -La présente Convention aura une durée de sept ans à partir du -soixantième jour après la date du premier dépôt de ratifications. - -Sauf dénonciation, elle continuera d'être en vigueur après l'expiration -de ce délai. - -La dénonciation sera notifiée par écrit au Gouvernement des Pays-Bas qui -communiquera immédiatement copie certifiée conforme de la notification à -toutes les Puissances, en leur faisant savoir la date à laquelle il l'a -reçue. - -La dénonciation ne produira ses effets qu'à l'égard de la Puissance qui -l'aura notifiée et six mois après que la notification en sera parvenue -au Gouvernement des Pays-Bas. - -Article 12. - -Les Puissances contractantes s'engagent à reprendre la question de -l'emploi des mines automatiques de contact six mois avant l'expiration -du terme prévu par l'alinéa premier de l'article précédent, au cas où -elle n'aurait pas été reprise et résolue à une date antérieure par la -troisième Conférence de la Paix. - -Si les Puissances contractantes concluent une nouvelle Convention -relative à l'emploi des mines, dès son entrée en vigueur, la présente -Convention cessera d'être applicable. - -Article 13. - -Un registre tenu par le Ministère des Affaires Étrangères des Pays-Bas -indiquera la date du dépôt de ratifications effectué en vertu de -l'article 8 alinéas 3 et 4, ainsi que la date à laquelle auront été -reçues les notifications d'adhésion (article 9 alinéa 2) ou de -dénonciation (article 11 alinéa 3). - -Chaque Puissance contractante est admise à prendre connaissance de ce -registre et à en demander des extraits certifiés conformes. - - -CONVENTION IX. - - CONVENTION RESPECTING BOMBARDMENT BY NAVAL FORCES IN TIME OF - WAR. - -CHAPITRE I'er.--_Du bombardement des ports, villes, villages, -habitations ou bâtiments non défendus._ - -Article premier. - -Il est interdit de bombarder, par des forces navales, des ports, villes, -villages, habitations ou bâtiments, qui ne sont pas défendus. - -Une localité ne peut pas être bombardée à raison du seul fait que, -devant son port, se trouvent mouillées des mines sous-marines -automatiques de contact. - -Article 2. - -Toutefois, ne sont pas compris dans cette interdiction les ouvrages -militaires, établissements militaires ou navals, dépôts d'armes ou de -matériel de guerre, ateliers et installations propres à être utilisés -pour les besoins de la flotte ou de l'armée ennemie, et les navires de -guerre se trouvant dans le port. Le commandant d'une force navale -pourra, après sommation avec délai raisonnable, les détruire par le -canon, si tout autre moyen est impossible et lorsque les autorités -locales n'auront pas procédé à cette destruction dans le délai fixé. - -Il n'encourt aucune responsabilité dans ce cas pour les dommages -involontaires, qui pourraient être occasionnés par le bombardement. - -Si des nécessités militaires, exigeant une action immédiate, ne -permettaient pas d'accorder de délai, il reste entendu que -l'interdiction de bombarder la ville non défendue subsiste comme dans le -cas énoncé dans l'alinéa 1'er et que le commandant prendra toutes les -dispositions voulues pour qu'il en résulte pour cette ville le moins -d'inconvénients possible. - -Article 3. - -Il peut, après notification expresse, être procédé au bombardement des -ports, villes, villages, habitations ou bâtiments non défendus, si les -autorités locales, mises en demeure par une sommation formelle, refusent -d'obtempérer à des réquisitions de vivres ou d'approvisionnements -nécessaires au besoin présent de la force navale qui se trouve devant la -localité. - -Ces réquisitions seront en rapport avec les ressources de la localité. -Elles ne seront réclamées qu'avec l'autorisation du commandant de ladite -force navale et elles seront, autant que possible, payées au comptant; -sinon elles seront constatées par des reçus. - -Article 4. - -Est interdit le bombardement, pour le non paiement des contributions en -argent, des ports, villes, villages, habitations ou bâtiments, non -défendus. - -CHAPITRE II.--_Dispositions générales._ - -Article 5. - -Dans le bombardement par des forces navales, toutes les mesures -nécessaires doivent être prises par le commandant pour épargner, autant -que possible, les édifices consacrés aux cultes, aux arts, aux sciences -et à la bienfaisance, les monuments historiques, les hôpitaux et les -lieux de rassemblement de malades ou de blessés, à condition qu'ils ne -soient pas employés en même temps à un but militaire. - -Le devoir des habitants est de désigner ces monuments, ces édifices ou -lieux de rassemblement, par des signes visibles, qui consisteront en -grands panneaux rectangulaires rigides, partagés, suivant une des -diagonales, en deux triangles de couleur, noire en haut et blanche en -bas. - -Article 6. - -Sauf le cas où les exigences militaires ne le permettraient pas, le -commandant de la force navale assaillante doit, avant d'entreprendre le -bombardement, faire tout ce qui dépend de lui pour avertir les -autorités. - -Article 7. - -Il est interdit de livrer au pillage une ville ou localité même prise -d'assaut. - -CHAPITRE III.--_Dispositions finales._ - -Article 8. - -Les dispositions de la présente Convention ne sont applicables qu'entre -les Puissances contractantes et seulement si les belligérants sont tous -parties à la Convention. - -Article 9. - -La présente Convention sera ratifiée aussitôt que possible. - -Les ratifications seront déposées à La Haye. - -Le premier dépôt de ratifications sera constaté par un procès-verbal -signé par les représentants des Puissances qui y prennent part et par le -Ministre des Affaires Étrangères des Pays-Bas. - -Les dépôts ultérieurs de ratifications se feront au moyen d'une -notification écrite, adressée au Gouvernement des Pays-Bas et -accompagnée de l'instrument de ratification. - -Copie certifiée conforme du procès-verbal relatif au premier dépôt de -ratifications, des notifications, mentionnées à l'alinéa précédent, -ainsi que des instruments de ratification, sera immédiatement remise, -par les soins du Gouvernement des Pays-Bas et par la voie diplomatique, -aux Puissances conviées à la Deuxième Conférence de la Paix, ainsi -qu'aux autres Puissances qui auront adhéré à la Convention. Dans les cas -visés par l'alinéa précédent, ledit Gouvernement leur fera connaître en -même temps la date à laquelle il a reçu la notification. - -Article 10. - -Les Puissances non signataires sont admises à adhérer à la présente -Convention. - -La Puissance qui désire adhérer notifie par écrit son intention au -Gouvernement des Pays-Bas en lui transmettant l'acte d'adhésion qui sera -déposé dans les archives dudit Gouvernement. - -Ce Gouvernement transmettra immédiatement à toutes les autres Puissances -copie certifiée conforme de la notification ainsi que de l'acte -d'adhésion, en indiquant la date à laquelle il a reçu la notification. - -Article 11. - -La présente Convention produira effet, pour les Puissances qui auront -participé au premier dépôt de ratifications, soixante jours après la -date du procès-verbal de ce dépôt et, pour les Puissances qui -ratifieront ultérieurement ou qui adhéreront, soixante jours après que -la notification de leur ratification ou de leur adhésion aura été reçue -par le Gouvernement des Pays-Bas. - -Article 12. - -S'il arrivait qu'une des Puissances Contractantes voulût dénoncer la -présente Convention, la dénonciation sera notifiée par écrit au -Gouvernement des Pays-Bas qui communiquera immédiatement copie certifiée -conforme de la notification à toutes les autres Puissances en leur -faisant savoir la date à laquelle il l'a reçue. - -La dénonciation ne produira ses effets qu'à l'égard de la Puissance qui -l'aura notifiée et un an après que la notification en sera parvenue au -Gouvernement des Pays-Bas. - -Article 13. - -Un registre tenu par le Ministère des Affaires Étrangères des Pays-Bas -indiquera la date du dépôt de ratifications effectué en vertu de -l'article 9 alinéas 3 et 4, ainsi que la date à laquelle auront été -reçues les notifications d'adhésion (article 10 alinéa 2) ou de -dénonciation (article 12 alinéa 1). - -Chaque Puissance contractante est admise à prendre connaissance de ce -registre et à en demander des extraits certifiés conformes. - - -CONVENTION X. - - CONVENTION FOR THE ADAPTATION OF THE PRINCIPLES OF THE GENEVA - CONVENTION TO MARITIME WARFARE. - -Article premier. - -Les bâtiments-hôpitaux militaires, c'est-à-dire les bâtiments construits -ou aménagés par les États spécialement et uniquement en vue de porter -secours aux blessés, malades et naufragés, et dont les noms auront été -communiqués, à l'ouverture ou au cours des hostilités, en tout cas avant -toute mise en usage, aux Puissances belligérantes, sont respectés et ne -peuvent être capturés pendant la durée des hostilités. - -Ces bâtiments ne sont pas non plus assimilés aux navires de guerre au -point de vue de leur séjour dans un port neutre. - -Article 2. - -Les bâtiments hospitaliers, équipés en totalité ou en partie aux frais -des particuliers ou des sociétés de secours officiellement reconnues, -sont également respectés et exempts de capture, si la Puissance -belligérante dont ils dépendent, leur a donné une commission officielle -et en a notifié les noms à la Puissance adverse à l'ouverture ou au -cours des hostilités, en tout cas avant toute mise en usage. - -Ces navires doivent être porteurs d'un document de l'autorité compétente -déclarant qu'ils ont été soumis à son contrôle pendant leur armement et -à leur départ final. - -Article 3. - -Les bâtiments hospitaliers, équipés en totalité ou en partie aux frais -des particuliers ou des sociétés officiellement reconnues de pays -neutres, sont respectés et exempts de capture, à condition qu'ils se -soient mis sous la direction de l'un des belligérants, avec -l'assentiment préalable de leur propre Gouvernement et avec -l'autorisation du belligérant lui-même et que ce dernier en ait notifié -le nom à son adversaire dès l'ouverture ou dans le cours des hostilités, -en tout cas, avant tout emploi. - -Article 4. - -Les bâtiments qui sont mentionnés dans les articles 1, 2 et 3, porteront -secours et assistance aux blessés, malades et naufragés des belligérants -sans distinction de nationalité. - -Les Gouvernements s'engagent à n'utiliser ces bâtiments pour aucun but -militaire. - -Ces bâtiments ne devront gêner en aucune manière les mouvements des -combattants. - -Pendant et après le combat, ils agiront à leurs risques et périls. - -Les belligérants auront sur eux le droit de contrôle et de visite; ils -pourront refuser leur concours, leur enjoindre de s'éloigner, leur -imposer une direction déterminée et mettre à bord un commissaire, même -les détenir, si la gravité des circonstances l'exigeait. - -Autant que possible, les belligérants inscriront sur le journal de bord -des bâtiments hospitaliers les ordres qu'ils leur donneront. - -Article 5. - -Les bâtiments-hôpitaux militaires seront distingués par une peinture -extérieure blanche avec une bande horizontale verte d'un mètre et demi -de largeur environ. - -Les bâtiments qui sont mentionnés dans les articles 2 et 3, seront -distingués par une peinture extérieure blanche avec une bande -horizontale rouge d'un mètre et demi de largeur environ. - -Les embarcations des bâtiments qui viennent d'être mentionnés, comme les -petits bâtiments qui pourront être affectés au service hospitalier, se -distingueront par une peinture analogue. - -Tous les bâtiments hospitaliers se feront reconnaître en hissant, avec -leur pavillon national, le pavillon blanc à croix-rouge prévu par la -Convention de Genève et, en outre, s'ils ressortissent à un État neutre, -en arborant au grand mât le pavillon national du belligérant sous la -direction duquel ils se sont placés. - -Les bâtiments hospitaliers qui, dans les termes de l'article 4, sont -détenus par l'ennemi, auront à rentrer le pavillon national du -belligérant dont ils relèvent. - -Les bâtiments et embarcations ci-dessus mentionnés, qui veulent -s'assurer la nuit le respect auquel ils ont droit, ont, avec -l'assentiment du belligérant qu'ils accompagnent, à prendre les mesures -nécessaires pour que la peinture qui les caractérise soit suffisamment -apparente. - -Article 6. - -Les signes distinctifs prévus à article 5 ne pourront être employés, -soit en temps de paix, soit en temps de guerre, que pour protéger ou -désigner les bâtiments qui y sont mentionnés. - -Article 7. - -Dans le cas d'un combat à bord d'un vaisseau de guerre, les infirmeries -seront respectées et ménagées autant que faire se pourra. - -Ces infirmeries et leur matériel demeurent soumis aux lois de la guerre, -mais ne pourront être détournés de leur emploi, tant qu'ils seront -nécessaires aux blessés et malades. - -Toutefois le commandant, qui les a en son pouvoir, a la faculté d'en -disposer, en cas de nécessité militaire importante, en assurant au -préalable le sort des blessés et malades qui s'y trouvent. - -Article 8. - -La protection due aux bâtiments hospitaliers et aux infirmeries des -vaisseaux cesse si l'on en use pour commettre des actes nuisibles à -l'ennemi. - -N'est pas considéré comme étant de nature à justifier le retrait de la -protection le fait que le personnel de ces bâtiments et infirmeries est -armé pour le maintien de l'ordre et pour la défense des blessés ou -malades, ainsi que le fait de la présence à bord d'une installation -radio-télégraphique. - -Article 9. - -Les belligérants pourront faire appel au zèle charitable des commandants -de bâtiments de commerce, yachts ou embarcations neutres, pour prendre à -bord et soigner des blessés ou des malades. - -Les bâtiments qui auront répondu à cet appel ainsi que ceux qui -spontanément auront recueilli des blessés, des malades ou des naufragés, -jouiront d'une protection spéciale et de certaines immunités. En aucun -cas, ils ne pourront être capturés pour le fait d'un tel transport; -mais, sauf les promesses qui leur auraient été faites, ils restent -exposés à la capture pour les violations de neutralité qu'ils pourraient -avoir commises. - -Article 10. - -Le personnel religieux, médical et hospitalier de tout bâtiment capturé -est inviolable et ne peut être fait prisonnier de guerre. Il emporte, en -quittant le navire, les objets et les instruments de chirurgie qui sont -sa propriété particulière. - -Ce personnel continuera à remplir ses fonctions tant que cela sera -nécessaire et il pourra ensuite se retirer, lorsque le commandant en -chef le jugera possible. - -Les belligérants doivent assurer à ce personnel tombé entre leurs mains, -les mêmes allocations et la même solde qu'au personnel des mêmes grades -de leur propre marine. - -Article 11. - -Les marins et les militaires embarqués, et les autres personnes -officiellement attachées aux marines ou aux armées, blessés ou malades, -à quelque nation qu'ils appartiennent, seront respectés et soignés par -les capteurs. - -Article 12. - -Tout vaisseau de guerre d'une partie belligérante peut réclamer la -remise des blessés, malades ou naufragés, qui sont à bord de -bâtiments-hôpitaux militaires, de bâtiments hospitaliers de société de -secours ou de particuliers, de navires de commerce, yachts et -embarcations, quelle que soit la nationalité de ces bâtiments. - -Article 13. - -Si des blessés, malades ou naufragés sont recueillis à bord d'un -vaisseau de guerre neutre, il devra être pourvu, dans la mesure du -possible, à ce qu'ils ne puissent pas de nouveau prendre part aux -opérations de la guerre. - -Article 14. - -Sont prisonniers de guerre les naufragés, blessés ou malades d'un -belligérant, qui tombent au pouvoir de l'autre. Il appartient à celui-ci -de décider, suivant les circonstances, s'il convient de les garder, de -les diriger sur un port de sa nation, sur un port neutre ou même sur un -port de l'adversaire. Dans ce dernier cas, les prisonniers ainsi rendus -à leur pays ne pourront servir pendant la durée de la guerre. - -Article 15. - -Les naufragés, blessés ou malades, qui sont débarqués dans un port -neutre, du consentement de l'autorité locale, devront, à moins d'un -arrangement contraire de l'État neutre avec les États belligérants, être -gardés par l'État neutre de manière qu'ils ne puissent pas de nouveau -prendre part aux opérations de la guerre. - -Les frais d'hospitalisation et d'internement seront supportés par l'État -dont relèvent les naufragés, blessés ou malades. - -Article 16. - -Après chaque combat, les deux Parties belligérantes, en tant que les -intérêts militaires le comportent, prendront des mesures pour rechercher -les naufragés, les blessés et les malades et pour les faire protéger, -ainsi que les morts, contre le pillage et les mauvais traitements. - -Elles veilleront à ce que l'inhumation, l'immersion ou l'incinération -des morts soit précédée d'un examen attentif de leurs cadavres. - -Article 17. - -Chaque belligérant enverra, dès qu'il sera possible, aux autorités de -leur pays, de leur marine ou de leur armée, les marques ou pièces -militaires d'identité trouvées sur les morts et l'état nominatif des -blessés ou malades recueillis par lui. - -Les belligérants se tiendront réciproquement au courant des internements -et des mutations, ainsi que des entrées dans les hôpitaux et des décès -survenus parmi les blessés et malades en leur pouvoir. Ils recueilleront -tous les objets d'un usage personnel, valeurs, lettres, etc. qui seront -trouvés dans les vaisseaux capturés, ou délaissés par les blessés ou -malades décédés dans les hôpitaux, pour les faire transmettre aux -intéressés par les autorités de leur pays. - -Article 18. - -Les dispositions de la présente Convention ne sont applicables qu'entre -les Puissances contractantes et seulement si les belligérants sont tous -parties à la Convention. - -Article 19. - -Les commandants en chef des flottes des belligérants auront à pourvoir -aux détails d'exécution des articles précédents, ainsi qu'aux cas non -prévus, d'après les instructions de leurs Gouvernements respectifs et -conformément aux principes généraux de la présente Convention. - -Article 20. - -Les Puissances signataires prendront les mesures nécessaires pour -instruire leurs marines, et spécialement le personnel protégé, des -dispositions de la présente Convention et pour les porter à la -connaissance des populations. - -Article 21. - -Les Puissances signataires s'engagent également à prendre ou à proposer -à leurs législatures, en cas d'insuffisance de leurs lois pénales, les -mesures nécessaires pour réprimer en temps de guerre, les actes -individuels de pillage et de mauvais traitements envers des blessés et -malades des marines, ainsi que pour punir, comme usurpation d'insignes -militaires, l'usage abusif des signes distinctifs désignés à l'article 5 -par des bâtiments non protégés par la présente Convention. - -Ils se communiqueront, par l'intermédiaire du Gouvernement des Pays-Bas, -les dispositions relatives à cette répression, au plus tard dans les -cinq ans de la ratification de la présente convention. - -Article 22. - -En cas d'opérations de guerre entre les forces de terre et de mer des -belligérants, les dispositions de la présente Convention ne seront -applicables qu'aux forces embarquées. - -Article 23. - -La présente Convention sera ratifiée aussitôt que possible. - -Les ratifications seront déposées à La Haye. - -Le premier dépôt de ratifications sera constaté par un procès-verbal -signé par les représentants des Puissances qui y prennent part et par le -Ministre des Affaires Étrangères des Pays-Bas. - -Les dépôts ultérieurs de ratifications se feront au moyen d'une -notification écrite, adressée au Gouvernement des Pays-Bas et -accompagnée de l'instrument de ratification. - -Copie certifiée conforme du procès-verbal relatif au premier dépôt de -ratifications, des notifications mentionnées à l'alinéa précédent, ainsi -que des instruments de ratification, sera immédiatement remise par les -soins du Gouvernement des Pays-Bas et par la voie diplomatique aux -Puissances conviées à la Deuxième Conférence de la Paix, ainsi qu'aux -autres Puissances qui auront adhéré à la Convention. Dans les cas visés -par l'alinéa précédent, ledit Gouvernement leur fera connaître en même -temps la date à laquelle il a reçu la notification. - -Article 24. - -Les Puissances non signataires qui auront accepté la Convention de -Genève du 6 juillet 1906, sont admises à adhérer à la présente -Convention. - -La Puissance qui désire adhérer, notifie par écrit son intention au -Gouvernement des Pays-Bas en lui transmettant l'acte d'adhésion qui sera -déposé dans les archives dudit Gouvernement. - -Ce Gouvernement transmettra immédiatement à toutes les autres Puissances -copie certifiée conforme de la notification ainsi que de l'acte -d'adhésion, en indiquant la date à laquelle il a reçu la notification. - -Article 25. - -La présente Convention, dûment ratifiée, remplacera dans les rapports -entre les Puissances contractantes, la Convention du 29 juillet 1899 -pour l'adaptation à la guerre maritime des principes de la Convention de -Genève. - -La Convention de 1899 reste en vigueur dans les rapports entre les -Puissances qui l'ont signée et qui ne ratifieraient pas également la -présente Convention. - -Article 26. - -La présente Convention produira effet, pour les Puissances qui auront -participé au premier dépôt de ratifications, soixante jours après la -date du procès-verbal de ce dépôt, et, pour les Puissances qui -ratifieront ultérieurement ou qui adhéreront, soixante jours après que -la notification de leur ratification ou de leur adhésion aura été reçue -par le Gouvernement des Pays-Bas. - -Article 27. - -S'il arrivait qu'une des Puissances contractantes voulût dénoncer la -présente Convention, la dénonciation sera notifiée par écrit au -Gouvernement des Pays-Bas, qui communiquera immédiatement copie -certifiée conforme de la notification à toutes les autres Puissances en -leur faisant savoir la date à laquelle il l'a reçue. - -La dénonciation ne produira ses effets qu'à l'égard de la Puissance qui -l'aura notifiée et un an après que la notification en sera parvenue au -Gouvernement des Pays-Bas. - -Article 28. - -Un registre tenu par le Ministère des Affaires Étrangères des Pays-Bas -indiquera la date du dépôt des ratifications effectué en vertu de -l'article 23 alinéas 3 et 4, ainsi que la date à laquelle auront été -reçues les notifications d'adhésion (article 24 alinéa 2) ou de -dénonciation (article 27 alinéa 1). - -Chaque Puissance contractante est admise à prendre connaissance de ce -registre et à en demander des extraits certifiés conformes. - - -CONVENTION XI. - - CONVENTION RELATIVE TO CERTAIN RESTRICTIONS ON THE EXERCISE OF - THE RIGHT OF CAPTURE IN MARITIME WAR. - -CHAPITRE I.--_De la Correspondance postale._ - -Article premier. - -La correspondance postale des neutres ou des belligérants, quel que soit -son caractère officiel ou privé, trouvée en mer sur un navire neutre ou -ennemi, est inviolable. S'il y a saisie du navire, elle est expédiée -avec le moins de retard possible par le capteur. - -Les dispositions de l'alinéa précédent ne s'appliquent pas, en cas de -violation de blocus, à la correspondance qui est à destination ou en -provenance du port bloqué. - -Article 2. - -L'inviolabilité de la correspondance postale ne soustrait pas les -paquebots-poste neutres aux lois et coutumes de la guerre sur mer -concernant les navires de commerce neutres en général. Toutefois, la -visite n'en doit être effectuée qu'en cas de nécessité, avec tous les -ménagements et toute la célérité possibles. - -CHAPITRE II.--_De l'exemption de capture pour certains bateaux._ - -Article 3. - -Les bateaux exclusivement affectés à la pêche côtière ou à des services -de petite navigation locale sont exempts de capture, ainsi que leurs -engins, agrès, apparaux et chargement. - -Cette exemption cesse de leur être applicable dès qu'ils participent -d'une façon quelconque aux hostilités. - -Les Puissances contractantes s'interdisent de profiter du caractère -inoffensif desdits bateaux pour les employer dans un but militaire en -leur conservant leur apparence pacifique. - -Article 4. - -Sont également exempts de capture les navires chargés de missions -religieuses, scientifiques ou philanthropiques. - -CHAPITRE III.--_Du régime des équipages des navires de commerce ennemis -capturés par un belligérant._ - -Article 5. - -Lorsqu'un navire de commerce ennemi est capturé par un belligérant, les -hommes de son équipage, nationaux d'un État neutre, ne sont pas faits -prisonniers de guerre. - -Il en est de même du capitaine et des officiers, également nationaux -d'un État neutre, s'ils promettent formellement par écrit de ne pas -servir sur un navire ennemi pendant la durée de la guerre. - -Article 6. - -Le capitaine, les officiers et les membres de l'équipage, nationaux de -l'État ennemi, ne sont pas faits prisonniers de guerre, à condition -qu'ils s'engagent, sous la foi d'une promesse formelle écrite, à ne -prendre, pendant la durée des hostilités, aucun service ayant rapport -avec les opérations de la guerre. - -Article 7. - -Les noms des individus laissés libres dans les conditions visées à -l'article 5 alinéa 2 et à l'article 6, sont notifiés par le belligérant -capteur à l'autre belligérant. Il est interdit à ce dernier d'employer -sciemment lesdits individus. - -Article 8. - -Les dispositions des trois articles précédents ne s'appliquent pas aux -navires qui prennent part aux hostilités. - -CHAPITRE IV.--_Dispositions finales._ - -Article 9. - -Les dispositions de la présente Convention ne sont applicables qu'entre -les Puissances contractantes et seulement si les belligérants sont tous -Parties à la Convention. - -Article 10. - -La présente Convention sera ratifiée aussitôt que possible. - -Les ratifications seront déposées à La Haye. - -Le premier dépôt de ratifications sera constaté par un procès-verbal -signé par les représentants des Puissances qui y prennent part et par le -Ministre des Affaires Étrangères des Pays-Bas. - -Les dépôts ultérieurs de ratifications se feront au moyen d'une -notification écrite adressée au Gouvernement des Pays-Bas et accompagnée -de l'instrument de ratification. - -Copie certifiée conforme du procès-verbal relatif au premier dépôt de -ratifications, des notifications mentionnées à l'alinéa précédent ainsi -que des instruments de ratification, sera immédiatement remise par les -soins du Gouvernement des Pays-Bas et par la voie diplomatique aux -Puissances conviées à la Deuxième Conférence de la Paix, ainsi qu'aux -autres Puissances qui auront adhéré à la Convention. Dans les cas visés -par l'alinéa précédent, ledit Gouvernement leur fera connaître en même -temps la date à laquelle il a reçu la notification. - -Article 11. - -Les Puissances non signataires sont admises à adhérer à la présente -Convention. - -La Puissance qui désire adhérer notifie par écrit son intention au -Gouvernement des Pays-Bas en lui transmettant l'acte d'adhésion qui sera -déposé dans les archives dudit Gouvernement. - -Ce Gouvernement transmettra immédiatement à toutes les autres Puissances -copie certifiée conforme de la notification ainsi que de l'acte -d'adhésion, en indiquant la date à laquelle il a reçu la notification. - -Article 12. - -La présente Convention produira effet, pour les Puissances qui auront -participé au premier dépôt de ratifications, soixante jours après la -date du procès-verbal de ce dépôt et, pour les Puissances qui -ratifieront ultérieurement ou qui adhéreront, soixante jours après que -la notification de leur ratification ou de leur adhésion aura été reçue -par le Gouvernement des Pays-Bas. - -Article 13. - -S'il arrivait qu'une des Puissances contractantes voulût dénoncer la -présente Convention, la dénonciation sera notifiée par écrit au -Gouvernement des Pays-Bas qui communiquera immédiatement copie certifiée -conforme de la notification à toutes les autres Puissances en leur -faisant savoir la date à laquelle il l'a reçue. - -La dénonciation ne produira ses effets qu'à l'égard de la Puissance qui -l'aura notifiée et un an après que la notification en sera parvenue au -Gouvernement des Pays-Bas. - -Article 14. - -Un registre tenu par le Ministère des Affaires Étrangères des Pays-Bas -indiquera la date du dépôt des ratifications effectué en vertu de -l'article 10 alinéas 3 et 4, ainsi que la date à laquelle auront été -reçues les notifications d'adhésion (article 11 alinéa 2) ou de -dénonciation (article 13 alinéa 1). - -Chaque Puissance contractante est admise à prendre connaissance de ce -registre et à en demander des extraits certifiés conformes. - - -CONVENTION XII. - - CONVENTION CONCERNING THE ESTABLISHMENT OF AN INTERNATIONAL - PRIZE COURT. - -TITRE I.--_Dispositions générales._ - -Article premier. - -La validité de la capture d'un navire de commerce ou de sa cargaison -est, s'il s'agit de propriétés neutres ou ennemies, établie devant une -juridiction des prises conformément à la présente Convention. - -Article 2. - -La juridiction des prises est exercée d'abord par les tribunaux de -prises du belligérant capteur. - -Les décisions de ces tribunaux sont prononcées en séance publique ou -notifiées d'office aux parties neutres ou ennemies. - -Article 3. - -Les décisions des tribunaux de prises nationaux peuvent être l'objet -d'un recours devant la Cour internationale des prises: - -1'o. lorsque la décision des tribunaux nationaux concerne les propriétés -d'une Puissance ou d'un particulier neutres; - -2'o. lorsque ladite décision concerne des propriétés ennemies et qu'il -s'agit: - - (_a_) de marchandises chargées sur un navire neutre, - - (_b_) d'un navire ennemi, qui aurait été capturé dans les eaux - territoriales d'une Puissance neutre, dans le cas où cette - Puissance n'aurait pas fait de cette capture l'objet d'une - réclamation diplomatique, - - (_c_) d'une réclamation fondée sur l'allégation que la capture - aurait été effectuée en violation, soit d'une disposition - conventionnelle en vigueur entre les Puissances belligérantes, - soit d'une disposition légale édictée par le belligérant capteur. - -Le recours contre la décision des tribunaux nationaux peut être fondé -sur ce que cette décision ne serait pas justifiée, soit en fait, soit en -droit. - -Article 4. - -Le recours peut être exercé: - - 1'o. par une Puissance neutre, si la décision des tribunaux - nationaux a porté atteinte à ses propriétés ou à celles de ses - ressortissants (article 3--1'o) ou s'il est allégué que la capture - d'un navire ennemi a eu lieu dans les eaux territoriales de cette - Puissance (article 3--2'o _b_); - - 2'o. par un particulier neutre, si la décision des tribunaux - nationaux a porté atteinte à ses propriétés (article 3--1'o), sous - réserve toutefois du droit de la Puissance dont il relève, de lui - interdire l'accès de la Cour ou d'y agir elle-même en ses lieu et - place; - - 3'o. par un particulier relevant de la Puissance ennemie, si la - décision des tribunaux nationaux a porté atteinte à ses propriétés - dans les conditions visées à l'article 3--2'o, à l'exception du - cas prévu par l'alinéa _b_. - -Article 5. - -Le recours peut aussi être exercé, dans les mêmes conditions qu'à -l'article précédent, par les ayants-droit, neutres ou ennemis, du -particulier auquel le recours est accordé, et qui sont intervenus devant -la juridiction nationale. Ces ayants-droit peuvent exercer -individuellement le recours dans la mesure de leur intérêt. - -Il en est de même des ayants-droit, neutres ou ennemis, de la Puissance -neutre dont la propriété est en cause. - -Article 6. - -Lorsque, conformément à l'article 3 ci-dessus, la Cour internationale -est compétente, le droit de juridiction des tribunaux nationaux ne peut -être exercé à plus de deux degrés. Il appartient à la législation du -belligérant capteur de décider si le recours est ouvert après la -décision rendue en premier ressort ou seulement après la décision rendue -en appel ou en cassation. - -Faute par les tribunaux nationaux d'avoir rendu une décision définitive -dans les deux ans à compter du jour de la capture, la Cour peut être -saisie directement. - -Article 7. - -Si la question de droit à résoudre est prévue par une Convention en -vigueur entre le belligérant capteur et la Puissance qui est elle-même -partie au litige ou dont le ressortissant est partie au litige, la Cour -se conforme aux stipulations de ladite Convention. - -A défaut de telles stipulations, la Cour applique les règles du droit -international. Si des règles généralement reconnues n'existent pas, la -Cour statue d'après les principes généraux de la justice et de l'équité. - -Les dispositions ci-dessus sont également applicables en ce qui concerne -l'ordre des preuves ainsi que les moyens qui peuvent être employés. - -Si, conformément à l'article 3--2'o c, le recours est fondé sur la -violation d'une disposition légale édictée par le belligérant capteur, -la Cour applique cette disposition. - -La Cour peut ne pas tenir compte des déchéances de procédure édictées -par la législation du belligérant capteur, dans les cas où elle estime -que les conséquences en sont contraires à la justice et à l'équité. - -Article 8. - -Si la Cour prononce la validité de la capture du navire ou de la -cargaison, il en sera disposé conformément aux lois du belligérant -capteur. - -Si la nullité de la capture est prononcée, la Cour ordonne la -restitution du navire ou de la cargaison et fixe, s'il y a lieu, le -montant des dommages-intérêts. Si le navire ou la cargaison ont été -vendus ou détruits, la Cour détermine l'indemnité à accorder de ce chef -au propriétaire. - -Si la nullité de la capture avait été prononcée par la juridiction -nationale, la Cour n'est appelée à statuer que sur les dommages et -intérêts. - -Article 9. - -Les Puissances contractantes s'engagent à se soumettre de bonne foi aux -décisions de la Cour internationale des prises et à les exécuter dans le -plus bref délai possible. - -TITRE II.--_Organisation de la Cour internationale des prises._ - -Article 10. - -La Cour internationale des prises se compose de juges et de juges -suppléants nommés par les Puissances contractantes et qui tous devront -être des jurisconsultes d'une compétence reconnue dans les questions de -droit international maritime et jouissant de la plus haute considération -morale. - -La nomination de ces juges et juges suppléants sera faite dans les six -mois qui suivront la ratification de la présente Convention. - -Article 11. - -Les juges et juges suppléants sont nommés pour une période de six ans, à -compter de la date où la notification de leur nomination aura été reçue -par le Conseil administratif institué par la Convention pour le -règlement pacifique des conflits internationaux du 29 juillet 1899. Leur -mandat peut être renouvelé. - -En cas de décès ou de démission d'un juge ou d'un juge suppléant, il est -pourvu à son remplacement selon le mode fixé pour sa nomination. Dans ce -cas, la nomination est faite pour une nouvelle période de six ans. - -Article 12. - -Les juges de la Cour internationale des prises sont égaux entre eux et -prennent rang d'après la date où la notification de leur nomination aura -été reçue (article 11 alinéa 1), et, s'ils siègent à tour de rôle -(article 15 alinéa 2), d'après la date de leur entrée en fonctions. La -préséance appartient au plus âgé, au cas où la date est la même. - -Les juges suppléants sont, dans l'exercice de leurs fonctions, assimilés -aux juges titulaires. Toutefois ils prennent rang après ceux-ci. - -Article 13. - -Les juges jouissent des privilèges et immunités diplomatiques dans -l'exercice de leurs fonctions et en dehors de leur pays. - -Avant de prendre possession de leur siège, les juges doivent, devant le -Conseil administratif, prêter serment ou faire une affirmation -solennelle d'exercer leurs fonctions avec impartialité et en toute -conscience. - -Article 14. - -La Cour fonctionne au nombre de quinze juges; neuf juges constituent le -quorum nécessaire. - -Le juge absent ou empêché est remplacé par le suppléant. - -Article 15. - -Les juges nommés par les Puissances contractantes dont les noms suivent: -l'Allemagne, les États-Unis d'Amérique, l'Autriche-Hongrie, la France, -la Grande-Bretagne, l'Italie, le Japon et la Russie sont toujours -appelés à siéger. - -Les juges et les juges suppléants nommés par les autres Puissances -contractantes siègent à tour de rôle d'après le tableau annexé à la -présente Convention; leurs fonctions peuvent être exercées -successivement par la même personne. Le même juge peut être nommé par -plusieurs desdites Puissances. - -Article 16. - -Si une Puissance belligérante n'a pas, d'après le tour de rôle, un juge -siégeant dans la Cour, elle peut demander que le juge nommé par elle -prenne part au jugement de toutes les affaires provenant de la guerre. -Dans ce cas, le sort détermine lequel des juges siégeant en vertu du -tour de rôle doit s'abstenir. Cette exclusion ne saurait s'appliquer au -juge nommé par l'autre belligérant. - -Article 17. - -Ne peut siéger le juge qui, à un titre quelconque, aura concouru à la -décision des tribunaux nationaux ou aura figuré dans l'instance comme -conseil ou avocat d'une partie. - -Aucun juge, titulaire ou suppléant, ne peut intervenir comme agent ou -comme avocat devant la Cour internationale des prises ni y agir pour une -partie en quelque qualité que ce soit, pendant toute la durée de ses -fonctions. - -Article 18. - -Le belligérant capteur a le droit de désigner un officier de marine d'un -grade élevé qui siégera en qualité d'assesseur avec voix consultative. -La même faculté appartient à la Puissance neutre, qui est elle-même -partie au litige, ou à la Puissance dont le ressortissant est partie au -litige; s'il y a, par application de cette dernière disposition, -plusieurs Puissances intéressées, elles doivent se concerter, au besoin -par le sort, sur l'officier à désigner. - -Article 19. - -La Cour élit son Président et son Vice-Président à la majorité absolue -des suffrages exprimés. Après deux tours de scrutin, l'élection se fait -à la majorité relative et, en cas de partage des voix, le sort décide. - -Article 20. - -Les juges de la Cour internationale des prises touchent une indemnité de -voyage fixée d'après les règlements de leur pays et reçoivent, en outre, -pendant la session ou pendant l'exercice de fonctions conférées par la -Cour, une somme de cent florins néerlandais par jour. - -Ces allocations, comprises dans les frais généraux de la Cour prévus par -l'article 47, sont versées par l'entremise du Bureau international -institué par la Convention du 29 juillet 1899. - -Les juges ne peuvent recevoir de leur propre Gouvernement ou de celui -d'une autre Puissance aucune rémunération comme membres de la Cour. - -Article 21. - -La Cour internationale des prises a son siège à La Haye et ne peut, sauf -le cas de force majeure, le transporter ailleurs qu'avec l'assentiment -des parties belligérantes. - -Article 22. - -Le Conseil administratif, dans lequel ne figurent que les représentants -des Puissances contractantes, remplit, à l'égard de la Cour -internationale des prises, les fonctions qu'il remplit à l'égard de la -Cour permanente d'arbitrage. - -Article 23. - -Le Bureau international sert de greffe à la Cour internationale des -prises et doit mettre ses locaux et son organisation à la disposition de -la Cour. Il a la garde des archives et la gestion des affaires -administratives. - -Le secrétaire général du Bureau international remplit les fonctions de -greffier. - -Les secrétaires adjoints au greffier, les traducteurs et les -sténographes nécessaires sont désignés et assermentés par la Cour. - -Article 24. - -La Cour décide du choix de la langue dont elle fera usage et des langues -dont l'emploi sera autorisé devant elle. - -Dans tous les cas, la langue officielle des tribunaux nationaux, qui ont -connu de l'affaire, peut être employée devant la Cour. - -Article 25. - -Les Puissances intéressées ont le droit de nommer des agents spéciaux -ayant mission de servir d'intermédiaires entre Elles et la Cour. Elles -sont, en outre, autorisées à charger des conseils ou avocats de la -défense de leurs droits et intérêts. - -Article 26. - -Le particulier intéressé sera représenté devant la Cour par un -mandataire qui doit être soit un avocat autorisé à plaider devant une -Cour d'appel ou une Cour suprême de l'un des Pays contractants, soit un -avoué exerçant sa profession auprès d'une telle Cour, soit enfin un -professeur de droit à une école d'enseignement supérieur d'un de ces -pays. - -Article 27. - -Pour toutes les notifications à faire, notamment aux parties, aux -témoins et aux experts, la Cour peut s'adresser directement au -Gouvernement de la Puissance sur le territoire de laquelle la -notification doit être effectuée. Il en est de même s'il s'agit de faire -procéder à l'établissement de tout moyen de preuve. - -Les requêtes adressées à cet effet seront exécutées suivant les moyens -dont la Puissance requise dispose d'après sa législation intérieure. -Elles ne peuvent être refusées que si cette Puissance les juge de -nature à porter atteinte à sa souveraineté ou à sa sécurité. S'il est -donné suite à la requête, les frais ne comprennent que les dépenses -d'exécution réellement effectuées. - -La Cour a également la faculté de recourir à l'intermédiaire de la -Puissance sur le territoire de laquelle elle a son siège. - -Les notifications à faire aux parties dans le lieu où siège la Cour -peuvent être exécutées par le Bureau international. - -TITRE III.--_Procédure devant la Cour internationale des prises._ - -Article 28. - -Le recours devant la Cour internationale des prises est formé au moyen -d'une déclaration écrite, faite devant le tribunal national qui a -statué, ou adressée au Bureau international; celui-ci peut être saisi -même par télégramme. - -Le délai du recours est fixé à cent vingt jours à dater du jour où la -décision a été prononcée ou notifiée (article 2 alinéa 2). - -Article 29. - -Si la déclaration de recours est faite devant le tribunal national, -celui-ci, sans examiner si le délai a été observé, fait, dans les sept -jours qui suivent, expédier le dossier de l'affaire au Bureau -international. - -Si la déclaration de recours est adressée au Bureau international, -celui-ci en prévient directement le tribunal national, par télégramme -s'il est possible. Le tribunal transmettra le dossier comme il est dit à -l'alinéa précédent. - -Lorsque le recours est formé par un particulier neutre, le Bureau -international en avise immédiatement par télégramme la Puissance dont -relève le particulier, pour permettre à cette Puissance de faire valoir -le droit que lui reconnaît l'article 4--2'o. - -Article 30. - -Dans le cas prévu à l'article 6 alinéa 2, le recours ne peut être -adressé qu'au Bureau international. Il doit être introduit dans les -trente jours qui suivent l'expiration du délai de deux ans. - -Article 31. - -Faute d'avoir formé son recours dans le délai fixé à l'article 28 ou à -l'article 30, la partie sera, sans débats, déclarée non recevable. - -Toutefois, si elle justifie d'un empêchement de force majeure et si -elle a formé son recours dans les soixante jours qui ont suivi la -cessation de cet empêchement, elle peut être relevée de la déchéance -encourue, la partie adverse ayant été dûment entendue. - -Article 32. - -Si le recours a été formé en temps utile, la Cour notifie d'office et -sans délai à la partie adverse une copie certifiée conforme de la -déclaration. - -Article 33. - -Si, en dehors des parties qui se sont pourvues devant la Cour, il y a -d'autres intéressés ayant le droit d'exercer le recours, ou si, dans le -cas prévu à l'article 29 alinéa 3, la Puissance qui a été avisée, n'a -pas fait connaître sa résolution, la Cour attend, pour se saisir de -l'affaire, que les délais prévus à l'article 28 ou à l'article 30 soient -expirés. - -Article 34. - -La procédure devant la Cour internationale comprend deux phases -distinctes: l'instruction écrite et les débats oraux. - -L'instruction écrite consiste dans le dépôt et l'échange d'exposés, de -contre-exposés et, au besoin, de répliques dont l'ordre et les délais -sont fixés par la Cour. Les parties y joignent toutes pièces et -documents dont elles comptent se servir. - -Toute pièce, produite par une partie, doit être communiquée en copie -certifiée conforme à l'autre partie par l'intermédiaire de la Cour. - -Article 35. - -L'instruction écrite étant terminée, il y a lieu à une audience -publique, dont le jour est fixé par la Cour. - -Dans cette audience, les parties exposent l'état de l'affaire en fait et -en droit. - -La Cour peut, en tout état de cause, suspendre les plaidoiries, soit à -la demande d'une des parties, soit d'office, pour procéder à une -information complémentaire. - -Article 36. - -La Cour internationale peut ordonner que l'information complémentaire -aura lieu, soit conformément aux dispositions de l'article 27, soit -directement devant elle ou devant un ou plusieurs de ses membres en tant -que cela peut se faire sans moyen coercitif ou comminatoire. - -Si des mesures d'information doivent être prises par des membres de la -Cour en dehors du territoire où elle a son siège, l'assentiment du -Gouvernement étranger doit être obtenu. - -Article 37. - -Les parties sont appelées à assister à toutes mesures d'instruction. -Elles reçoivent une copie certifiée conforme des procès-verbaux. - -Article 38. - -Les débats sont dirigés par le Président ou le Vice-Président et, en cas -d'absence ou d'empêchement de l'un et de l'autre, par le plus ancien des -juges présents. - -Le juge nommé par une partie belligérante ne peut siéger comme -Président. - -Article 39. - -Les débats sont publics sauf le droit pour une Puissance en litige de -demander qu'il y soit procédé à huis clos. - -Ils sont consignés dans des procès-verbaux, que signent le Président et -le greffier et qui seuls ont caractère authentique. - -Article 40. - -En cas de non comparution d'une des parties, bien que régulièrement -citée, ou faute par elle d'agir dans les délais fixés par la Cour, il -est procédé sans elle et la Cour décide d'après les éléments -d'appréciation qu'elle a à sa disposition. - -Article 41. - -La Cour notifie d'office aux parties toutes décisions ou ordonnances -prises en leur absence. - -Article 42. - -La Cour apprécie librement l'ensemble des actes, preuves et déclarations -orales. - -Article 43. - -Les délibérations de la Cour ont lieu à huis clos et restent secrètes. - -Toute décision est prise à la majorité des juges présents. Si la Cour -siège en nombre pair et qu'il y ait partage des voix, la voix du dernier -des juges dans l'ordre de préséance établi d'après l'article 12 alinéa 1 -n'est pas comptée. - -Article 44. - -L'arrêt de la Cour doit être motivé. Il mentionne les noms des juges qui -y ont participé, ainsi que les noms des assesseurs, s'il y a lieu; il -est signé par le Président et par le greffier. - -Article 45. - -L'arrêt est prononcé en séance publique, les parties présentes ou dûment -appelées; il est notifié d'office aux parties. - -Cette notification une fois faite, la Cour fait parvenir au tribunal -national des prises le dossier de l'affaire en y joignant une expédition -des diverses décisions intervenues ainsi qu'une copie des procès-verbaux -de l'instruction. - -Article 46. - -Chaque partie supporte les frais occasionnés par sa propre défense. - -La partie qui succombe supporte, en outre, les frais causés par la -procédure. Elle doit, de plus, verser un centième de la valeur de -l'objet litigieux à titre de contribution aux frais généraux de la Cour -internationale. Le montant de ces versements est déterminé par l'arrêt -de la Cour. - -Si le recours est exercé par un particulier, celui-ci fournit au Bureau -international un cautionnement dont le montant est fixé par la Cour et -qui est destiné à garantir l'exécution éventuelle des deux obligations -mentionnées dans l'alinéa précédent. La Cour peut subordonner -l'ouverture de la procédure au versement du cautionnement. - -Article 47. - -Les frais généraux de la Cour internationale des prises sont supportés -par les Puissances contractantes dans la proportion de leur -participation au fonctionnement de la Cour telle qu'elle est prévue par -l'article 15 et par le tableau y annexé. La désignation des juges -suppléants ne donne pas lieu à contribution. - -Le Conseil administratif s'adresse aux Puissances pour obtenir les fonds -nécessaires au fonctionnement de la Cour. - -Article 48. - -Quand la Cour n'est pas en session, les fonctions qui lui sont conférées -par l'article 32, l'article 34 alinéas 2 et 3, l'article 35 alinéa 1 et -l'article 46 alinéa 3, sont exercées par une Délégation de trois juges -désignés par la Cour. Cette Délégation décide à la majorité des voix. - -Article 49. - -La Cour fait elle-même son règlement d'ordre intérieur qui doit être -communiqué aux Puissances contractantes. - -Dans l'année de la ratification de la présente Convention, elle se -réunira pour élaborer ce règlement. - -Article 50. - -La Cour peut proposer des modifications à apporter aux dispositions de -la présente Convention qui concernent la procédure. Ces propositions -sont communiquées, par l'intermédiaire du Gouvernement des Pays-Bas, -aux Puissances contractantes qui se concerteront sur la suite à y -donner. - -TITRE IV.--_Dispositions finales._ - -Article 51. - -La présente Convention ne s'applique de plein droit que si les -Puissances belligérantes sont toutes parties à la Convention. - -Il est entendu, en outre, que le recours devant la Cour internationale -des prises ne peut être exercé que par une Puissance contractante ou le -ressortissant d'une Puissance contractante. - -Dans les cas de l'article 5, le recours n'est admis que si le -propriétaire et l'ayant-droit sont également des Puissances -contractantes ou des ressortissants de Puissances contractantes. - -Article 52. - -La présente Convention sera ratifiée et les ratifications en seront -déposées à La Haye dès que toutes les Puissances désignées à l'article -15 et dans son annexe seront en mesure de le faire. - -Le dépôt des ratifications aura lieu en tout cas, le 30 juin 1909, si -les Puissances prêtes à ratifier peuvent fournir à la Cour neuf juges et -neuf juges suppléants, aptes à siéger effectivement. Dans le cas -contraire, le dépôt sera ajourné jusqu'au moment où cette condition sera -remplie. - -Il sera dressé du dépôt des ratifications un procès-verbal dont une -copie, certifiée conforme, sera remise par la voie diplomatique à -chacune des Puissances désignées à l'alinéa premier. - -Article 53. - -Les Puissances désignées à l'article 15 et dans son annexe sont admises -à signer la présente Convention jusqu'au dépôt des ratifications prévu -par l'alinéa 2 de l'article précédent. - -Après ce dépôt, elles seront toujours admises à y adhérer, purement et -simplement. La Puissance qui désire adhérer notifie par écrit son -intention au Gouvernement des Pays-Bas en lui transmettant, en même -temps, l'acte d'adhésion qui sera déposé dans les archives dudit -Gouvernement. Celui-ci enverra, par la voie diplomatique, une copie -certifiée conforme de la notification et de l'acte d'adhésion à toutes -les Puissances désignées à l'alinéa précédent, en leur faisant savoir la -date où il a reçu la notification. - -Article 54. - -La présente Convention entrera en vigueur six mois à partir du dépôt -des ratifications prévu par l'article 52 alinéas 1 et 2. - -Les adhésions produiront effet soixante jours après que la notification -en aura été reçue par le Gouvernement des Pays-Bas et, au plus tôt, à -l'expiration du délai prévu par l'alinéa précédent. - -Toutefois, la Cour internationale aura qualité pour juger les affaires -de prises décidées par la juridiction nationale à partir du dépôt des -ratifications ou de la réception de la notification des adhésions. Pour -ces décisions, le délai fixé à l'article 28 alinéa 2, ne sera compté que -de la date de la mise en vigueur de la Convention pour les Puissances -ayant ratifié ou adhéré. - -Article 55. - -La présente Convention aura une durée de douze ans à partir de sa mise -en vigueur, telle qu'elle est déterminée par l'article 54 alinéa 1, même -pour les Puissances ayant adhéré postérieurement. - -Elle sera renouvelée tacitement de six ans en six ans sauf dénonciation. - -La dénonciation devra être, au moins un an avant l'expiration de chacune -des périodes prévues par les deux alinéas précédents, notifiée par écrit -au Gouvernement des Pays-Bas qui en donnera connaissance à toutes les -autres Parties contractantes. - -La dénonciation ne produira ses effets qu'à l'égard de la Puissance qui -l'aura notifiée. La Convention subsistera pour les autres Puissances -contractantes, pourvu que leur participation à la désignation des juges -soit suffisante pour permettre le fonctionnement de la Cour avec neuf -juges et neuf juges suppléants. - -Article 56. - -Dans le cas où la présente Convention n'est pas en vigueur pour toutes -les Puissances désignées dans l'article 15 et le tableau qui s'y -rattache, le Conseil administratif dresse, conformément aux dispositions -de cet article et de ce tableau, la liste des juges et des juges -suppléants pour lesquels les Puissances contractantes participent au -fonctionnement de la Cour. Les juges appelés à siéger à tour de rôle -seront, pour le temps qui leur est attribué par le tableau susmentionné, -répartis entre les différentes années de la période de six ans, de -manière que, dans la mesure du possible, la Cour fonctionne chaque année -en nombre égal. Si le nombre des juges suppléants dépasse celui des -juges, le nombre de ces derniers pourra être complété par des juges -suppléants désignés par le sort parmi celles des Puissances qui ne -nomment pas de juge titulaire. - -La liste ainsi dressée par le Conseil administratif sera notifiée aux -Puissances contractantes. Elle sera révisée quand le nombre de celles-ci -sera modifié par suite d'adhésions ou de dénonciations. - -Le changement à opérer par suite d'une adhésion ne se produira qu'à -partir du 1'er janvier qui suit la date à laquelle l'adhésion a son -effet, à moins que la Puissance adhérente ne soit une Puissance -belligérante, cas auquel elle peut demander d'être aussitôt représentée -dans la Cour, la disposition de l'article 16 étant du reste applicable, -s'il y a lieu. - -Quand le nombre total des juges est inférieur à onze, sept juges -constituent le quorum nécessaire. - -Article 57. - -Deux ans avant l'expiration de chaque période visée par les alinéas 1 et -2 de l'article 55, chaque Puissance contractante pourra demander une -modification des dispositions de l'article 15 et du tableau y annexé, -relativement à sa participation au fonctionnement de la Cour. La demande -sera adressée au Conseil administratif qui l'examinera et soumettra à -toutes les Puissances des propositions sur la suite à y donner. Les -Puissances feront, dans le plus bref délai possible, connaître leur -résolution au Conseil administratif. Le résultat sera immédiatement, et -au moins un an et trente jours avant l'expiration dudit délai de deux -ans, communiqué à la Puissance qui a fait la demande. - -Le cas échéant, les modifications adoptées par les Puissances entreront -en vigueur dès le commencement de la nouvelle période. - -_Annexe de l'article 15._ - - DISTRIBUTION DES JUGES ET JUGES SUPPLÉANTS PAR PAYS POUR - CHAQUE ANNÉE DE LA PÉRIODE DE SIX ANS. - - Juges. Juges Suppléants. - - _Première Année._ - - 1 Argentine Paraguay - 2 Colombie Bolivie - 3 Espagne Espagne - 4 Grèce Roumanie - 5 Norvège Suède - 6 Pays-Bas Belgique - 7 Turquie Perse - - _Deuxième Année._ - - 1 Argentine Panama - 2 Espagne Espagne - 3 Grèce Roumanie - 4 Norvège Suède - 5 Pays-Bas Belgique - 6 Turquie Luxembourg - 7 Uruguay Costa Rica - - _Troisième Année._ - - 1 Brésil Dominicaine - 2 Chine Turquie - 3 Espagne Portugal - 4 Pays-Bas Suisse - 5 Roumanie Grèce - 6 Suède Danemark - 7 Vénézuéla Haïti - - _Quatrième Année._ - - 1 Brésil Guatémala - 2 Chine Turquie - 3 Espagne Portugal - 4 Pérou Honduras - 5 Roumanie Grèce - 6 Suède Danemark - 7 Suisse Pays-Bas - - _Cinquième Année._ - - 1 Belgique Pays-Bas - 2 Bulgarie Monténégro - 3 Chili Nicaragua - 4 Danemark Norvège - 5 Mexique Cuba - 6 Perse Chine - 7 Portugal Espagne - - _Sixième Année._ - - 1 Belgique Pays-Bas - 2 Chili Salvador - 3 Danemark Norvège - 4 Mexique Equateur - 5 Portugal Espagne - 6 Serbie Bulgarie - 7 Siam Chine - - -CONVENTION XIII. - - CONVENTION CONCERNING THE RIGHTS AND DUTIES OF NEUTRAL POWERS - IN MARITIME WAR. - -Article premier. - -Les belligérants sont tenus de respecter les droits souverains des -Puissances neutres et de s'abstenir, dans le territoire ou les eaux -neutres, de tous actes qui constitueraient de la part des Puissances qui -les toléreraient un manquement à leur neutralité. - -Article 2. - -Tous actes d'hostilité, y compris la capture et l'exercice du droit de -visite, commis par des vaisseaux de guerre belligérants dans les eaux -territoriales d'une Puissance neutre, constituent une violation de la -neutralité et sont strictement interdits. - -Article 3. - -Quand un navire a été capturé dans les eaux territoriales d'une -Puissance neutre, cette Puissance doit, si la prise est encore dans sa -juridiction, user des moyens dont elle dispose pour que la prise soit -relâchée avec ses officiers et son équipage, et pour que l'équipage mis -à bord par le capteur soit interné. - -Si la prise est hors de la juridiction de la Puissance neutre, le -Gouvernement capteur, sur la demande de celle-ci, doit relâcher la prise -avec ses officiers et son équipage. - -Article 4. - -Aucun tribunal des prises ne peut être constitué par un belligérant sur -un territoire neutre ou sur un navire dans des eaux neutres. - -Article 5. - -Il est interdit aux belligérants de faire des ports et des eaux neutres -la base d'opérations navales contre leurs adversaires, notamment d'y -installer des stations radio-télégraphiques ou tout appareil destiné à -servir comme moyen de communication avec des forces belligérantes sur -terre ou sur mer. - -Article 6. - -La remise à quelque titre que ce soit, faite directement ou -indirectement par une Puissance neutre à une Puissance belligérante, de -vaisseaux de guerre, de munitions, ou d'un matériel de guerre -quelconque, est interdite. - -Article 7. - -Une Puissance neutre n'est pas tenue d'empêcher l'exportation ou le -transit, pour le compte de l'un ou de l'autre des belligérants, d'armes, -de munitions, et, en général, de tout ce qui peut être utile à une armée -ou à une flotte. - -Article 8. - -Un Gouvernement neutre est tenu d'user des moyens dont il dispose pour -empêcher dans sa juridiction l'équipement ou l'armement de tout navire, -qu'il a des motifs raisonnables de croire destiné à croiser ou à -concourir à des opérations hostiles contre une Puissance avec laquelle -il est en paix. Il est aussi tenu d'user de la même surveillance pour -empêcher le départ hors de sa juridiction de tout navire destiné à -croiser ou à concourir à des opérations hostiles, et qui aurait été, -dans ladite juridiction, adapté en tout ou en partie à des usages de -guerre. - -Article 9. - -Une Puissance neutre doit appliquer également aux deux belligérants les -conditions, restrictions ou interdictions, édictées par elle pour ce qui -concerne l'admission dans ses ports, rades ou eaux territoriales, des -navires de guerre belligérants ou de leurs prises. - -Toutefois, une Puissance neutre peut interdire l'accès de ses ports et -de ses rades au navire belligérant qui aurait négligé de se conformer -aux ordres et prescriptions édictés par elle ou qui aurait violé la -neutralité. - -Article 10. - -La neutralité d'une Puissance n'est pas compromise par le simple passage -dans ses eaux territoriales de navires de guerre et des prises des -belligérants. - -Article 11. - -Une Puissance neutre peut laisser les navires de guerre des belligérants -se servir de ses pilotes brevetés. - -Article 12. - -A 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 -ladite Puissance, pendant plus de 24 heures, sauf dans les cas prévus -par la présente Convention. - -Article 13. - -Si une Puissance avisée de l'ouverture des hostilités apprend qu'un -navire de guerre d'un belligérant se trouve dans un de ses ports et -rades ou dans ses eaux territoriales, elle doit notifier audit navire -qu'il devra partir dans les 24 heures ou dans le délai prescrit par la -loi locale. - -Article 14. - -Un navire de guerre belligérant ne peut prolonger son séjour dans un -port neutre au delà de la durée légale que pour cause d'avaries ou à -raison de l'état de la mer. Il devra partir dès que la cause du retard -aura cessé. - -Les règles sur la limitation du séjour dans les ports, rades et eaux -neutres, ne s'appliquent pas aux navires de guerre exclusivement -affectés à une mission religieuse, scientifique ou philanthropique. - -Article 15. - -A défaut d'autres dispositions spéciales de la législation de la -Puissance neutre, le nombre maximum des navires de guerre d'un -belligérant qui pourront se trouver en même temps dans un de ses ports -ou rades, sera de trois. - -Article 16. - -Lorsque des navires de guerre des deux parties belligérantes se trouvent -simultanément dans un port ou une rade neutres, il doit s'écouler au -moins 24 heures entre le départ du navire d'un belligérant et le départ -du navire de l'autre. - -L'ordre des départs est déterminé par l'ordre des arrivées, à moins que -le navire arrivé le premier ne soit dans le cas où la prolongation de la -durée légale du séjour est admise. - -Un navire de guerre belligérant ne peut quitter un port ou une rade -neutres moins de 24 heures après le départ d'un navire de commerce -portant le pavillon de son adversaire. - -Article 17. - -Dans les ports et rades neutres, les navires de guerre belligérants ne -peuvent réparer leurs avaries que dans la mesure indispensable à la -sécurité de leur navigation et non pas accroître, d'une manière -quelconque, leur force militaire. L'autorité neutre constatera la nature -des réparations à effectuer qui devront être exécutées le plus -rapidement possible. - -Article 18. - -Les navires de guerre belligérants ne peuvent pas se servir des ports, -rades et eaux territoriales neutres, pour renouveler ou augmenter leurs -approvisionnements militaires ou leur armement ainsi que pour compléter -leurs équipages. - -Article 19. - -Les navires de guerre belligérants ne peuvent se ravitailler dans les -ports et rades neutres que pour compléter leur approvisionnement normal -du temps de paix. - -Ces navires ne peuvent, de même, prendre du combustible que pour gagner -le port le plus proche de leur propre pays. Ils peuvent, d'ailleurs, -prendre le combustible nécessaire pour compléter le plein de leurs -soutes proprement dites, quand ils se trouvent dans les pays neutres qui -ont adopté ce mode de détermination du combustible à fournir. - -Si, d'après la loi de la Puissance neutre, les navires ne reçoivent du -charbon que 24 heures après leur arrivée, la durée légale de leur séjour -est prolongée de 24 heures. - -Article 20. - -Les navires de guerre belligérants, qui ont pris du combustible dans le -port d'une Puissance neutre, ne peuvent renouveler leur -approvisionnement qu'après trois mois dans un port de la même Puissance. - -Article 21. - -Une prise ne peut être amenée dans un port neutre que pour cause -d'innavigabilité, de mauvais état de la mer, de manque de combustible -ou de provisions. - -Elle doit repartir aussitôt que la cause qui en a justifié l'entrée a -cessé. Si elle ne le fait pas, la Puissance neutre doit lui notifier -l'ordre de partir immédiatement; au cas où elle ne s'y conformerait pas, -la Puissance neutre doit user des moyens dont elle dispose pour la -relâcher avec ses officiers et son équipage et interner l'équipage mis à -bord par le capteur. - -Article 22. - -La Puissance neutre doit, de même, relâcher la prise qui aurait été -amenée en dehors des conditions prévues par l'article 21. - -Article 23. - -Une Puissance neutre peut permettre l'accès de ses ports et rades aux -prises escortées ou non, lorsqu'elles y sont amenées pour être laissées -sous séquestre en attendant la décision du tribunal des prises. Elle -peut faire conduire la prise dans un autre de ses ports. - -Si la prise est escortée par un navire de guerre, les officiers et les -hommes mis à bord par le capteur sont autorisés à passer sur le navire -d'escorte. - -Si la prise voyage seule, le personnel placé à son bord par le capteur -est laissé en liberté. - -Article 24. - -Si, malgré la notification de l'autorité neutre, un navire de guerre -belligérant ne quitte pas un port dans lequel il n'a pas le droit de -rester, la Puissance neutre a le droit de prendre les mesures qu'elle -pourra juger nécessaires pour rendre le navire incapable de prendre la -mer pendant la durée de la guerre et le commandant du navire doit -faciliter l'exécution de ces mesures. - -Lorsqu'un navire belligérant est retenu par une Puissance neutre, les -officiers et l'équipage sont également retenus. - -Les officiers et l'équipage ainsi retenus peuvent être laissés dans le -navire ou logés, soit sur un autre navire, soit à terre, et ils peuvent -être assujettis aux mesures restrictives qu'il paraîtrait nécessaire de -leur imposer. Toutefois, on devra toujours laisser sur le navire les -hommes nécessaires à son entretien. - -Les officiers peuvent être laissés libres en prenant l'engagement sur -parole de ne pas quitter le territoire neutre sans autorisation. - -Article 25. - -Une Puissance neutre est tenue d'exercer la surveillance, que -comportent les moyens dont elle dispose, pour empêcher dans ses ports -ou rades et dans ses eaux toute violation des dispositions qui -précèdent. - -Article 26. - -L'exercice par une Puissance neutre des droits définis par la présente -Convention ne peut jamais être considéré comme un acte peu amical par -l'un ou par l'autre belligérant qui a accepté les articles qui s'y -réfèrent. - -Article 27. - -Les Puissances contractantes se communiqueront réciproquement, en temps -utile, toutes les lois, ordonnances et autres dispositions réglant chez -elles le régime des navires de guerre belligérants dans leurs ports et -leurs eaux, au moyen d'une notification adressée au Gouvernement des -Pays-Bas et transmise immédiatement par celui-ci aux autres Puissances -contractantes. - -Article 28. - -Les dispositions de la présente Convention ne sont applicables qu'entre -les Puissances contractantes et seulement si les belligérants sont tous -parties à la Convention. - -Article 29. - -La présente Convention sera ratifiée aussitôt que possible. - -Les ratifications seront déposées à La Haye. - -Le premier dépôt de ratifications sera constaté par un procès-verbal -signé par les représentants des Puissances qui y prennent part et par le -Ministre des Affaires Étrangères des Pays-Bas. - -Les dépôts ultérieurs de ratifications se feront au moyen d'une -notification écrite, adressée au Gouvernement des Pays-Bas et -accompagnée de l'instrument de ratification. - -Copie certifiée conforme du procès-verbal relatif au premier dépôt de -ratifications, des notifications mentionnées à l'alinéa précédent, ainsi -que des instruments de ratification, sera immédiatement remise par les -soins du Gouvernement des Pays-Bas et par la voie diplomatique aux -Puissances conviées à la Deuxième Conférence de la Paix, ainsi qu'aux -autres Puissances qui auront adhéré à la Convention. Dans les cas visés -par l'alinéa précédent, ledit Gouvernement leur fera connaître en même -temps la date à laquelle il a reçu la notification. - -Article 30. - -Les Puissances non signataires sont admises à adhérer à la présente -Convention. - -La Puissance qui désire adhérer notifie par écrit son intention au -Gouvernement des Pays-Bas en lui transmettant l'acte d'adhésion qui sera -déposé dans les archives dudit Gouvernement. - -Ce Gouvernement transmettra immédiatement à toutes les autres Puissances -copie certifiée conforme de la notification ainsi que de l'acte -d'adhésion, en indiquant la date à laquelle il a reçu la notification. - -Article 31. - -La présente Convention produira effet pour les Puissances qui auront -participé au premier dépôt des ratifications, soixante jours après la -date du procès-verbal de ce dépôt et, pour les Puissances qui -ratifieront ultérieurement ou qui adhéreront, soixante jours après que -la notification de leur ratification ou de leur adhésion aura été reçue -par la Gouvernement des Pays-Bas. - -Article 32. - -S'il arrivait qu'une des Puissances contractantes voulût dénoncer la -présente Convention, la dénonciation sera notifiée par écrit au -Gouvernement des Pays-Bas qui communiquera immédiatement copie certifiée -conforme de la notification à toutes les autres Puissances en leur -faisant savoir la date à laquelle il l'a reçue. - -La dénonciation ne produira ses effets qu'à l'égard de la Puissance qui -l'aura notifiée et un an après que la notification en sera parvenue au -Gouvernement des Pays-Bas. - -Article 33. - -Un registre tenu par le Ministère des Affaires Étrangères des Pays-Bas -indiquera la date du dépôt de ratifications effectué en vertu de -l'article 29 alinéas 3 et 4, ainsi que la date à laquelle auront été -reçues les notifications d'adhésion (article 30 alinéa 2) ou de -dénonciation (article 32 alinéa 1). - -Chaque Puissance contractante est admise à prendre connaissance de ce -registre et à en demander des extraits certifiés conformes. - - -XIV. - - DECLARATION CONCERNING THE PROHIBITION OF THE DISCHARGE OF - PROJECTILES AND EXPLOSIVES FROM BALLOONS. - -Les soussignés, Plénipotentiaires des Puissances conviées à la Deuxième -Conférence Internationale de la Paix à La Haye, dûment autorisés à cet -effet par leurs Gouvernements, - -s'inspirant des sentiments qui ont trouvé leur expression dans la -Déclaration de St. Pétersbourg du 29 novembre/11 décembre 1868, et -désirant renouveler la déclaration de La Haye du 29 juillet 1899, -arrivée à expiration, - -Déclarent: - -Les Puissances contractantes consentent, pour une période allant jusqu'à -la fin de la troisième Conférence de la Paix, à l'interdiction de lancer -des projectiles et des explosifs du haut de ballons ou par d'autres -modes analogues nouveaux. - -La présente Déclaration n'est obligatoire que pour les Puissances -contractantes, en cas de guerre entre deux ou plusieurs d'entre elles. - -Elle cessera d'être obligatoire du moment où, dans une guerre entre des -Puissances contractantes, une Puissance non contractante se joindrait à -l'un des belligérants. - -La présente Déclaration sera ratifiée dans le plus bref délai possible. - -Les ratifications seront déposées à La Haye. - -Il sera dressé du dépôt des ratifications un procès-verbal, dont une -copie, certifiée conforme, sera remise par la voie diplomatique à toutes -les Puissances contractantes. - -Les Puissances non signataires pourront adhérer à la présente -Déclaration. Elles auront, à cet effet, à faire connaître leur adhésion -aux Puissances contractantes, au moyen d'une notification écrite, -adressée au Gouvernement des Pays-Bas et communiquée par celui-ci à -toutes les autres Puissances contractantes. - -S'il arrivait qu'une des Hautes Parties Contractantes dénonçât la -présente Déclaration, cette dénonciation ne produirait ses effets qu'un -an après la notification faite par écrit au Gouvernement des Pays-Bas et -communiquée immédiatement par celui-ci à toutes les autres Puissances -contractantes. - -Cette dénonciation ne produira ses effets qu'à l'égard de la Puissance -qui l'aura notifiée. - - -ANNEX TO THE FIRST VOEU OF THE SECOND PEACE CONFERENCE - -XV. - - DRAFT CONVENTION CONCERNING THE CREATION OF A JUDICIAL - ARBITRATION COURT. - -TITRE I.--_Organisation de la Cour de justice arbitrale._ - -Article premier. - -Dans le but de faire progresser la cause de l'arbitrage, les Puissances -contractantes conviennent d'organiser, sans porter atteinte à la Cour -permanente d'arbitrage, une Cour de justice arbitrale, d'un accès libre -et facile, basée sur l'égalité juridique des États, réunissant des juges -représentant les divers systèmes juridiques du monde, et capable -d'assurer la continuité de la jurisprudence arbitrale. - -Article 2. - -La Cour de justice arbitrale se compose de juges et de juges suppléants -choisis parmi les personnes jouissant de la plus haute considération -morale et qui tous devront remplir les conditions requises, dans leurs -pays respectifs, pour l'admission dans la haute magistrature ou être des -jurisconsultes d'une compétence notoire en matière de droit -international. - -Les juges et les juges suppléants de la Cour sont choisis, autant que -possible, parmi les membres de la Cour permanente d'arbitrage. Le choix -sera fait dans les six mois qui suivront la ratification de la présente -Convention. - -Article 3. - -Les juges et les juges suppléants sont nommés pour une période de douze -ans à compter de la date où la nomination aura été notifiée au Conseil -administratif institué par la Convention pour le règlement pacifique des -conflits internationaux. Leur mandat peut être renouvelé. - -En cas de décès ou de démission d'un juge ou d'un juge suppléant, il est -pourvu à son remplacement selon le mode fixé pour sa nomination. Dans ce -cas, la nomination est faite pour une nouvelle période de douze ans. - -Article 4. - -Les juges de la Cour de justice arbitrale sont égaux entre eux et -prennent rang d'après la date de la notification de leur nomination. La -préséance appartient au plus âgé, au cas où la date est la même. - -Les juges suppléants sont, dans l'exercice de leurs fonctions, assimilés -aux juges titulaires. Toutefois, ils prennent rang après ceux-ci. - -Article 5. - -Les juges jouissent des privilèges et immunités diplomatiques dans -l'exercice de leurs fonctions et en dehors de leurs pays. - -Avant de prendre possession de leur siège, les juges et les juges -suppléants doivent, devant le Conseil administratif, prêter serment ou -faire une affirmation solennelle d'exercer leurs fonctions avec -impartialité et en toute conscience. - -Article 6. - -La Cour désigne annuellement trois juges qui forment une Délégation -spéciale et trois autres destinés à les remplacer en cas d'empêchement. -Ils peuvent être réélus. L'élection se fait au scrutin de liste. Sont -considérés comme élus ceux qui réunissent le plus grand nombre de voix. -La Délégation élit elle-même son Président, qui, à défaut d'une -majorité, est désigné par le sort. - -Un membre de la Délégation ne peut exercer ses fonctions quand la -Puissance qui l'a nommé, ou dont il est le national, est une des -Parties. - -Les membres de la Délégation terminent les affaires qui leur ont été -soumises, même au cas où la période pour laquelle ils ont été nommés -juges serait expirée. - -Article 7. - -L'exercice des fonctions judiciaires est interdit au juge dans les -affaires au sujet desquelles il aura, à un titre quelconque, concouru à -la décision d'un Tribunal national, d'un Tribunal d'arbitrage ou d'une -Commission d'enquête, ou figuré dans l'instance comme conseil ou avocat -d'une Partie. - -Aucun juge ne peut intervenir comme agent ou comme avocat devant la Cour -de justice arbitrale ou la Cour permanente d'arbitrage, devant un -Tribunal spécial d'arbitrage ou une Commission d'enquête, ni y agir pour -une Partie en quelque qualité que ce soit, pendant toute la durée de son -mandat. - -Article 8. - -La Cour élit son Président et son Vice-Président à la majorité absolue -des suffrages exprimés. Après deux tours de scrutin, l'élection se fait -à la majorité relative et, en cas de partage des voix, le sort décide. - -Article 9. - -Les juges de la Cour de justice arbitrale reçoivent une indemnité -annuelle de six mille florins néerlandais. Cette indemnité est payée à -l'expiration de chaque semestre à dater du jour de la première réunion -de la Cour. - -Pendant l'exercice de leurs fonctions au cours des sessions ou dans les -cas spéciaux prévus par la présente Convention, ils touchent une somme -de cent florins par jour. Il leur est alloué, en outre, une indemnité de -voyage fixée d'après les règlements de leur pays. Les dispositions du -présent alinéa s'appliquent aussi aux juges suppléants remplaçant les -juges. - -Ces allocations, comprises dans les frais généraux de la Cour, prévus -par l'article 33, sont versées par l'entremise du Bureau international -institué par la Convention pour le règlement pacifique des conflits -internationaux. - -Article 10. - -Les juges ne peuvent recevoir de leur propre Gouvernement ou de celui -d'une autre Puissance aucune rémunération pour des services rentrant -dans leurs devoirs comme membres de la Cour. - -Article 11. - -La Cour de justice arbitrale a son siège à La Haye et ne peut, sauf le -cas de force majeure, le transporter ailleurs. - -La Délégation peut, avec l'assentiment des Parties, choisir un autre -lieu pour ses réunions si des circonstances particulières l'exigent. - -Article 12. - -Le Conseil administratif remplit à l'égard de la Cour de justice -arbitrale les fonctions qu'il remplit à l'égard de la Cour permanente -d'arbitrage. - -Article 13. - -Le Bureau international sert de greffe à la Cour de justice arbitrale et -doit mettre ses locaux et son organisation à la disposition de la Cour. -Il a la garde des archives et la gestion des affaires administratives. - -Le Secrétaire Général du Bureau remplit les fonctions de greffier. - -Les secrétaires adjoints au greffier, les traducteurs et les -sténographes nécessaires sont désignés et assermentés par la Cour. - -Article 14. - -La Cour se réunit en session une fois par an. La session commence le -troisième mercredi de juin et dure tant que l'ordre du jour n'aura pas -été épuisé. - -La Cour ne se réunit pas en session, si la Délégation estime que cette -réunion n'est pas nécessaire. Toutefois, si une Puissance est partie à -un litige actuellement pendant devant la Cour et dont l'instruction est -terminée ou va être terminée, elle a le droit d'exiger que la session -ait lieu. - -En cas de nécessité, la Délégation peut convoquer la Cour en session -extraordinaire. - -Article 15. - -Un compte-rendu des travaux de la Cour sera dressé chaque année par la -Délégation. Ce compte-rendu sera transmis aux Puissances contractantes -par l'intermédiaire du Bureau international. Il sera communiqué aussi à -tous les juges et juges suppléants de la Cour. - -Article 16. - -Les juges et les juges suppléants, membres de la Cour de justice -arbitrale, peuvent aussi être nommés aux fonctions de juge et de juge -suppléant dans la Cour internationale des prises. - -TITRE II.--_Compétence et procédure._ - -Article 17. - -La Cour de justice arbitrale est compétente pour tous les cas qui sont -portés devant elle, en vertu d'une stipulation générale d'arbitrage ou -d'un accord spécial. - -Article 18. - -La Délégation est compétente: - - 1. pour juger les cas d'arbitrage visés à l'article précédent, si - les Parties sont d'accord pour réclamer l'application de la - procédure sommaire, réglée au Titre IV Chapitre 4 de la Convention - pour le règlement pacifique des conflits internationaux; - - 2. pour procéder à une enquête en vertu et en conformité du Titre - III de ladite Convention en tant que la Délégation en est chargée - par les Parties agissant d'un commun accord. Avec l'assentiment - des Parties et par dérogation à l'article 7 alinéa 1, les membres - de la Délégation ayant pris part à l'enquête peuvent siéger comme - juges, si le litige est soumis à l'arbitrage de la Cour ou de la - Délégation elle-même. - -Article 19. - -La Délégation est, en outre, compétente pour l'établissement du -compromis visé par l'article 52 de la Convention pour le règlement -pacifique des conflits internationaux, si les Parties sont d'accord pour -s'en remettre à la Cour. - -Elle est également compétente, même si la demande est faite seulement -par l'une des Parties, après qu'un accord par la voie diplomatique a été -vainement essayé, quand il s'agit: - - 1'o. d'un différend rentrant dans un traité d'arbitrage général - conclu ou renouvelé après la mise en vigueur de cette Convention - et qui prévoit pour chaque différend un compromis, et n'exclut - pour l'établissement de ce dernier ni explicitement ni - implicitement la compétence de la Délégation. Toutefois, le - recours à la Cour n'a pas lieu si l'autre Partie déclare qu'à son - avis le différend n'appartient pas à la catégorie des questions à - soumettre à un arbitrage obligatoire, à moins que le traité - d'arbitrage ne confère au tribunal arbitral le pouvoir de décider - cette question préalable. - - 2'o. d'un différend provenant de dettes contractuelles réclamées à - une Puissance par une autre Puissance comme dues à ses nationaux, - et pour la solution duquel l'offre d'arbitrage a été acceptée. - Cette disposition n'est pas applicable si l'acceptation a été - subordonnée à la condition que le compromis soit établi selon un - autre mode. - -Article 20. - -Chacune des Parties a le droit de désigner un juge de la Cour pour -prendre part, avec voix délibérative, à l'examen de l'affaire soumise à -la Délégation. - -Si la Délégation fonctionne en qualité de Commission d'enquête, ce -mandat peut être confié à des personnes prises en dehors des juges de la -Cour. Les frais de déplacement et la rétribution à allouer auxdites -personnes sont fixés et supportés par les Puissances qui les ont -nommées. - -Article 21. - -L'accès de la Cour de justice arbitrale, instituée par la présente -Convention, n'est ouvert qu'aux Puissances contractantes. - -Article 22. - -La Cour de justice arbitrale suit les règles de procédure édictées par -la Convention pour le règlement pacifique des conflits internationaux, -sauf ce qui est prescrit par la présente Convention. - -Article 23. - -La Cour décide du choix de la langue dont elle fera usage, et des -langues dont l'emploi sera autorisé devant elle. - -Article 24. - -Le Bureau international sert d'intermédiaire pour toutes les -communications à faire aux juges au cours de l'instruction prévue à -l'article 63 alinéa 2 de la Convention pour le règlement pacifique des -conflits internationaux. - -Article 25. - -Pour toutes les notifications à faire, notamment aux Parties, aux -témoins et aux experts, la Cour peut s'adresser directement au -Gouvernement de la Puissance sur le territoire de laquelle la -notification doit être effectuée. Il en est de même s'il s'agit de -faire procéder à l'établissement de tout moyen de preuve. - -Les requêtes adressées à cet effet ne peuvent être refusées que si la -Puissance requise le juge de nature à porter atteinte à sa souveraineté -ou à sa sécurité. S'il est donné suite à la requête, les frais ne -comprennent que les dépenses d'exécution réellement effectuées. - -La Cour a également la faculté de recourir à l'intermédiaire de la -Puissance sur la territoire de laquelle elle a son siège. - -Les notifications à faire aux Parties dans le lieu où siège la Cour -peuvent être exécutées par le Bureau international. - -Article 26. - -Les débats sont dirigés par le Président ou le Vice-Président et, en cas -d'absence ou d'empêchement de l'un et de l'autre, par le plus ancien des -juges présents. - -Le juge nommé par une des Parties ne peut siéger comme Président. - -Article 27. - -Les délibérations de la Cour ont lieu à huis clos et restent secrètes. - -Toute décision est prise à la majorité des juges présents. Si la Cour -siège en nombre pair et qu'il y ait partage des voix, la voix du dernier -des juges, dans l'ordre de préséance établi d'après l'article 4 alinéa -1, ne sera pas comptée. - -Article 28. - -Les arrêts de la Cour doivent être motivés. Ils mentionnent les noms des -juges qui y ont participé; ils sont signés par le Président et par le -greffier. - -Article 29. - -Chaque Partie supporte ses propres frais et une part égale des frais -spéciaux de l'instance. - -Article 30. - -Les dispositions des articles 21 à 29 sont appliquées par analogie dans -la procédure devant la Délégation. - -Lorsque le droit d'adjoindre un membre à la Délégation n'a été exercé -que par une seule Partie, la voix du membre adjoint n'est pas comptée, -s'il y a partage de voix. - -Article 31. - -Les frais généraux de la Cour sont supportés par les Puissances -contractantes. - -Le Conseil administratif s'adresse aux Puissances pour obtenir les fonds -nécessaires au fonctionnement de la Cour. - -Article 32. - -La Cour fait elle-même son règlement d'ordre intérieur qui doit être -communiqué aux Puissances contractantes. - -Après la ratification de la présente Convention, la Cour se réunira -aussitôt que possible, pour élaborer ce règlement, pour élire le -Président et le Vice-Président ainsi que pour désigner les membres de la -Délégation. - -Article 33. - -La Cour peut proposer des modifications à apporter aux dispositions de -la présente Convention qui concernent la procédure. Ces propositions -sont communiquées par l'intermédiaire du Gouvernement des Pays-Bas aux -Puissances contractantes qui se concerteront sur la suite à y donner. - -TITRE III.--_Dispositions finales._ - -Article 34. - -La présente Convention sera ratifiée dans le plus bref délai possible. - -Les ratifications seront déposées à La Haye. - -Il sera dressé du dépôt de chaque ratification un procès-verbal, dont -une copie, certifiée conforme, sera remise par la voie diplomatique à -toutes les Puissances signataires. - -Article 35. - -La Convention entrera en vigueur six mois après sa ratification. - -Elle aura une durée de douze ans, et sera renouvelée tacitement de douze -ans en douze ans, sauf dénonciation. - -La dénonciation devra être notifiée, au moins deux ans avant -l'expiration de chaque période, au Gouvernement des Pays-Bas qui en -donnera connaissance aux autres Puissances. - -La dénonciation ne produira effet qu'à l'égard de la Puissance qui -l'aura notifiée. La Convention restera exécutoire dans les rapports -entre les autres Puissances. - - - - -APPENDIX VII - - DECLARATION OF LONDON OF 1909 (Not yet ratified) - With the Report[945] of the Drafting Committee on each Article - - -[Footnote 945: The several articles of the Declaration of London are -printed in italics, whereas the Report of the Drafting Committee on each -article is printed in roman type.] - - -Disposition Préliminaire. - -_Les Puissances Signataires sont d'accord pour constater que les règles -contenues dans les Chapitres suivants répondent, en substance, aux -principes généralement reconnus du droit international._ - -Cette disposition domine toutes les règles qui suivent. L'esprit en a -été indiqué dans les considérations générales placées en tête de ce -Rapport. La Conférence a eu surtout en vue de constater, de préciser, de -compléter au besoin, ce qui pouvait être considéré comme un droit -coutumier. - - -CHAPITRE PREMIER.--_Du blocus en temps de guerre._ - -Le blocus est envisagé ici uniquement comme opération de guerre, et l'on -n'a entendu en rien toucher à ce qu'on appelle le _blocus pacifique_. - -Article 1. - -_Le blocus doit être limité aux ports et aux côtes de l'ennemi ou -occupés par lui._ - -Le blocus, opération de guerre, ne peut être dirigé par un belligérant -que contre son adversaire. C'est la règle très simple qui est posée tout -d'abord. Elle n'a toute sa portée que si on la rapproche de l'article -18. - -Article 2. - -_Conformément à la Déclaration de Paris de 1856, le blocus, pour être -obligatoire, doit être effectif, c'est-à-dire maintenu par une force -suffisante pour interdire réellement l'accès du littoral ennemi._ - -La première condition pour qu'un blocus soit obligatoire est qu'il soit -effectif. Il y a longtemps que tout le monde est d'accord à ce sujet. -Quant à la définition du blocus effectif, nous avons pensé que nous -n'avions qu'à nous approprier celle qui se trouve dans la Déclaration de -Paris du 16 avril 1856, qui lie conventionnellement un grand nombre -d'États et qui est acceptée de fait par les autres. - -Article 3. - -_La question de savoir si le blocus est effectif est une question de -fait._ - -On comprend que souvent des difficultés s'élèvent sur le point de savoir -si un blocus est ou non effectif; il y a en jeu des intérêts opposés. Le -belligérant bloquant veut limiter son effort, et les neutres désirent -que leur commerce soit le moins gêné possible. Des protestations -diplomatiques ont été parfois formulées à ce sujet. L'appréciation peut -être délicate, parce qu'il n'y a pas de règle absolue à poser sur le -nombre et la situation des navires de blocus. Tout dépend des -circonstances de fait, des conditions géographiques. Suivant les cas, un -navire suffira pour bloquer un port aussi efficacement que possible, -alors qu'une flotte pourra être insuffisante pour empêcher réellement -l'accès d'un ou de plusieurs ports déclarés bloqués. C'est donc -essentiellement une _question de fait_, à trancher dans chaque espèce, -et non d'après une formule arrêtée à l'avance. Qui la tranchera? -L'autorité judiciaire. Ce sera d'abord le tribunal national appelé à -statuer sur la validité de la prise, et auquel le navire capturé pour -violation de blocus pourra demander de déclarer la nullité de la prise, -parce que le blocus, n'ayant pas été effectif, n'était pas obligatoire. -Ce recours a toujours existé; il pouvait ne pas donner une satisfaction -suffisante aux Puissances intéressées, parce qu'elles pouvaient estimer -que le tribunal national était assez naturellement porté à considérer -comme effectif le blocus déclaré tel par son Gouvernement. Mais, quand -la Convention sur la Cour Internationale des Prises entrera en vigueur, -il y aura une juridiction absolument impartiale à laquelle les neutres -pourront s'adresser et qui décidera si, dans tel cas, le blocus était -effectif ou non. La possibilité de ce recours, outre qu'elle permettra -de réparer certaines injustices, aura vraisemblablement un effet -préventif, en ce qu'un Gouvernement se préoccupera d'établir ses blocus -de telle façon que l'effet ne puisse pas en être annulé par des -décisions qui lui causeraient un grand préjudice. L'article 3 a donc -toute sa portée, si on l'entend en ce sens que la question prévue doit -être tranchée judiciairement. C'est pour écarter toute équivoque que -l'explication précédente est insérée dans le Rapport à la demande de la -Commission. - -Article 4. - -_Le blocus n'est pas considéré comme levé si, par suite du mauvais -temps, les forces bloquantes se sont momentanément éloignées._ - -Il ne suffit pas que le blocus soit établi; il faut qu'il soit maintenu. -S'il vient à être levé, il pourra être repris, mais alors il exigera les -mêmes formalités que s'il était établi pour la première fois. -Traditionnellement, on ne considère pas le blocus comme levé, lorsque -c'est par suite du mauvais temps que les forces bloquantes se sont -momentanément éloignées. C'est ce que dit l'article 4. Il doit être tenu -pour limitatif en ce sens que le mauvais temps est le seul cas de force -majeure qui puisse être allégué. Si les forces bloquantes s'éloignaient -pour toute autre cause, le blocus serait considéré comme levé, et, au -cas où il viendrait à être repris, les articles 12 _in fine_ et 13 -seraient applicables. - -Article 5. - -_Le blocus doit être impartialement appliqué aux divers pavillons._ - -Le blocus, opération de guerre légitime, doit être respecté par les -neutres en tant qu'il reste vraiment une opération de guerre ayant pour -but d'interrompre toutes les relations commerciales du port bloqué. Ce -ne peut être un moyen pour un belligérant de favoriser certains -pavillons en les laissant passer. C'est ce qu'indique l'article 5. - -Article 6. - -_Le commandant de la force bloquante peut accorder à des navires de -guerre la permission d'entrer dans le port bloqué et d'en sortir -ultérieurement._ - -L'interdiction qui s'applique à tous les navires de commerce, -s'applique-t-elle aussi aux navires de guerre? Il n'y a pas de réponse -absolue à faire. Le commandant des forces de blocus peut estimer qu'il a -avantage à intercepter toute communication de la place bloquée, et -refuser l'accès aux navires de guerre neutres; rien ne lui est imposé. -S'il accorde l'entrée, c'est affaire de courtoisie. Si on a consacré une -règle pour dire simplement cela, c'est pour qu'on ne puisse pas -prétendre que le blocus a cessé d'être effectif par suite de la -permission accordée à tels et tels navires de guerre neutres. - -Le commandant du blocus doit agir impartialement, comme il est dit dans -l'article 5. Toutefois, par cela seul qu'il a laissé entrer un navire de -guerre, il ne peut être obligé de laisser passer tous les navires de -guerre neutres qui se présenteront. C'est une question d'appréciation. -La présence d'un navire de guerre neutre dans un port bloqué peut ne pas -avoir les mêmes conséquences à toutes les phases du blocus, et le -commandant doit être laissé maître de juger s'il peut être courtois sans -rien sacrifier de ses intérêts militaires. - -Article 7. - -_Un navire neutre, en cas de détresse constatée par une autorité des -forces bloquantes, peut pénétrer dans la localité bloquée et en sortir -ultérieurement à la condition de n'y avoir laissé ni pris aucun -chargement._ - -La détresse peut expliquer l'entrée d'un navire neutre dans la localité -bloquée. C'est, par exemple, un navire qui manque de vivres ou d'eau, -qui a besoin d'une réparation immédiate. Sa détresse une fois constatée -par une autorité de la force bloquante, il _peut_ franchir la ligne de -blocus; ce n'est pas une faveur qu'il ait à solliciter de l'humanité ou -de la courtoisie de l'autorité bloquante. Celle-ci peut contester l'état -de détresse, mais, l'état une fois vérifié, la conséquence suit -d'elle-même. Le navire qui aura ainsi pénétré dans le port bloqué ne -sera pas obligé d'y rester tout le temps que durera le blocus; il pourra -en sortir quand il sera en état de le faire, quand il se sera procuré -les vivres ou l'eau qui lui sont nécessaires, quand il aura été réparé. -Mais la permission qui lui a été accordée n'a pu servir de prétexte à -des opérations commerciales; c'est pour cela qu'on exige qu'il n'ait -laissé ou pris aucun chargement. - -Il va sans dire que l'escadre de blocus, qui voudrait absolument -empêcher de passer, pourrait le faire, si elle mettait à la disposition -du navire en détresse les secours dont il a besoin. - -Article 8. - -_Le blocus, pour être obligatoire, doit être déclaré conformément à -l'article 9 et notifié conformément aux articles 11 et 16._ - -Indépendamment de la condition d'effectivité formulée par la -Déclaration de Paris, un blocus, pour être obligatoire, doit être -_déclaré_ et _notifié_. L'article 8 se borne à poser le principe qui est -appliqué par les articles suivants. - -Il suffit, pour éviter toute équivoque, d'indiquer nettement le sens des -deux expressions qui vont être fréquemment employées. La _déclaration de -blocus_ est l'acte de l'autorité compétente (Gouvernement ou chef -d'escadre), constatant qu'un blocus est établi ou va l'être dans des -conditions qui doivent être précisées (article 9). La _notification_ est -le fait de porter à la connaissance des Puissances neutres ou de -certaines autorités la déclaration de blocus (article 11). - -Le plus souvent, ces deux choses--la déclaration et la -notification--auront lieu préalablement à l'application des règles du -blocus, c'est-à-dire, à l'interdiction réelle du passage. Toutefois, -comme on le verra plus loin, il est parfois possible que le passage soit -interdit à raison du fait même du blocus qui est porté à la connaissance -d'un navire approchant d'un port bloqué, au moyen d'une _notification_ -qui est _spéciale_, tandis que la notification qui vient d'être définie, -et dont il est parlé à l'article 11, a un caractère général. - -Article 9. - -_La déclaration de blocus est faite, soit par la Puissance bloquante, -soit par les autorités navales agissant en son nom._ - -_Elle précise:_ - - 1'o _La date du commencement du blocus;_ - - 2'o _Les limites géographiques du littoral bloqué;_ - - 3'o _Le délai de sortie à accorder aux navires neutres._ - -La déclaration de blocus émane le plus souvent du Gouvernement -belligérant lui-même. Le Gouvernement peut avoir laissé au commandant de -ses forces navales la faculté de déclarer lui-même un blocus selon les -circonstances. Cette latitude aura peut-être lieu de s'appliquer moins -souvent qu'autrefois à raison de la facilité et de la rapidité des -communications. Cela importe peu: il y a là une question d'ordre -intérieur. - -La déclaration de blocus doit préciser certains points que les neutres -ont intérêt à connaître pour se rendre compte de l'étendue de leurs -obligations. Il faut que l'on sache exactement quand commence -l'interdiction de communiquer avec la localité bloquée. Il importe, pour -l'obligation du bloquant comme pour l'obligation des neutres, qu'il n'y -ait pas d'incertitude sur les points réellement bloqués. Enfin, depuis -longtemps, s'est établi l'usage de laisser sortir les navires neutres -qui sont dans le port bloqué. On confirme ici cet usage en ce sens que -le bloquant _doit accorder_ un délai de sortie; on ne fixe pas la durée -de ce délai, parce que cette durée est évidemment subordonnée aux -circonstances très variables. Il a été seulement entendu qu'il y aurait -un délai _raisonnable_. - -Article 10. - -_Si la Puissance bloquante ou les autorités navales agissant en son nom -ne se conforment pas aux mentions qu'en exécution de l'article 9--1'o et -2'o, elles ont dû inscrire dans la déclaration de blocus, cette -déclaration est nulle, et une nouvelle déclaration est nécessaire pour -que le blocus produise ses effets._ - -Cet article a pour but d'assurer l'observation de l'article 9. La -déclaration de blocus contient des mentions qui ne correspondent pas à -la réalité des faits; elle indique que le blocus a commencé ou -commencera tel jour, et, en fait, il n'a commencé que plusieurs jours -après. Les limites géographiques sont exactement tracées; elles sont -plus étendues que celles dans lesquelles opèrent les forces de blocus. -Quelle sera la sanction? La nullité de la déclaration de blocus, ce qui -fait que cette déclaration ne produira aucun effet. Si, donc, en pareil -cas, un navire neutre est saisi pour violation de blocus, il pourra -opposer la nullité de la saisie en se fondant sur la nullité de la -déclaration de blocus; si son moyen est repoussé par le tribunal -national, il pourra se pourvoir devant la Cour Internationale. - -Il faut remarquer la portée de la disposition pour qu'il n'y ait pas de -surprise. La déclaration porte que le blocus commence le 1'er février; -en fait, il n'a commencé que le 8. Il va sans dire que la déclaration -n'a produit aucun effet du 1'er au 8, puisqu'à ce moment-là, il n'y -avait pas de blocus du tout; la déclaration constate un fait, mais n'en -tient pas lieu. La règle va plus loin: la déclaration ne produira pas -même effet à partir du 8; elle est nulle définitivement, et il faut en -faire une autre. - -Il n'est pas parlé ici du cas où l'article 9 aurait été méconnu, en ce -qu'aucun délai de sortie n'aurait été accordé aux navires neutres se -trouvant dans le port bloqué. La sanction ne saurait être la même. Il -n'y a pas de raison d'annuler la déclaration en ce qui touche les -bâtiments neutres voulant pénétrer dans le porte bloqué. Il faut une -sanction spéciale, qui est indiquée dans l'article 16, alinéa 2. - -Article 11. - -_La déclaration de blocus est notifiée_: - - 1'o _Aux Puissances neutres, par la Puissance bloquante, au moyen - d'une communication adressée aux Gouvernements eux-mêmes ou à - leurs représentants accrédités auprès d'elle;_ - - 2'o _Aux autorités locales, par le commandant de la force - bloquante. Ces autorités, de leur côté, en informeront, aussitôt - que possible, les consuls étrangers qui exercent leurs fonctions - dans le port ou sur le littoral bloqués._ - -La déclaration de blocus ne vaut que si elle est notifiée. On ne peut -exiger l'observation d'une règle que de ceux qui ont été en mesure de la -connaître. - -Il y a deux notifications à faire: - - 1. La première est adressée aux Puissances neutres par la - Puissance belligérante, qui la communique aux Gouvernements - eux-mêmes ou à leurs représentants accrédités auprès d'elle. La - communication aux Gouvernements se fera le plus souvent au moyen - des agents diplomatiques: il pourrait arriver qu'un belligérant ne - fût pas en rapports diplomatiques avec un pays neutre; il - s'adressera directement au Gouvernement de ce pays, ordinairement - par la voie télégraphique. C'est aux Gouvernements neutres avisés - de la déclaration de blocus à prendre les mesures nécessaires pour - en faire parvenir la nouvelle sur les divers points de leur - territoire, spécialement dans leurs ports. - - 2. La seconde notification est faite par le commandant de la force - bloquante aux autorités locales. Celles-ci doivent informer, - aussitôt que possible, les consuls étrangers qui résident dans la - place ou sur le littoral bloqués. Ces autorités engageraient leur - responsabilité en ne s'acquittant pas de cette obligation. Les - neutres pourraient éprouver un préjudice du fait de n'avoir pas - été prévenus du blocus en temps utile. - -Article 12. - -_Les règles relatives à la déclaration et à la notification de blocus -sont applicables dans le cas où le blocus serait étendu ou viendrait à -être repris après avoir été levé._ - -Un blocus est étendu au-delà de ses limites primitives; c'est, pour la -partie nouvelle, un blocus nouveau et, par suite, les règles de la -déclaration et de la notification doivent s'y appliquer. Il en est de -même dans le cas où, après avoir été levé, un blocus est repris; il n'y -a pas à tenir compte du fait qu'un blocus a déjà existé pour la même -localité. - -Article 13. - -_La levée volontaire du blocus, ainsi que toute restriction qui y serait -apportée, doit être notifiée dans la forme prescrite par l'article 11._ - -S'il est indispensable de connaître l'établissement d'un blocus, il -serait utile que le public fût renseigné sur la levée du blocus, -puisqu'elle fait cesser l'entrave apportée aux relations des neutres -avec le port bloqué. Aussi a-t-on jugé à propos de demander à la -Puissance qui lève un blocus de le faire savoir dans la forme où elle a -notifié l'établissement du blocus (article 11). Seulement, il y a lieu -de remarquer que la sanction ne saurait être la même dans les deux cas. -Pour la notification de la déclaration de blocus, il y a une sanction -directe, adéquate: le blocus non notifié n'est pas obligatoire. Pour la -levée, il ne saurait y avoir rien d'analogue. Le public profitera, en -fait, de cette levée, quand même on ne la lui aurait pas fait connaître -officiellement. La Puissance bloquante qui n'aurait pas notifié la levée -s'exposerait à des réclamations diplomatiques motivées par -l'inaccomplissement d'un devoir international. Cet inaccomplissement -aura des conséquences plus ou moins graves suivant les circonstances. -Parfois, la levée du blocus aura été, en fait, immédiatement connue, et -la notification officielle n'ajouterait rien à cette publicité -effective. - -Il va sans dire qu'il ne s'agit que de la levée _volontaire_ du blocus; -si le bloquant a été chassé par l'arrivée de forces ennemies, il ne peut -être tenu de faire connaître sa défaite, que son adversaire se chargera -d'annoncer sans retard. Au lieu de lever un blocus, un belligérant peut -se contenter de le restreindre; il ne bloque plus qu'un port au lieu de -deux. Pour le port qui cesse d'être compris dans le blocus, c'est comme -s'il y avait levée volontaire; en conséquence, la même règle s'applique. - -Article 14. - -_La saisissabilité d'un navire neutre pour violation de blocus est -subordonnée à la connaissance réelle ou présumée du blocus._ - -Pour qu'un navire soit saisissable pour violation de blocus, la première -condition est qu'il ait eu connaissance du blocus, parce qu'il n'est pas -juste de punir quelqu'un pour inobservation d'une règle qu'il aurait -ignorée. Toutefois, il est des circonstances où, même en l'absence d'une -connaissance réelle prouvée, on peut présumer cette connaissance, sauf à -réserver à l'intéressé la faculté de démentir la présomption (article -15). - -Article 15. - -_La connaissance du blocus est, sauf preuve contraire, présumée, lorsque -le navire a quitté un port neutre postérieurement à la notification, en -temps utile, du blocus à la Puissance dont relève ce port._ - -Un navire a quitté un port neutre postérieurement à la notification du -blocus faite à la Puissance dont relève le port. Cette notification -avait-elle été faite en temps utile, c'est-à-dire de manière à parvenir -dans le port même où elle a dû être divulguée par les autorités du port? -C'est une question de fait à examiner. Si elle est résolue -affirmativement, il est naturel de supposer que le navire avait eu, lors -de son départ, connaissance du blocus. Cette présomption n'est pourtant -pas absolue et la preuve contraire est réservée. Ce sera au navire -inculpé à la fournir, en justifiant de l'existence de circonstances qui -expliquent son ignorance. - -Article 16. - -_Si le navire qui approche du port bloqué n'a pas connu ou ne peut être -présumé avoir connu l'existence du blocus, la notification doit être -faite au navire même par un officier de l'un des bâtiments de la force -bloquante. Cette notification doit être portée sur le livre de bord avec -indication de la date et de l'heure, ainsi que de la position -géographique du navire à ce moment._ - -_Le navire neutre qui sort du port bloqué, alors que, par la négligence -du commandant de la force bloquante, aucune déclaration de blocus n'a -été notifiée aux autorités locales ou qu'un délai n'a pas été indiqué -dans la déclaration notifiée, doit être laissé libre de passer._ - -On suppose un navire approchant du port bloqué sans qu'on puisse dire -qu'il connaît ou qu'il est présumé connaître l'existence du blocus; il -n'a été touché par aucune notification dans le sens de l'article 11. -Dans ce cas, une notification spéciale est nécessaire pour faire -connaître régulièrement le fait du blocus au navire. Cette notification -est faite au navire même par un officier de l'un des bâtiments de la -force bloquante et portée sur le livre de bord; elle peut être faite aux -navires d'une flotte convoyée par un vaisseau de guerre neutre, grâce à -l'intermédiaire du commandant du convoi qui en donne reçu et qui prend -les mesures nécessaires pour l'inscription de la notification sur le -livre de bord de chaque navire. Elle mentionne les circonstances de -temps et de lieu dans lesquelles elle est faite, ainsi que les lieux -bloqués. Le navire est empêché de passer, ce qui fait que le blocus est -_obligatoire_ pour lui, bien que n'ayant pas été _préalablement_ -notifié; c'est pour cela que cet adverbe a été omis dans l'article 8. Il -n'est pas admissible qu'un navire de commerce ait la prétention de ne -pas tenir compte d'un blocus réel et de forcer le blocus, par cette -seule raison qu'il n'en avait pas personnellement connaissance. -Seulement, s'il peut être empêché de passer il ne peut être saisi que -lorsqu'il essaie de forcer le blocus après avoir reçu la notification. -Comme on le voit, cette notification spéciale joue un rôle très -restreint, et ne doit pas être confondue avec la notification spéciale -exigée d'une manière absolue dans la pratique de certaines marines. - -Ce qui vient d'être dit se réfère au navire venant du large. Il faut -aussi s'occuper du navire sortant du port bloqué. Si une notification -régulière du blocus a été faite aux autorités locales (article 11--2'o), -la situation est simple: le navire connaît, ou est présumé connaître, le -blocus, et s'expose donc à la saisie dans le cas où il n'a pas observé -le délai donné par le bloquant. Mais il peut arriver qu'aucune -déclaration de blocus n'ait été notifiée aux autorités locales ou que -cette déclaration ait été muette au sujet du délai de sortie, malgré la -prescription de l'article 9--3'o. La sanction de la faute du bloquant -est que le navire doit être laissé libre de passer. C'est une sanction -énergique qui correspond exactement à la nature de la faute commise, et -sera le meilleur moyen d'empêcher de la commettre. - -Il va sans dire que cette disposition ne concerne que les navires -auxquels le délai de sortie avait dû profiter--c'est-à-dire, les navires -neutres qui étaient dans le port au moment de l'établissement du blocus; -elle est absolument étrangère aux navires qui seraient dans le port -après avoir forcé le blocus. - -Le commandant de l'escadre de blocus est toujours à même de réparer son -omission ou son erreur, de faire une notification du blocus aux -autorités locales ou de compléter celle qu'il aurait déjà faite. - -Comme on le voit par ces explications, on suppose le cas le plus -ordinaire, celui où l'absence de notification implique une négligence du -commandant des forces de blocus. La situation se trouve évidemment tout -à fait changée, si le commandant a fait tout ce qui dépendait de lui -pour faire la notification et s'il en a été empêché par le mauvais -vouloir des autorités locales qui ont intercepté toute communication -avec le dehors. Dans ce cas, il ne peut être forcé de laisser passer les -navires qui veulent sortir et qui, en l'absence de la notification -exigée et de la connaissance présumée du blocus, sont dans une situation -analogue à celle qui est prévue par l'article 16, alinéa 1'er. - -Article 17. - -_La saisie des navires neutres pour violation de blocus ne peut être -effectuée que dans le rayon d'action des bâtiments de_ _guerre chargés -d'assurer l'effectivité du blocus._ - -L'autre condition de la saisissabilité du navire est que celui-ci se -trouve dans le rayon d'action des bâtiments de guerre chargés d'assurer -l'effectivité du blocus: il ne suffit pas qu'il soit en route pour le -port bloqué. - -Quant à ce qui constitue le _rayon d'action_, il a été fourni une -explication qui a été universellement acceptée, et qui est reproduite -ici comme le meilleur commentaire de la règle de l'article 17: - - "Lorsqu'un Gouvernement décide d'entreprendre une opération de - blocus contre une partie quelconque de côte ennemie, il désigne un - certain nombre de navires de guerre qui devront participer au - blocus, et il en confie le commandement à un officier qui aura - pour mission d'assurer par leur moyen l'effectivité du blocus. Le - commandant de la force navale ainsi constituée repartit les - navires mis à sa disposition suivant la configuration de la côte - et la situation géographique des points bloqués, et donne à chacun - d'eux des instructions sur le rôle qu'il aura à remplir, et en - particulier sur la zone confiée à sa surveillance. C'est - l'ensemble de ces zones de surveillance, organisées de telle - manière que le blocus soit effectif, qui forme le rayon d'action - de la force navale bloquante. - - "Le rayon d'action ainsi compris est étroitement lié à - l'effectivité du blocus et aussi au nombre des bâtiments qui y - sont affectés. - - "Il peut se présenter des cas où un seul navire suffira pour - maintenir un blocus effectif--par exemple, à l'entrée d'un port ou - à l'embouchure d'un fleuve dont l'estuaire est peu étendu--à la - condition que les circonstances permettent au bloqueur de se tenir - suffisamment rapproché de l'entrée. Dans ce cas, le rayon d'action - est lui-même rapproché de la côte. Mais, si les circonstances le - forcent, au contraire, à se tenir éloigné, il pourra se faire que - le navire soit insuffisant pour assurer l'effectivité, et il - deviendra alors nécessaire de lui adjoindre d'autres navires pour - la maintenir. De ce fait le rayon d'action devient plus étendu et - plus éloigné de la côte. Il pourra donc varier suivant les - circonstances et suivant le nombre des navires bloqueurs, mais - sera toujours limité par la condition que l'effectivité soit - assurée. - - "Il ne semble pas possible d'assigner au rayon d'action des - limites en chiffres fixes et invariables, pas plus qu'il n'est - possible de fixer à l'avance et invariablement le nombre des - bâtiments nécessaires pour assurer l'effectivité de tout blocus. - Ces éléments doivent être déterminés, suivant les circonstances, - pour chaque cas particulier de blocus; peut-être pourrait-on le - faire au moment de la déclaration. - - "Il est évident qu'un blocus ne sera pas établi de la même façon - pour une côte sans défense et pour une côte possédant tous les - moyens modernes de défense. Il ne saurait être question dans ce - dernier cas d'appliquer une règle telle que celle qui exigeait - autrefois des vaisseaux arrêtés et suffisamment proches des points - bloqués; la situation serait trop dangereuse pour les navires de - la force bloquante qui, par ailleurs, possèdent aujourd'hui des - moyens plus puissants leur permettant de surveiller d'une façon - effective une zone beaucoup plus étendue que jadis. - - "Le rayon d'action d'une force navale bloquante pourra s'étendre - assez loin, mais, comme il dépend du nombre des bâtiments - concourant à l'effectivité du blocus, et comme il reste toujours - limité par la condition d'effectivité, il n'atteindra jamais des - mers éloignées sur lesquelles naviguent des navires de commerce, - peut-être destinés aux ports bloqués, mais dont la destination est - subordonnée aux modifications que les circonstances sont - susceptibles d'apporter au blocus au cours du voyage. En résumé, - l'idée de rayon d'action liée à celle d'effectivité telle que nous - avons essayé de la définir, c'est-à-dire, comprenant la zone - d'opérations des forces bloquantes, permet au belligérant - d'exercer d'une manière efficace le droit de blocus qui lui est - reconnu, et, d'un autre côté, elle évite aux neutres d'être - exposés à grande distance aux inconvénients du blocus, tout en - leur laissant courir les dangers auxquels ils s'exposent sciemment - en s'approchant des points dont l'accès est interdit par le - belligérant." - -Article 18. - -_Les forces bloquantes ne doivent pas barrer l'accès aux ports et aux -côtes neutres._ - -Cette règle a été jugée nécessaire pour mieux sauvegarder les intérêts -commerciaux des pays neutres; elle complète l'article 1'er, d'après -lequel un blocus doit être limité aux ports et côtes de l'ennemi, ce qui -implique que, puisque c'est une opération de guerre, il ne saurait être -dirigé contre un port neutre, malgré l'intérêt que pourrait y avoir un -belligérant à raison du rôle de ce port neutre pour le ravitaillement de -son adversaire. - -Article 19. - -_La violation du blocus est insuffisamment caractérisée pour autoriser -la saisie du navire, lorsque celui-ci est actuellement dirigé vers un -port non bloqué, quelle que soit la destination ultérieure du navire ou -de son chargement._ - -C'est la destination réelle du navire qui doit être envisagée, quand il -s'agit de violation de blocus, et non la destination ultérieure de la -cargaison. Cette destination prouvée ou présumée ne peut donc suffire à -autoriser la saisie, pour violation de blocus, d'un navire actuellement -destiné à un port non bloqué. Mais le croiseur pourrait toujours établir -que cette destination à un port non bloqué est apparente et qu'en -réalité, la destination immédiate du navire est bien le port bloqué. - -Article 20. - -_Le navire qui, en violation du blocus, est sorti du port bloqué ou a -tenté d'y entrer, reste saisissable tant qu'il est poursuivi par un -bâtiment de la force bloquante. Si la chasse en est abandonnée ou si le -blocus est levé, la saisie n'en peut plus être pratiquée._ - -Un navire est sorti du port bloqué ou a tenté d'y entrer. Sera-t-il -indéfiniment saisissable? L'affirmative absolue serait excessive. Ce -navire doit rester saisissable tant qu'il est poursuivi par un bâtiment -de la force bloquante; il ne suffirait pas qu'il fût rencontré par un -croiseur de l'ennemi bloquant qui ne ferait pas partie de l'escadre de -blocus. La question de savoir si la chasse est ou non abandonnée est une -question de fait; il ne suffit pas que le navire se soit réfugié dans un -port neutre. Le navire qui le poursuit peut attendre sa sortie, de telle -sorte que la chasse est forcément suspendue, mais non abandonnée. La -saisie n'est plus possible quand le blocus a été levé. - -Article 21. - -_Le navire reconnu coupable de violation de blocus est confisqué. Le -chargement est également confisqué, à moins qu'il soit prouvé qu'au -moment où la marchandise a été embarquée, le chargeur n'a ni connu ni pu -connaître l'intention de violer le blocus._ - -Le navire est confisqué dans tous les cas. Le chargement est aussi -confisqué en principe, mais on laisse à l'intéressé la possibilité -d'exciper de sa bonne foi, c'est-à-dire, de prouver que, lors de -l'embarquement de la marchandise, le chargeur ne connaissait pas et ne -pouvait connaître l'intention de violer le blocus. - - -CHAPITRE II.--_De la contrebande de guerre._ - -Ce chapitre est l'un des plus importants, sinon le plus important, de la -Déclaration. Il traite d'une matière qui a parfois provoqué de graves -conflits entre les belligérants et les neutres. Aussi a-t-on souvent -réclamé d'une manière pressante un règlement qui établirait d'une -manière précise les droits et devoirs de chacun. Le commerce pacifique -pourra être reconnaissant de la précision qui, pour la première fois, -est apportée à ce sujet, qui l'intéresse au plus haut point. - -La notion de contrebande de guerre comporte deux éléments: il s'agit -d'objets d'une certaine espèce et d'une certaine destination. Des -canons, par exemple, sont transportés sur un navire neutre. Sont-ils de -la contrebande? Cela dépend: non, s'ils sont destinés à un Gouvernement -neutre; oui, s'ils sont destinés à un Gouvernement ennemi. Le commerce -de certains objets n'est nullement interdit d'une manière générale -pendant la guerre; c'est le commerce de ces objets avec l'ennemi qui est -illicite et contre lequel le belligérant, au détriment duquel il se -fait, peut se protéger par les mesures qu'admet le droit des gens. - -Les articles 22 et 24 énumèrent les objets et matériaux qui sont -susceptibles de constituer de la contrebande de guerre et qui en -constituent effectivement, quand ils ont une certaine destination, qui -est déterminée par les articles 30 et 33. La distinction traditionnelle -de la contrebande _absolue_ et de la contrebande _conditionnelle_ est -maintenue: à la première se réfèrent les articles 22 et 30, à la seconde -les articles 24 et 33. - -Article 22. - -_Sont de plein droit considérés comme contrebande de guerre les objets -et matériaux suivants, compris sous le nom de contrebande absolue, -savoir:_ - - 1'o _Les armes de toute nature, y compris les armes de chasse, et - les pièces détachées caractérisées._ - - 2'o _Les projectiles, gargousses, et cartouches de toute nature, - et les pièces détachées caractérisées._ - - 3'o _Les poudres et les explosifs spécialement affectés à la - guerre._ - - 4'o _Les affûts, caissons, avant-trains, fourgons, forges de - campagne, et les pièces détachées caractérisées._ - - 5'o _Les effets d'habillement et d'équipement militaires - caractérisés._ - - 6'o _Les harnachements militaires caractérisés de toute nature._ - - 7'o _Les animaux de selle, de trait et de bât, utilisables pour la - guerre._ - - 8'o _Le matériel de campement et les pièces détachées - caractérisées._ - - 9'o _Les plaques de blindage._ - - 10'o _Les bâtiments et embarcations de guerre et les pièces - détachées spécialement caractérisées comme ne pouvant être - utilisées que sur un navire de guerre._ - - 11'o _Les instruments et appareils exclusivement faits pour la - fabrication des munitions de guerre, pour la fabrication et la - réparation des armes et du matériel militaire, terrestre ou - naval._ - -Cette liste est celle qui avait été arrêtée à la Deuxième Conférence de -la Paix par le Comité chargé d'étudier spécialement la question de la -contrebande. Elle était le résultat de concessions mutuelles, et il n'a -pas paru sage de rouvrir les discussions à ce sujet, soit pour -retrancher, soit pour ajouter des articles. - -Les mots _sont de plein droit_ veulent dire que la disposition produit -son effet, par le fait même de la guerre, et qu'aucune déclaration des -belligérants n'est nécessaire. Le commerce est averti dès le temps de -paix. - -Article 23. - -_Les objets et matériaux qui sont exclusivement employés à la guerre -peuvent être ajoutés à la liste de contrebande absolue au moyen d'une -déclaration notifiée._ - -_La notification est adressée aux Gouvernements des autres Puissances ou -à leurs représentants accrédités auprès de la Puissance qui fait la -déclaration. La notification faite après l'ouverture des hostilités -n'est adressée qu'aux Puissances neutres._ - -Certaines découvertes ou inventions pourraient rendre insuffisante la -liste de l'article 22. Une addition pourra y être faite à condition -qu'il s'agisse d'objets et matériaux _qui sont exclusivement employés à -la guerre_. Cette addition doit être notifiée aux autres Puissances, qui -prendront les mesures nécessaires pour la faire connaître à leurs -nationaux. Théoriquement, la notification peut se faire en temps de paix -ou en temps de guerre. Sans doute, le premier cas se présentera -rarement, parce qu'un État faisant une pareille notification pourrait -être soupçonné de songer à une guerre; cela aurait néanmoins l'avantage -de renseigner le commerce à l'avance. Il n'y avait pas de raison d'en -exclure la possibilité. - -On a trouvé excessive la faculté accordée à une Puissance de faire une -addition à la liste en vertu de sa simple déclaration. Il est à -remarquer que cette faculté ne présente pas les dangers qu'on lui -suppose. D'abord, bien entendu, la déclaration ne produit d'effet que -pour celui qui la fait, en ce sens que l'article ajouté ne sera de la -contrebande que pour lui, en tant que belligérant; les autres États -pourront d'ailleurs faire une déclaration analogue. L'addition ne peut -concerner que des objets _exclusivement employés à la guerre_; -actuellement il serait difficile d'indiquer de tels objets ne rentrant -pas dans la liste. L'avenir est réservé. Si une Puissance avait la -prétention d'ajouter à la liste de contrebande absolue des articles non -exclusivement employés à la guerre, elle pourrait s'attirer des -réclamations diplomatiques, puisqu'elle méconnaîtrait une règle -acceptée. De plus, il y aurait un recours éventuel devant la Cour -Internationale des Prises. On peut supposer que la Cour estime que -l'objet mentionné dans la déclaration de contrebande absolue y figure à -tort, parce qu'il n'est pas exclusivement employé à la guerre, mais -qu'il aurait pu rentrer dans une déclaration de contrebande -conditionnelle. La confiscation pourra se justifier si la saisie a été -faite dans les conditions prévues pour cette espèce de contrebande -(articles 33 à 35), qui diffèrent de celles qu'on applique à la -contrebande absolue (article 30). - -Il avait été suggéré que, dans l'intérêt du commerce neutre, un délai -devrait s'écouler entre la notification et son application. Mais cela -aurait été très préjudiciable au belligérant qui veut précisément se -protéger, puisque, pendant le délai, le commerce des articles jugés par -lui dangereux aurait été libre, et que l'effet de sa mesure aurait été -manqué. Il a été tenu compte, sous une autre forme, des considérations -d'équité qui avaient été invoquées (voir article 43). - -Article 24. - -_Sont de plein droit considérés comme contrebande de guerre les objets -et matériaux susceptibles de servir aux usages de la guerre comme à des -usages pacifiques, et compris sous le nom de contrebande conditionnelle, -savoir:_ - - 1'o _Les vivres._ - - 2'o _Les fourrages et les graines propres à la nourriture des - animaux._ - - 3'o _Les vêtements et les tissus d'habillement, les chaussures, - propres à des usages militaires._ - - 4'o _L'or et l'argent monnayés et en lingots, les papiers - représentatifs de la monnaie._ - - 5'o _Les véhicules de toute nature pouvant servir à la guerre, - ainsi que les pièces détachées._ - - 6'o _Les navires, bateaux et embarcations de tout genre, les docks - flottants, parties de bassins, ainsi que les pièces détachées._ - - 7'o _Le matériel fixe ou roulant des chemins de fer, le matériel - des télégraphes, radiotélégraphes et téléphones._ - - 8'o _Les aérostats et les appareils d'aviation, les pièces - détachées caractérisées ainsi que les accessoires, objets_ _et - matériaux caractérisés comme devant servir à l'aérostation ou à - l'aviation._ - - 9'o _Les combustibles; les matières lubrifiantes._ - - 10'o _Les poudres et les explosifs qui ne sont pas spécialement - affectés à la guerre._ - - 11'o _Les fils de fer barbelés, ainsi que les instruments servant - à les fixer ou à les couper._ - - 12'o _Les fers à cheval et le matériel de maréchalerie._ - - 13'o _Les objets de harnachement et de sellerie._ - - 14'o _Les jumelles, les télescopes, les chronomètres et les divers - instruments nautiques._ - -Sur l'expression _sont de plein droit_, il faut faire la même -observation qu'à propos de l'article 22. Les objets énumérés ne -constituent de la contrebande conditionnelle que s'ils ont la -destination prévue par l'article 33. - -Les _vivres_ comprennent les produits nécessaires ou utiles à -l'alimentation de l'homme, solides ou liquides. - -Les _papiers représentatifs de la monnaie_ ne comprennent que le -papier-monnaie, les billets de banque ayant ou non cours légal. Les -lettres de change et les chèques n'y rentrent pas. - -Les machines et chaudières rentrent dans l'énumération du 6'o. - -Le matériel des chemins de fer comprend le matériel fixe, comme les -rails, les traverses, les plaques tournantes, les pièces destinées à la -construction des ponts, et le matériel roulant, comme les locomotives, -les wagons. - -Article 25. - -_Les objets et matériaux susceptibles de servir aux usages de la guerre -comme à des usages pacifiques, et autres que ceux visés aux articles 22 -et 24, peuvent être ajoutés à la liste de contrebande conditionnelle au -moyen d'une déclaration qui sera notifiée de la manière prévue à -l'article 23, deuxième alinéa._ - -Cette disposition correspond, pour la contrebande conditionnelle, à la -disposition de l'article 23 pour la contrebande absolue. - -Article 26. - -_Si une Puissance renonce, en ce qui la concerne, à considérer comme -contrebande de guerre des objets et matériaux qui rentrent dans une des -catégories énumérées aux articles 22 et 24, elle fera connaître son -intention par une déclaration notifiée de la manière prévue à l'article -23, deuxième alinéa._ - -Un belligérant peut vouloir ne pas user du droit de considérer comme -contrebande de guerre les articles rentrant dans les listes ci-dessus. -Il peut lui convenir ou de faire rentrer dans la contrebande -conditionnelle un article compris dans la contrebande absolue ou de -déclarer libre, en ce qui le concerne, le commerce de tel article -rentrant dans l'une ou dans l'autre catégorie. Il est à désirer qu'il -fasse connaître son intention à ce sujet, et il est probable qu'il le -fera pour avoir le mérite de la mesure. S'il ne le fait pas, et s'il se -contente de donner des instructions à ses croiseurs, les navires visités -seront agréablement surpris si le visiteur ne leur reproche pas de -transporter ce qu'eux-mêmes considéraient comme de contrebande. Rien -n'empêche une Puissance de faire une pareille déclaration en temps de -paix. Voir ce qui est dit à propos de l'article 23. - -Article 27. - -_Les objets et matériaux qui ne sont pas susceptibles de servir aux -usages de la guerre, ne peuvent pas être déclarés contrebande de -guerre._ - -L'existence d'une liste dite _libre_ (article 28) rend utile cette -affirmation que les objets qui ne sont pas susceptibles de servir aux -usages de la guerre ne peuvent être déclarés contrebande de guerre. On -aurait pu croire que les objets ne rentrant pas dans cette liste peuvent -être déclarés au moins de contrebande conditionnelle. - -Article 28. - -_Ne peuvent pas être déclarés contrebande de guerre les articles -suivants, savoir:_ - - 1'o _Le coton brut, les laines, soies, jutes, lins, chanvres - bruts, et les autres matières premières des industries textiles, - ainsi que leurs filés._ - - 2'o _Les noix et graines oléagineuses; le coprah._ - - 3'o _Les caoutchoucs, résines, gommes et laques; le houblon._ - - 4'o _Les peaux brutes, les cornes, os et ivoires._ - - 5'o _Les engrais naturels et artificiels, y compris les nitrates - et phosphates pouvant servir à l'agriculture._ - - 6'o _Les minerais._ - - 7'o _Les terres, les argiles, la chaux, la craie, les pierres y - compris les marbres, les briques, ardoises et tuiles._ - - 8'o _Les porcelaines et verreries._ - - 9'o _Le papier et les matières préparées pour sa fabrication._ - - 10'o _Les savons, couleurs, y compris les matières exclusivement - destinées à les produire, et les vernis._ - - 11'o _L'hypochlorite de chaux, les cendres de soude, la soude - caustique, le sulfate de soude en pains, l'ammoniaque, le sulfate - d'ammoniaque et le sulfate de cuivre._ - - 12'o _Les machines servant à l'agriculture, aux mines, aux - industries textiles et à l'imprimerie._ - - 13'o _Les pierres précieuses, les pierres fines, les perles, la - nacre et les coraux._ - - 14'o _Les horloges, pendules, et montres autres que les - chronomètres._ - - 15'o _Les articles de mode et les objets de fantaisie._ - - 16'o _Les plumes de tout genre, les crins et soies._ - - 17'o _Les objets d'ameublement ou d'ornement; les meubles et - accessoires de bureau._ - -C'est pour diminuer les inconvénients de la guerre pour le commerce -qu'il a été jugé utile de dresser cette _liste_ dite _libre_, ce qui ne -veut pas dire, comme il a été expliqué plus haut, que tous les objets -restés en dehors pourraient être déclarés contrebande de guerre. - -Les _minerais_ sont les produits des mines servant à obtenir des métaux -(_metallic ores_). - -On avait demandé de faire rentrer dans le 10'o les _produits -tinctoriaux_; cela a paru trop général; il y a des matières d'où on tire -des couleurs, comme le charbon, mais qui servent aussi à d'autres -usages. Les produits qui ne sont utilisés que pour obtenir des couleurs -bénéficient de l'exemption. - -Les "articles de Paris" dont tout le monde comprend la signification -rentrent dans le 15'o. - -Dans le 16'o, il s'agit des soies de certains animaux comme les porcs et -les sangliers. - -Les tapis et les nattes rentrent dans les objets d'ameublement et -d'ornement (17'o). - -Article 29. - -_Ne peuvent non plus être considérés comme contrebande de guerre:_ - - 1'o _Les objets et matériaux servant exclusivement à soigner les - malades et les blessés. Toutefois, ils peuvent, en cas de - nécessité militaire importante, être réquisitionnés, moyennant une - indemnité, lorsqu'ils ont la destination prévue à l'article 30._ - - 2'o _Les objets et matériaux destinés à l'usage du navire où ils - sont trouvés, ainsi qu'à l'usage de l'équipage et des passagers de - ce navire pendant la traversée._ - -Si les objets énumérés dans l'article 29 ne sont pas non plus considérés -comme contrebande de guerre, c'est pour des motifs autres que ceux qui -ont fait admettre la liste de l'article 28. - -Des raisons d'humanité ont fait écarter les objets et matériaux servant -exclusivement à soigner les malades et les blessés, ce qui comprend -naturellement les drogues et les divers médicaments. Il ne s'agit pas -des bateaux hospitaliers, pour lesquels une immunité spéciale est -assurée par la Convention de La Haye du 18 octobre 1907, mais de navires -de commerce ordinaires dont le chargement comprendrait des objets de la -nature indiquée. Le croiseur a toutefois le droit, en cas de nécessité -importante, de réquisitionner ces objets pour les besoins de son -équipage ou de sa flotte; cette réquisition ne peut être faite que -moyennant indemnité. Mais il faut remarquer que ce droit de réquisition -ne peut s'exercer dans tous les cas. Les objets dont il s'agit doivent -avoir la destination prévue à l'article 30, c'est-à-dire, la destination -ennemie. Autrement le droit commun reprend son empire: un belligérant ne -saurait avoir le droit de réquisition à l'égard des navires neutres en -pleine mer. - -On ne peut non plus considérer comme contrebande les objets et matériaux -destinés à l'usage du navire et qui pourraient, en eux-mêmes et par leur -nature, constituer de la contrebande de guerre, par exemple les armes -destinées à défendre le navire contre les pirates ou à faire des -signaux. Il en est de même de ce qui est destiné à l'usage de l'équipage -et des passagers pendant la traversée; l'équipage comprend ici tout le -personnel du navire en général. - -_De la destination de la contrebande._--Comme il a été dit, le deuxième -élément de la notion de contrebande est _la destination_. De grandes -difficultés se sont produites à ce sujet et se symbolisent dans la -_théorie du voyage continu_, souvent combattue ou invoquée sans que l'on -se rende bien compte de son exacte signification. Il faut envisager -simplement les situations en elles-mêmes et voir comment elles doivent -être réglées de manière à ne pas tracasser inutilement les neutres et à -ne pas sacrifier les droits légitimes des belligérants. - -Pour amener un rapprochement entre des théories et des pratiques -contraires, on a séparé, à ce point de vue, la contrebande absolue de la -contrebande conditionnelle. - -A la contrebande absolue se rapportent les articles 30 à 32, à la -contrebande conditionnelle les articles 33 à 36. - -Article 30. - -_Les articles de contrebande absolue sont saisissables, s'il est établi -qu'ils sont destinés au territoire de l'ennemi ou à un territoire occupé -par lui ou à ses forces armées. Peu importe que le transport de ces -objets se fasse directement ou exige, soit un transbordement, soit un -trajet par terre._ - -Les objets compris dans la liste de l'article 22 constituent de la -contrebande absolue, quand ils sont destinés à un territoire de l'ennemi -ou à un territoire occupé par lui ou à ses forces armées de terre ou de -mer. Ces objets sont saisissables, du moment qu'une pareille -destination finale peut être établie par le capteur. Ce n'est donc pas -la destination du navire qui est décisive, c'est la destination de la -marchandise. Celle-ci a beau être à bord d'un navire qui doit la -débarquer dans un port neutre; du moment que le capteur est à même -d'établir que cette marchandise doit, de là, être transportée en pays -ennemi par voie maritime ou terrestre, cela suffit pour justifier la -saisie et ensuite la confiscation de la cargaison. C'est le principe -même du voyage continu qui est ainsi consacré, pour la contrebande -absolue, par l'article 30. On regarde comme ne faisant qu'un tout le -trajet suivi par la marchandise. - -Article 31. - -_La destination prévue à l'article 30 est définitivement prouvée dans -les cas suivants:_ - - 1'o _Lorsque la marchandise est documentée pour être débarquée - dans un port de l'ennemi ou pour être livrée à ses forces armées._ - - 2'o _Lorsque le navire ne doit aborder qu'à des ports ennemis, ou - lorsqu'il doit toucher à un port de l'ennemi ou rejoindre ses - forces armées, avant d'arriver au port neutre pour lequel la - marchandise est documentée._ - -Comme il a été dit, c'est au capteur qu'incombe l'obligation de prouver -que la marchandise de contrebande a bien la destination prévue par -l'article 30. Dans certains cas prévus par l'article 31, cette -destination est _définitivement_ prouvée, c'est-à-dire que la preuve -contraire n'est pas admise. - -_Premier Cas._--La marchandise est _documentée_ pour être débarquée dans -un port ennemi, c'est-à-dire que, d'après les papiers de bord qui se -réfèrent à cette marchandise, elle doit bien y être débarquée. Il y a -alors un véritable aveu, de la part des intéressés eux-mêmes, de la -destination ennemie. - -_Deuxième Cas._--Le navire ne doit aborder qu'à des ports ennemis ou -bien il doit toucher à un port ennemi avant d'arriver au port neutre -pour lequel la marchandise est documentée. Ainsi cette marchandise doit -bien, d'après les papiers qui la concernent, être débarquée dans un port -neutre, mais le navire qui la porte doit, avant d'arriver à ce port, -toucher à un port ennemi. Elle sera saisissable et on ne réserve pas la -possibilité de prouver que la destination neutre est réelle et conforme -aux intentions des intéressés. La circonstance que, avant de parvenir à -cette destination, le navire touchera à un port ennemi, ferait naître un -trop grand risque pour le belligérant dont le croiseur visite le navire. -Sans supposer même une fraude préméditée, il pourrait y avoir, pour le -capitaine du navire de commerce, une forte tentation de débarquer la -contrebande dont il trouverait un prix avantageux, et, pour l'autorité -locale, la tentation de réquisitionner cette marchandise. - -Le cas où le navire, avant d'arriver au port neutre, doit rejoindre les -forces armées de l'ennemi, est identique. - -Pour simplifier, la disposition ne parle que d'un _port ennemi_; il va -de soi qu'il faut lui assimiler le _port occupé par l'ennemi_, comme -cela résulte de la règle générale de l'article 30. - -Article 32. - -_Les papiers de bord font preuve complète de l'itinéraire du navire -transportant de la contrebande absolue, à moins que le navire soit -rencontré ayant manifestement dévié de la route qu'il devrait suivre -d'après ses papiers de bord et sans pouvoir justifier d'une cause -suffisante de cette déviation._ - -Les papiers de bord font donc preuve complète de l'itinéraire du navire, -à moins que ce navire soit rencontré dans des circonstances qui montrent -que l'on ne peut se fier à leurs allégations. Voir, d'ailleurs, les -explications données à propos de l'article 35. - -Article 33. - -_Les articles de contrebande conditionnelle sont saisissables, s'il est -établi qu'ils sont destinés à l'usage des forces armées ou des -administrations de l'État ennemi, à moins, dans ce dernier cas, que les -circonstances établissent qu'en fait ces articles ne peuvent être -utilisés pour la guerre en cours; cette dernière réserve ne s'applique -pas aux envois visés par l'article 24--4'o._ - -Les règles qui concernent la contrebande conditionnelle diffèrent de -celles qui ont été posées pour la contrebande absolue, à un double point -de vue: 1'o il ne s'agit pas d'une destination à l'ennemi en général, -mais d'une destination à l'usage de ses forces armées ou de ses -administrations; 2'o la doctrine du voyage continu est écartée. A la -première idée correspondent les articles 33 et 34; à la seconde -correspond l'article 35. - -Les objets compris dans la liste de la contrebande conditionnelle -peuvent servir à des usages pacifiques comme à des emplois hostiles. Si, -d'après les circonstances, l'emploi pacifique est certain, la saisie ne -se justifie pas; il en est autrement si l'emploi hostile doit se -supposer, ce qui arrive, par exemple, s'il s'agit de vivres destinés à -une armée ou à une flotte de l'ennemi, de charbon destiné à une flotte -ennemie. En cas pareil, il n'y a évidemment pas de doute. Mais que -faut-il décider quand c'est à l'usage des administrations civiles -d'État ennemi que les objets sont destinés? C'est de l'argent qui est -envoyé à une administration civile et qui doit être employé au paiement -du salaire de ses agents, des rails de chemin de fer qui sont expédiés à -une administration des travaux publics. Il y aura, dans ces cas, -_destination ennemie_ rendant la marchandise saisissable d'abord et -confiscable ensuite. Cela s'explique pour des raisons à la fois -juridiques et pratiques. L'État est un, quoique les fonctions -nécessaires à son action soient confiées à diverses administrations. Si -une administration civile peut recevoir librement des vivres ou de -l'argent, cela ne profite pas à elle seule, mais à l'État tout entier, y -compris l'administration militaire, puisque les ressources générales de -l'État augmentent ainsi. Il y a plus: ce que reçoit une administration -civile peut être jugé plus nécessaire à l'administration militaire et -attribué directement à celle-ci. L'argent ou les vivres réellement -destinés à une administration civile peuvent se trouver ainsi -directement employés aux besoins de l'armée. Cette possibilité, qui -existe toujours, explique pourquoi la destination aux administrations de -l'État ennemi est assimilée à la destination aux forces armées. - -Il s'agit des _administrations de l'État_, qui sont des dépendances du -pouvoir central, et non de toutes les administrations qui peuvent -exister dans l'État ennemi; les administrations locales, municipales, -par exemple, n'y rentrent pas, et ce qui serait destiné à leur usage ne -constituerait pas de la contrebande. - -La guerre peut se poursuivre dans des circonstances telles que la -destination à l'usage d'une administration civile ne puisse être -suspectée et ne puisse, par conséquent, donner à la marchandise le -caractère de contrebande. Par exemple, une guerre existe en Europe et -les colonies des pays belligérants ne sont pas, en fait, atteintes par -la guerre. Les vivres ou autres objets de la liste de contrebande -conditionnelle qui seraient destinés à l'usage d'une administration -civile coloniale ne seraient pas réputés contrebande de guerre, parce -que les considérations invoquées plus haut ne s'appliquent pas dans -l'espèce; il ne peut y avoir emprunt pour les besoins de la guerre des -ressources de l'administration civile. Exception est faite pour l'or et -l'argent ou les papiers représentatifs de la monnaie, parce qu'une somme -d'argent peut facilement se transmettre d'un bout du monde à l'autre. - -Article 34. - -_Il y a présomption de la destination prévue à l'article 33, si l'envoi -est adressé_ _aux autorités ennemies, ou à un commerçant établi en pays -ennemi et lorsqu'il est notoire que ce commerçant fournit à l'ennemi des -objets et matériaux de cette nature. Il en est de même si l'envoi est à -destination d'une place fortifiée ennemie, ou d'une autre place servant -de base aux forces armées ennemies; toutefois, cette présomption ne -s'applique point au navire de commerce lui-même faisant route vers une -de ces places et dont on entend établir le caractère de contrebande._ - -_A défaut des présomptions ci-dessus, la destination est présumée -innocente._ - -_Les présomptions établies dans le présent article admettent la preuve -contraire._ - -Ordinairement les articles de contrebande ne seront pas expressément -adressés aux autorités militaires ou aux administrations de l'État -ennemi. On dissimulera plus ou moins la destination véritable; c'est au -capteur à l'établir pour justifier la saisie. Mais on a cru raisonnable -d'établir des présomptions, soit à raison de la qualité du destinataire, -soit à raison du caractère de la place à laquelle sont destinés les -objets. C'est une autorité ennemie ou un commerçant établi en pays -ennemi, qui est le fournisseur notoire du Gouvernement ennemi pour les -articles dont il s'agit. C'est une place fortifiée ennemie ou une place -servant de base aux forces armées ennemies, que ce soit une base -d'opérations ou une base de ravitaillement. - -Cette présomption générale ne saurait s'appliquer au navire de commerce -lui-même qui se dirigerait vers une place fortifiée et qui peut bien, -par lui-même, constituer de la contrebande relative, mais à la condition -que sa destination à l'usage des forces armées ou des administrations de -l'État ennemi soit directement prouvée. - -A défaut des présomptions précédentes, la destination est présumée -innocente. C'est le droit commun, d'après lequel le capteur doit prouver -le caractère illicite de la marchandise qu'il prétend saisir. - -Enfin, toutes les présomptions ainsi établies dans l'intérêt du capteur -ou contre lui admettent la preuve contraire. Les tribunaux nationaux -d'abord, la Cour Internationale ensuite, apprécieront. - -Article 35. - -_Les articles de contrebande conditionnelle ne sont saisissables que sur -le navire qui fait route vers le territoire de l'ennemi ou vers un -territoire occupé par lui ou vers ses forces armées et que ne doit pas -les décharger dans un port intermédiaire neutre._ - -_Les papiers de bord font preuve complète de l'itinéraire du navire -ainsi que du lieu de déchargement des marchandises, à moins que ce -navire soit rencontré ayant manifestement dévié de la route_ _qu'il -devrait suivre d'après ses papiers de bord et sans pouvoir justifier -d'une cause suffisante de cette déviation._ - -Comme il a été dit plus haut, la doctrine du voyage continu a été -écartée pour la contrebande conditionnelle. Celle-ci n'est donc -saisissable que si elle doit être débarquée dans un port ennemi. Du -moment que la marchandise est documentée pour être débarquée dans un -port neutre, elle ne peut constituer de la contrebande, et il n'y a pas -à rechercher si, de ce port neutre, elle doit être expédiée à l'ennemi -par mer ou par terre. C'est la différence essentielle avec la -contrebande absolue. - -Les papiers de bord font preuve complète de l'itinéraire du navire et du -lieu de déchargement de la cargaison; il en serait autrement si le -navire était rencontré ayant manifestement dévié de la route qu'il -devrait suivre d'après ses papiers et sans pouvoir justifier d'une cause -suffisante de cette déviation. - -Cette règle sur la preuve fournie par les papiers de bord a pour but -d'écarter des prétentions élevées à la légère par un croiseur et amenant -des saisies injustifiées. Elle ne doit pas être entendue d'une manière -trop absolue qui faciliterait toutes les fraudes. Ainsi elle n'est pas -maintenue quand le navire est rencontré en mer ayant manifestement dévié -de la route qu'il aurait dû suivre et sans pouvoir justifier de cette -déviation. Les papiers de bord sont alors contredits par la réalité des -faits et perdent toute force probante; le croiseur se décidera librement -suivant les cas. De même, la visite du navire peut permettre de -constater des faits qui prouvent d'une manière irréfutable que la -destination du navire ou le lieu de déchargement de la marchandise sont -faussement indiqués dans les papiers de bord. Le croiseur apprécie alors -librement les circonstances et saisit ou non le navire suivant cette -appréciation. En résumé, les papiers de bord font preuve, à moins que la -fausseté de leurs indications ne soit démontrée par les faits. Cette -restriction de la force probante des papiers de bord a paru aller de soi -et ne pas avoir besoin d'être expressément mentionnée. On n'a pas voulu -avoir l'air de diminuer la force de la règle générale, qui est une -garantie pour le commerce neutre. - -De ce qu'une indication est reconnue fausse, il ne résulte pas que la -force probante des papiers de bord soit infirmée dans son ensemble. Les -indications pour lesquelles aucune allégation de fausseté ne peut être -vérifiée conservent leur valeur. - -Article 36. - -_Par dérogation à l'article 35, si le territoire de l'ennemi n'a pas de -frontière_ _maritime, les articles de contrebande conditionnelle sont -saisissables, lorsqu'il est établi qu'ils ont la destination prévue à -l'article 33._ - -Le cas prévu est assurément rare, mais cependant il s'est présenté dans -des guerres récentes. Pour la contrebande absolue, il n'y a pas de -difficulté, puisque la destination à l'ennemi peut toujours être -prouvée, quel que soit l'itinéraire à suivre par la marchandise (article -30). Il en est autrement pour la contrebande conditionnelle, et une -dérogation doit être apportée à la règle générale de l'article 35, -alinéa 1'er, de manière à permettre au capteur d'établir que la -marchandise suspecte a bien la destination spéciale prévue à l'article -33, sans qu'on puisse objecter le fait du déchargement dans un port -neutre. - -Article 37. - -_Le navire transportant des articles, qui sont saisissables comme -contrebande absolue ou conditionnelle, peut être saisi, en haute mer ou -dans les eaux des belligérants, pendant tout le cours de son voyage, -même s'il a l'intention de toucher à un port d'escale avant d'atteindre -la destination ennemie._ - -Le navire peut être saisi pour cause de contrebande pendant tout le -cours de son voyage, pourvu qu'il soit dans des eaux où un acte de -guerre est licite. Le fait qu'il aurait l'intention de toucher à un port -d'escale avant d'atteindre la destination ennemie n'empêche pas la -saisie, du moment que, dans l'espèce, la destination ennemie est établie -conformément aux règles établies par les articles 30 à 32 pour la -contrebande absolue, par les articles 33 à 35 pour la contrebande -conditionnelle, et sous la réserve de l'exception de l'article 36. - -Article 38. - -_Une saisie ne peut être pratiquée en raison d'un transport de -contrebande antérieurement effectué et actuellement achevé._ - -Un navire est saisissable quand il transporte de la contrebande, mais -non pour en avoir transporté. - -Article 39. - -_Les articles de contrebande sont sujets à confiscation._ - -Cela ne présente aucune difficulté. - -Article 40. - -_La confiscation du navire transportant de la contrebande est permise, -si cette contrebande forme, soit par sa valeur, soit par son poids, soit -par son volume, soit par son fret, plus de la moitié de la cargaison._ - -Tout le monde admettait bien que, dans certains cas, la confiscation de -la contrebande ne suffit pas et que la confiscation doit atteindre le -navire lui-même, mais les opinions différaient sur la détermination de -ces cas. On s'est arrêté à une certaine proportion à établir entre la -contrebande et l'ensemble de la cargaison. Mais la question se -subdivise: 1'o Quelle sera cette proportion? La solution adoptée tient -le milieu entre les solutions proposées, qui allaient du quart aux trois -quarts. 2'o Comment sera calculée cette proportion? La contrebande -devra-t-elle former plus de la moitié de la cargaison en volume, en -poids, en valeur, en fret? L'adoption d'un critérium déterminé prête à -des objections théoriques et facilite aussi des pratiques destinées à -éviter la confiscation du navire malgré l'importance de la cargaison. Si -on prend le volume ou le poids, le capitaine prendra des marchandises -licites assez volumineuses ou pesantes pour que le volume ou le poids de -la contrebande soit inférieur. Une observation analogue peut être faite -en ce qui concerne la valeur ou le fret. La conséquence est qu'il -suffit, pour justifier la confiscation, que la contrebande forme plus de -la moitié de la cargaison à l'un quelconque des points de vue indiqués. -Cela peut paraître sévère; mais, d'une part, en procédant autrement, on -faciliterait des calculs frauduleux, et d'autre part, il est permis de -dire que la confiscation du navire est justifiée, lorsque le transport -de la contrebande était une partie notable de son trafic, ce qui est -vrai pour chacun des cas prévus. - -Article 41. - -_Si le navire transportant de la contrebande est relâché, les frais -occasionnés au capteur par la procédure devant la juridiction nationale -des prises ainsi que par la conservation du navire et de sa cargaison -pendant l'instruction sont à la charge du navire._ - -Il n'est pas juste que, d'une part, le transport de contrebande au-delà -d'une certaine proportion entraîne la confiscation du navire, tandis -qu'au-dessous de cette proportion, il n'y a que la confiscation de la -contrebande, ce qui souvent n'est pas une perte pour le capitaine, le -fret de cette contrebande ayant été payé à l'avance. N'y a-t-il pas là -un encouragement à la contrebande, et ne conviendrait-il pas de faire -subir une certaine peine pour le transport inférieur à la proportion -requise pour la confiscation? On avait proposé une espèce d'amende qui -aurait pu être en rapport avec la valeur des articles de contrebande. -Des objections d'ordre divers ont été formulées contre cette -proposition, bien que le principe d'une perte pécuniaire infligée à -raison du transport de la contrebande eût paru justifié. On est arrivé -au même but d'une autre façon en disposant que les frais occasionnés au -capteur par la procédure devant la juridiction nationale des prises, -comme par la conservation du navire et de sa cargaison pendant -l'instruction, sont à la charge du navire; les frais de conservation du -navire comprennent, le cas échéant, les frais d'entretien du personnel -du navire capturé. Il convient d'ajouter que le dommage causé au navire -par sa conduite et son séjour dans un port de prise est de nature à -produire l'effet préventif le plus sérieux en ce qui concerne le -transport de la contrebande. - -Article 42. - -_Les marchandises qui appartiennent au propriétaire de la contrebande et -qui se trouvent à bord du même navire sont sujettes à confiscation._ - -Le propriétaire de la contrebande est puni d'abord par la confiscation -de sa propriété illicite; il l'est ensuite par la confiscation des -marchandises, même licites, qu'il peut avoir sur le même navire. - -Article 43. - -_Si un navire est rencontré en mer naviguant dans l'ignorance des -hostilités ou de la déclaration de contrebande applicable à son -chargement, les articles de contrebande ne peuvent être confisqués que -moyennant indemnité; le navire et le surplus de la cargaison sont -exempts de la confiscation et des frais prévus par l'article 41. Il en -est de même si le capitaine, après avoir eu connaissance de l'ouverture -des hostilités ou de la déclaration de contrebande, n'a pu encore -décharger les articles de contrebande._ - -_Le navire est réputé connaître l'état de guerre ou la déclaration de -contrebande, lorsqu'il a quitté un port neutre, après que la -notification de l'ouverture des hostilités ou de la déclaration de -contrebande a été faite, en temps utile, à la Puissance dont relève ce -port. L'état de guerre est, en outre, réputé connu par le navire -lorsqu'il a quitté un port ennemi après l'ouverture des hostilités._ - -La disposition a pour but de ménager les neutres qui, en fait, -transporteraient de la contrebande, mais auxquels on ne pourrait rien -reprocher, ce qui peut se présenter dans deux cas. Le premier est celui -où ils ne connaissent pas l'ouverture des hostilités; le second est -celui où, tout en connaissant cette ouverture, ils ignorent la -déclaration de contrebande qu'a faite un belligérant conformément aux -articles 23 et 25, et qui est précisément applicable à tout ou partie du -chargement. Il serait injuste de saisir le navire et de confisquer la -contrebande; d'autre part, le croiseur ne peut être obligé de laisser -aller à l'ennemi des produits propres à la guerre et dont celui-ci peut -avoir grand besoin. Les intérêts en présence sont conciliés en ce sens -qu'alors la confiscation ne peut avoir lieu que moyennant indemnité -(voir, dans un ordre d'idées analogue, la Convention du 18 octobre 1907, -sur le régime des navires de commerce ennemis au début des hostilités). - -Article 44. - -_Le navire arrêté pour cause de contrebande et non susceptible de -confiscation à raison de la proportion de la contrebande peut être -autorisé, suivant les circonstances, à continuer sa route, si le -capitaine est prêt à livrer la contrebande au bâtiment belligérant._ - -_La remise de la contrebande est mentionnée par le capteur sur le livre -de bord du navire arrêté, et le capitaine de ce navire doit remettre au -capteur copie certifiée conforme de tous papiers utiles._ - -_Le capteur a la faculté de détruire la contrebande qui lui est ainsi -livrée._ - -Un navire neutre est arrêté pour cause de contrebande. Il n'est pas -susceptible de confiscation, parce que la contrebande n'atteint pas la -proportion prévue par l'article 40. Il peut néanmoins être conduit dans -un port de prise pour qu'il y ait un jugement relatif à la contrebande. -Ce droit du capteur paraît excessif dans certains cas, si on compare le -peu d'importance que peut avoir la contrebande (une caisse de fusils ou -de revolvers, par exemple) et le grave préjudice qu'entraînent pour le -navire ce détournement de sa route et sa retenue pendant le temps de -l'instruction. Aussi s'est-on demandé s'il n'était pas possible de -reconnaître au navire neutre le droit de continuer sa route moyennant la -remise des objets de contrebande au capteur qui, de son côté, n'aurait -pu les refuser que pour des motifs suffisants, par exemple, le mauvais -état de la mer, qui rend le transbordement impossible ou difficile, des -soupçons fondés au sujet de la quantité véritable de contrebande que -porte le navire de commerce, la difficulté de loger les objets à bord du -navire de guerre, etc. Cette proposition n'a pas réuni les suffrages -suffisants. On a prétendu qu'il était impossible d'imposer une pareille -obligation au croiseur pour lequel cette remise présenterait presque -toujours des inconvénients. Si, par hasard, il n'y en a pas, le croiseur -ne la refusera pas, parce qu'il aura lui-même avantage à ne pas être -détourné de sa route par la nécessité de conduire le navire dans un -port. Le système de l'obligation étant ainsi écarté, on a décidé de -réglementer la remise facultative qui, espère-t-on, sera pratiquée -toutes les fois que ce sera possible, au grand avantage des deux -parties. Les formalités prévues sont très simples et n'exigent pas -d'explication. - -Un jugement du tribunal des prises devra intervenir au sujet de la -marchandise ainsi remise. C'est pour cela que le capteur doit se munir -des papiers nécessaires. On pourrait concevoir qu'il y eût doute sur le -caractère de certains objets que le croiseur prétend être de -contrebande; le capitaine du navire de commerce conteste, mais il -préfère les livrer pour avoir la faculté de continuer sa route. Il n'y a -là qu'une saisie devant être confirmée par la juridiction des prises. - -La contrebande livrée par le navire de commerce peut embarrasser le -croiseur qui doit être laissé libre de la détruire au moment même de la -remise ou postérieurement. - - -CHAPITRE III.--_De l'assistance hostile._ - -D'une manière générale, on peut dire que le navire de commerce qui -manque à la neutralité, soit en transportant de la contrebande de -guerre, soit en violant un blocus, fournit une assistance à l'ennemi, et -c'est à ce titre que le belligérant au préjudice duquel il agit peut lui -faire subir certaines pertes. Mais il y a des cas où cette assistance -hostile est particulièrement caractérisée et qu'on a jugé nécessaire de -prévoir spécialement. On en a fait deux catégories d'après la gravité du -fait reproché au navire neutre. - -Dans les cas qui rentrent dans la première catégorie (article 45), le -navire est confisqué, et on lui applique le traitement du navire sujet à -confiscation pour transport de contrebande. Cela signifie que le navire -ne perd pas sa qualité de neutre et a droit aux garanties admises pour -les navires neutres; par exemple, il ne pourrait être détruit par le -capteur que dans les conditions établies pour les navires neutres -(articles 48 et suivants); la règle _le pavillon couvre la marchandise_ -s'applique en ce qui concerne la marchandise qui se trouve à bord. - -Dans les cas plus graves qui appartiennent à la seconde catégorie -(article 46), le navire est encore confisqué; de plus, il n'est pas -traité seulement comme un navire confiscable comme porteur de -contrebande, mais comme un navire de commerce ennemi, ce qui entraîne -certaines conséquences. Le règlement sur la destruction des prises -neutres ne s'applique pas au navire, et, celui-ci devenant navire -ennemi, ce n'est plus la seconde, mais c'est la troisième règle de la -Déclaration de Paris qui est applicable. La marchandise qui sera à bord -sera présumée ennemie; les neutres auront le droit de réclamer leur -propriété en justifiant de leur neutralité (article 59). Il ne faut -cependant pas exagérer jusqu'à penser que le caractère neutre originaire -du navire est complètement effacé, de telle sorte qu'il doive être -traité comme s'il avait toujours été ennemi. Le navire peut soutenir que -la prétention élevée contre lui n'est pas fondée, que l'acte qui lui est -reproché n'a pas le caractère d'une assistance hostile. Il a donc le -droit de recourir à la juridiction internationale en vertu des -dispositions qui protègent les propriétés neutres. - -Article 45. - -_Un navire neutre est confisqué et, d'une manière générale, passible du -traitement que subirait un navire neutre sujet à confiscation pour -contrebande de guerre:_ - - 1'o _Lorsqu'il voyage spécialement en vue du transport de - passagers individuels incorporés dans la force armée de l'ennemi, - ou en vue de la transmission de nouvelles dans l'intérêt de - l'ennemi._ - - 2'o _Lorsqu'à la connaissance soit du propriétaire, soit de celui - qui a affrété le navire en totalité, soit du capitaine, il - transporte un détachement militaire de l'ennemi ou une ou - plusieurs personnes qui, pendant le voyage, prêtent une assistance - directe aux opérations de l'ennemi._ - -_Dans les cas visés aux numéros précédents, les marchandises appartenant -au propriétaire du navire sont également sujettes à confiscation._ - -_Les dispositions du présent article ne s'appliquent pas si, lorsque le -navire est rencontré en mer, il ignore les hostilités, ou si le -capitaine, après avoir appris l'ouverture des hostilités, n'a pu encore -débarquer les personnes transportées. Le navire est réputé connaître -l'état de guerre lorsqu'il a quitté un port ennemi après l'ouverture des -hostilités ou un port neutre postérieurement à la notification en temps -utile de l'ouverture des hostilités à la Puissance dont relève ce port._ - -Le premier cas suppose des passagers voyageant _individuellement_; le -cas d'un _détachement militaire_ est visé ci-après. Il s'agit -d'individus _incorporés_ dans la force armée de terre ou de mer de -l'ennemi. Il y a eu quelque hésitation sur le sens de l'_incorporation_ -qui est prévue. Comprend-elle seulement les individus qui, appelés à -servir en vertu de la loi de leur pays, ont effectivement rejoint le -corps dont ils doivent faire partie? ou comprend-elle même ces individus -dès qu'ils sont appelés et avant qu'ils aient rejoint leur corps? La -question a une grande importance pratique. Que l'on suppose des -individus originaires d'un pays de l'Europe continentale et établis en -Amérique; ces individus sont tenus à des obligations militaires envers -leur pays d'origine; ils doivent, par exemple, faire partie de la -réserve de l'armée active de ce pays. Leur patrie étant en guerre, ils -s'embarquent pour aller faire leur service. Seront-ils considérés comme -_incorporés_ pour l'application de la disposition dont nous nous -occupons? Si on s'attachait à la législation intérieure de certains -pays, l'affirmation pourrait être soutenue. Mais, indépendamment des -raisons purement juridiques, l'opinion contraire a paru plus conforme -aux nécessités pratiques et, dans un esprit de conciliation, elle a été -acceptée par tous. Il serait difficile, ou peut-être même impossible, de -distinguer, sans des mesures vexatoires que les Gouvernements neutres -n'accepteraient pas, entre les passagers d'un navire, ceux qui sont -tenus d'un service militaire, et qui voyagent pour y satisfaire. - -La transmission de nouvelles dans l'intérêt de l'ennemi est assimilée au -transport de passagers incorporés dans sa force armée. On parle du -navire qui voyage _spécialement_ pour indiquer qu'il ne s'agit pas du -service normal du navire. Il s'est détourné de sa route; il a relâché -dans un port où il ne s'arrête pas ordinairement, pour effectuer le -transport en question. Il n'est pas nécessaire qu'il soit -_exclusivement_ affecté au service de l'ennemi; ce dernier cas -rentrerait dans la seconde catégorie, article 56, 4'o. - -Dans les deux hypothèses dont il vient d'être parlé, il s'agit d'une -opération isolée faite par le navire; il a été chargé d'effectuer tel -transport ou de transmettre telles nouvelles; il n'est pas attaché d'une -manière continue au service de l'ennemi. Il en résulte qu'il peut bien -être saisi pendant le voyage où il se livre à l'opération qui lui est -confiée; ce voyage terminé, tout est fini en ce sens qu'il ne pourrait -être saisi pour avoir fait l'opération prévue; c'est analogue à ce qui -est admis en matière de contrebande (article 38). - -Le deuxième cas se subdivise également. - -Transport d'un détachement militaire de l'ennemi ou transport d'une ou -de plusieurs personnes qui, pendant le voyage, prêtent une assistance -directe aux opérations de l'ennemi, par exemple en faisant des signaux. -S'il s'agit de militaires ou de marins en uniforme, il n'y a pas de -difficulté: le navire est évidemment confiscable. S'il s'agit de -militaires ou de marins en costume civil pouvant être pris pour des -passagers ordinaires, on exige la connaissance du capitaine ou du -propriétaire, celui qui a affrété le navire en totalité étant assimilé -au propriétaire. La règle est la même pour l'hypothèse des personnes -prêtant une assistance directe à l'ennemi pendant le voyage. - -Dans ces cas, si le navire est confisqué à raison de son assistance -hostile, l'on doit confisquer également les marchandises appartenant au -propriétaire du navire. - -Ces dispositions supposent que l'état de guerre était connu du navire -qui se livre aux opérations prévues; cette connaissance motive et -justifie la confiscation. La situation est tout autre lorsque le navire -ignore l'ouverture des hostilités, de telle sorte qu'il s'est chargé de -l'opération en temps normal. Il a pu apprendre en mer l'ouverture des -hostilités, mais sans pouvoir débarquer les personnes transportées. La -confiscation serait alors injuste, et la règle équitable qui a été -adoptée est d'accord avec les dispositions déjà acceptées dans d'autres -matières. Si le navire a quitté un port ennemi après l'ouverture des -hostilités, ou un port neutre après que l'ouverture des hostilités avait -été notifiée à la Puissance d'où relève ce port, la connaissance de -l'état de guerre sera présumée. - -Il n'est question ici que d'empêcher la confiscation du navire. Les -personnes trouvées à bord et qui font partie des forces armées de -l'ennemi pourront être prises par le croiseur comme prisonniers de -guerre. - -Article 46. - -_Un navire neutre est confisqué et, d'une manière générale, passible du -traitement qu'il subirait s'il était un navire de commerce ennemi:_ - - 1'o _Lorsqu'il prend une part directe aux hostilités._ - - 2'o _Lorsqu'il se trouve sous les ordres ou sous le contrôle d'un - agent placé à bord par le Gouvernement ennemi._ - - 3'o _Lorsqu'il est affrété en totalité par le Gouvernement - ennemi._ - - 4'o _Lorsqu'il est actuellement et exclusivement affecté, soit au - transport de troupes ennemies, soit à la transmission de nouvelles - dans l'intérêt de l'ennemi._ - -_Dans les cas visés par le présent article, les marchandises appartenant -au propriétaire du navire sont également sujettes à confiscation._ - -Les cas prévus ici sont plus graves que ceux de l'article 45, ce qui -justifie le traitement plus sévère infligé au navire, ainsi qu'il a été -expliqué plus haut. - -_Premier cas._--Le navire prend une part directe aux hostilités. Cela -peut se présenter sous diverses formes. Il va sans dire que, s'il y a -lutte armée, le navire est exposé à tous les risques d'une pareille -lutte. On suppose qu'il est tombé au pouvoir de l'ennemi qu'il -combattait, et qui est autorisé à le traiter comme un navire de commerce -ennemi. - -_Deuxième cas._--Le navire est sous les ordres ou sous le contrôle d'un -agent placé à bord par le Gouvernement ennemi. Cette présence -caractérise le lien qui existe entre l'ennemi et le navire. Dans -d'autres circonstances, le navire peut bien avoir un lien avec l'ennemi; -mais pour être sujet à la confiscation, il faudrait alors qu'il rentrât -dans le troisième cas. - -_Troisième cas._--Le navire est affrété en totalité par le Gouvernement -ennemi. Il est donc complètement à la disposition de ce Gouvernement, -qui peut s'en servir pour des buts divers se rattachant plus ou moins -directement à la guerre, notamment pour effectuer des transports; c'est -la situation de navires charbonniers qui accompagnent une flotte -belligérante. Souvent il y aura une charte-partie entre le Gouvernement -belligérant et le propriétaire ou le capitaine du navire; mais il n'y a -là qu'une question de preuve. Le fait de l'affrètement en totalité -suffit, de quelque façon qu'il soit établi. - -_Quatrième cas._--Le navire est actuellement et exclusivement affecté, -soit au transport de troupes ennemies, soit à la transmission de -nouvelles dans l'intérêt de l'ennemi. A la différence des cas visés dans -l'article 45, il s'agit ici d'un service permanent auquel est affecté le -navire. Aussi faut-il décider que, tant que l'affectation dure, le -navire est saisissable, encore qu'au moment où un croiseur ennemi visite -le navire, celui-ci ne transporte pas de troupes ou ne serve pas à la -transmission de nouvelles. - -Comme pour les cas de l'article 45, et par les mêmes raisons, les -marchandises appartenant au propriétaire du navire, et qui pourraient se -trouver à bord, sont également sujettes à confiscation. - -On avait proposé de considérer comme navire de commerce ennemi le navire -neutre faisant actuellement et avec l'autorisation du Gouvernement -ennemi un trajet auquel il n'a été autorisé qu'après l'ouverture des -hostilités ou dans les deux mois qui l'ont précédée. Cela se serait -appliqué notamment aux navires de commerce neutres qui seraient admis -par un belligérant à une navigation réservée en temps de paix à la -marine nationale de ce belligérant--par exemple, au cabotage. Plusieurs -Délégations ont repoussé formellement cette proposition, de sorte que -la question ainsi soulevée est restée entière. - -Article 47. - -_Tout individu incorporé dans la force armée de l'ennemi et qui sera -trouvé à bord d'un navire de commerce neutre, pourra être fait -prisonnier de guerre, quand même il n'y aurait pas lieu de saisir ce -navire._ - -Des individus incorporés dans les forces armées de terre ou de mer d'un -belligérant peuvent se trouver à bord d'un navire de commerce neutre -visité. Si le navire est sujet à confiscation, le croiseur le saisira et -le conduira dans un de ses ports avec les personnes qui se trouvent à -bord. Évidemment les militaires ou marins de l'État ennemi ne seront pas -laissés libres, mais seront considérés comme prisonniers de guerre. Il -peut arriver que l'on ne soit pas dans le cas de saisir le navire--par -exemple, parce que le capitaine ne connaissait pas la qualité d'un -individu qui s'était présenté comme un simple passager. Faut-il alors -laisser libre le ou les militaires qui sont sur le navire? Cela n'a pas -paru admissible. Le croiseur belligérant ne peut être contraint de -laisser libres des ennemis actifs qui sont matériellement en son pouvoir -et qui sont plus dangereux que tels et tels articles de contrebande; -naturellement il doit agir avec une grande discrétion, et c'est sous sa -responsabilité qu'il exige la remise de ces individus, mais son droit -existe; aussi a-t-il été jugé nécessaire de s'expliquer sur ce point. - - -CHAPITRE IV.--_De la destruction des prises neutres._ - -La destruction des prises neutres était à l'ordre du jour de la Deuxième -Conférence de la Paix et n'a pu y être réglée. Elle se retrouve à -l'ordre du jour de la présente Conférence et, cette fois, un accord a -été possible. Il y a lieu de s'applaudir d'un pareil résultat qui -témoigne d'un sincère désir d'entente de la part de tous. On a constaté -ici, une fois de plus, que des formules tranchantes et opposées ne -répondent pas toujours à la réalité et que, si on veut descendre dans le -détail et arriver aux applications précises, on aura souvent à peu près -la même manière de faire, quoiqu'on ait paru se réclamer d'opinions tout -à fait contraires. Pour s'accorder, il faut d'abord se bien comprendre, -ce qui n'est pas toujours le cas. Ainsi, on a constaté que ceux qui -proclamaient le droit de détruire les prises neutres, ne prétendaient -pas user de ce droit capricieusement et à tout propos, mais seulement -d'une manière exceptionnelle, et qu'à l'inverse, ceux qui affirmaient -le principe de l'interdiction de la destruction, admettaient que ce -principe devait céder dans des cas exceptionnels. Il s'agissait donc de -s'entendre sur ces cas exceptionnels auxquels, dans les deux opinions, -devait se borner le droit de destruction. Ce n'était pas tout: il -fallait aussi une garantie contre les abus dans l'exercice de ce droit; -l'arbitraire dans l'appréciation des cas exceptionnels devait être -diminué au moyen d'une responsabilité effective imposée au capteur. -C'est ici qu'est intervenu, dans le règlement de l'affaire, un élément -nouveau, grâce auquel l'accord a pu se faire. L'intervention possible de -la justice fera réfléchir le capteur en même temps qu'elle assurera une -réparation dans le cas d'une destruction sans motif. - -Tel est l'esprit général des dispositions de ce chapitre. - -Article 48. - -_Un navire neutre saisi ne peut être détruit par le capteur, mais il -doit être conduit dans tel port qu'il appartiendra pour y être statué ce -que de droit sur la validité de la capture._ - -Le principe général est très simple. Un navire neutre saisi ne peut être -détruit par le capteur; cela peut être admis par tout le monde, quelle -que soit la manière dont on envisage l'effet de la saisie. Le navire -doit être conduit dans un port pour y être statué sur la validité de la -prise. Il sera ou non amariné suivant les cas. - -Article 49. - -_Par exception, un navire neutre, saisi par un bâtiment belligérant et -qui serait sujet à confiscation, peut être détruit, si l'observation de -l'article 48 peut compromettre la sécurité du bâtiment de guerre ou le -succès des opérations dans lesquelles celui-ci est actuellement engagé._ - -La première condition pour que le navire saisi puisse être détruit est -qu'il soit susceptible de confiscation d'après les circonstances. Si le -capteur ne peut pas même songer à obtenir la confiscation du navire, -comment pourrait-il avoir la prétention de le détruire? - -La seconde est que l'observation du principe général soit de nature à -compromettre la sécurité du bâtiment de guerre ou le succès des -opérations dans lesquelles il est actuellement engagé. C'est la formule -à laquelle on s'est arrêté après quelques tâtonnements. Il a été entendu -que _compromettre la sécurité_ était synonyme de mettre en danger la -navire, et pourrait être traduit en anglais par _involve danger_. C'est -naturellement au moment où a lieu la destruction qu'il faut se placer -pour voir si les conditions sont ou non remplies. Le danger qui -n'existait pas au moment même de la saisie peut s'être manifesté quelque -temps après. - -Article 50. - -_Avant la destruction, les personnes qui se trouvent à bord devront être -mises en sûreté, et tous les papiers de bord et autres pièces, que les -intéressés estimeront utiles pour le jugement sur la validité de la -capture, devront être transbordés sur le bâtiment de guerre._ - -La disposition prévoit des précautions à prendre dans l'intérêt des -personnes et dans celui de l'administration de la justice. - -Article 51. - -_Le capteur qui a détruit un navire neutre doit, préalablement à tout -jugement sur la validité de la capture, justifier en fait n'avoir agi -qu'en présence d'une nécessité exceptionnelle, comme elle est prévue à -l'article 49. Faute par lui de ce faire, il est tenu à indemnité -vis-à-vis des intéressés, sans qu'il y ait à rechercher si la capture -était valable ou non._ - -Ce texte donne une garantie contre la destruction arbitraire des prises -par l'établissement d'une responsabilité effective du capteur qui a -opéré la destruction. Ce capteur doit, en effet, avant tout jugement sur -la validité de la prise, justifier en fait qu'il était bien dans un des -cas exceptionnels qui sont prévus. La justification sera faite -contradictoirement avec le neutre qui, s'il n'est pas content de la -décision du tribunal national des prises, pourra se pourvoir devant la -juridiction internationale. Cette justification est donc une condition -préalable à remplir par le capteur. S'il ne le fait pas, il doit -indemniser les intéressés au navire et au chargement, sans qu'il y ait à -rechercher si la prise était valable ou nulle. Il y a donc là une -sanction sérieuse de l'obligation de ne détruire la prise que dans des -cas déterminés, c'est une peine pécuniaire qui frappe le capteur. Si, au -contraire, la justification est faite, le procès de prise se suit comme -à l'ordinaire; lorsque la prise est déclarée valable, aucune indemnité -n'est due; quand elle est déclarée nulle, les intéressés ont droit à -être indemnisés. Le recours devant la Cour Internationale ne peut être -formé que quand la décision du tribunal des prises est intervenue sur le -fond et non pas aussitôt après que la question préalable a été jugée. - -Article 52. - -_Si la capture d'un navire neutre, dont la destruction a été justifiée, -est ensuite déclarée nulle, le capteur doit indemniser les intéressés en -remplacement de la restitution à laquelle ils auraient droit._ - -Article 53. - -_Si des marchandises neutres qui n'étaient pas susceptibles de -confiscation ont été détruites avec le navire, le propriétaire de ces -marchandises a droit à une indemnité._ - -Le navire détruit contenait des marchandises neutres non susceptibles de -confiscation; le propriétaire de ces marchandises a, en tout cas, droit -à une indemnité, c'est-à-dire sans qu'il y ait à distinguer suivant que -la destruction était ou non justifiée. C'est équitable et c'est une -garantie de plus contre une destruction arbitraire. - -Article 54. - -_Le capteur a la faculté d'exiger la remise ou de procéder à la -destruction des marchandises confiscables trouvées à bord d'un navire -qui lui-même n'est pas sujet à confiscation, lorsque les circonstances -sont telles que, d'après l'article 49, elles justifieraient la -destruction d'un navire passible de confiscation. Il mentionne les -objets livrés ou détruits sur le livre de bord du navire arrêté et se -fait remettre par le capitaine copie certifiée conforme de tous papiers -utiles. Lorsque la remise ou la destruction a été effectuée et que les -formalités ont été remplies, le capitaine doit être autorisé à continuer -sa route._ - -_Les dispositions des articles 51 et 52 concernant la responsabilité du -capteur qui a détruit un navire neutre sont applicables._ - -Un croiseur rencontre un navire de commerce neutre portant de la -contrebande dans une proportion inférieure à celle qui est prévue par -l'article 40. Il peut amariner le navire et le conduire dans un port -pour y être jugé. Il peut, conformément à ce qui est réglé par l'article -44, accepter la remise de la contrebande qui lui est offerte par le -navire arrêté. Mais, qu'arrivera-t-il si aucune de ces solutions -n'intervient? Le navire arrêté n'offre pas de remettre la contrebande et -le croiseur n'est pas en situation de conduire le navire dans un de ses -ports. Le croiseur est-il obligé de laisser aller un navire neutre avec -la contrebande qu'il porte? Cela a paru excessif, au moins dans -certaines circonstances exceptionnelles. Ce sont celles-là mêmes qui -justifieraient la destruction du navire, s'il était susceptible de -confiscation. En pareil cas, le croiseur pourra exiger la remise ou -procéder à la destruction des marchandises confiscables. Les raisons qui -ont fait admettre la destruction du navire pourront justifier la -destruction des marchandises de contrebande, d'autant plus que les -considérations d'humanité qui peuvent être invoquées en cas de -destruction du navire sont écartées ici. Contre une exigence arbitraire -du croiseur, il y a les mêmes garanties qui ont permis de reconnaître -la faculté de détruire le navire. Le croiseur doit préalablement -justifier qu'il se trouvait bien dans les circonstances exceptionnelles -prévues; sinon, il est condamné à la valeur des marchandises livrées ou -détruites, sans qu'il y ait à rechercher si elles constituaient ou non -de la contrebande de guerre. - -La disposition prescrit des formalités qui sont nécessaires pour -constater le fait même et pour mettre la juridiction des prises à même -de statuer. - -Naturellement, une fois que la remise a été effectuée ou que la -destruction a été opérée et que les formalités ont été remplies, le -navire arrêté doit être laissé libre de continuer sa route. - - -CHAPITRE V.--_Du transfert de pavillon._ - -Un navire de commerce ennemi est sujet à capture, tandis qu'un navire de -commerce neutre est respecté. On comprend, dès lors, qu'un croiseur -belligérant, rencontrant un navire de commerce qui se réclame d'une -nationalité neutre, ait à rechercher si cette nationalité a été -légitimement acquise ou si elle n'a pas eu pour but de soustraire le -navire aux risques auxquels il aurait été exposé s'il avait gardé son -ancienne nationalité. La question se présente naturellement quand le -transfert est de date relativement récente, au moment où a lieu la -visite, que ce transfert soit, du reste, antérieur ou postérieur à -l'ouverture des hostilités. Elle est résolue différemment suivant qu'on -se place plutôt au point de vue de l'intérêt du commerce ou plutôt au -point de vue de l'intérêt des belligérants. Il est heureux que l'on se -soit entendu sur un règlement qui concilie les deux intérêts dans la -mesure du possible et qui renseigne les belligérants et le commerce -neutre. - -Article 55. - -_La transfert sous pavillon neutre d'un navire ennemi, effectué avant -l'ouverture des hostilités, est valable à moins qu'il soit établi que ce -transfert a été effectué en vue d'éluder les conséquences qu'entraîne le -caractère de navire ennemi. Il y a néanmoins présomption de nullité si -l'acte de transfert ne se trouve pas à bord, alors que le navire a perdu -la nationalité belligérante moins de soixante jours avant l'ouverture -des hostilités; la preuve contraire est admise._ - -_Il y a présomption absolue de validité d'un transfert effectué plus de -trente jours avant l'ouverture des hostilités, s'il est absolu, complet, -conforme à la législation des pays intéressés, et s'il a cet effet que_ -_le contrôle du navire et le bénéfice de son emploi ne restent pas entre -les mêmes mains qu'avant le transfert. Toutefois, si le navire a perdu -la nationalité belligérante moins de soixante jours avant l'ouverture -des hostilités et si l'acte de transfert ne se trouve pas à bord, la -saisie du navire ne pourra donner lieu à des dommages et intérêts._ - -La règle générale, posée par l'alinéa 1'er, est que le transfert sous -pavillon neutre d'un navire ennemi est valable, en supposant, bien -entendu, que les conditions juridiques ordinaires de validité ont été -remplies. C'est au capteur, s'il veut faire annuler ce transfert, à -établir que le transfert a eu pour but d'éluder les conséquences de la -guerre que l'on prévoyait. Il y a un cas considéré comme suspect, celui -dans lequel l'acte de transfert ne se trouve pas à bord, alors que le -navire a changé de nationalité moins de soixante jours avant l'ouverture -des hostilités. La présomption de validité établie au profit du navire -par l'alinéa 1'er est renversée au profit du capteur. Il y a présomption -de nullité du transfert, mais la preuve contraire est admise. Il peut -être prouvé, pour l'écarter, que le transfert n'a pas été opéré en vue -d'éluder les conséquences de la guerre; il va sans dire que les -conditions juridiques ordinaires de validité doivent avoir été remplies. - -On a voulu donner au commerce cette garantie que le droit de faire -considérer un transfert comme nul pour ce motif qu'il aurait eu pour but -d'éluder les conséquences de la guerre ne s'étendrait pas trop loin et -ne comprendrait pas une période trop étendue. En conséquence, si le -transfert a été effectué plus de trente jours avant l'ouverture des -hostilités, il ne peut être attaqué pour cette seule cause, et il est -considéré comme absolument valable, s'il a été fait dans des conditions -qui en démontrent le caractère sérieux et définitif et qui sont les -suivantes: le transfert doit être absolu, complet, et conforme à la -législation des pays intéressés et il a pour effet de mettre le contrôle -et les bénéfices du navire entre d'autres mains. Ces conditions -établies, le capteur n'est pas admis à prétendre que le vendeur -prévoyait la guerre dans laquelle son pays allait être engagé et -voulait, par la vente, se soustraire aux risques qu'elle lui aurait fait -courir pour les navires dont il opérait le transfert. Si, même dans -cette hypothèse, le navire est rencontré par un croiseur et qu'il n'ait -pas l'acte de transfert à bord, il pourra être saisi lorsque le -changement de nationalité a eu lieu moins de soixante jours avant -l'ouverture des hostilités; cette circonstance le rend suspect. Mais -si, devant la juridiction des prises, il fait les justifications -prévues par l'alinéa 2, il doit être relâché; seulement il ne pourra -obtenir des dommages et intérêts, attendu qu'il y avait eu motif -suffisant pour saisir le navire. - -Article 56. - -_Le transfert sous pavillon neutre d'un navire ennemi, effectué après -l'ouverture des hostilités, est nul, à moins qu'il soit établi que ce -transfert n'a pas été effectué en vue d'éluder les conséquences -qu'entraîne le caractère de navire ennemi._ - -_Toutefois, il y a présomption absolue de nullité:_ - - 1'o _Si le transfert a été effectué pendant que le navire est en - voyage ou dans un port bloqué._ - - 2'o _S'il y a faculté de réméré ou de retour._ - - 3'o _Si les conditions, auxquelles est soumis le droit de pavillon - d'après la législation du pavillon arboré, n'ont pas été - observées._ - -Pour le _transfert postérieur à l'ouverture des hostilités_, la règle -est plus simple: le transfert n'est valable que s'il est établi qu'il -n'a pas eu pour but d'éluder les conséquences qu'entraîne le caractère -de navire ennemi. C'est la solution inverse de celle qui est admise pour -le transfert antérieur à l'ouverture des hostilités; présomption de -validité dans ce dernier, présomption de nullité dans celui dont il -s'agit maintenant, sauf la possibilité de faire la preuve contraire. Il -pourrait être établi, par exemple, que le transfert est la suite d'une -transmission héréditaire. - -L'article 56 indique des cas dans lesquels la présomption de nullité est -absolue pour des motifs qui se comprennent aisément: dans le premier, le -lien entre le transfert et le risque de guerre couru par le navire -apparaît clairement; dans le second, l'acquéreur se présente comme un -prête-nom devant être considéré comme propriétaire du navire pendant une -période dangereuse, après laquelle le vendeur reprendra son navire; -enfin, le troisième cas aurait pu à la rigueur être sous-entendu, le -navire qui se réclame d'une nationalité neutre devant naturellement -justifier qu'il a droit à cette nationalité. - -On avait d'abord prévu le cas où le navire est, après le transfert, -maintenu dans le service auquel il était affecté auparavant. Il y a là -une circonstance suspecte au plus haut point; le transfert paraît -fictif, puisque rien n'est changé dans le service du navire. Cela -s'applique, par exemple, au cas d'une même ligne de navigation desservie -par le navire après et avant le transfert. On a objecté que, parfois, la -présomption absolue serait trop rigoureuse, que certains navires, comme -les navires pétroliers, ne pouvaient, à raison de leur construction, -être affectés qu'à un service déterminé. Pour tenir compte de cette -observation, le mot _trajet_ avait été ajouté, de sorte qu'il aurait -fallu que le navire eût été maintenu _dans les mêmes service et trajet_; -il semblait que l'on donnait, de cette façon, une satisfaction -suffisante à la réclamation. Néanmoins, sur une insistance en vue de la -suppression du cas dans l'énumération, cette suppression a été admise. -Il en résulte que le transfert rentre alors dans l'application de la -règle générale; il est bien présumé nul, mais la preuve contraire est -admise. - - -CHAPITRE VI.--_Du caractère ennemi._ - -La règle inscrite dans la Déclaration de Paris, "le pavillon neutre -couvre la marchandise ennemie, à l'exception de la contrebande de -guerre," répond trop au progrès des moeurs, a trop pénétré l'opinion -publique pour qu'en présence d'une application si générale, on n'y voie -pas un principe de droit commun, qu'il n'est plus même question de -discuter. Aussi le caractère neutre ou ennemi des navires de commerce -n'a-t-il pas seulement pour conséquence de décider de la validité de -leur capture, mais encore du sort des marchandises, autres que la -contrebande, qui sont trouvées à leur bord. Une remarque générale -analogue peut être faite au sujet du caractère neutre ou ennemi de la -marchandise. Personne ne songe à contester aujourd'hui le principe -d'après lequel, "la marchandise neutre, à l'exception de la contrebande -de guerre, n'est pas saisissable sous pavillon ennemi." Ce n'est donc -que dans le cas où elle est trouvée à bord d'un navire ennemi, que se -pose la question de savoir si une marchandise est neutre ou ennemie. - -La détermination du caractère neutre ou ennemi apparaît ainsi comme le -développement des deux principes consacrés en 1856, ou mieux comme le -moyen d'en assurer la juste application pratique. - -L'utilité de dégager, à cet égard, des pratiques des différents pays des -règles claires et simples n'a, pour ainsi dire, pas besoin d'être -démontrée. Pour le commerce, l'incertitude des risques de capture, si -elle n'est pas une cause d'arrêt total, est tout au moins la pire des -entraves. Le commerçant doit savoir les risques qu'il court en chargeant -sur tel ou tel navire; l'assureur, s'il ignore la gravité de ces -risques, est forcé d'exiger des primes de guerre souvent exorbitantes ou -insuffisantes. - -Les règles qui forment ce chapitre ne sont malheureusement pas -complètes; quelques points importants ont dû être laissés de côté, -comme on l'a déjà vu par ce qui a été dit dans les explications -préliminaires et comme cela sera précisé plus loin. - -Article 57. - -_Sous réserve des dispositions relatives au transfert de pavillon, le -caractère neutre ou ennemi du navire est déterminé par le pavillon qu'il -a le droit de porter._ - -_Le cas où le navire neutre se livre à une navigation réservée en temps -de paix reste hors de cause et n'est nullement visé par cette règle._ - -Le principe est donc que _le caractère neutre ou ennemi du navire est -déterminé par le pavillon qu'il a le droit de porter_. C'est une règle -simple qui paraît bien répondre à la situation spéciale des navires, si -on les compare aux autres biens meubles et notamment aux marchandises. A -plus d'un point de vue, ils ont une sorte d'individualité; notamment ils -ont une nationalité, un _caractère_ national. Cette nationalité est -manifestée par le droit de pavillon; elle place les navires sous la -protection et le contrôle de l'État dont ils relèvent; elle les soumet à -la souveraineté et aux lois de cet État et, le cas échéant, à ses -réquisitions. C'est là le critérium le plus sûr que le navire est bien -un des éléments de la force maritime marchande d'un pays et, par -conséquent, le meilleur critérium pour déterminer s'il est neutre ou -ennemi. Aussi convient-il de s'y attacher exclusivement et d'écarter ce -qui se rattache à la personnalité du propriétaire. - -Le texte dit: le pavillon que le navire a le _droit de porter_; cela -s'entend naturellement du pavillon que le navire est, s'il ne l'a fait, -en droit d'arborer, conformément aux lois qui régissent le port de ce -pavillon. - -L'article 57 réserve les dispositions relatives au transfert de pavillon -pour lesquelles il suffit de renvoyer aux articles 55 et 56; il pourra -se faire qu'un navire ait bien le droit de porter un pavillon neutre, au -point de vue de la législation du pays dont il se réclame, mais soit -considéré comme ennemi par un belligérant, parce que le transfert à la -suite duquel il a porté le pavillon neutre tombe sous le coup de -l'article 55 ou de l'article 56. - -Enfin, la question de savoir si un navire perd son caractère neutre, -lorsqu'il effectue une navigation que l'ennemi réservait avant la guerre -aux seuls navires nationaux a été soulevée. Une entente n'a pu avoir -lieu, comme cela a été expliqué plus haut à propos du chapitre sur -_l'Assistance hostile_, et la question est restée absolument entière, -comme l'alinéa 2 de l'article 57 prend soin de le dire. - -Article 58. - -_Le caractère neutre ou ennemi des marchandises trouvées à bord d'un -navire ennemi est déterminé par le caractère neutre ou ennemi de leur -propriétaire._ - -A la différence des navires, les marchandises n'ont pas une -individualité propre; on fait dépendre leur caractère neutre ou ennemi -de la personnalité de leur propriétaire. C'est ce qui a prévalu après un -examen approfondi de diverses opinions tendant à s'attacher à l'origine -des marchandises, à la personne du porteur de risques, du réclamateur ou -de l'expéditeur. Le critérium adopté par l'article 58 paraît, -d'ailleurs, conforme aux termes de la Déclaration de Paris comme à ceux -de la Convention de La Haye du 18 octobre 1907, sur l'établissement -d'une Cour Internationale des prises, où il est parlé des _propriétés -neutres ou ennemies_ (articles 1, 3, 4 et 8). - -Mais il ne faut pas se dissimuler que l'article 58 ne résout qu'une -partie du problème, la plus simple; c'est le caractère neutre ou ennemi -du propriétaire qui détermine le caractère des marchandises, mais à quoi -s'attachera-t-on pour déterminer le caractère neutre ou ennemi du -propriétaire? On ne le dit pas, parce qu'il a été impossible d'arriver à -une entente sur ce point. Les opinions ont été partagées entre le -_domicile_ et la _nationalité_; il est inutile de reproduire ici les -arguments invoqués dans les deux sens. On avait pensé à une sorte de -transaction ainsi formulée: - - "Le caractère neutre ou ennemi des marchandises trouvées à bord - d'un navire ennemi est déterminé par la nationalité neutre ou - ennemie de leur propriétaire et, en cas d'absence de nationalité - ou en cas de double nationalité neutre et ennemie de leur - propriétaire, par le domicile de celui-ci en pays neutre ou - ennemi." - - "Toutefois, les marchandises appartenant à une société anonyme ou - par actions sont considérées comme neutres ou ennemies selon que - la société a son siège social en pays neutre ou ennemi." - -L'unanimité n'a pu être obtenue. - -Article 59. - -_Si le caractère neutre de la marchandise trouvée à bord d'un navire -ennemi n'est pas établi, la marchandise est présumée ennemie._ - -L'article 59 formule la règle traditionnelle d'après laquelle la -marchandise trouvée à bord d'un navire ennemi est présumée ennemie sauf -la preuve contraire; ce n'est qu'une présomption simple laissant au -revendiquant le droit, mais la charge de prouver ses droits. - -Article 60. - -_Le caractère ennemi de la marchandise chargée à bord d'un navire ennemi -subsiste jusqu'à l'arrivée à destination, nonobstant un transfert -intervenu pendant le cours de l'expédition, après l'ouverture des -hostilités._ - -_Toutefois, si, antérieurement à la capture, un précédent propriétaire -neutre exerce, en cas de faillite du propriétaire ennemi actuel, un -droit de revendication légale sur la marchandise, celle-ci reprend le -caractère neutre._ - -Cette disposition envisage le cas où une marchandise, étant propriété -ennemie au moment de son départ, a été l'objet d'une vente ou d'un -transfert pendant le cours du voyage. La facilité qu'il y aurait à -garantir, au moyen d'une vente, la marchandise ennemie contre l'exercice -du droit de capture, sauf à s'en faire rétrocéder la propriété à -l'arrivée, a toujours conduit à ne pas tenir compte de ces transferts; -le caractère ennemi subsiste. - -Au point de vue du moment à partir duquel une marchandise doit être -considérée comme devant prendre et conserver le caractère ennemi de son -propriétaire, le texte est inspiré du même esprit d'équité qui a présidé -à la Convention de La Haye sur le régime des bâtiments de commerce au -début des hostilités, et du même désir de garantir les opérations -entreprises dans la confiance du temps de paix. C'est seulement lorsque -le transfert a lieu après l'ouverture des hostilités qu'il est, jusqu'à -l'arrivée, inopérant au point de vue de la perte du caractère ennemi. Ce -qu'on considère ici, c'est la date du transfert, et non la date du -départ du navire. Car, bien que le navire parti avant la guerre, et -resté peut-être dans l'ignorance de l'ouverture des hostilités, jouisse -de ce chef d'une certaine exemption, la marchandise peut cependant avoir -le caractère ennemi; le propriétaire ennemi de cette marchandise est à -même de connaître la guerre, et c'est précisément pour cela qu'il -cherchera à échapper à ses conséquences. - -On a cru, toutefois, devoir ajouter sinon une restriction, du moins un -complément jugé nécessaire. Dans un grand nombre de pays, le vendeur non -payé a, en cas de faillite de l'acheteur, un droit de revendication -légale (_stoppage in transitu_) sur les marchandises déjà devenues la -propriété de l'acheteur, mais non encore parvenues jusqu'à lui. En -pareil cas la vente est résolue, et, par l'effet de sa revendication, le -vendeur reprend sa marchandise, sans être réputé avoir jamais cessé -d'être propriétaire. Il y a là pour le commerce neutre, en cas de -faillite non simulée, une garantie trop précieuse pour être sacrifiée, -et le deuxième alinéa de l'article 60 a pour but de la sauvegarder. - - -CHAPITRE VII.--_Du convoi._ - -La pratique du convoi a, dans le passé, soulevé parfois de graves -difficultés et même des conflits. Aussi peut-on constater avec -satisfaction l'accord intervenu pour la régler. - -Article 61. - -_Les navires neutres sous convoi de leur pavillon sont exempts de -visite. Le commandant du convoi donne par écrit, à la demande du -commandant d'un bâtiment de guerre belligérant, sur le caractère des -navires et sur leur chargement, toutes informations que la visite -servirait à obtenir._ - -Le principe posé est simple: un navire neutre convoyé par un navire de -guerre de sa nation est exempt de visite. Le motif en est que le -croiseur belligérant doit trouver dans les affirmations du commandant du -convoi la garantie que lui procurerait l'exercice même du droit de -visite; il ne peut, en effet, révoquer en doute ces affirmations, -données par l'agent officiel d'un Gouvernement neutre, sans manquer à la -courtoisie internationale. Si les Gouvernements neutres laissent les -belligérants visiter les navires portant leur pavillon, c'est qu'ils ne -veulent pas prendre la charge de la surveillance de ces navires, et -qu'alors ils permettent aux belligérants de se protéger eux-mêmes. La -situation change quand un Gouvernement neutre entend prendre cette -charge; le droit de visite n'a plus la même raison d'être. - -Mais il résulte de l'explication de la règle donnée pour le convoi que -le Gouvernement neutre s'engage à donner aux belligérants toute garantie -que les navires convoyés ne profitent pas de la protection qui leur est -assurée pour agir contrairement à la neutralité--par exemple, pour -transporter de la contrebande de guerre, pour fournir à un belligérant -une assistance hostile, pour tenter de violer un blocus. Il faudra donc -une surveillance sérieuse exercée au départ sur les navires devant être -convoyés, et cette surveillance devra se poursuivre au cours du voyage. -Le Gouvernement devra procéder avec vigilance pour empêcher tout abus du -convoi, et il donnera en ce sens des instructions précises à l'officier -chargé de commander un convoi. - -Un croiseur belligérant rencontre un convoi: il s'adresse au commandant -de ce convoi, qui doit, sur sa demande, lui donner par écrit toutes les -informations utiles sur les navires qui sont sous sa protection. On -exige une déclaration écrite, parce qu'elle empêche les équivoques et -les malentendus, qu'elle engage plus la responsabilité du commandant. -Cette déclaration a pour but de rendre la visite inutile par le fait -même qu'elle procure au croiseur les renseignements que la visite -elle-même lui aurait fournis. - -Article 62. - -_Si le commandant du bâtiment de guerre belligérant a lieu de soupçonner -que la religion du commandant du convoi a été surprise, il lui -communique ses soupçons. C'est au commandant du convoi seul qu'il -appartient en ce cas de procéder à une vérification. Il doit constater -le résultat de cette vérification par un procès-verbal dont une copie -est remise à l'officier du bâtiment de guerre. Si des faits ainsi -constatés justifient, dans l'opinion du commandant du convoi, la saisie -d'un ou de plusieurs navires, la protection du convoi doit leur être -retirée._ - -Le plus souvent le croiseur s'en tiendra à la déclaration que lui aura -donnée le commandant du convoi, mais il peut avoir de sérieuses raisons -de croire que la religion de ce commandant a été surprise, qu'un navire -convoyé dont les papiers paraissent en règle, et ne présentent rien de -suspect, transporte, en fait, de la contrebande adroitement dissimulée. -Le croiseur peut communiquer ses soupçons au commandant du convoi. Une -vérification peut être jugée nécessaire. Elle est faite par le -commandant du convoi; c'est lui seul qui exerce l'autorité sur les -navires placés sous sa protection. Il a paru toutefois que l'on -éviterait souvent bien des difficultés, s'il était permis au belligérant -d'assister à cette vérification; autrement il lui serait toujours -possible de suspecter, sinon la bonne foi, du moins la vigilance ou la -perspicacité du visiteur. Mais on n'a pas cru devoir imposer au -commandant du convoi l'obligation de laisser l'officier du croiseur -assister à la vérification. Il agira comme il le jugera bon: s'il -accepte l'assistance d'un officier du croiseur, ce sera un acte de -courtoisie ou de bonne politique. Il devra, dans tous les cas, dresser -un procès-verbal de la vérification et en donner une copie à l'officier -du croiseur. - -Des divergences peuvent s'élever entre les deux officiers, spécialement -à propos de la contrebande conditionnelle. Le caractère du port auquel -sont destinés des blés peut être contesté; est-ce un port de commerce -ordinaire? est-ce un port qui sert de base de ravitaillement pour les -forces armées? La situation de fait produite par le convoi doit être, en -ce cas, maintenue. Il pourra seulement y avoir une protestation de la -part de l'officier du croiseur, et la difficulté sera réglée par la voie -diplomatique. - -La situation est tout autre si un navire convoyé est trouvé porteur de -contrebande sans qu'une contestation puisse s'élever. Le navire n'a plus -droit à la protection, parce que la condition à laquelle cette -protection était subordonnée n'a pas été remplie. Il a trompé son propre -Gouvernement d'abord et essayé de tromper un belligérant. Il doit alors -être traité comme un navire de commerce neutre qui, dans les -circonstances ordinaires, rencontre un croiseur belligérant et est -visité par lui. Il ne peut se plaindre d'être ainsi traité -rigoureusement, parce qu'il y a dans son cas une aggravation de la faute -commise par un transporteur de contrebande. - - -CHAPITRE VIII.--_De la résistance à la visite._ - -Le sujet traité dans ce chapitre n'est pas mentionné dans le programme -soumis en février 1908 par le Gouvernement Britannique; il se rattache -étroitement à plusieurs des questions de ce programme, aussi s'est-il -naturellement présenté à l'esprit au cours des discussions, et il a paru -nécessaire de poser une règle sur laquelle on s'est facilement accordé. - -Un croiseur belligérant rencontre un navire de commerce et le somme de -s'arrêter pour qu'il soit procédé à la visite. Le navire sommé ne -s'arrête pas et essaie de se soustraire à la visite par la fuite. Le -croiseur peut employer la force pour l'arrêter, et le navire de -commerce, s'il est avarié ou coulé, n'a pas le droit de se plaindre, -puisqu'il a contrevenu à une obligation imposée par le droit des gens. -S'il est arrêté et s'il est établi que c'est seulement pour éviter les -ennuis de la visite qu'il avait recouru à la fuite, qu'il n'avait -d'ailleurs commis aucun acte contraire à la neutralité, il ne sera pas -puni pour sa tentative. S'il est constaté, au contraire, que le navire a -de la contrebande à bord ou qu'il a, d'une façon quelconque, violé ses -devoirs de neutre, il subira les conséquences de son infraction à la -neutralité, mais il ne subira non plus aucune peine pour avoir tenté la -fuite. Certains pensaient, au contraire, que le navire devrait être puni -pour une tentative de fuite caractérisée comme pour une résistance -violente. La possibilité de la confiscation engagerait, disait-on, le -croiseur à ménager, dans la mesure du possible, le navire en fuite. Mais -cette idée n'a pas prévalu. - -Article 63. - -_La résistance opposée par la force à l'exercice légitime du droit -d'arrêt, de visite et de saisie, entraîne, dans tous les cas, la -confiscation du navire. Le chargement est passible du même traitement -que subirait le chargement d'un navire ennemi; les marchandises -appartenant au capitaine ou au propriétaire du navire sont considérées -comme marchandises ennemies._ - -La situation est différente s'il y a résistance violente à l'action -légitime du croiseur. Le navire commet un acte d'hostilité et doit, dès -lors, être traité en ennemi; il sera donc soumis à confiscation, quand -même la visite ne révélerait aucun fait contraire à la neutralité, et -cela semble ne pouvoir soulever aucune difficulté. - -Que faut-il décider du chargement? La formule qui a semblé la meilleure -est celle d'après laquelle ce chargement sera traité comme celui qui -serait à bord d'un navire ennemi. Cette assimilation entraîne les -conséquences suivantes: le navire neutre qui a résisté devenant navire -ennemi, la marchandise se trouvant à bord est présumée ennemie. Les -neutres intéressés pourront réclamer leur propriété, conformément à la -3'e règle de la Déclaration de Paris, mais la marchandise ennemie sera -confisquée parce que la règle _le pavillon couvre la marchandise_ ne -peut plus être invoquée, le navire saisi sur lequel elle se trouve étant -considéré comme ennemi. On remarquera que le droit de réclamer la -marchandise est reconnu à tous les neutres, même à ceux qui ont la -nationalité du navire saisi; il paraîtrait excessif de les faire -souffrir de l'acte du capitaine. Il y a toutefois une exception à -l'égard des marchandises appartenant au propriétaire du navire. Il -semble naturel qu'il supporte les conséquences des actes de son agent. -Sa propriété à bord du navire sera donc traitée en marchandise ennemie. -A plus forte raison, en est-il de même de la marchandise appartenant au -capitaine. - - -CHAPITRE IX.--_Des dommages et intérêts._ - -Ce chapitre a une portée très générale, puisque la disposition qu'il -contient trouve son application dans les cas nombreux où un croiseur -peut saisir un navire ou des marchandises. - -Article 64. - -_Si la saisie du navire ou des marchandises n'est pas validée par la -juridiction des prises ou si, sans qu'il y ait eu de mise en jugement, -la saisie n'est pas maintenue, les intéressés ont droit à des dommages -et intérêts, à moins qu'il y ait eu des motifs suffisants de saisir le -navire ou les marchandises._ - -Un croiseur a saisi un navire neutre, par exemple, pour transport de -contrebande ou violation de blocus. Le tribunal des prises relâche le -navire en annulant la saisie. Cela ne suffit évidemment pas à dédommager -les intéressés de la perte éprouvée par suite de la saisie, et cette -perte a pu être considérable, puisque le navire a été, pendant un temps -souvent très long, empêché de se livrer à son trafic ordinaire. -Peuvent-ils demander à être indemnisés de ce préjudice? Rationnellement -il faut admettre l'affirmative, si ce préjudice est immérité, -c'est-à-dire si la saisie n'a pas été amenée par leur faute. Il peut -arriver, en effet, que la saisie ait été motivée, parce que le capitaine -du navire visité n'a pas produit des justifications qui devaient se -trouver normalement à sa disposition et qui ont été fournies plus tard. -Dans ce cas, il serait injuste que des dommages et intérêts fussent -accordés. A l'inverse, s'il y a eu vraiment faute du croiseur, s'il a -saisi dans un cas où il n'y avait pas de motifs suffisants de le faire, -il est juste que des dommages et intérêts soient alloués. - -Il peut arriver aussi qu'un navire saisi et conduit dans un port ait été -relaxé par voie administrative sans intervention d'un tribunal de -prises. En pareil cas, la pratique varie: dans certains pays, la -juridiction des prises n'intervient que dans le cas d'une capture et ne -pourrait statuer sur une demande de dommages-intérêts fondée sur ce que -la saisie aurait été injustifiée; dans d'autres, la juridiction des -prises serait compétente pour une demande de ce genre. Il y a là une -inégalité peu équitable et il convient d'établir une règle qui produise -le même effet dans tous les pays. Il est raisonnable que toute saisie -pratiquée sans motifs suffisants donne droit à des dommages-intérêts au -profit des intéressés, sans qu'il y ait à distinguer suivant que la -saisie a été ou non suivie d'une décision du tribunal des prises, et -d'autant plus que c'est quand la saisie aura été le moins justifiée, que -le navire pourra être relaxé par voie administrative. On a donc employé -une formule générale pouvant comprendre tous les cas de saisie. - -Il convient de remarquer que la question de savoir si les tribunaux -nationaux de prises sont compétents pour statuer sur les -dommages-intérêts n'est pas visée dans le texte. En tant qu'il y a un -procès sur les propriétés saisies, aucun doute n'est possible. Dans la -procédure engagée sur la validité de la capture, les intéressés auront -l'occasion de faire valoir leur droit à une indemnité, et, si la -décision du tribunal national ne leur donne pas satisfaction, ils -pourront se pourvoir devant la Cour Internationale des prises. Si, au -contraire, l'action du belligérant s'est bornée à une saisie, la -législation du belligérant capteur décide si des tribunaux sont -compétents pour connaître d'une demande en indemnité et, en cas -d'affirmative, quels tribunaux sont compétents dans l'espèce; la Cour -Internationale n'a, dans ce cas, aucune compétence d'après la Convention -de La Haye. Au point de vue international, la voie diplomatique est la -seule ouverte pour faire valoir la réclamation, qu'il s'agisse de se -plaindre d'une décision effectivement rendue ou de suppléer à l'absence -de juridiction. - -On a posé la question de savoir s'il y avait lieu de distinguer les -dommages directs et les dommages indirects subis par le navire ou la -marchandise. Il a semblé qu'il valait mieux laisser la juridiction des -prises libre d'apprécier le dédommagement dû, qui variera suivant les -circonstances et dont le montant ne peut être déterminé à l'avance par -des règles trop minutieuses. - -Il n'a été parlé que du navire pour simplifier; mais ce qui a été dit -s'applique naturellement à la cargaison saisie, puis relâchée. Ainsi la -marchandise innocente, se trouvant à bord du navire saisi, subit tous -les inconvénients de la saisie du navire. S'il y a eu des motifs -suffisants de saisir le navire, que cette saisie soit maintenue ou non, -les propriétaires de la cargaison n'ont aucun droit à des dommages et -intérêts. - -Il peut être utile d'indiquer certains cas dans lesquels la saisie du -navire serait justifiée, quelle que pût être la décision du tribunal des -prises. C'est notamment celui de jet, de suppression ou de destruction -volontaire de tout ou partie des papiers de bord, provenant du fait du -capitaine, de quelqu'un de l'équipage ou des passagers. Il y a là -quelque chose qui justifie tous les soupçons et qui explique que le -navire soit saisi, sauf au capitaine à rendre compte de sa conduite -devant le tribunal des prises. Même si ce tribunal acceptait les -explications données et ne trouvait pas de causes suffisantes de -confiscation, les intéressés ne pourraient songer à réclamer des -dommages-intérêts. - -Un cas analogue serait celui où l'on trouverait à bord des papiers -doubles, faux, ou falsifiés, alors que cette irrégularité se rattache à -des circonstances de nature à influer sur la saisie du navire. - -Il a semblé suffisant que ces cas où la saisie s'expliquerait -raisonnablement fussent mentionnés dans le Rapport sans faire l'objet -d'une disposition expresse, et cela parce que l'indication de deux cas -particuliers aurait pu faire croire que c'étaient les seuls dans -lesquels la saisie se justifierait. - -Tels sont les principes de droit international que la Conférence Navale -s'est efforcée de reconnaître comme propres à régir pratiquement les -rapports des peuples dans d'importantes matières pour lesquelles des -règles précises faisaient jusqu'à présent défaut. Elle a continué ainsi -l'oeuvre de codification commencée par la Déclaration de Paris de 1856. -Elle a travaillé dans le même esprit que la Deuxième Conférence de la -Paix et, profitant des travaux faits à La Haye, elle a pu résoudre un -certain nombre de problèmes que, faute de temps, cette Conférence avait -dû laisser sans solution. Souhaitons que l'on puisse dire que ceux qui -ont élaboré la Déclaration de Londres de 1909 n'ont pas été trop -indignes de leurs prédécesseurs de 1856 et de 1907. - - -DISPOSITIONS FINALES. - -Ces dispositions ont trait à diverses questions qui touchent à l'effet -de la Déclaration, à sa ratification, à sa mise en vigueur, à sa -dénonciation, à l'adhésion des Puissances non représentées. - -Article 65. - -_Les dispositions de la présente Déclaration forment un ensemble -indivisible._ - -Cet article est très important et conforme à ce qui avait été admis pour -la Déclaration de Paris. - -Les règles contenues dans la présente Déclaration touchent à des points -très importants et très différents. Elles n'ont pas toutes été acceptées -avec le même empressement par toutes les Délégations; des concessions -ont été faites sur un point en vue de concessions obtenues sur un autre. -L'ensemble a été, tout balancé, reconnu satisfaisant. Une attente -légitime serait trompée, si une Puissance pouvait faire des réserves à -propos d'une règle à laquelle une autre Puissance attache une importance -particulière. - -Article 66. - -_Les Puissances Signataires s'engagent à s'assurer, dans le cas d'une -guerre où les belligérants seraient tous parties à la présente -Déclaration, l'observation réciproque des règles contenues dans cette -Déclaration. Elles donneront, en conséquence, à leurs autorités et à -leurs forces armées les instructions nécessaires et prendront les -mesures qu'il conviendra pour en garantir l'application par leurs -tribunaux, spécialement par leurs tribunaux de prises._ - -D'après l'engagement qui résulte de cet article, la Déclaration -s'applique dans les rapports entre les Puissances Signataires, quand les -belligérants sont également parties à la Déclaration. - -Ce sera à chaque Puissance à prendre les mesures nécessaires pour -assurer l'observation de la Déclaration. Ces mesures pourront varier -suivant les pays, exiger ou non l'intervention du pouvoir législatif. -C'est une affaire d'ordre intérieur. - -Il faut remarquer que les Puissances neutres peuvent être aussi dans le -cas de donner des instructions à leurs autorités, spécialement aux -commandants des convois, comme on l'a vu plus haut. - -Article 67. - -_La présente Déclaration sera ratifiée aussitôt que possible._ - -_Les ratifications seront déposées à Londres._ - -_Le premier dépôt de ratifications sera constaté par un procès-verbal -signé par les Représentants des Puissances qui y prennent part, et par -le Principal Secrétaire d'État de Sa Majesté Britannique au Département -des Affaires Étrangères._ - -_Les dépôts ultérieurs de ratifications se feront au moyen d'une -notification écrite adressée au Gouvernement Britannique et accompagnée -de l'instrument de ratification._ - -_Copie certifiée conforme du procès-verbal relatif au premier dépôt de -ratifications, des notifications mentionnées à l'alinéa précédent, ainsi -que des instruments de ratification qui les accompagnent, sera -immédiatement, par les soins du Gouvernement Britannique et par la voie -diplomatique, remise aux Puissances Signataires. Dans les cas visés par -l'alinéa précédent, ledit Gouvernement leur fera connaître en même temps -la date à laquelle il a reçu la notification._ - -Cette disposition toute de protocole n'a pas besoin d'explication. On a -emprunté la formule admise à La Haye par la Deuxième Conférence de la -Paix. - -Article 68. - -_La présente Déclaration produira effet, pour les Puissances qui -auront_ _participé au premier dépôt de ratifications, soixante jours -après la date du procès-verbal de ce dépôt et, pour les Puissances qui -ratifieront ultérieurement, soixante jours après que la notification de -leur ratification aura été reçue par le Gouvernement Britannique._ - -Article 69. - -_S'il arrivait qu'une des Puissances Signataires voulût dénoncer la -présente Déclaration, elle ne pourra le faire que pour la fin d'une -période de douze ans commençant à courir soixante jours après le premier -dépôt de ratifications et, ensuite, pour la fin de périodes successives -de six ans, dont la première commencera à l'expiration de la période de -douze ans._ - -_La dénonciation devra être, au moins un an à l'avance, notifiée par -écrit au Gouvernement Britannique, qui en donnera connaissance à toutes -les autres Puissances. Elle ne produira ses effets qu'à l'égard de la -Puissance qui l'aura notifiée._ - -Il résulte implicitement de l'article 69 que la Déclaration à une durée -indéfinie. Les périodes après lesquelles la dénonciation peut se faire -ont été fixées par analogie de ce qui est admis dans la Convention pour -l'établissement d'une Cour Internationale des prises. - -Article 70. - -_Les Puissances représentées à la Conférence Navale de Londres, -attachant un prix particulier à la reconnaissance générale des règles -adoptées par elles, expriment l'espoir que les Puissances qui n'y -étaient pas représentées adhéreront à la présente Déclaration. Elles -prient le Gouvernement Britannique de vouloir bien les inviter à le -faire._ - -_La Puissance qui désire adhérer notifie par écrit son intention au -Gouvernement Britannique en lui transmettant l'acte d'adhésion, qui sera -déposé dans les archives dudit Gouvernement._ - -_Ce Gouvernement transmettra immédiatement à toutes les autres -Puissances copie certifiée conforme de la notification, ainsi que de -l'acte d'adhésion, en indiquant la date à laquelle il a reçu la -notification. L'adhésion produira effet soixante jours après cette -date._ - -_La situation des Puissances adhérentes sera, en tout ce qui concerne -cette Déclaration, assimilée à la situation des Puissances Signataires._ - -La Déclaration de Paris contenait déjà une invitation adressée aux -Puissances non représentées, à l'effet d'adhérer à la Déclaration. -L'invitation officielle, au lieu d'être faite individuellement par -chacune des Puissances représentées à la Conférence, sera plus aisément -faite par la Grande-Bretagne agissant au nom de toutes. - -Les formes de l'adhésion sont très simples. L'assimilation des -Puissances adhérentes aux Puissances Signataires entraîne naturellement -pour les premières l'observation de l'article 65; on ne peut adhérer à -une partie de la Déclaration, mais seulement à l'ensemble. - -Article 71. - -_La présente Déclaration, qui portera la date du 26 février 1909, pourra -être signée à Londres, jusqu'au 30 juin 1909, par les Plénipotentiaires -des Puissances représentées à la Conférence Navale._ - -Comme à La Haye, on a tenu compte des convenances de certaines -Puissances dont les Représentants peuvent ne pas être en situation de -signer dès à présent la Déclaration et qui cependant veulent être -considérées comme des Puissances Signataires, non comme des Puissances -adhérentes. - -Il va sans dire que les _Plénipotentiaires des Puissances_ dont il est -parlé à l'article 71 ne sont pas nécessairement ceux qui avaient été -délégués comme tels à la Conférence Navale. - -_En foi de quoi, les Plénipotentiaires ont revêtu la présente -Déclaration de leurs signatures et y ont apposé leurs cachets._ - -_Fait à Londres, le vingt-six février mil neuf cent neuf, en un seul -exemplaire, qui restera déposé dans les archives du Gouvernement -Britannique et dont des copies, certifiées conformes, seront remises par -la voie diplomatique aux Puissances représentées à la Conférence -Navale._ - - - - -APPENDIX VIII - - ADDITIONAL PROTOCOL TO THE CONVENTION CONCERNING THE - ESTABLISHMENT OF AN INTERNATIONAL PRIZE COURT - _Signed at the Hague, September 19, 1910_ - - -Article premier. - -Les puissances signataires de la convention de La Haye du 18 octobre -1907, relative à l'établissement d'une Cour Internationale des prises ou -y adhérant, pour lesquelles des difficultés d'ordre constitutionnel -s'opposent à l'acceptation, sous sa forme actuelle, de ladite -convention, ont la faculté de déclarer, dans l'acte de ratification ou -d'adhésion, que, dans les affaires de prises rentrant dans la compétence -de leurs tribunaux nationaux, le recours devant la Cour Internationale -des prises ne pourra être exercé contre elles que sous la forme d'une -action en indemnité du préjudice causé par la capture. - -Article 2. - -Dans le cas de recours exercé devant la Cour Internationale des prises -sous la forme d'une action en indemnité, l'article 8 de la convention -est sans application; la Cour n'a pas à prononcer la validité ou la -nullité de la capture, non plus qu'à infirmer ou confirmer la décision -des tribunaux nationaux. - -Article 3. - -Les conditions auxquelles est subordonné par la convention l'exercice du -recours devant la Cour Internationale des prises sont applicables à -l'exercice de l'action en indemnité. - -Article 4. - -Sous réserve des dispositions ci-après, les règles de procédure établies -par la convention pour le recours devant la Cour Internationale des -prises seront observées pour l'action en indemnité. - -Article 5. - -Par dérogation à l'article 28, § 1, de la convention, l'instance en -indemnité ne peut être introduite devant la Cour Internationale des -prises qu'au moyen d'une déclaration écrite, adressée au Bureau -International de la Cour permanente d'arbitrage. Le Bureau peut être -saisi même par télégramme. - -Article 6. - -Par dérogation à l'article 29 de la convention, le Bureau International -notifie directement et par télégramme, s'il est possible, au -Gouvernement du belligérant capteur la déclaration d'instance dont il -est saisi. Le Gouvernement du belligérant capteur, sans examiner si les -délais prescrits ont été observés, fait, dans les sept jours de la -réception de la notification, transmettre au Bureau International le -dossier de l'affaire en y joignant, le cas échéant, une copie certifiée -conforme de la décision rendue par le tribunal national. - -Article 7. - -Par dérogation à l'article 45, § 2, de la convention, la Cour, après le -prononcé et la notification de son arrêt aux parties en cause, fait -parvenir directement au Gouvernement du belligérant capteur le dossier -de l'affaire qui lui a été soumise, en y joignant l'expédition des -diverses décisions intervenues ainsi que la copie des procès-verbaux de -l'instruction. - -Article 8. - -Le présent protocole additionnel sera considéré comme faisant partie -intégrante de la convention et sera ratifié en même temps que celle-ci. -Si la déclaration prévue à l'article 1 ci-dessus est faite dans l'acte -de ratification, une copie certifiée conforme en sera insérée dans le -procès-verbal de dépôt des ratifications visé à l'article 52, § 3, de la -convention. - -Article 9. - -L'adhésion à la convention est subordonnée à l'adhésion au présent -protocole additionnel. - -En foi de quoi les Plénipotentiaires ont signé le présent protocole -additionnel. - -Fait à La Haye le 19 septembre 1910, en un seul exemplaire qui sera -déposé dans les archives du Gouvernement des Pays-Bas et dont des -copies, certifiées conformes, seront remises, par la voie diplomatique, -aux Puissances désignées dans l'article 15 de la convention relative à -l'établissement d'une Cour Internationale des prises du 18 octobre 1907 -et dans son Annexe. - - - - -APPENDIX IX - - FOREIGN ENLISTMENT ACT, 1870 - 33 & 34 VICT., CHAPTER 90 - An Act to regulate the conduct of Her Majesty's Subjects - during the existence of hostilities between foreign states - with which Her Majesty is at peace. - [9 August 1870.] - - -Whereas it is expedient to make provision for the regulation of the -conduct of Her Majesty's subjects during the existence of hostilities -between foreign states with which Her Majesty is at peace: - -Be it enacted by the Queen's most Excellent Majesty, by and with the -advice and consent of the Lords Spiritual and Temporal, and Commons, in -this present Parliament assembled, and by the authority of the same, as -follows: - - -_Preliminary._ - -[Sidenote: Short Title of Act.] - -1. This Act may be cited for all purposes as "The Foreign Enlistment -Act, 1870." - -[Sidenote: Application of Act.] - -2. This Act shall extend to all the dominions of Her Majesty, including -the adjacent territorial waters. - -[Sidenote: Commencement of Act.] - -3. This Act shall come into operation in the United Kingdom immediately -on the passing thereof, and shall be proclaimed in every British -possession by the governor thereof as soon as may be after he receives -notice of this Act, and shall come into operation in that British -possession on the day of such proclamation, and the time at which this -Act comes into operation in any place is, as respects such place, in -this Act referred to as the commencement of this Act. - - -_Illegal Enlistment._ - -[Sidenote: Penalty on enlistment in service of foreign state.] - -4. If any person, without the license of Her Majesty, being a British -subject, within or without Her Majesty's dominions, accepts or agrees to -accept any commission or engagement in the military or naval service of -any foreign state at war with any foreign state at peace with Her -Majesty, and in this Act referred to as a friendly state, or whether a -British subject or not within Her Majesty's dominions, induces any other -person to accept or agree to accept any commission or engagement in the -military or naval service of any such foreign state as aforesaid,-- - - He shall be guilty of an offence against this Act, and shall be - punishable by fine and imprisonment, or either of such punishments - at the discretion of the court before which the offender is - convicted; and imprisonment, if awarded, may be either with or - without hard labour. - -[Sidenote: Penalty on leaving Her Majesty's Dominions with intent to -serve a Foreign State.] - -5. If any person, without the license of Her Majesty, being a British -subject, quits or goes on board any ship with a view of quitting Her -Majesty's dominions, with intent to accept any commission or engagement -in the military or naval service of any foreign state at war with a -friendly state, or, whether a British subject or not, within Her -Majesty's dominions, induces any other person to quit or to go on board -any ship with a view of quitting Her Majesty's dominions with the like -intent,-- - - He shall be guilty of an offence against this Act, and shall be - punishable by fine and imprisonment, or either of such - punishments, at the discretion of the court before which the - offender is convicted; and imprisonment, if awarded, may be either - with or without hard labour. - -[Sidenote: Penalty on embarking Persons under False Representations as -to Service.] - -6. If any person induces any other person to quit Her Majesty's -dominions or to embark on any ship within Her Majesty's dominions under -a misrepresentation or false representation of the service in which such -person is to be engaged, with the intent or in order that such person -may accept or agree to accept any commission or engagement in the -military or naval service of any foreign state at war with a friendly -state,-- - - He shall be guilty of an offence against this Act, and shall be - punishable by fine and imprisonment or either of such punishments, - at the discretion of the court before which the offender is - convicted; and imprisonment, if awarded, may be either with or - without hard labour. - -[Sidenote: Penalty on taking illegally enlisted Persons on board Ship.] - -7. If the master or owner of any ship, without the license of Her -Majesty, knowingly either takes on board, or engages to take on board, -or has on board such ship within Her Majesty's dominions any of the -following persons, in this Act referred to as illegally enlisted -persons; that is to say,-- - - (1) Any person who, being a British subject within or without the - dominions of Her Majesty, has, without the license of Her Majesty, - accepted or agreed to accept any commission or engagement in the - military or naval service of any foreign state at war with any - friendly state: - - (2) Any person, being a British subject, who, without the license - of Her Majesty, is about to quit Her Majesty's dominions with the - intent to accept any commission or engagement in the military or - naval service of any foreign state at war with a friendly state: - - (3) Any person who has been induced to embark under a - misrepresentation or false representation of the service in which - such person is to be engaged, with the intent or in order that - such person may accept or agree to accept any commission or - engagement in the military or naval service of any foreign state - at war with a friendly state: - -Such master or owner shall be guilty of an offence against this Act, and -the following consequences shall ensue; that is to say,-- - - (1) The offender shall be punishable by fine and imprisonment, or - either of such punishments, at the discretion of the court before - which the offender is convicted; and imprisonment, if awarded, may - be either with or without hard labour: and - - (2) Such ship shall be detained until the trial and conviction or - acquittal of the master or owner, and until all penalties - inflicted on the master or owner have been paid, or the master or - owner has given security for the payment of such penalties to the - satisfaction of two justices of the peace, or other magistrate or - magistrates having the authority of two justices of the peace: and - - (3) All illegally enlisted persons shall immediately on the - discovery of the offence be taken on shore, and shall not be - allowed to return to the ship. - - -_Illegal Shipbuilding and Illegal Expeditions._ - -[Sidenote: Penalty on illegal Shipbuilding and illegal Expeditions.] - -8. If any person within Her Majesty's dominions, without the license of -Her Majesty, does any of the following acts; that is to say,-- - - (1) Builds or agrees to build, or causes to be built any ship with - intent or knowledge, or having reasonable cause to believe that - the same shall or will be employed in the military or naval - service of any foreign state at war with any friendly state: or - - (2) Issues or delivers any commission for any ship with intent or - knowledge, or having reasonable cause to believe that the same - shall or will be employed in the military or naval service of any - foreign state at war with any friendly state: or - - (3) Equips any ship with intent or knowledge, or having reasonable - cause to believe that the same shall or will be employed in the - military or naval service of any foreign state at war with any - friendly state: or - - (4) Despatches, or causes or allows to be despatched, any ship - with intent or knowledge, or having reasonable cause to believe - that the same shall or will be employed in the military or naval - service of any foreign state at war with any friendly state: - -Such person shall be deemed to have committed an offence against this -Act, and the following consequences shall ensue: - - (1) The offender shall be punishable by fine and imprisonment or - either of such punishments, at the discretion of the court before - which the offender is convicted; and imprisonment, if awarded, may - be either with or without hard labour. - - (2) The ship in respect of which any such offence is committed, - and her equipment, shall be forfeited to Her Majesty. - -Provided that a person building, causing to be built, or equipping a -ship in any of the cases aforesaid, in pursuance of a contract made -before the commencement of such war as aforesaid, shall not be liable to -any of the penalties imposed by this section in respect of such building -or equipping if he satisfies the conditions following; (that is to say,) - - (1) If forthwith upon a proclamation of neutrality being issued by - Her Majesty he gives notice to the Secretary of State that he is - so building, causing to be built, or equipping such ship, and - furnishes such particulars of the contract and of any matters - relating to, or done, or to be done under the contract as may be - required by the Secretary of State: - - (2) If he gives such security, and takes and permits to be taken - such other measures, if any, as the Secretary of State may - prescribe for ensuring that such ship shall not be despatched, - delivered, or removed without the license of Her Majesty until the - termination of such war as aforesaid. - -[Sidenote: Presumption as to Evidence in case of Illegal Ship.] - -9. Where any ship is built by order of or on behalf of any foreign state -when at war with a friendly state, or is delivered to or to the order of -such foreign state, or any person who to the knowledge of the person -building is an agent of such foreign state, or is paid for by such -foreign state or such agent, and is employed in the military or naval -service of such foreign state, such ship shall, until the contrary is -proved, be deemed to have been built with a view to being so employed, -and the burden shall lie on the builder of such ship of proving that he -did not know that the ship was intended to be so employed in the -military or naval service of such foreign state. - -[Sidenote: Penalty on aiding the Warlike Equipment of Foreign ships.] - -10. If any person within the dominions of Her Majesty, and without the -license of Her Majesty,-- - -By adding to the number of guns, or by changing those on board for other -guns, or by the addition of any equipment for war, increases or -augments, or procures to be increased or augmented, or is knowingly -concerned in increasing or augmenting the warlike force of any ship -which at the time of her being within the dominions of Her Majesty was a -ship in the military or naval service of any foreign state at war with -any friendly state,-- - - Such person shall be guilty of an offence against this Act, and - shall be punishable by fine and imprisonment, or either of such - punishments, at the discretion of the court before which the - offender is convicted; and imprisonment, if awarded, may be either - with or without hard labour. - -[Sidenote: Penalty on fitting out Naval or Military Expeditions without -License.] - -11. If any person within the limits of Her Majesty's dominions, and -without the license of Her Majesty,-- - -Prepares or fits out any naval or military expedition to proceed against -the dominions of any friendly state, the following consequences shall -ensue: - - (1) Every person engaged in such preparation or fitting out, or - assisting therein, or employed in any capacity in such expedition, - shall be guilty of an offence against this Act, and shall be - punishable by fine and imprisonment, or either of such - punishments, at the discretion of the court before which the - offender is convicted; and imprisonment, if awarded, may be either - with or without hard labour. - - (2) All ships, and their equipments, and all arms and munitions of - war, used in or forming part of such expedition, shall be - forfeited to Her Majesty. - -[Sidenote: Punishment of Accessories.] - -12. Any person who aids, abets, counsels, or procures the commission of -any offence against this Act shall be liable to be tried and punished as -a principal offender. - -[Sidenote: Limitation of Term of Imprisonment.] - -13. The term of imprisonment to be awarded in respect of any offence -against this Act shall not exceed two years. - - -_Illegal Prize._ - -[Sidenote: Illegal Prize brought into British Ports restored.] - -14. If during the continuance of any war in which Her Majesty may be -neutral, any ship, goods, or merchandize captured as prize of war within -the territorial jurisdiction of Her Majesty, in violation of the -neutrality of this realm, or captured by any ship which may have been -built, equipped, commissioned, or despatched, or the force of which may -have been augmented, contrary to the provisions of this Act are brought -within the limits of Her Majesty's dominions by the captor, or any agent -of the captor, or by any person having come into possession thereof with -the knowledge that the same was prize of war so captured as aforesaid, -it shall be lawful for the original owner of such prize, or his agent, -or for any person authorised in that behalf by the Government of the -foreign state to which such owner belongs, to make application to the -Court of Admiralty for seizure and detention of such prize, and the -court shall, on due proof of the facts, order such prize to be restored. - -Every such order shall be executed and carried into effect in the same -manner, and subject to the same right of appeal as in the case of any -order made in the exercise of the ordinary jurisdiction of such court; -and in the meantime and until a final order has been made on such -application the court shall have power to make all such provisional and -other orders as to the care or custody of such captured ship, goods, or -merchandize, and (if the same be of perishable nature, or incurring risk -of deterioration) for the sale thereof, and with respect to the deposit -or investment of the proceeds of any such sale, as may be made by such -court in the exercise of its ordinary jurisdiction. - - -_General Provision._ - -[Sidenote: License by Her Majesty, how granted.] - -15. For the purpose of this Act, a license by Her Majesty shall be under -the sign manual of Her Majesty, or be signified by Order in Council or -by proclamation of Her Majesty. - - -_Legal Procedure._ - -[Sidenote: Jurisdiction in respect of Offences by Persons against Act.] - -16. Any offence against this Act shall, for all purposes of and -incidental to the trial and punishment of any person guilty of any such -offence, be deemed to have been committed either in the place in which -the offence was wholly or partly committed, or in any place within Her -Majesty's dominions in which the person who committed such offence may -be. - -[Sidenote: Venue in respect of Offences by Persons. 24 & 25 Vict. c. -97.] - -17. Any offence against this Act may be described in any indictment or -other document relating to such offence, in cases where the mode of -trial requires such a description, as having been committed at the place -where it was wholly or partly committed, or it may be averred generally -to have been committed within Her Majesty's dominions, and the venue or -local description in the margin may be that of the county, city, or -place in which the trial is held. - -[Sidenote: Power to remove Offenders for Trial.] - -18. The following authorities, that is to say, in the United Kingdom any -judge of a superior court, in any other place within the jurisdiction of -any British court of justice, such court, or, if there are more courts -than one, the court having the highest criminal jurisdiction in that -place, may, by warrant or instrument in the nature of a warrant in this -section included in the term "warrant," direct that any offender charged -with an offence against this Act shall be removed to some other place in -Her Majesty's dominions for trial in cases where it appears to the -authority granting the warrant that the removal of such offender would -be conducive to the interests of justice, and any prisoner so removed -shall be triable at the place to which he is removed, in the same manner -as if his offence had been committed at such place. - -Any warrant for the purposes of this section may be addressed to the -master of any ship or to any other person or persons, and the person or -persons to whom such warrant is addressed shall have power to convey the -prisoner therein named to any place or places named in such warrant, and -to deliver him, when arrived at such place or places, into the custody -of any authority designated by such warrant. - -Every prisoner shall, during the time of his removal under any such -warrant as aforesaid, be deemed to be in the legal custody of the person -or persons empowered to remove him. - -[Sidenote: Jurisdiction in respect of Forfeiture of Ships for Offences -against Act.] - -19. All proceedings for the condemnation and forfeiture of a ship, or -ship and equipment, or arms and munitions of war, in pursuance of this -Act shall require the sanction of the Secretary of State or such chief -executive authority as is in this Act mentioned, and shall be had in the -Court of Admiralty, and not in any other court; and the Court of -Admiralty shall, in addition to any power given to the court by this -Act, have in respect of any ship or other matter brought before it in -pursuance of this Act all powers which it has in the case of a ship or -matter brought before it in the exercise of its ordinary jurisdiction. - -[Sidenote: Regulations as to Proceedings against the Offender and the -Ship.] - -20. Where any offence against this Act has been committed by any person -by reason whereof a ship, or ship and equipment, or arms and munitions -of war, has or have become liable to forfeiture, proceedings may be -instituted contemporaneously or not, as may be thought fit, against the -offender in any court having jurisdiction of the offence, and against -the ship, or ship and equipment, or arms and munitions of war, for the -forfeiture in the Court of Admiralty; but it shall not be necessary to -take proceedings against the offender because proceedings are instituted -for the forfeiture, or to take proceedings for the forfeiture because -proceedings are taken against the offender. - -[Sidenote: Officer authorised to seize offending Ships.] - -21. The following officers, that is to say,-- - - (1) Any officer of customs in the United Kingdom, subject - nevertheless to any special or general instructions from the - Commissioners of Customs or any officer of the Board of Trade, - subject nevertheless to any special or general instructions from - the Board of Trade; - - (2) Any officer of customs or public officer in any British - possession, subject nevertheless to any special or general - instructions from the governor of such possession; - - (3) Any commissioned officer on full pay in the military service - of the Crown, subject nevertheless to any special or general - instructions from his commanding officer; - - (4) Any commissioned officer on full pay in the naval service of - the Crown, subject nevertheless to any special or general - instructions from the Admiralty or his superior officer, may seize - or detain any ship liable to be seized or detained in pursuance of - this Act, and such officers are in this Act referred to as the - "local authority"; but nothing in this Act contained shall - derogate from the power of the Court of Admiralty to direct any - ship to be seized or detained by any officer by whom such court - may have power under its ordinary jurisdiction to direct a ship to - be seized or detained. - -[Sidenote: Powers of Officers authorised to seize Ships.] - -22. Any officer authorised to seize or detain any ship in respect of any -offence against this Act may, for the purpose of enforcing such seizure -or detention, call to his aid any constable or officers of police, or -any officers of Her Majesty's army or navy or marines, or any excise -officer or officers of customs, or any harbour-master or dock-master, or -any officers having authority by law to make seizures of ships, and may -put on board any ship so seized or detained any one or more of such -officers to take charge of the same, and to enforce the provisions of -this Act, and any officer seizing or detaining any ship under this Act -may use force, if necessary, for the purpose of enforcing seizure or -detention, and if any person is killed or maimed by reason of his -resisting such officer in the execution of his duties, or any person -acting under his orders, such officer so seizing or detaining the ship, -or other person, shall be freely and fully indemnified as well against -the Queen's Majesty, Her heirs and successors, as against all persons so -killed, maimed, or hurt. - -[Sidenote: Special Power of Secretary of State or Chief Executive -Authority to detain Ship.] - -23. If the Secretary of State or the chief executive authority is -satisfied that there is a reasonable and probable cause for believing -that a ship within Her Majesty's dominions has been or is being built, -commissioned, or equipped contrary to this Act, and is about to be taken -beyond the limits of such dominions, or that a ship is about to be -despatched contrary to this Act, such Secretary of State or chief -executive authority shall have power to issue a warrant stating that -there is reasonable and probable cause for believing as aforesaid, and -upon such warrant the local authority shall have power to seize and -search such ship, and to detain the same until it has been either -condemned or released by process of law, or in manner herein-after -mentioned. - -The owner of the ship so detained, or his agent, may apply to the Court -of Admiralty for its release, and the court shall as soon as possible -put the matter of such seizure and detention in course of trial between -the applicant and the Crown. - -If the applicant establish to the satisfaction of the court that the -ship was not and is not being built, commissioned, or equipped or -intended to be despatched contrary to this Act, the ship shall be -released and restored. - -If the applicant fail to establish to the satisfaction of the court that -the ship was not and is not being built, commissioned, or equipped, or -intended to be despatched contrary to this Act, then the ship shall be -detained till released by order of the Secretary of State or chief -executive authority. - -The court may in cases where no proceedings are pending for its -condemnation release any ship detained under this section on the owner -giving security to the satisfaction of the court that the ship shall not -be employed contrary to this Act, notwithstanding that the applicant may -have failed to establish to the satisfaction of the court that the ship -was not and is not being built, commissioned, or intended to be -despatched contrary to this Act. The Secretary of State or the chief -executive authority may likewise release any ship detained under this -section on the owner giving security to the satisfaction of such -Secretary of State or chief executive authority that the ship shall not -be employed contrary to this Act, or may release the ship without such -security if the Secretary of State or chief executive authority think -fit so to release the same. - -If the court be of opinion that there was not reasonable and probable -cause for the detention, and if no such cause appear in the course of -the proceedings, the court shall have power to declare that the owner is -to be indemnified by the payment of costs and damages in respect of the -detention, the amount thereof to be assessed by the court, and any -amount so assessed shall be payable by the Commissioners of the Treasury -out of any moneys legally applicable for that purpose. The Court of -Admiralty shall also have power to make a like order for the indemnity -of the owner, on the application of such owner to the court, in a -summary way, in cases where the ship is released by the order of the -Secretary of State or the chief executive authority, before any -application is made by the owner or his agent to the court for such -release. - -Nothing in this section contained shall affect any proceedings -instituted or to be instituted for the condemnation of any ship detained -under this section where such ship is liable to forfeiture subject to -this provision, that if such ship is restored in pursuance of this -section all proceedings for such condemnation shall be stayed; and where -the court declares that the owner is to be indemnified by the payment of -costs and damages for the detainer, all costs, charges, and expenses -incurred by such owner in or about any proceedings for the condemnation -of such ship shall be added to the costs and damages payable to him in -respect of the detention of the ship. - -Nothing in this section contained shall apply to any foreign -non-commissioned ship despatched from any part of Her Majesty's -dominions after having come within them under stress of weather or in -the course of a peaceful voyage, and upon which ship no fitting out or -equipping of a warlike character has taken place in this country. - -[Sidenote: Special Power of Local Authority to detain Ship.] - -24. Where it is represented to any local authority, as defined by this -Act, and such local authority believes the representation, that there is -a reasonable and probable cause for believing that a ship within Her -Majesty's dominions has been or is being built, commissioned, or -equipped contrary to this Act, and is about to be taken beyond the -limits of such dominions, or that a ship is about to be despatched -contrary to this Act, it shall be the duty of such local authority to -detain such ship, and forthwith to communicate the fact of such -detention to the Secretary of State or chief executive authority. - -Upon the receipt of such communication the Secretary of State or chief -executive authority may order the ship to be released if he thinks there -is no cause for detaining her, but if satisfied that there is reasonable -and probable cause for believing that such ship was built, commissioned, -or equipped or intended to be despatched in contravention of this Act, -he shall issue his warrant stating that there is reasonable and probable -cause for believing as aforesaid, and upon such warrant being issued -further proceedings shall be had as in cases where the seizure or -detention has taken place on a warrant issued by the Secretary of State -without any communication from the local authority. - -Where the Secretary of State or chief executive authority orders the -ship to be released on the receipt of a communication from the local -authority without issuing his warrant, the owner of the ship shall be -indemnified by the payment of costs and damages in respect of the -detention upon application to the Court of Admiralty in a summary way in -like manner as he is entitled to be indemnified where the Secretary of -State having issued his warrant under this Act releases the ship before -any application is made by the owner or his agent to the court for such -release. - -[Sidenote: Power of Secretary of State or Executive Authority to grant -Search Warrant.] - -25. The Secretary of State or the chief executive authority may, by -warrant, empower any person to enter any dockyard or other place within -Her Majesty's dominions and inquire as to the destination of any ship -which may appear to him to be intended to be employed in the naval or -military service of any foreign state at war with a friendly state, and -to search such ship. - -[Sidenote: Exercise of Powers of Secretary of State or Chief Executive -Authority.] - -26. Any powers or jurisdiction by this Act given to the Secretary of -State may be exercised by him throughout the dominions of Her Majesty, -and such powers and jurisdiction may also be exercised by any of the -following officers, in this Act referred to as the chief executive -authority, within their respective jurisdictions; that is to say, - - (1) In Ireland by the Lord Lieutenant or other the chief governor - or governors of Ireland for the time being, or the chief - secretary to the Lord Lieutenant: - - (2) In Jersey by the Lieutenant Governor: - - (3) In Guernsey, Alderney, and Sark, and the dependent islands by - the Lieutenant Governor: - - (4) In the Isle of Man by the Lieutenant Governor: - - (5) In any British possession by the Governor: - -A copy of any warrant issued by a Secretary of State or by any officer -authorised in pursuance of this Act to issue such warrant in Ireland, -the Channel Islands, or the Isle of Man shall be laid before Parliament. - -[Sidenote: Appeal from Court of Admiralty.] - -27. An appeal may be had from any decision of a Court of Admiralty under -this Act to the same tribunal and in the same manner to and in which an -appeal may be had in cases within the ordinary jurisdiction of the court -as a Court of Admiralty. - -[Sidenote: Indemnity to Officers.] - -28. Subject to the provisions of this Act providing for the award of -damages in certain cases in respect of the seizure or detention of a -ship by the Court of Admiralty no damages shall be payable, and no -officer or local authority shall be responsible, either civilly or -criminally, in respect of the seizure or detention of any ship in -pursuance of this Act. - -[Sidenote: Indemnity to Secretary of State or Chief Executive -Authority.] - -29. The Secretary of State shall not, nor shall the chief executive -authority, be responsible in any action or other legal proceedings -whatsoever for any warrant issued by him in pursuance of this Act, or be -examinable as a witness, except at his own request, in any court of -justice in respect of the circumstances which led to the issue of the -warrant. - - -_Interpretation Clause._ - -[Sidenote: Interpretation of Terms.] - -30. In this Act, if not inconsistent with the context, the following -terms have the meanings herein-after respectively assigned to them; that -is to say, - -[Sidenote: "Foreign State:"] - - "Foreign state" includes any foreign prince, colony, province, or - part of any province or people, or any person or persons - exercising or assuming to exercise the powers of government in or - over any foreign country, colony, province, or part of any - province or people: - -[Sidenote: "Military Service:"] - - "Military service" shall include military telegraphy and any other - employment whatever, in or in connection with any military - operation: - -[Sidenote: "Naval Service:"] - - "Naval service" shall, as respects a person, include service as a - marine, employment as a pilot in piloting or directing the course - of a ship of war or other ship when such ship of war or other ship - is being used in any military or naval operation, and any - employment whatever on board a ship of war, transport, store ship, - privateer or ship under letters of marque; and as respects a ship, - include any user of a ship as a transport, store ship, privateer - or ship under letters of marque: - -[Sidenote: "United Kingdom:"] - - "United Kingdom" includes the Isle of Man, the Channel Islands, - and other adjacent islands: - -[Sidenote: "British Possessions:"] - - "British possession" means any territory, colony, or place being - part of Her Majesty's dominions, and not part of the United - Kingdom, as defined by this Act: - -[Sidenote: "The Secretary of State:"] - - "The Secretary of State" shall mean any one of Her Majesty's - Principal Secretaries of State: - -[Sidenote: "Governor:"] - - "The Governor" shall as respects India mean the Governor General - or the Governor of any presidency, and where a British possession - consists of several constituent colonies, mean the Governor - General of the whole possession or the Governor of any of the - constituent colonies, and as respects any other British possession - it shall mean the officer for the time being administering the - government of such possession; also any person acting for or in - the capacity of a governor shall be included under the term - "Governor": - -[Sidenote: "Court of Admiralty:"] - - "Court of Admiralty" shall mean the High Court of Admiralty of - England or Ireland, the Court of Session of Scotland, or any - Vice-Admiralty Court within Her Majesty's dominions: - -[Sidenote: "Ship:"] - - "Ship" shall include any description of boat, vessel, floating - battery, or floating craft; also any description of boat, vessel, - or other craft or battery, made to move either on the surface of - or under water, or sometimes on the surface of and sometimes under - water: - -[Sidenote: "Building:"] - - "Building" in relation to a ship shall include the doing any act - towards or incidental to the construction of a ship, and all words - having relation to building shall be construed accordingly: - -[Sidenote: "Equipping:"] - - "Equipping" in relation to a ship shall include the furnishing a - ship with any tackle, apparel, furniture, provisions, arms, - munitions, or stores, or any other thing which is used in or about - a ship for the purpose of fitting or adapting her for the sea or - for naval service, and all words relating to equipping shall be - construed accordingly: - -[Sidenote: "Ship and Equipment:"] - - "Ship and equipment" shall include a ship and everything in or - belonging to a ship: - -[Sidenote: "Master:"] - - "Master" shall include any person having the charge or command of - a ship. - -_Repeal of Acts, and Saving Clauses._ - -[Sidenote: Repeal of Foreign Enlistment Act. 59 G. 3, c. 69.] - -31. From and after the commencement of this Act, an Act passed in the -fifty-ninth year of the reign of His late Majesty King George the Third, -chapter sixty-nine, intituled "An Act to prevent the enlisting or -engagement of His Majesty's subjects to serve in foreign service, and -the fitting out or equipping, in His Majesty's dominions, vessels for -warlike purposes, without His Majesty's license," shall be repealed: -Provided that such repeal shall not affect any penalty, forfeiture, or -other punishment incurred or to be incurred in respect of any offence -committed before this Act comes into operation, nor the institution of -any investigation or legal proceeding, or any other remedy for enforcing -any such penalty, forfeiture, or punishment as aforesaid. - -[Sidenote: Saving as to Commissioned Foreign Ships.] - -32. Nothing in this Act contained shall subject to forfeiture any -commissioned ship of any foreign state, or give to any British court -over or in respect of any ship entitled to recognition as a commissioned -ship of any foreign state any jurisdiction which it would not have had -if this Act had not passed. - -[Sidenote: Penalties not to extend to Persons entering into Military -Service in Asia. 59 G. 3, c. 69, s. 12.] - -33. Nothing in this Act contained shall extend or be construed to extend -to subject to any penalty any person who enters into the military -service of any prince, state, or potentate in Asia, with such leave or -license as is for the time being required by law in the case of subjects -of Her Majesty entering into the military services of princes, states, -or potentates of Asia. - - - - -APPENDIX X - - THE NAVAL PRIZE ACT, 1864 - 27 & 28 VICT., CHAPTER 25 - An Act for regulating Naval Prize of War. - [_23rd June 1864._] - - -Whereas it is expedient to enact permanently, with Amendments, such -Provisions concerning Naval Prize, and Matters connected therewith, as -have heretofore been usually passed at the Beginning of a War: - -Be it therefore enacted by the Queen's most Excellent Majesty, by and -with the Advice and Consent of the Lords Spiritual and Temporal, and -Commons, in this present Parliament assembled, and by the authority of -the same, as follows: - -_Preliminary._ - -[Sidenote: Short Title.] - -1. This Act may be cited as the Naval Prize Act, 1864. - -2. In this Act-- - -[Sidenote: Interpretation of Terms.] - - The Term "the Lords of the Admiralty" means the Lord High Admiral - of the United Kingdom, or the Commissioners for executing the - Office of Lord High Admiral: - - The Term "the High Court of Admiralty" means the High Court of - Admiralty of _England_: - - The Term "any of Her Majesty's Ships of War" includes any of Her - Majesty's Vessels of War, and any hired armed Ship or Vessel in - Her Majesty's Service: - - The Term "Officers and Crew" includes Flag Officers, Commanders, - and other Officers, Engineers, Seamen, Marines, Soldiers, and - others on board any of Her Majesty's Ships of War: - - The Term "Ship" includes Vessel and Boat, with the Tackle, - Furniture, and Apparel of the Ship, Vessel, or Boat: - - The Term "Ship Papers" includes all Books, Passes, Sea Briefs, - Charter Parties, Bills of Lading, Cockets, Letters, and other - Documents and Writings delivered up or found on board a captured - Ship: - - The Term "Goods" includes all such Things as are by the Course of - Admiralty and Law of Nations the Subject of Adjudication as Prize - (other than Ships). - - -I.--Prize Courts. - -[Sidenote: High Court of Admiralty and other Courts to be Prize Courts -for Purposes of Act.] - -3. The High Court of Admiralty, and every Court of Admiralty or of -Vice-Admiralty, or other Court exercising Admiralty Jurisdiction in Her -Majesty's Dominions, for the Time being authorised to take cognizance of -and judicially proceed in Matters of Prize, shall be a Prize Court -within the Meaning of this Act. - -Every such Court, other than the High Court of Admiralty, is comprised -in the Term "Vice-Admiralty Prize Court," when hereafter used in this -Act. - -_High Court of Admiralty._ - -[Sidenote: Jurisdiction of High Court of Admiralty.] - -4. The High Court of Admiralty shall have Jurisdiction throughout Her -Majesty's Dominions as a Prize Court. - -The High Court of Admiralty as a Prize Court shall have Power to enforce -any Order or Decree of a Vice-Admiralty Prize Court, and any Order or -Decree of the Judicial Committee of the Privy Council in a Prize Appeal. - -_Appeal; Judicial Committee._ - -[Sidenote: Appeal to Queen in Council, in what Cases.] - -5. An Appeal shall lie to Her Majesty in Council from any Order or -Decree of a Prize Court, as of Right in case of a Final Decree, and in -other Cases with the Leave of the Court making the Order or Decree. - -Every Appeal shall be made in such Manner and Form and subject to such -Regulations (including Regulations as to Fees, Costs, Charges, and -Expenses) as may for the Time being be directed by Order in Council, and -in the Absence of any such Order, or so far as any such Order does not -extend, then in such Manner and Form and subject to such Regulations as -are for the Time being prescribed or in force respecting Maritime Causes -of Appeal. - -[Sidenote: Jurisdiction of Judicial Committee in Prize Appeals.] - -6. The Judicial Committee of the Privy Council shall have Jurisdiction -to hear and report on any such Appeal, and may therein exercise all such -Powers as for the Time being appertain to them in respect of Appeals -from any Court of Admiralty Jurisdiction, and all such Powers as are -under this Act vested in the High Court of Admiralty, and all such -Powers as were wont to be exercised by the Commissioners of Appeal in -Prize Causes. - -[Sidenote: Custody of Processes, Papers, &c.] - -7. All Processes and Documents required for the Purposes of any such -Appeal shall be transmitted to and shall remain in the Custody of the -Registrar of Her Majesty in Prize Appeals. - -[Sidenote: Limit of Time for Appeal.] - -8. In every such Appeal the usual Inhibition shall be extracted from the -Registry of Her Majesty in Prize Appeals within Three Months after the -Date of the Order or Decree appealed from if the Appeal be from the High -Court of Admiralty, and within Six Months after that Date if it be from -a Vice-Admiralty Prize Court. - -The Judicial Committee may, nevertheless, on sufficient Cause shown, -allow the Inhibition to be extracted and the Appeal to be prosecuted -after the Expiration of the respective Periods aforesaid. - -_Vice-Admiralty Prize Courts._ - -[Sidenote: Enforcement of Orders of High Court, &c.] - -9. Every Vice-Admiralty Prize Court shall enforce within its -Jurisdiction all Orders and Decrees of the Judicial Committee in Prize -Appeals and of the High Court of Admiralty in Prize Causes. - -[Sidenote: Salaries of Judges of Vice-Admiralty Prize Courts.] - -10. Her Majesty in Council may grant to the Judge of any Vice-Admiralty -Prize Court a Salary not exceeding Five Hundred Pounds a Year, payable -out of Money provided by Parliament, subject to such Regulations as seem -meet. - -A Judge to whom a Salary is so granted shall not be entitled to any -further Emolument, arising from Fees or otherwise, in respect of Prize -Business transacted in his Court. - -An Account of all such Fees shall be kept by the Registrar of the Court, -and the Amount thereof shall be carried to and form Part of the -Consolidated Fund of the United Kingdom. - -[Sidenote: Retiring Pensions of Judges, as in 22 & 23 Vict. c. 26.] - -11. In accordance, as far as Circumstances admit, with the Principles -and Regulations laid down in the Superannuation Act, 1859, Her Majesty -in Council may grant to the Judge of any Vice-Admiralty Prize Court an -annual or other Allowance, to take effect on the Termination of his -Service, and to be payable out of Money provided by Parliament. - -[Sidenote: Returns from Vice-Admiralty Prize Courts.] - -12. The Registrar of every Vice-Admiralty Prize Court shall, on the -First Day of _January_ and First Day of _July_ in every year, make out a -Return (in such Form as the Lords of the Admiralty from Time to Time -direct) of all cases adjudged in the Court since the last half-yearly -Return, and shall with all convenient Speed send the same to the -Registrar of the High Court of Admiralty, who shall keep the same in the -Registry of that Court, and who shall, as soon as conveniently may be, -send a Copy of the Returns of each Half Year to the Lords of the -Admiralty, who shall lay the same before both Houses of Parliament. - -_General._ - -[Sidenote: General Orders for Prize Courts.] - -13. The Judicial Committee of the Privy Council, with the Judge of the -High Court of Admiralty, may from Time to Time frame General Orders for -regulating (subject to the Provisions of this Act) the Procedure and -Practice of Prize Courts, and the Duties and Conduct of the Officers -thereof and of the Practitioners therein, and for regulating the Fees to -be taken by the Officers of the Courts, and the Costs, Charges, and -Expenses to be allowed to the Practitioners therein. - -Any such General Orders shall have full Effect, if and when approved by -Her Majesty in Council, but not sooner or otherwise. - -Every Order in Council made under this Section shall be laid before both -Houses of Parliament. - -Every such Order in Council shall be kept exhibited in a conspicuous -Place in each Court to which it relates. - -[Sidenote: Prohibition of Officer of Prize Court acting as Proctor, &c.] - -14. It shall not be lawful for any Registrar, Marshal, or other Officer -of any Prize Court, or for the Registrar of Her Majesty in Prize -Appeals, directly or indirectly to act or be in any manner concerned as -Advocate, Proctor, Solicitor, or Agent, or otherwise, in any Prize Cause -or Appeal, on pain of Dismissal or Suspension from Office, by Order of -the Court or of the Judicial Committee (as the Case may require). - -[Sidenote: Prohibition of Proctors being concerned for adverse Parties -in a Cause.] - -15. It shall not be lawful for any Proctor or Solicitor, or Person -practising as a Proctor or Solicitor, being employed by a Party in a -Prize Cause or Appeal, to be employed or concerned, by himself or his -Partner, or by any other Person, directly or indirectly by or on behalf -of any adverse Party in that Cause or Appeal, on pain of Exclusion or -Suspension from Practice in Prize Matters, by Order of the Court or of -the Judicial Committee (as the Case may require). - - -II.--PROCEDURE IN PRIZE CAUSES. - -_Proceedings by Captors._ - -[Sidenote: Custody of Prize Ship.] - -16. Every Ship taken as Prize, and brought into Port within the -Jurisdiction of a Prize Court, shall forthwith and without Bulk broken, -be delivered up to the Marshal of the Court. - -If there is no such Marshal, then the Ship shall be in like Manner -delivered up to the Principal Officer of Customs at the Port. - -The Ship shall remain in the Custody of the Marshal, or of such Officer, -subject to the Orders of the Court. - -[Sidenote: Bringing in of Ship Papers.] - -17. The Captors shall, with all practicable Speed after the Ship is -brought into Port, bring the Ship Papers into the Registry of the Court. - -The Officer in Command, or One of the Chief Officers of the Capturing -Ship, or some other Person who was present at the Capture, and saw the -Ship Papers delivered up or found on board, shall make Oath that they -are brought in as they were taken, without Fraud, Addition, Subduction, -or Alteration, or else shall account on Oath to the Satisfaction of the -Court for the Absence or altered Condition of the Ship Papers or any of -them. - -Where no Ship Papers are delivered up or found on board the captured -Ship, the Officer in Command, or One of the Chief Officers of the -capturing Ship, or some other Person who was present at the Capture, -shall make Oath to that Effect. - -[Sidenote: Issue of Monition.] - -18. As soon as the Affidavit as to Ship Papers is filed, a Monition -shall issue, returnable within Twenty Days from the Service thereof, -citing all Persons in general to show Cause why the captured Ship should -not be condemned. - -[Sidenote: Examinations on Standing Interrogatories.] - -19. The Captors shall, with all practicable Speed after the captured -Ship is brought into Port, bring Three or Four of the Principal Persons -belonging to the captured Ship before the Judge of the Court or some -Person authorised in this behalf, by whom they shall be examined on Oath -on the Standing Interrogatories. - -The Preparatory Examinations on the Standing Interrogatories shall, if -possible, be concluded within Five Days from the Commencement thereof. - -[Sidenote: Adjudication by Court.] - -20. After the Return of the Monition, the Court shall, on Production of -the Preparatory Examinations and Ship Papers, proceed with all -convenient Speed either to condemn or to release the captured Ship. - -[Sidenote: Further Proof.] - -21. Where, on Production of the Preparatory Examinations and Ship -Papers, it appears to the Court doubtful whether the captured Ship is -good Prize or not, the Court may direct further Proof to be adduced, -either by Affidavit or by Examination of Witnesses, with or without -Pleadings, or by Production of further Documents; and on such further -Proof being adduced the Court shall with all convenient Speed proceed to -Adjudication. - -[Sidenote: Custody, &c. of Ships of War.] - -22. The foregoing Provisions, as far as they relate to the Custody of -the Ship, and to Examination on the Standing Interrogatories, shall not -apply to Ships of War taken as Prize. - -_Claim._ - -[Sidenote: Entry of Claim; Security for Costs.] - -23. At any Time before Final Decree made in the Cause, any Person -claiming an Interest in the Ship may enter in the Registry of the Court -a Claim, verified on Oath. - -Within Five Days after entering the Claim, the Claimant shall give -Security for Costs in the Sum of Sixty Pounds; but the Court shall have -Power to enlarge the Time for giving Security, or to direct Security to -be given in a larger Sum, if the Circumstances appear to require it. - -_Appraisement._ - -[Sidenote: Power to Court to direct Appraisement.] - -24. The Court may, if it thinks fit, at any Time direct that the -captured Ship be appraised. - -Every Appraisement shall be made by competent Persons sworn to make the -same according to the best of their Skill and Knowledge. - -_Delivery on Bail._ - -[Sidenote: Power to Court to direct Delivery to Claimant on Bail.] - -25. After Appraisement, the Court may, if it thinks fit, direct that the -captured Ship be delivered up to the Claimant, on his giving Security to -the Satisfaction of the Court to pay to the Captors the appraised Value -thereof in case of Condemnation. - -_Sale._ - -[Sidenote: Power to Court to order Sale.] - -26. The Court may at any Time, if it thinks fit, on account of the -Condition of the captured Ship, or on the Application of a Claimant, -order that the captured Ship be appraised as aforesaid (if not already -appraised), and be sold. - -[Sidenote: Sale on Condemnation.] - -27. On or after Condemnation the Court may, if it thinks fit, order that -the Ship be appraised as aforesaid (if not already appraised), and be -sold. - -[Sidenote: How Sales to be made.] - -28. Every Sale shall be made by or under the Superintendence of the -Marshal of the Court or of the Officer having the Custody of the -captured Ship. - -[Sidenote: Payment of Proceeds to Paymaster General or Official -Accountant.] - -29. The Proceeds of any Sale, made either before or after Condemnation, -and after Condemnation the appraised Value of the captured Ship, in case -she has been delivered up to a Claimant on Bail, shall be paid under an -Order of the Court either into the Bank of _England_ to the Credit of -Her Majesty's Paymaster General, or into the Hands of an Official -Accountant (belonging to the Commissariat or some other Department) -appointed for this Purpose by the Commissioners of Her Majesty's -Treasury or by the Lords of the Admiralty, subject in either case to -such Regulations as may from Time to Time be made, by order in Council, -as to the Custody and Disposal of Money so paid. - -_Small armed Ships._ - -[Sidenote: One Adjudication as to several small Ships.] - -30. The Captors may include in One Adjudication any Number, not -exceeding Six, of armed Ships not exceeding One hundred Tons each, taken -within Three Months next before Institution of Proceedings. - -_Goods._ - -[Sidenote: Application of foregoing Provisions to Prize Goods.] - -31. The foregoing Provisions relating to Ships shall extend and apply, -_mutatis mutandis_, to goods taken as Prize on board Ship; and the Court -may direct such goods to be unladen, inventoried, and warehoused. - -_Monition to Captors to proceed._ - -[Sidenote: Power to Court to call on Captors to proceed to -Adjudication.] - -32. If the Captors fail to institute or to prosecute with Effect -Proceedings for Adjudication, a Monition shall, on the Application of a -Claimant, issue against the Captors, returnable within Six Days from the -Service thereof, citing them to appear and proceed to Adjudication; and -on the Return thereof the Court shall either forthwith proceed to -Adjudication or direct further Proof to be adduced as aforesaid and then -proceed to Adjudication. - -_Claim on Appeal._ - -[Sidenote: Person intervening on Appeal to enter Claim.] - -33. Where any Person, not an original Party in the Cause, intervenes on -Appeal, he shall enter a Claim, verified on Oath, and shall give -Security for Costs. - - -III.--SPECIAL CASES OF CAPTURE. - -_Land Expeditions._ - -[Sidenote: Jurisdiction of Prize Court in case of Capture in Land -Expedition.] - -34. Where, in an Expedition of any of Her Majesty's Naval or Naval and -Military Forces against a Fortress or Possession on Land, Goods -belonging to the State of the Enemy or to a Public Trading Company of -the Enemy exercising Powers of Government are taken in the Fortress or -Possession, or a Ship is taken in Waters defended by or belonging to the -Fortress or Possession, a Prize Court shall have Jurisdiction as to the -Goods or Ship so taken, and any Goods taken on board the Ship as in case -of Prize. - -_Conjunct Capture with Ally._ - -[Sidenote: Jurisdiction of Prize Court in case of Expedition with Ally.] - -35. Where any Ship or Goods is or are taken by any of Her Majesty's -Naval or Naval and Military Forces while acting in conjunction with any -Forces of any of Her Majesty's Allies, a Prize Court shall have -Jurisdiction as to the same as in the case of Prize, and shall have -Power, after Condemnation, to apportion the due share of the Proceeds to -Her Majesty's Ally, the proportionate Amount and the Disposition of -which Share shall be such as may from Time to Time be agreed between Her -Majesty and Her Majesty's Ally. - -_Joint Capture._ - -[Sidenote: Restriction on Petitions by asserted joint Captors.] - -36. Before Condemnation, a Petition on behalf of asserted joint Captors -shall not (except by special Leave of the Court) be admitted, unless and -until they give Security to the Satisfaction of the Court to contribute -to the actual Captors a just Proportion of any Costs, Charges, and -Expenses or Damages that may be incurred by or awarded against the -actual Captors on account of the Capture and Detention of the Prize. - -After Condemnation, such a Petition shall not (except by special Leave -of the Court) be admitted unless and until the asserted joint Captors -pay to the actual Captors a just Proportion of the Costs, Charges, and -Expenses incurred by the actual Captors in the Case, and give such -Security as aforesaid, and show sufficient Cause to the Court why their -Petition was not presented before Condemnation. - -Provided, that nothing in the present Section shall extend to the -asserted Interest of a Flag Officer claiming to share by virtue of his -Flag. - -_Offences against Law of Prize._ - -[Sidenote: In case of Offence by Captors, Prize to be reserved for -Crown.] - -37. A Prize Court, on Proof of any Offence against the Law of Nations, -or against this Act, or any Act relating to Naval Discipline, or against -any Order in Council or Royal Proclamation, or of any Breach of Her -Majesty's Instructions relating to Prize, or of any Act of Disobedience -to the Orders of the Lords of the Admiralty, or to the Command of a -Superior Officer, committed by the Captors in relation to any Ship or -Goods taken as Prize, or in relation to any Person on Board any such -Ship, may, on Condemnation, reserve the Prize to Her Majesty's Disposal, -notwithstanding any Grant that may have been made by Her Majesty in -favour of Captors. - -_Pre-emption._ - -[Sidenote: Purchase by Admiralty for Public Service of Stores on board -Foreign Ships.] - -38. Where a Ship of a Foreign Nation passing the Seas laden with Naval -or Victualling Stores intended to be carried to a Port of any Enemy of -Her Majesty is taken and brought into a Port of the United Kingdom, and -the Purchase for the Service of Her Majesty of the Stores on board the -Ship appears to the Lords of the Admiralty expedient without the -Condemnation thereof in a Prize Court, in that Case the Lords of the -Admiralty may purchase, on the Account or for the Service of Her -Majesty, all or any of the Stores on board the Ship; and the -Commissioners of Customs may permit the Stores purchased to be entered -and landed within any Port. - -_Capture by Ship other than a Ship of War._ - -[Sidenote: Prizes taken by Ships other than Ships of War to be Droits of -Admiralty.] - -39. Any Ship or Goods taken as Prize by any of the Officers and Crew of -a Ship other than a Ship of War of Her Majesty shall, on Condemnation, -belong to Her Majesty in Her Office of Admiralty. - - -IV.--PRIZE SALVAGE. - -[Sidenote: Salvage to Re-captors of British Ship or Goods from Enemy.] - -40. Where any Ship or Goods belonging to any of Her Majesty's Subjects, -after being taken as Prize by the Enemy, is or are retaken from the -Enemy by any of Her Majesty's Ships of War, the same shall be restored -by Decree of a Prize Court to the Owner, on his paying as Prize Salvage -One Eighth Part of the Value of the Prize to be decreed and ascertained -by the Court, or such Sum not exceeding One Eighth Part of the estimated -Value of the Prize as may be agreed on between the Owner and the -Re-captors, and approved by Order of the Court; Provided, that where the -Re-capture is made under circumstances of Special Difficulty or Danger, -the Prize Court may, if it thinks fit, award to the Re-captors as Prize -Salvage a larger Part than One Eighth Part, but not exceeding in any -Case One Fourth Part, of the Value of the Prize. - -Provided also, that where a Ship after being so taken is set forth or -used by any of Her Majesty's Enemies as a Ship of War, this Provision -for Restitution shall not apply, and the Ship shall be adjudicated on as -in other Cases of Prize. - -[Sidenote: Permission to re-captured Ship to proceed on Voyage.] - -41. Where a Ship belonging to any of Her Majesty's Subjects, after being -taken as Prize by the Enemy, is retaken from the Enemy by any of Her -Majesty's Ships of War, she may, with the Consent of the Re-captors, -prosecute her Voyage, and it shall not be necessary for the Re-captors -to proceed to Adjudication till her Return to a Port of the United -Kingdom. - -The Master or Owner, or his Agent, may, with the Consent of the -Re-captors, unload and dispose of the Goods on board the Ship before -Adjudication. - -In case the Ship does not, within Six Months, return to a Port of the -United Kingdom, the Re-captors may nevertheless institute Proceedings -against the Ship or Goods in the High Court of Admiralty, and the Court -may thereupon award Prize Salvage as aforesaid to the Re-captors, and -may enforce Payment thereof, either by Warrant of Arrest against the -Ship or Goods, or by Monition and Attachment against the Owner. - - -V.--PRIZE BOUNTY. - -[Sidenote: Prize Bounty to Officers and Crew present at Engagement with -an Enemy.] - -42. If, in relation to any War, Her Majesty is pleased to declare, by -Proclamation or Order in Council, Her Intention to grant Prize Bounty to -the Officers and Crews of Her Ships of War, then such of the Officers -and Crew of any of Her Majesty's Ships of War as are actually present at -the taking or destroying of any armed Ship of any of Her Majesty's -Enemies shall be entitled to have distributed among them as Prize Bounty -a Sum calculated at the Rate of Five Pounds for each Person on board the -Enemy's Ship at the Beginning of the Engagement. - -[Sidenote: Ascertainment of Amount of Prize Bounty by Decree of Prize -Court.] - -43. The Number of the Persons so on board the Enemy's Ship shall be -proved in a Prize Court, either by the Examinations on Oath of the -Survivors of them, or of any Three or more of the Survivors, or if there -is no Survivor by the Papers of the Enemy's Ship, or by the Examinations -on Oath of Three or more of the Officers and Crew of Her Majesty's Ship, -or by such other Evidence as may seem to the Court sufficient in the -Circumstances. - -The Court shall make a Decree declaring the Title of the Officers and -Crew of Her Majesty's Ship to the Prize Bounty, and stating the Amount -thereof. - -The Decree shall be subject to Appeal as other Decrees of the Court. - -[Sidenote: Payment of Prize Bounty awarded.] - -44. On Production of an official Copy of the Decree the Commissioners of -Her Majesty's Treasury shall, out of Money provided by Parliament, pay -the Amount of Prize Bounty decreed, in such Manner as any Order in -Council may from Time to Time direct. - - -VI.--MISCELLANEOUS PROVISIONS. - -_Ransom._ - -[Sidenote: Power for regulating Ransom by Order in Council.] - -45. Her Majesty in Council may from Time to Time, in relation to any -War, make such Orders as may seem expedient, according to Circumstances, -for prohibiting or allowing, wholly or in certain Cases, or subject to -any Conditions or Regulations or otherwise, as may from Time to Time -seem meet, the ransoming or the entering into any contract or Agreement -for the ransoming of any Ship or Goods belonging to any of Her Majesty's -Subjects, and taken as Prize by any of Her Majesty's Enemies. - -Any Contract or Agreement entered into, and any Bill, Bond, or other -Security given for Ransom of any Ship or Goods, shall be under the -exclusive Jurisdiction of the High Court of Admiralty as a Prize Court -(subject to Appeal to the Judicial Committee of the Privy Council), and -if entered into or given in contravention of any such Order in Council -shall be deemed to have been entered into or given for an illegal -Consideration. - -If any Person ransoms or enters into any Contract or Agreement for -Ransoming any Ship or Goods, in contravention of any such Order in -Council, he shall for every such Offence be liable to be proceeded -against in the High Court of Admiralty at the Suit of Her Majesty in Her -Office of Admiralty, and on Conviction to be fined, in the Discretion of -the Court, any Sum not exceeding Five hundred Pounds. - -_Convoy._ - -[Sidenote: Punishment of Masters of Merchant Vessels under Convoy -disobeying Orders or deserting Convoy.] - -46. If the Master or other Person having the Command of any Ship of any -of Her Majesty's Subjects, under the Convoy of any of Her Majesty's -Ships of War, wilfully disobeys any lawful Signal, Instruction, or -Command of the Commander of the Convoy, or without Leave deserts the -Convoy, he shall be liable to be proceeded against in the High Court of -Admiralty at the Suit of Her Majesty in Her Office of Admiralty, and -upon Conviction to be fined, in the Discretion of the Court, any Sum not -exceeding Five hundred Pounds, and to suffer Imprisonment for such Time, -not exceeding One Year, as the Court may adjudge. - -_Customs Duties and Regulations._ - -[Sidenote: Prize Ships and Goods liable to Duties and Forfeiture.] - -47. All Ships and Goods taken as Prize and brought into a Port of the -United Kingdom shall be liable to and be charged with the same Rates and -Charges and Duties of Customs as under any Act relating to the Customs -may be chargeable on other Ships and Goods of the like Description; and - -All Goods brought in as Prize which would on the voluntary Importation -thereof be liable to Forfeiture or subject to any Restriction under the -Laws relating to the Customs, shall be deemed to be so liable and -subject, unless the Commissioners of Customs see fit to authorise the -Sale or Delivery thereof for Home Use or Exportation, unconditionally or -subject to such Conditions and Regulations as they may direct. - -[Sidenote: Regulations of Customs to be observed as to Prize Ships and -Goods.] - -48. Where any Ship or Goods taken as Prize is or are brought into a Port -of the United Kingdom, the Master or other Person in charge or command -of the Ship which has been taken or in which the Goods are brought -shall, on Arrival at such Port, bring to at the proper Place of -Discharge, and shall, when required by any Officer of Customs, deliver -an Account in Writing under his Hand concerning such Ship and Goods, -giving such Particulars relating thereto as may be in his Power, and -shall truly answer all Questions concerning such Ship or Goods asked by -any such Officer, and in default shall forfeit a Sum not exceeding One -hundred Pounds, such Forfeiture to be enforced as Forfeitures for -Offences against the Laws relating to the Customs are enforced, and -every such Ship shall be liable to such Searches as other Ships are -liable to, and the Officers of the Customs may freely go on board such -Ship and bring to the Queen's Warehouse any Goods on board the same, -subject, nevertheless, to such Regulations in respect of Ships of War -belonging to Her Majesty as shall from Time to Time be issued by the -Commissioners of Her Majesty's Treasury. - -[Sidenote: Power for Treasury to remit Customs Duties in certain cases.] - -49. Goods taken as Prize may be sold either for Home Consumption or for -Exportation; and if in the former Case the Proceeds thereof, after -payment of Duties of Customs, are insufficient to satisfy the just and -reasonable claims thereon, the Commissioners of Her Majesty's Treasury -may remit the whole or such Part of the said Duties as they see fit. - -_Perjury._ - -[Sidenote: Punishment of Persons guilty of Perjury.] - -50. If any Person wilfully and corruptly swears, declares, or affirms -falsely in any Prize Cause or Appeal, or in any Proceeding under this -Act, or in respect of any Matter required by this Act to be verified on -Oath, or suborns any other Person to do so, he shall be deemed guilty of -Perjury, or of Subornation of Perjury (as the Case may be), and shall be -liable to be punished accordingly. - -_Limitation of Actions, &c._ - -[Sidenote: Actions against Persons executing Act not to be brought -without Notice, &c.] - -51. Any Action or Proceeding shall not lie in any Part of Her Majesty's -Dominions against any Person acting under the Authority or in the -Execution or intended Execution or in pursuance of this Act for any -alleged Irregularity or Trespass, or other Act or Thing done or omitted -by him under this Act, unless Notice in Writing (specifying the Cause of -the Action or Proceeding) is given by the intending Plaintiff or -Prosecutor to the intended Defendant One Month at least before the -Commencement of the Action or Proceeding, nor unless the Action or -Proceeding is commenced within Six Months next after the Act or Thing -complained of is done or omitted, or, in case of a Continuation of -Damage, within Six Months next after the doing of such Damage has -ceased. - -In any such action the Defendant may plead generally that the Act or -Thing complained of was done or omitted by him when acting under the -authority or in the Execution or intended Execution or in pursuance of -this Act, and may give all special Matter in Evidence; and the Plaintiff -shall not succeed if Tender of sufficient Amends is made by the -Defendant before the Commencement of the Action; and in case no Tender -has been made, the Defendant may, by Leave of the Court in which the -Action is brought, at any Time pay into Court such Sum of Money as he -thinks fit, whereupon such Proceeding and Order shall be had and made in -and by the Court as may be had and made on the Payment of Money into -Court in an ordinary Action; and if the Plaintiff does not succeed in -the Action, the Defendant shall receive such full and reasonable -Indemnity as to all Costs, Charges, and Expenses incurred in and about -the Action as may be taxed and allowed by the proper Officer, subject to -Review; and though a Verdict is given for the Plaintiff in the Action he -shall not have Costs against the Defendant, unless the Judge before whom -the Trial is had certifies his Approval of the Action. - -Any such Action or Proceeding against any Person in Her Majesty's Naval -Service, or in the Employment of the Lords of the Admiralty, shall not -be brought or instituted elsewhere than in the United Kingdom. - -_Petitions of Right._ - -[Sidenote: Jurisdiction of High Court of Admiralty on Petitions of Right -in certain Cases, as in 23 & 24 Vict. c. 34.] - -52. A Petition of Right, under The Petitions of Right Act, 1860, may, if -the Suppliant thinks fit, be intituled in the High Court of Admiralty, -in case the Subject Matter of the Petition or any material part thereof -arises out of the Exercise of any Belligerent Right on behalf of the -Crown, or would be cognizable in a Prize Court within Her Majesty's -Dominions if the same were a Matter in dispute between private Persons. - -Any Petition of Right under the last-mentioned Act, whether intituled in -the High Court of Admiralty or not, may be prosecuted in that Court, if -the Lord Chancellor thinks fit so to direct. - -The Provisions of this Act relative to Appeal, and to the framing and -Approval of General Orders for regulating the Procedure and Practice of -the High Court of Admiralty, shall extend to the Case of any such -Petition of Right intituled or directed to be prosecuted in that Court; -and, subject thereto, all the Provisions of The Petitions of Right Act, -1860, shall apply, _mutatis mutandis_, in the Case of any such Petition -of Right; and for the Purposes of the present Section the Terms "Court" -and "Judge" in that Act shall respectively be understood to include and -to mean the High Court of Admiralty and the Judge thereof, and other -Terms shall have the respective Meanings given to them in that Act. - -_Orders in Council._ - -[Sidenote: Power to make Orders in Council.] - -53. Her Majesty in Council may from Time to Time make such Orders in -Council as seem meet for the better Execution of this Act. - -[Sidenote: Order in Council to be gazetted, &c.] - -54. Every Order in Council under this Act shall be published in the -_London Gazette_, and shall be laid before both Houses of Parliament -within Thirty Days after the making thereof, if Parliament is then -sitting, and, if not, then within Thirty Days after the next Meeting of -Parliament. - -_Savings._ - -[Sidenote: Not to affect Rights of Crown; Effect of Treaties, &c.] - -55. Nothing in this Act shall-- - - (1) give to the Officers and Crew of any of Her Majesty's Ships of - War any Right or Claim in or to any Ship or Goods taken as Prize - or the Proceeds thereof, it being the intent of this Act that such - Officers and Crews shall continue to take only such Interest (if - any) in the Proceeds of Prizes as may be from Time to Time granted - to them by the Crown; or - - (2) affect the Operation of any existing Treaty or Convention with - any Foreign Power; or - - (3) take away or abridge the Power of the Crown to enter into any - Treaty or Convention with any Foreign Power containing any - Stipulation that may seem meet concerning any Matter to which - this Act relates; or - - (4) take away, abridge, or control, further or otherwise than as - expressly provided by this Act, any Right, Power, or Prerogative - of Her Majesty the Queen in right of Her Crown, or in right of Her - Office of Admiralty, or any Right or Power of the Lord High - Admiral of the United Kingdom, or of the Commissioners for - executing the Office of Lord High Admiral; or - - (5) take away, abridge, or control, further or otherwise than as - expressly provided by this Act, the Jurisdiction or Authority of - a Prize Court to take cognizance of and judicially proceed upon - any Capture, Seizure, Prize, or Reprisal of any Ship or Goods, or - to hear and determine the same, and, according to the Course of - Admiralty and the Law of Nations, to adjudge and condemn any Ship - or Goods, or any other Jurisdiction or Authority of or - exerciseable by a Prize Court. - -_Commencement._ - -[Sidenote: Commencement of Act.] - -56. This Act shall commence on the Commencement of The Naval Agency and -Distribution Act, 1864. - - - - -APPENDIX XI - - THE PRIZE COURTS ACTS, 1894 - 57 & 58 VICT., CHAPTER 39 - An Act to make further provision for the establishment of - Prize Courts, and for other purposes connected therewith. - [_17th August 1894._] - - -Be it enacted by the Queen's most Excellent Majesty, by and with the -advice and consent of the Lords Spiritual and Temporal, and Commons, in -this present Parliament assembled, and by the authority of the same, as -follows: - -[Sidenote: Short Title.] - -1. This Act may be cited as the Prize Courts Act, 1894. - -[Sidenote: Constitution of Prize Courts in British Possessions.] - -2.--(1) Any commission, warrant, or instructions from Her Majesty the -Queen or the Admiralty for the purpose of commissioning or regulating -the procedure of a prize court at any place in a British possession may, -notwithstanding the existence of peace, be issued at any time, with a -direction that the court shall act only upon such proclamation as -herein-after mentioned being made in the possession. - -(2) Where any such commission, warrant, or instructions have been -issued, then, subject to instructions from Her Majesty, the Vice-Admiral -of such possession may, when satisfied, by information from a Secretary -of State or otherwise, that war has broken out between Her Majesty and -any foreign State, proclaim that war has so broken out, and thereupon -the said commission, warrant, and instructions shall take effect as if -the same had been issued after the breaking out of such war and such -foreign State were named therein. - -[Sidenote: 53 & 54 Vict. c. 27.] - -(3) The said commission and warrant may authorise either a -Vice-Admiralty Court or a Colonial Court of Admiralty, within the -meaning of the Colonial Courts of Admiralty Act, 1890, to act as a prize -court, and may establish a Vice-Admiralty Court for that purpose. - -(4) Any such commission, warrant, or instructions may be revoked or -altered from time to time. - -(5) A court duly authorised to act as a prize court during any war -shall after the conclusion of the war continue so to act in relation to, -and finally dispose of, all matters and things which arose during the -war, including all penalties and forfeitures incurred during the war. - -[Sidenote: Rules of Court for and Fees in Prize Courts. 27 & 28 Vict. c. -25.] - -3.--(1) Her Majesty the Queen in Council may make rules of court for -regulating, subject to the provisions of the Naval Prize Act, 1864, and -this Act, the procedure and practice of prize courts within the meaning -of that Act, and the duties and conduct of the officers thereof, and of -the practitioners therein, and for regulating the fees to be taken by -the officers of the courts, and the costs, charges, and expenses to be -allowed to the practitioners therein. - -(2) Every rule so made shall, whenever made, take effect at the time -therein mentioned, and shall be laid before both Houses of Parliament, -and shall be kept exhibited in a conspicuous place in each court to -which it relates. - -[Sidenote: 27 & 28 Vict. c. 25.] - -(3) This section shall be substituted for section thirteen of the Naval -Prize Act, 1864, which section is hereby repealed. - -[Sidenote: 53 & 54 Vict c. 27.] - -(4) If any Colonial Court of Admiralty within the meaning of the -Colonial Courts of Admiralty Act, 1890, is authorised under this Act or -otherwise to act as a prize court, all fees arising in respect of prize -business transacted in the court shall be fixed, collected, and applied -in like manner as the fees arising in respect of the Admiralty business -of the court under the said Act. - -[Sidenote: As to Vice-Admiralty Courts.] - -4. Her Majesty the Queen in Council may make rules of court for -regulating the procedure and practice, including fees and costs, in a -Vice-Admiralty Court, whether under this Act or otherwise. - -[Sidenote: Repeal of 39 & 40 Geo. 3, c. 79, s. 25.] - -5. Section twenty-five of the Government of India Act, 1800, is hereby -repealed. - - - - -APPENDIX XII - - NAVAL PRIZE BILL OF 1911 - _Passed by the House of Commons, but thrown out by the House - of Lords_ - A Bill to Consolidate, with Amendments, the Enactments - relating to Naval Prize of War. - - -Whereas at the Second Peace Conference held at The Hague in the year -nineteen hundred and seven a Convention, the English translation whereof -is set forth in the First Schedule to this Act, was drawn up, but it is -desirable that the same should not be ratified by His Majesty until such -amendments have been made in the law relating to naval prize of war as -will enable effect to be given to the Convention: - -And whereas for the purpose aforesaid it is expedient to consolidate the -law relating to naval prize of war with such amendments as aforesaid and -with certain other minor amendments: - -Be it therefore enacted by the King's most Excellent Majesty, by and -with the advice and consent of the Lords Spiritual and Temporal, and -Commons, in this present Parliament assembled, and by the authority of -the same, as follows:-- - - -PART I.--COURTS AND OFFICERS. - -_The Prize Court in England._ - -[Sidenote: The High Court. [54 & 55 Vict. c. 53, s. 4.]] - -1.--(1) The High Court shall, without special warrant, be a prize court, -and shall, on the high seas, and throughout His Majesty's Dominions, and -in every place where His Majesty has jurisdiction, have all such -jurisdiction as the High Court of Admiralty possessed when acting as a -prize court, and generally have jurisdiction to determine all questions -as to the validity of the capture of a ship or goods, the legality of -the destruction of a captured ship or goods, and as to the payment of -compensation in respect of such a capture or destruction. - -For the purposes of this Act the expression "capture" shall include -seizure for the purpose of the detention, requisition, or destruction of -any ship or goods which, but for any convention, would be liable to -condemnation, and the expressions "captured" and "taken as prize" shall -be construed accordingly, and where any ship or goods have been so -seized the court may make an order for the detention, requisition, or -destruction of the ship or goods and for the payment of compensation in -respect thereof. - -(2) Subject to rules of court, all causes and matters within the -jurisdiction of the High Court as a prize court shall be assigned to the -Probate, Divorce, and Admiralty Division of the Court. - -[Sidenote: Power of High Court to enforce decrees of other courts. [27 & -28 Vict. c. 25. s. 4.]] - -2. The High Court as a prize court shall have power to enforce any order -or decree of a prize court in a British possession, and any order of the -Supreme Prize Court constituted under this Act in a prize appeal. - -_Prize Courts in British Possessions._ - -[Sidenote: Prize courts in British possessions. [57 & 58 Vict. c. 39. s. -2 (1) and (3). 53 & 54 Vict. c. 27, s. 2 (3) and s. 9.] 53 & 54 Vict. c. -27.] - -3. His Majesty may, by commission addressed to the Admiralty, empower -the Admiralty to authorise, and the Admiralty may thereupon by warrant -authorise, either a Vice-Admiralty court or a Colonial Court of -Admiralty, within the meaning of the Colonial Courts of Admiralty Act, -1890, to act as a prize court in a British possession, or may in like -manner establish a Vice-Admiralty court for the purpose of so acting; -and any court so authorised shall, subject to the terms of the warrant -from the Admiralty, have all such jurisdiction as is by this Act -conferred on the High Court as a prize court. - -Commissions. [57 & 58 Vict. c. 39, s. 2 (1), (2).] - -4.--(1) Any commission, warrant, or instructions from His Majesty the -King or the Admiralty for the purpose of commissioning a prize court at -any place in a British possession may, notwithstanding the existence of -peace, be issued at any time, with a direction that the court shall act -only upon such proclamation as herein-after mentioned being made in the -possession. - -(2) Where any such commission, warrant, or instructions have been -issued, then, subject to instructions from His Majesty the Vice-Admiral -of such possession may, when satisfied by information from a Secretary -of State or otherwise that war has broken out between His Majesty and -any foreign State, proclaim that war has so broken out, and thereupon -the said commission, warrant, and instructions shall take effect as if -the same had been issued after the breaking out of such war and such -foreign State were named therein. - -(3) Any such commission, warrant, or instructions may be revoked or -altered from time to time. - -[Sidenote: Enforcement of orders.] - -5. Every prize court in a British possession shall enforce within its -jurisdiction all orders and decrees of the High Court and of any other -prize court in a British possession in prize causes, and all orders of -the Supreme Prize Court constituted under this Act in prize appeals. - -[Sidenote: Remuneration of certain judges of prize courts in a British -possession. [27 & 28 Vict. c. 25, ss. 10, 11.] 53 & 54 Vict. c. 27.] - -6.--(1) His Majesty in Council may, with the concurrence of the -Treasury, grant to the judge of any prize court in a British possession, -other than a Colonial Court of Admiralty within the meaning of the -Colonial Courts of Admiralty Act, 1890, remuneration, at a rate not -exceeding five hundred pounds a year, payable out of money provided by -Parliament, subject to such regulations as seem meet. - -(2) A judge to whom remuneration is so granted shall not be entitled to -any further emolument, arising from fees or otherwise, in respect of -prize business transacted in his court. - -(3) An account of all such fees shall be kept by the registrar of the -court, and the amount thereof shall be carried to and form part of the -Consolidated Fund of the United Kingdom. - -[Sidenote: Returns from prize courts in British possessions. [27 & 28 -Vict. c. 25, s. 12.]] - -7. The registrar of every prize court in a British possession shall, on -the first day of January and first day of July in every year, make out a -return (in such form as the Admiralty from time to time direct) of all -cases adjudged in the court since the last half-yearly return, and shall -with all convenient speed send the same to the Admiralty registrar of -the Probate, Divorce, and Admiralty Division of the High Court, who -shall keep the same in the Admiralty registry of that Division, and who -shall as soon as conveniently may be, send a copy of the returns of each -half year to the Admiralty, and the Admiralty shall lay the same before -both houses of Parliament. - -[Sidenote: Fees. [57 & 58 Vict. c. 39 s. 3 (4).] 53 & 54 Vict. c. 27.] - -8. If any Colonial Court of Admiralty within the meaning of the Colonial -Courts of Admiralty Act, 1890, is authorised under this Act or otherwise -to act as a prize court, all fees arising in respect of prize business -transacted in the court shall be fixed, collected, and applied in like -manner as the fees arising in respect of the Admiralty business of the -court under the first-mentioned Act. - -_Appeals._ - -[Sidenote: Appeals to Supreme Prize Court. [54 & 55 Vict. c. 53, s. 4 -(3).]] - -9.--(1) Any appeal from the High Court when acting as a prize court, or -from a prize court in a British possession, shall lie only to a court -(to be called the Supreme Prize Court) consisting of such members for -the time being of the Judicial Committee of the Privy Council as may be -nominated by His Majesty for that purpose. - -(2) The Supreme Prize Court shall be a court of record with power to -take evidence on oath, and the seal of the court shall be such as the -Lord Chancellor may from time to time direct. - -(3) Every appeal to the Supreme Prize Court shall be heard before not -less than three members of the court sitting together. - -(4) The registrar and other officers for the time being of the Judicial -Committee of the Privy Council shall be registrar and officers of the -Supreme Prize Court. - -[Sidenote: Procedure on, and conditions of, appeals. [27 & 28 Vict. c. -25, s. 5.]] - -10.--(1) An appeal shall lie to the Supreme Prize Court from any order -or decree of a prize court, as of right in case of a final decree, and -in other cases with the leave of the court making the order or decree or -of the Supreme Prize Court. - -(2) Every appeal shall be made in such manner and form and subject to -such conditions and regulations (including regulations as to fees, -costs, charges, and expenses) as may for the time being be directed by -order in Council. - -[Sidenote: Jurisdiction of the Supreme Prize Court in prize appeals. [27 -& 28 Vict. c. 25, s. 6; 54 & 55 Vict. c. 53, s. 4 (3).]] - -11. The Supreme Prize Court shall have jurisdiction to hear and -determine any such appeal, and may therein exercise all such powers as -are under this Act vested in the High Court, and all such powers as were -wont to be exercised by the Commissioners of Appeal or by the Judicial -Committee of the Privy Council in prize causes. - -_Rules of Court._ - -[Sidenote: Rules of court. [57 & 58 Vict c. 39, s. 3.]] - -12. His Majesty in Council may make rules of court for regulating, -subject to the provisions of this Act, the procedure and practice of the -Supreme Prize Court and of the Prize Courts within the meaning of this -Act, and the duties and conduct of the officers thereof, and of the -practitioners therein, and for regulating the fees to be taken by the -officers of the courts, and the costs, charges, and expenses to be -allowed to the practitioners therein. - -_Officers of Prize Courts._ - -[Sidenote: Prohibition of officer of prize court acting as advocate, &c. -[27 & 28 Vict. c. 25, ss. 14, 15.]] - -13. It shall not be lawful for any registrar, marshal, or other officer -of the Supreme Prize Court or of any other prize court, directly or -indirectly to act or be in any manner concerned as advocate, proctor, -solicitor, or agent, or otherwise, in any prize appeal or cause. - -[Sidenote: Protection of persons acting in execution of Act. [27 & 28 -Vict. c. 25, s. 51.]] - -14. The Public Authorities Protection Act, 1893, shall apply to any -action, prosecution, or other proceeding against any person for any act -done in pursuance or execution or intended execution of this Act or in -respect of any alleged neglect or default in the execution of this Act -whether commenced in the United Kingdom or elsewhere within His -Majesty's dominions. - -_Continuance of Proceedings._ - -[Sidenote: Continuance of proceedings after conclusion of war. [57 & 58 -Vict. c. 39, s. 2 (5).]] - -15. A court duly authorised to act as a prize court during any war shall -after the conclusion of the war continue so to act in relation to, and -finally dispose of, all matters and things which arose during the war, -including all penalties, liabilities and forfeitures incurred during the -war. - - -Part II.--PROCEDURE IN PRIZE CAUSES. - -[Sidenote: Custody of ships taken as prize. [27 & 28 Vict. c. 25, s. -16.]] - -16. Where a ship (not being a ship of war) is taken as prize, and is or -is brought within the jurisdiction of a prize court, she shall forthwith -be delivered up to the marshal of the court, or, if there is no such -marshal, to the principal officer of customs at the port, and shall -remain in his custody, subject to the orders of the court. - -[Sidenote: Bringing in of ship papers. [27 & 28 Vict. c. 25, s. 17.]] - -17.--(1) The captors shall in all cases, with all practicable speed, -bring the ship papers into the registry of the court. - -(2) The officer in command, or one of the chief officers of the -capturing ship, or some other person who was present at the capture and -saw the ship papers delivered up or found on board, shall make oath that -they are brought in as they were taken, without fraud, addition, -subduction, or alteration, or else shall account on oath to the -satisfaction of the court for the absence or altered condition of the -ship papers or any of them. - -(3) Where no ship papers are delivered up or found on board the captured -ship, the officer in command, or one of the chief officers of the -capturing ship, or some other person who was present at the capture, -shall make oath to that effect. - -[Sidenote: Examination of persons from captured ship. [27 & 28 Vict. c. -25, s. 19.]] - -18. The captors shall also, unless the court otherwise directs, with all -practicable speed after the captured ship is brought into port, bring a -convenient number of the principal persons belonging to the captured -ship before the judge of the court or some person authorised in this -behalf, by whom they shall be examined on oath. - -[Sidenote: Delivery of ship on bail. [27 & 28 Vict. c. 25, s. 25.]] - -19. The court may, if it thinks fit, at any time after a captured ship -has been appraised direct that the ship be delivered up to the claimant -on his giving security to the satisfaction of the court to pay to the -captors the appraised value thereof in case of condemnation. - -[Sidenote: Power to order sale. [27 & 28 Vict. c. 25, ss. 26 & 27.]] - -20. The court may at any time, if it thinks fit, on account of the -condition of the captured ship, or on the application of a claimant, or -on or after condemnation, order that the captured ship be appraised (if -not already appraised), and be sold. - -[Sidenote: Power to award compensation notwithstanding release of ship.] - -21. Where a ship has been taken as prize, a prize court may award -compensation in respect of the capture notwithstanding that the ship has -been released, whether before or after the institution of any -proceedings in the court in relation to the ship. - -[Sidenote: Application and effect of Part II. [27 & 28 Vict. c. 25, s. -31.]] - -22.--(1) The provisions of this Part of this Act relating to ships shall -extend and apply, with the necessary adaptations, to goods taken as -prize. - -(2) The provisions of this Part of this Act shall have effect subject to -any rules of court dealing with the subject-matter thereof. - - -Part III.--INTERNATIONAL PRIZE COURT. - -[Sidenote: Appointment of British judge and deputy judge of -International Court. [_See_ 39 & 40 Vict. c. 59, s. 6.]] - -23.--(1) In the event of an International Prize Court being constituted -in accordance with the said Convention or with any Convention entered -into for the purpose of enabling any power to become a party to the said -Convention or for the purpose of amending the said Convention in matters -subsidiary or incidental thereto (hereinafter referred to as the -International Prize Court), it shall be lawful for His Majesty from time -to time to appoint a judge and deputy judge of the court. - -(2) A person shall not be qualified to be appointed by His Majesty a -judge or deputy judge of the court unless he has been, at or before the -time of his appointment, the holder, for a period of not less than two -years, of some one or more of the offices described as high judicial -offices by the Appellate Jurisdiction Act, 1876, as amended by any -subsequent enactment. - -[Sidenote: Payment of contribution towards expenses of International -Prize Court.] - -24. Any sums required for the payment of any contribution towards the -general expenses of the International Prize Court payable by His Majesty -under the said Convention shall be charged on and paid out of the -Consolidated Fund and the growing proceeds thereof. - -[Sidenote: Appeals to International Prize Court.] - -25. In cases to which this Part of this Act applies an appeal from the -Supreme Prize Court shall lie to the International Prize Court. - -[Sidenote: Transfer of cases to the International Prize Court.] - -26. If in any case to which this Part of this Act applies final judgment -is not given by the prize court, or on appeal by the Supreme Prize -Court, within two years from the date of the capture, the case may be -transferred to the International Prize Court. - -[Sidenote: Rules as to appeals and transfers to International Prize -Court.] - -27. His Majesty in Council may make rules regulating the manner in which -appeals and transfers under this Part of this Act may be made and with -respect to all such matters (including fees, costs, charges, and -expenses) as appear to His Majesty to be necessary for the purpose of -such appeals and transfers, or to be incidental thereto or consequential -thereon. - -[Sidenote: Enforcement of orders of International Prize Court.] - -28. The High Court and every prize court in a British possession shall -enforce within its jurisdiction all orders and decrees of the -International Prize Court in appeals and cases transferred to the Court -under this Part of this Act. - -[Sidenote: Application of Part III.] - -29. This part of this Act shall apply only to such cases and during such -period as may for the time being be directed by Order in Council, and -His Majesty may by the same or any other Order in Council apply this -Part of this Act subject to such conditions, exceptions and -qualifications as may be deemed expedient. - - -Part IV.--PRIZE SALVAGE AND PRIZE BOUNTY. - -_Prize Salvage._ - -[Sidenote: Salvage to re-captors of British ship or goods from enemy.] - -30. Where any ship or goods belonging to any of His Majesty's subjects, -after being taken as prize by the enemy, is or are retaken from the -enemy by any of His Majesty's ships of war, the same shall be restored -by decree of a prize court to the owner. - -[Sidenote: Permission to recaptured ship to proceed on voyage and -postponement of proceedings. [27 & 28 Vict. c. 25, s. 41.]] - -31.--(1) Where a ship belonging to any of his Majesty's subjects, after -being taken as prize by the enemy, is retaken from the enemy by any of -His Majesty's ships of war, she may, with the consent of the -re-captors, prosecute her voyage, and it shall not be necessary for the -re-captors to proceed to adjudication till her return to a port of His -Majesty's dominions. - -(2) The master or owner, or his agent, may, with the consent of the -re-captors, unload and dispose of the goods on board the ship before -adjudication. - -(3) If the ship does not, within six months, return to a port of His -Majesty's dominions, the re-captors may nevertheless institute -proceedings against the ship or goods in the High Court, or in any prize -court in a British possession, and the court may thereupon award prize -salvage as aforesaid to the re-captors, and may enforce payment thereof, -either by warrant of arrest against the ship or goods, or in the same -manner as a judgment of the court in which the proceedings are -instituted may be enforced. - -_Prize Bounty._ - -[Sidenote: Prize bounty to officers and crew present in case of capture -or destruction of enemy's ship. [27 & 28 Vict. c. 25, s. 42.]] - -32. If, in relation to any war, His Majesty is pleased to declare, by -proclamation or Order in Council, his intention to grant prize bounty to -the officers and crews of his ships of war, then such of the officers -and crew of any of His Majesty's ships of war as are actually present at -the taking or destroying of any armed ship of any of His Majesty's -enemies shall be entitled to have distributed among them as prize bounty -a sum calculated at such rates and in such manner as may be specified in -the proclamation or Order in Council. - -[Sidenote: Ascertainment of amount of prize bounty. [27 & 28 Vict. c. -25, s. 43.]] - -33.--(1) A prize court shall make a decree declaring the title of the -officers and crew of His Majesty's ship to the prize bounty, and stating -the amount thereof. - -(2) The decree shall be subject to appeal as other decrees of the court. - - -Part V.--SPECIAL CASES OF JURISDICTION. - -[Sidenote: Jurisdiction in case of capture in land expedition. [27 & 28 -Vict. c. 25, s. 34.]] - -34. Where, in an expedition of any of His Majesty's naval or naval and -military forces against a fortress or possession on land goods belonging -to the state of the enemy, or to a public trading company of the enemy -exercising powers of government, are taken in the fortress or -possession, or a ship is taken in waters defended by or belonging to the -fortress or possession, a prize court shall have jurisdiction as to the -goods or ships so taken, and any goods taken on board the ship, as in -case of prize. - -[Sidenote: Jurisdiction in case of prize taken in expedition with ally. -[27 & 28 Vict. c. 25, s. 35.]] - -35. Where any ship or goods is or are taken by any of His Majesty's -naval or naval and military forces while acting in conjunction with any -forces of any of His Majesty's allies, a prize court shall have -jurisdiction as to the same as in case of prize, and shall have power, -after condemnation, to apportion the due share of the proceeds to His -Majesty's ally, the proportionate amount and the disposition of which -share shall be such as may from time to time be agreed between His -Majesty and His Majesty's ally. - -[Sidenote: Jurisdiction of High Court on petitions of right as under 23 -& 24 Vict. c. 34. [27 & 28 Vict. c. 25, s. 52.]] - -36.--(1) In any case where a petition of right under the Petitions of -Right Act, 1860, is presented and the subject-matter of the petition or -any material part thereof arises out of the exercise of any belligerent -right on behalf of the Crown, or would be cognizable in a prize court -within His Majesty's dominions if the same were a matter in dispute -between private persons, the petition may, if the subject thinks fit, be -intituled in the High Court as a prize court. - -(2) Any petition of right under the last-mentioned Act, whether -intituled in the High Court or not, may be prosecuted in that court if -the Lord Chancellor thinks fit so to direct. - -(3) The provisions of this Act relative to appeal, and to the making of -orders for regulating the procedure and practice of the High Court as a -prize court, shall extend to the case of any such petition of right -intituled or directed to be prosecuted in that court; and, subject -thereto, all the provisions of the Petitions of Right Act, 1860, shall -apply with such adaptations as may be necessary in the case of any such -petition of right; and for the purposes of this section the terms -"court" and "judge" in that Act shall respectively be understood to -include the High Court as a prize court and the judges thereof, and -other terms shall have the respective meanings given to them in that -Act. - - -Part VI.--OFFENCES. - -[Sidenote: Offences by captors. [27 & 28 Vict. c. 25, s. 37.]] - -37. A prize court, on proof of any offence against the law of nations, -or against this Act, or any Act relating to naval discipline, or against -any Order in Council or royal proclamation, or of any breach of His -Majesty's instructions relating to prize, or of any act of disobedience -to the orders of the Admiralty, or to the command of a superior officer, -committed by the captors in relation to any ship or goods taken as -prize, or in relation to any person on board any such ship, may, on -condemnation, reserve the prize to His Majesty's disposal, -notwithstanding any grant that may have been made by His Majesty in -favour of captors. - -[Sidenote: Perjury. [27 & 28 Vict. c. 25, s. 50.]] - -38. If any person wilfully and corruptly swears, declares, or affirms -falsely in any prize cause or appeal, or in any proceeding under this -Act, or in respect of any matter required by this Act to be verified on -oath, or suborns any other person to do so, he shall be deemed guilty of -perjury, or of subornation of perjury (as the case may be), and shall be -liable to be punished accordingly. - -[Sidenote: Disobedience to, or desertion of, convoy. [27 & 28 Vict. c. -25, s. 46.]] - -39. If the master or other person having the command of any British ship -under the convoy of any of His Majesty's ships of war, wilfully disobeys -any lawful signal, instruction, or command of the commander of the -convoy, or without leave deserts the convoy, he shall be liable to be -proceeded against in the High Court at the suit of His Majesty in His -Office of Admiralty, and upon conviction to be fined, in the discretion -of the Court, any sum not exceeding five hundred pounds, and to suffer -imprisonment for such time, not exceeding one year, as the Court may -adjudge. - - -Part VII.--MISCELLANEOUS PROVISIONS. - -_Ransom._ - -[Sidenote: Power for regulating ransom by Order in Council. [27 & 28 -Vict. c. 25, s. 45.]] - -40.--(1) His Majesty in Council may, in relation to any war, make such -orders as may seem expedient according to circumstances for prohibiting -or allowing, wholly or in certain cases or subject to any conditions or -regulations or otherwise as may from time to time seem meet, the -ransoming or the entering into any contract or agreement for the -ransoming of any ship or goods belonging to any of His Majesty's -subjects, and taken as prize by any of His Majesty's enemies. - -(2) Any contract or agreement entered into, and any bill, bond, or other -security given for ransom of any ship or goods, shall be under the -exclusive jurisdiction of the High Court as a prize court (subject to -appeal to the Supreme Prize Court), and if entered into or given in -contravention of any such Order in Council shall be deemed to have been -entered into or given for an illegal consideration. - -(3) If any person ransoms or enters into any contract or agreement for -ransoming any ship or goods, in contravention of any such Order in -Council, he shall for every such offence be liable to be proceeded -against in the High Court at the suit of His Majesty in His Office of -Admiralty, and on conviction to be fined, in the discretion of the -Court, any sum not exceeding five hundred pounds. - -_Customs Duties and Regulations._ - -[Sidenote: Prize ships and goods liable to customs duties and -forfeiture. [27 & 28 Vict. c. 25, s. 47.]] - -41.--(1) All ships and goods taken as prize and brought into a port of -His Majesty's dominions shall be liable to and be charged with the same -rates and charges and duties of customs as under any Act relating to the -customs in force at the port may be chargeable on other ships and goods -of the like description. - -(2) All goods brought in as prize which would on the voluntary -importation thereof be liable to forfeiture, or subject to any -restriction, under the laws relating to the customs, shall be deemed to -be so liable and subject, unless the Customs authority see fit to -authorise the sale or delivery thereof for home use or exportation, -unconditionally or subject to such conditions and regulations as they -may direct. - -[Sidenote: Regulations of customs as to prize ships and goods. [27 & 28 -Vict. c. 25, s. 48.]] - -42. Where any ship or goods taken as prize is or are brought into a port -of His Majesty's dominions, the master or other person in charge or -command of the ship which has been taken or in which the goods are -brought shall, on arrival at such port, bring to at the proper place of -discharge, and shall, when required by any officer of customs, deliver -an account in writing under his hand concerning such ship and goods, -giving such particulars relating thereto as may be in his power, and -shall truly answer all questions concerning such ship or goods asked by -any such officer, and in default shall forfeit a sum not exceeding one -hundred pounds, such forfeiture to be enforced as forfeitures for -offences against the laws relating to the customs in force at the port -are enforced, and every such ship shall be liable to such searches as -other ships are liable to, and the officers of the customs may freely go -on board such ship and bring to the King's or other warehouse any goods -on board the same, subject, nevertheless, to such regulations in respect -of ships of war belonging to His Majesty as shall from time to time be -issued by His Majesty. - -[Sidenote: Sale of prize goods and power to remit customs duties. [27 & -28 Vict. c. 25, s. 49.]] - -43. Goods taken as prize may be sold either for home consumption or for -exportation; and if in the former case the proceeds thereof, after -payment of duties of customs, are insufficient to satisfy the just and -reasonable claims thereon, the Customs authority may remit the whole or -such part of the said duties as they see fit. - -_Capture by Ship other than a Ship of War._ - -[Sidenote: Prizes taken by Ships other than ships of war to be droits of -Admiralty. [27 & 28 Vict. c. 25, s. 39.]] - -44. Any ship or goods taken as prize by any of the officers and crew of -a ship other than a ship of war of His Majesty shall, on condemnation, -belong to His Majesty in His office of Admiralty. - -_Supplemental._ - -[Sidenote: Saving for rights of Crown; effect of treaties, &c. [27 & 28 -Vict. c. 25, s. 55.]] - -45. Nothing in this Act shall-- - - (1) give to the officers and crew of any of His Majesty's ships of - war any right or claim in or to any ship or goods taken as prize - or the proceeds thereof, it being the intent of this Act that such - officers and crews shall continue to take only such interest (if - any) in the proceeds of prizes as may be from time to time granted - to them by the Crown; or - - (2) affect the operation of any existing treaty or convention with - any foreign power; or - - (3) take away or abridge the power of the Crown to enter into any - treaty or convention with any foreign power containing any - stipulation that may seem meet concerning any matter to which this - Act relates; or - - (4) take away, abridge, or control, further or otherwise than as - expressly provided by this Act, any right, power, or prerogative - of His Majesty the King in right of His Crown, or in right of His - office of Admiralty, or any right or power of the Admiralty; or - - (5) take away, abridge, or control, further or otherwise than as - expressly provided by this Act, the jurisdiction or authority of a - prize court to take cognizance of and judicially proceed upon any - capture, seizure, prize, or reprisal of any ship or goods, and to - hear and determine the same, and, according to the course of - Admiralty and the law of nations, to adjudge and condemn any ship - or goods, or any other jurisdiction or authority of or - exerciseable by a prize court. - -[Sidenote: Power to make Orders in Council. [27 & 28 Vict. c. 25, ss. -53, 54.]] - -46.--(1) His Majesty in Council may from time to time make such Orders -in Council as seem meet for the better execution of this Act. - -(2) Every Order in Council under this Act and all rules made in -pursuance of this Act shall be notified in the _London Gazette_, and -shall be laid before both Houses of Parliament within thirty days after -the making thereof, if Parliament is then sitting, and, if not, then -within thirty days after the next meeting of Parliament, and shall have -effect as if enacted in this Act. - -[Sidenote: Definitions. 27 & 28 Vict. c. 25, s. 2.] - -47. In this Act unless the context otherwise requires-- - - The expression "the High Court" means the High Court of Justice in - England: - - The expression "any of His Majesty's ships of war" includes any of - His Majesty's vessels of war, and any hired armed ship or vessel - in His Majesty's service: - - The expression "officers and crew" includes flag officers, - commanders, and other officers, engineers, seamen, marines, - soldiers, and others on board any of His Majesty's ships of war: - - The expression "ship" includes vessel and boat, with the tackle, - furniture, and apparel of the ship, vessel, or boat: - - The expression "ship papers" includes all books, papers, and - other documents and writings delivered up or found on board a - captured ship, and, where certified copies only of any papers are - delivered to the captors, includes such copies: - - The expression "goods" includes all such things as are by the - course of Admiralty and law of nations the subject of adjudication - as prize (other than ships): - - The expression "Customs authority" means the Commissioners or - other authority having control of the administration of the law - relating to customs. - -[Sidenote: Short title and repeal.] - -48.--(1) This Act may be cited as the Naval Prize Act, 1911. - -(2) The enactments mentioned in the second Schedule to this Act are -hereby repealed to the extent specified in the third column of that -Schedule. - - - - -APPENDIX XIII - - GENEVA CONVENTION ACT, 1911 - 1 & 2 GEO. 5, CHAPTER 20 - An Act to make such amendments in the Law as are necessary to - enable certain reserved provisions of the Second Geneva - Convention to be carried into effect. - [_18th August 1911._] - - -Whereas His Majesty has ratified, with certain reservations, the -Convention for the amelioration of the condition of the wounded and sick -of armies in the field, drawn up in Geneva in the year one thousand nine -hundred and six, and it is desirable, in order that those reservations -may be withdrawn, that such amendments should be made in the law as are -in this Act contained: - -Be it therefore enacted by the King's most Excellent Majesty, by and -with the advice and consent of the Lords Spiritual and Temporal, and -Commons in this present Parliament assembled, and by the authority of -the same, as follows:-- - -[Sidenote: Prohibition of use of emblem of red cross on white ground, -&c.] - -1.--(1) As from the commencement of this Act it shall not be lawful for -any person to use for the purposes of his trade or business, or for any -other purpose whatsoever, without the authority of the Army Council, the -heraldic emblem of the red cross on a white ground formed by reversing -the Federal colours of Switzerland, or the words "Red Cross" or "Geneva -Cross," and, if any person acts in contravention of this provision, he -shall be guilty of an offence against this Act, and shall be liable on -summary conviction to a fine not exceeding ten pounds, and to forfeit -any goods upon or in connection with which the emblem or words were -used. - -(2) Where a company or society is guilty of any such contravention, -without prejudice to the liability of the company or society, every -director, manager, secretary, and other officer of the company or -society who is knowingly a party to the contravention shall be guilty of -an offence against this Act and liable to the like penalty. - -(3) Nothing in this section shall affect the right (if any) of the -proprietor of a trade mark registered before the passing of this Act, -and containing any such emblem or words, to continue to use such trade -mark for a period of four years from the passing of this Act, and, if -the period of the registration or of the renewal of registration of any -such trade mark expires during those four years, the registration -thereof may be renewed until the expiration of those four years, but -without payment of any fee. - -(4) Proceedings under this Act shall not in England or Ireland be -instituted without the consent of the Attorney-General. - -(5) This Act shall extend to His Majesty's possessions outside the -United Kingdom, subject to such necessary adaptations as may be made by -Order in Council. - -[Sidenote: Short title.] - -2. This Act may be cited as the Geneva Convention Act, 1911. - - - - -INDEX - - -This Index does not refer to Conventions, &c., printed in the -Appendices. - - -A - - Abuse of flag of truce, 281 - of neutral asylum, 419, 420-423 - - Abyssinian War, referred to on: - hostile destination of goods, 505 - trial of neutral vessels after conclusion of peace, 556 - - Acts of force initiative of war, 126-128 - - Admiralty, origin of Board of, 239 - - Aerial warfare. _See_ Air-vessels - - Aeroplanes, conditional contraband, 506 - - Africa, case of the, 531 - - Air-vessels: - invasion by, 207 - violence directed from, 150, 192, 227 - - Alabama, case of the, 406-409 - - Alaska Boundary dispute (1903), 18 - - Alexander I. of Russia exacts oath of allegiance in Finland, - 205 - - Alexander II. of Russia, and laws of war, 81 - - Alexis, case of the, 40 - - Allegiance, oath of, 173, 205, 212 - - Alverstone, Lord, 18 - - Ambulances, _See_ Convoys of Evacuation - - American Civil War, referred to on: - blockade, 453, 454, 463, 465, 469 - ingress and egress of neutral warships during, 453 - contraband, 487, 499, 501 - neutral asylum during, 418, 443 - political agents on neutral vessel, 519, 530 - real war, 63 sale of vessels during, 427 - stone-blockade, 450 - treatment of prizes in, 243, 557 - - American-English War (1812), referred to on: - capture in neutral port, 442 - destruction of neutral prizes, 243 - reprisals, 307 - - American War of Independence, referred to on: - convoy, vessels under, 536 - espionage, 198 - reprisals, 306 - treatment of prizes during, 243 - - Amicable settlement of State differences. _See_ State - differences - - Amiens, Peace of (1802), 332 - - Amnesty, 334 - - Analogous of contraband. _See_ Unneutral service - - Andersen _v._ Marten, case of, 555 - - André, Major, case of, 198 - - Angary: - derivation of right of, 449 - exercise of right of, 385, 510 - modern right of, 447 - obsolete right of, 446 - pre-emption of neutral goods under right of, 449 - - Anna, case of the, 443 - - Anne, Empress of Russia, 43 - - Anspach, troops marched through, 392 - - Arbitration: - a means of settling State differences, 5 - appointment of arbitrator, 17, 26 - award, 18, 19, 30 - appeal against, 31 - binding force of, 18, 25, 30 - competence of tribunal of, 29 - compulsory, 25 - conception of, 16 - costs of, 32 - early use of, 22 - efficacy of, 25 - Hague Convention, stipulations concerning, 24 - language to be used during, 26, 28 - minutes concerning, 28 - Permanent International Court of, 22, 23, 26, 27-31, 561 - preliminary proceedings in, 27 - procedure of tribunal in, 27 - rules governing, 27 - scope of, 20-21 - summary procedure in, 32 - treaties of, 16, 18, 20, 26 - obligations under, 16, 25 - stipulations of, 18 - tribunal of Court of, 27 - value of, 22, 25 - - Arbitration Treaties, 16, 20, 21, 26 - - Area of operations during blockade, 471 - - Argentina, blockades of (1838) and (1845), 49 - - Armed Neutrality. _See_ Neutrality - - Armistices: - character of, 290 - commencement of, 296 - competence to conclude, 293 - contents of, 294-296 - end of, 299 - form of, 294 - general, 291, 293 - hostilities, cessation of, during, 290, 295 - kinds of, 290, 291 - lines of demarcation during, 296 - partial, 293 - permissible acts during, 294-296 - purpose of, 291 - re-victualling during, 295 - suspension of arms during, 291 - violation of, 297 - by private individual, 298 - visitation of neutral vessels during, 290, 534 - - Arnold, General, at West Point, 198 - - Arrêt de prince, 45 - - Aryol (or Orel), case of the, 256 - - Asgill, Captain, case of, 307 - - Askold, case of the, 422 - - Assault, 191-193 - - Asylum. _See_ Neutral Asylum - - Atalanta, case of the, 522 - - Athens, ancient law of, concerning reprisals, 41 - - Attack on enemy vessels, 225-237. _See also_ Enemy vessels - - Aube, Admiral, on naval warfare, 264, 266 - - Augusta Victoria, case of the, 390 - - Aurora, case of the, 423 - - Awni Illa, case of the, 269 - - -B - - Bahama Islands, access refused to belligerent warships at, 418 - - Baker, Sir Sherston, 281 - - Baltic Sea, asserted neutralisation of, 90 - - Baltica, case of the, 110, 116 - - Barbarous forces, 98 - - Barge, arbitration award of Mr., 19 - - Basle, office for volunteers at, 399 - - Bathurst, Lord, reprisal by, 307 - - Beasts of burden as contraband, 486 - - Belfort: - capitulation of, 286 - siege of, 193, 292 - suspension of arms during siege of, 291 - - Belgium, neutralisation of, 91, 358, 363, 368, 393, 411, 413, 428 - - Belligerents: - accessory, 93 - angary, right of, - exercised by, 446-449 - appropriation of property by, 174-187 - armed forces of, 94-106 - asylum granted to, 409-425 - barbarous forces as, 98 - capture of neutral vessels by, 546-552 - complaints of illegitimate warfare by, 302 - conduct in general of, 378 - deserters, treatment of, by, 105, 335 - duties of, 378-386 - impartiality of neutrals towards, 362, 381-383 - insurgents as, 62, 92 - intercourse between subjects of, 135-138, 275, 333 - and neutrals, 117, 365, 385, 428 - irregular forces of, 96 - levies _en masse_ of, 97, 152, 190, 313 - loans to, by neutrals, 430 - merchantmen of. _See_ Merchantmen - military operations by and against, neutrals, 386-397 - military preparations by and against 397-409 - navies of, 94, 99-105 - neutralised States as, 91 - neutrality to be recognised by, 367 - non-combatants with armed forces of, 95, 151, 169, 250 - non-hostile relations of, 273-299 - occupation of neutral territory by, 394 - principal, 93 - prisoners of, treatment, 167-171 - private enemy property, 139. _See also_ Private enemy - property privateers of, 99, 103, 357, 372, 534 - Prize Courts of, 395. _See also_ Prize Courts - property in enemy State of subjects of, 139, 182 - qualification to become, 62, 90 - regular armies of, 94 - representation at International Prize Court, 569 - rights of, 378-386 - services to, 153, 181, 212, 432-437 - subjects of, on enemy territory, 131-135 - supplies to, by neutrals, 375, 405-409, 426-430 - trade between subjects of, 135-138, 275, 333 - traitors. _See_ War criminals - vassal States as, 91 - violation of neutrality by, 426, 438-445 - visitation of neutral vessels by, 428, 533-545 - volunteer fleets of, 100-104 - war rebels, treatment of, by, 98 - - Bellona, case of the, 332 - - Bentinck, promise of, to Genoa, 284 - - Berlin: - Congo Conference of (1885), 11 - Decrees of (1806), 357, 453 - Treaty of (1878), 330 - - Bermuda, case of the, 470, 500 - - Bernadotte, 391 - - Bismarck: - act of reprisal by, 317 - on diplomatic envoys in besieged town, 194 - on crews of captured merchantmen, prisoners of war, 250, 308, 317 - on right of angary, 448 - - Black Sea, neutralisation of, 88 - - Blockade: - area of operations in, 471 - breach of: attempt at, 468-472 - canals, unblockaded and, 474 - capture on account of, 475 - consequences of, 475-478 - definition of, 466 - during armistice, 290 - egress and, 473 - ingress and, 472 - penalty for, 476 - practice of nations regarding, 386, 468-475 - what constitutes a, 468-475 - commercial, 452 - competence to establish, 456 - conception of, 450-455 - continuous voyage and, 469, 472 - contraband, seizure of, during, 290 - declaration of, 456, 458 - definition of, 450 - effectiveness of: 356, 461-466 - cessation of, 464 condition of, 461 - danger necessary to create, 464 - distinguished from fictitious, 461 - end of, 460 establishment of, 456-461 - existence of, 466 - fictitious, 461 - international rivers and, 454 - inward, 453 - justification for, 455 - knowledge of, necessary for breach, 466 - neutral vessels, time for egress of, 459 - notification of, 456, 459, 466 - former practice of nations regarding, 457 - outward, 453 pacific. _See_ Pacific blockade - places liable to, 453 - postal correspondence during, 237, 385 - stone, 450, 463 - strategic, 452 - universality of, 452 - - Bluntschli: - on continuous voyage, 504 - on courts of justice during occupation, 215 - - Bolivia-Peruvian Boundary Dispute (1910), 19 - - Bombardment: by land forces, 191, 194 by naval forces, 266-270 - - Bonfils, on carriage of contraband, 504 - - Booty on battlefield, 163, 177, 181 - - Bosphorus and Dardanelles, 102 - - Bougainville, safe-conduct granted to, 232 - - Boundary disputes: - between Bolivia and Peru, 19 - between Great Britain and U.S.A., 18, 19 - between Great Britain and Venezuela, 18 - - Boundary treaty of Buenos Ayres (1881) between Argentina and - Chili, 89 - - Bowles, Mr. Gibson, on withdrawal from Declaration of Paris, 100 - - Bribery, 196, 201 - - British Foreign Enlistment Act, 358, 375, 494 - - Brussels: Conference of (1874), 208, 308 Declaration of (1874), - 81, 171 - - Buenos Ayres, Boundary treaty of (1881), between Argentina and - Chili, 89 - - Bukarest, treaty of (1886), 92 - - Bulgaria as a belligerent while under Turkish suzerainty, 62, 92 - - Buller, Sir Redvers, proclamation by during the South African War, 65 - - Bullets, expanding and explosive, 149, 250 - - Bulmerincq, proposal regarding Prize Courts, 560 - - Bundesrath, case of the, 500, 502, 552 - - Bureau of Information in war, 163, 171, 181 - - Bynkershoek: - on contraband, 481, 508 - on intercourse during war, 135 - on neutrality, 350, 361, 422 - - -C - - Cabinet Ministers, capture of, 153 - - Camille, case of the, 426 - - Cancellation of treaties on account of: - violation by one party, 338 - war, 129 - - Capitulations: - character and purpose of, 284 - competence to conclude, 287 - contents of, 285 - flag of truce and, 286 - form of, 286 - violation of, 289 - - Captain W. Menzel, case of the, 376 - - Captivity: - detention in, after peace, 170, 336 - discipline in, 169-170 - effect of treaty of peace on, 335 - end of, 172, 335 - law regarding, development of, 165-167 - parole, release on, 170 - relief societies assisting those in, 171 - treatment of prisoners of war in, 167, 306 - who may be taken into, 151, 152, 153, 169, 250, 308 - - Capture of neutral vessels: - abandonment after, 551 - conduct to port after, 547 - destruction after, 547-551 - effect of, 546 - grounds of, 546 - mode of, 546 - ransom after, 551 - recapture after, 551 - release after, 551 - trial after, 240, 553-558 - after conclusion of peace, 555 - by International Prize Court, 572-579 - claims after, 557 - municipal matter, a, 553 - protests after, 557 - result of, 555 - - Carolina, case of the, 519 - - Caroline, case of the, 376 - - Carriage of contraband. _See_ Contraband of war - - Cartel ships: - rules regarding, 283 - seizure of, 236 - - Cartels: - definition and purpose of, 275, 282 - ransom of soldiers arranged by, 166 - - Carthage, case of the, 506 - - Castro, de, 40 - - Catharine, Empress of Russia, 355, 357 - - Cattaro, access refused to belligerent warships at, 418 - - Cesarewitch, case of the, 423 - - Cessation of hostilities, simple, 323, 324 - - Chablais and Faucigny, neutralisation of, 88 - - Chambers of Reunion, the so-called, 61 - - Charles XII. of Sweden, dictum of, 147 - - Charleston, blockade of, 450, 465 - - Chauvinism, 38 - - Chino-Japanese War (1894), referred to on: - asylum on neutral man-of-war, 423 - - Citizens. _See_ Private individuals - - Civil war: - commencement of, 374 - neutrality during, 365 - termination of, 323 - - Clinton, Sir Henry, 198 - - Coal as contraband, 487 - - Columbia, case of the, 390 - - Commerce during war: - between belligerents' subjects, 135, 275 - between subjects of belligerents and neutrals, 352, 365, - 385, 428 - - Commercen, case of the, 501 - - _Commercia belli_, 274 - - Commercial blockade, 452 - - Commercial treaty. _See_ Treaties - - Commission: of Arbitration, 18 of Inquiry, 7 - - Compensation for violations of the Laws of War, 319-321, 439 - - Complaints of belligerents, 302, 303 - - Compromis, 26-31 - - Compromise clause, 5, 17 - - Compulsive settlement of State differences. _See_ State - differences - - Concentration camps, 153, 190 - - Conference of Berlin (1885), 11 - - _Confiscantur ex navibus res, ex rebus naves_, 219 - - Confiscation: at outbreak of war, 139, 140, 174-182, 204, 218 - for carrying contraband, 508-514 - - Congo Conference of Berlin, 11 - - Congress of Vienna (1815), 88 - - Conquest, 325. _See also_ Subjugation - - _Consolato del mare_, 218, 219, 349, 352, 534 - - Consular activity, rupture of, 129 - - Continuous voyage, doctrine of, 469, 472, 491, 499-506 - - Continuous transport: - doctrine of, 499-506 - partial recognition of, by Declaration of London, 505 - - Contraband of war: - absolute, 481, 483, 490, 498, 505 - analogous of. _See_ Unneutral Service - articles for use of carrying vessel not considered, 493 - beasts of burden as, 486 - carriage of, 386, 495-514 - capture for, 506 - circuitous, 499-506 - consequences of, 506-514 - Continental opinion on, 504 - direct, 497 - indirect, 500-506 - penal by municipal law, 495 - penalty for, 508-514 - without knowledge of war, 140, 235, 512 - coal as, 487 - conception of, 480-495 - conditional, 481, 485, 491, 498, 506 - pre-emption of, 510, 512 - continuous transports, doctrine of, 499-506 - cotton as, 487 - definition of, 480 - foodstuffs as, 486 - horses as, 486 - hostile destination essential to, 490 - money as, 487 - seizure of, during blockade, 290 - seizure of, without seizure of vessel, 513 - - Contraband vessels, 390, 494 - - Contract debts, 25, 46 - - Contracts between subjects of belligerents, 137, 138, 333 - - Contributions, 183-187, 264, 267 - - Convoy: vessels under enemy, 542 - vessels under neutral, 535-537, 543 - - Convoy of evacuation, 160 - - Cook, Captain, safe-conduct granted to, 232 - - Copenhagen: - Battle of (1801), 356 - Treaty of (1830), 542 - - Corfu, neutralisation of, 88, 369 - - Cotton as contraband, 487 - - Court of Arbitration at the Hague. _See_ Permanent Court of - Arbitration - - Courts of Justice, during occupation of country, 214 - - Crete: - blockade of, 49, 51 - during the Turco-Italian War, 87 - - Crimean War, referred to on: - asylum to men-of-war, 418 - blockade, 453, 454, 464, 465 - contraband, 501 - enemy property at sea under neutral flag, 220 - enemy subjects on belligerent's territory, 132 - letters of marque, 220 - loans, flotation of, 431 - merchantmen at outbreak of war, 140, 235 - - -D - - Danous, case of the, 112 - - Danube, blockade of the, 453, 454 - - Dardanelles, 102 - - Dead, treatment of the, 162, 254 - - Dearborn, General, reprisal by, 307 - - Declaration concerning: - diffusion of asphyxiating gases, 82, 150, 250 - expanding (Dum-Dum) bullets, 82, 149, 250 - launching of projectiles from balloons, 82, 150, 250 - - Declaration of: - Brussels (1874), 81, 171 - London (1909), 83, 360, 554 - referred to on: blockade, 452-478 - capture of neutral vessels, 547-552 - contraband, 480-514 - enemy character, 107, 113, 117 - free articles, 492 - transfer of enemy vessels, 118 - transfer of enemy goods, 120 - trial of neutral vessels, 555-558 - unneutral service, 435, 515-532 - visitation of vessels, 536, 537, 540-545 - Paris (1856), 52, 79, 100, 101, 103, 130, 220, 221, 226, - 242, 303, 354, 358, 384, 385, 452, 461, 481, 536 - St. Petersburg (1868), 80, 149, 250 - - Declarations of: - blockade, 456-459 - contraband, 484, 488 - neutrality, 374 - war, 122-125 - - Delagoa Bay, case of, 502 - - Den Beer Portugael, General, and rules on bombardment, 266 - - Denmark, treaty by, affecting neutrality, 372, 389 - Swedish territory sold by, 205 - - Deserters, 105, 335 - - Despatches: - bearers of, 197 - carriage of, for enemy, 435, 515, 516, 521-524, 525, 526, - 528, 531 - right of sending, 194 - - Dessaix, case of the, 244 - - Destruction of enemy property: - arms and ammunition, 189 - during bombardment, 195 - merchantmen, 242-245 - monuments, 189 - necessary, 188 - provisions, 189 - wanton, 187 - works of art, 189 - - Devastation, general, 190 - - De Wütz _v._ Hendricks, 430 - - Diana, case of the, 236, 422 - - Dieppe, blockade of, 454 - - Diplomacy, 75 - - Diplomatic envoys: - capture of, 154 - carriage of, by neutrals, 517-521 - despatches of, 435 - found on enemy territory by a belligerent, 384 - in besieged towns, 194 - letters of marque granted by, 357 - - Diplomatic intercourse, rupture of, 129 - - Discovery, case of the, 232 - - Distress, vessels in circumstances of, 418, 472 - - Distribution of Prize Money Proclamation (1866), 248 - - Doelwijk, case of the, 505, 556 - - Dogger Bank, case of, 7, 15 - - _Dolus non purgatur circuitu_, 499 - - Domicile of owner determines character of goods, 115 - - Drago doctrine, 25 - - Duclair, British coal-vessels at, 448 - - Dum-Dum bullets, 149, 250 - - Dunant, Jean Henry, on treatment of wounded, 155 - - Dupleix, case of the, 89 - - Dutch East India squadron, attempted seizure of, 350 - - -E - - Edmonds, Colonel, 82 - - Effects of outbreak of war on: - belligerents' property on enemy territory, 139 - belligerents' subjects in enemy State, 131 - diplomatic relations, 129 - merchantmen, 140-143 - _persona standi in judicio_, 133 - States in general, 128 - trade between belligerents' subjects, 135 - treaties, 129 - - El Arish, capitulation of, 287-289 - - Elba, case of the, 424 - - Elisabeth, case of the, 236 - - Embargo: - conception of, 44-46 - different kinds of, 45 - instance of, 40 - practice of, 140, 446 - - Emblems of: hospital ships, 258 medical service of armies, 161 - - Emilia, case of the, 110 - - Ems, exclusion of the river, from blockade, 454 - - Enemy character: - conception of, 106 - of goods, 115-117 - when transferred, 119 - of individuals: - enemy subjects domiciled in enemy country, 110-112 - enemy subjects in neutral countries, 112 - neutral subjects domiciled in enemy country, 109-112, 385 - neutral subjects serving in armed forces of belligerents, - 109 - neutral subjects serving in police and administration of - belligerents, 109 - of vessels, 112-115 - when transferred, 117 - unneutral service creating, 524-526 - - Enemy convoy, 542 - - Enemy property. _See_ Public enemy property; Private enemy - property - - Enemy territory, occupation of: - an aim of warfare, 204 - constructive, 208 - courts of justice, position of during, 214 - duties arising from, 210 - end of, 210 - envoys' position during, 384 - neutral property during, 384 - officials' position during, 213 - rights arising from, 210-213 - treatment of inhabitants during, 210-213 - treatment of subjects of neutrals during, 213, 384 - when effected, 98, 206 - - Enemy vessels: - appropriation of, 238-249 - attack and seizure of, 225-237 - effect of seizure of, 231 - furnishing of, by neutrals, 358, 372, 375, 389, 405-409 - immunity from attack granted to, 232-237 - in neutral waters, 395-397, 400-404 - legitimate attack on, 225 - medical and hospital staff of, 260 - neutral goods on, 232, 542 - postal correspondence on, 237, 385 - religious staff on, 260 - sick bays on, 257 - - Enlistment Act, Foreign: American, 358, 375 British, 358, 375, - 494 - - Escape from captivity, 170, 172 - - Espionage, 196-199, 262, 313 - - Euridice, case of the, 426 - - Explosive bullets, 149, 250 - - -F - - _Facultas bellandi_, 90 - - Fanny, case of the, 542 - - Faravelli, bombardment of Turkish vessels in the harbour of - Beirut by Italian naval forces under Admiral, 269 - - Faucigny, neutralisation of, 88 - - Fécamp, blockade of, 454 - - Federal States, wars by members of, 63, 68, 92 - - Fictitious blockade, 461 - - _Fides etiam hosti servanda_, 273 - - Fiore, 504 - - First Armed Neutrality, 354-356, 370, 461, 462, 481 - - First Coalition, 357 - - Fishing-boats, immunity from seizure, 234 - - Flag: - character of vessel determined by, 112 - transfer of vessels to neutral, 117 - use of false, 201, 262 - - Flags of truce: - abuse of, 203, 281 - bearers, treatment of, 279 - capitulations and, 286 - land warfare and, 278 - meaning of, 278 - naval warfare and, 278 - occasions when used, 278-282, 287, 302 - - Flight. _See_ Escape - - Flinders, safe-conduct granted to, 233 - - Florida, case of the, 443 - - Foodstuffs as contraband, 486 - - Foraging, 181 - - Foreign Enlistment Act. _See_ Enlistment Act - - Formosa, blockade of, 49, 52 - - Forsigtigheten, case of the, 426 - - Franciska, case of the, 465 - - Franco-British wars referred to on: - (1793), property in enemy State of belligerents, 139 - (1803), subjects of belligerents on enemy territory, 131 - (1793), treaty obligations, 372 - - Franco-German War, referred to on: - angary, 447, 448 - armistices, 291, 292, 296, 297 - asylum to belligerents, 411, 415 - belligerents' subjects on enemy territory, 132 - blockade, 454 cable laying, 436 - capitulation, 286 - courts of justice, 215 - diplomatic envoys in besieged towns, 194 - Franctireurs, 96 hostages, 317 - loans, flotation of, 431 - merchantmen, 222, 235, 236, 244 - neutral asylum, 411, 415 - neutrality, 89, 368, 369, 400, 413, 415 - passage of volunteers through neutral territory, 399 - peace treaty, 329, 338 - pilotage, 433 - postliminium, 342 - prisoners of war, 250, 336 - prizes, 244 - reprisals, 306, 308 - sieges, 193 - supplies by neutrals, 427, 428 - suspension of arms, 291 - train-wrecking, 318 - unorganised hostile expedition, 400 - vessels sailing under flag of another State, 233 - volunteer fleet, 100, 303 - - Franctireurs, 96 - - Frankfort, Treaty of (1871), 329, 338, 343 - - Frankfort-on-the-Main, subjugation of, 327 - - Freden, case of the, 441 - - Frederick II. of Prussia: forcible levies by, 205 reprisals - by, 43, 44 - - Frederikshamm, Peace treaty of (1809), 205 - - Free articles, 481, 483, 492-494 - - French Prize Courts set up in America, 357, 395 - - Friendship and Commerce, treaties of, 167, 221, 371, 508 - - Fürst Bismarck, case of the, 390 - - -G - - Gaëta, blockade of, 49 - - Gelderland, case of the, 433 - - General, case of the, 502 - - General Armstrong, case of the, 442 - - Genêt, letters of marque granted by, 357, 395 - - Geneva: Court of Arbitration, 444 Société d'utilité publique, 155 - - Geneva Convention: - adaptation of the principles of, to naval warfare, 80, 82, - 252-262 - application of the, 163 - general provisions of the, 164 - non-combatants and the, 415 - origin of the, 154 - prisoners and the, 151, 250 - wounded and dead and the, 80, 154-165, 181 - - Geneva Cross, 161, 162, 164, 203, 258 - - Genoa, capitulation of, 284 - - German coast, blockade of, 454 - - German contract for felling trees in French forests, 342 - - Gessner on carriage of contraband, 504 - - Good offices: - complaints by belligerents to neutrals settled by, 303 - duty of asking for, 13 - duty of offering, 10, 13 - duty of receiving offer of, 13 - Hague Convention, rules regarding, 12-14 - mediation compared with, 11 - purpose of, 10, 328 - Russo-Japanese War and, 15 - value of, 14 - - Goods sold by and to enemy subjects, enemy character of, 115, - 119, 135-138, 249 - - Government officials, deposition by enemy of, 214 - - Greece, blockades of, 48, 49, 51 - - Grossovoi, case of the, 422 - - Grotius, cited on: - armistices, 295, 297 - captivity, 166 - contraband, 480, 481 - enemy subjects on belligerent's territory, 110 - declaration of war, 121 - destruction of enemy property, 189 - neutrality, 349, 361 - - Guerilla war, 70, 190, 209 - - -H - - Hague Conventions concerning: - bombardment by naval forces in time of war (IX.), 83, 265, - 268-270 - capture in maritime war, restrictions on the exercise of the - right of (XI.), 83, 105, 233, 234, 237, 250, 360, 385, - 522-524, 526 - commencement of hostilities (III.), 82, 123-127, 363, 374 - debts, employment of force for the recovery of contract - (II.), 25, 46 - disputes, pacific settlement of (I.), 6, 12-14, 20, 23-33, - 122 - Geneva Convention, adaptation of the principles of (X.), 82, - 236, 250, 251, 252-262, 274, 413, 424, 425 - International Prize Court, establishment of an (XII.), 108, - 114, 117, 240, 241, 245, 360, 552, 555, 563, 565-579 - merchant ships at the outbreak of hostilities, status of - enemy (VI.), 83, 140-143, 235 - merchant ships, conversion of, into war-ships (VII.), 83, - 103, 360, 376 - mines, laying of automatic submarine contact (VIII.), 83, - 227-229, 360, 445, 463 - neutral Powers and persons in war on land, rights and duties - of (V.), 83, 94, 107, 108-110, 359, 364, 371, 382, 383, - 384, 387, 389, 390, 393, 398, 399, 412, 414, 427, 431, - 434, 435, 448 - neutral Powers in maritime war, rights and duties of - (XIII.), 83, 359, 376, 380, 382, 383, 384, 389, 394, - 395, 396, 400, 401-404, 408, 418-423, 427, 432, 436, - 441, 443, 445, 494 - war on land, laws and customs of (IV.), referred to on: - angary, exercise of right of, 448 - armistices, 290, 291, 293, 296, 297, 298 - assault, bombardment and siege, 192-195 - booty, 177 - Bureau of Information, 171 - capitulations, 286, 289 - compensation, 320, 438 - espionage, treason, ruses, 196-199, 201, 202, 313, 315 - flags of truce, 278-281 - Geneva Convention, 80 - irregular forces, guerilla bands and levies _en masse_, - 70, 96, 97, 313 - killing and wounding, 147, 148 - means of land warfare, 145, 148 - means of securing legitimate warfare, 301, 304, 308, 319, - 321 - non-combatants, 95 - occupation of enemy territory, 206, 207, 211, 214 - parole, 170 - _persona standi in judicio_, 134 - prisoners of war, 167, 169, 172, 250, 336 - private individuals, 153, 298 - property in enemy State, 140, 174-182, 188-190 - property of the dead, 163, 274 - quarter, 147 - relief societies, 171 - requisitions and contributions, 184, 185, 186, 438, 448 - telegraph cables, 271 - - Hague Court of Arbitration. _See_ Permanent Court of Arbitration - - Hague Declarations concerning: - asphyxiating gases, prohibition of use of, 82, 150, 250 - bullets, expanding, prohibition of use of, 82, 149, 250 - projectiles, prohibition of discharge of certain, 82, 150, - 227, 250 - - Hague Peace Conferences: - of 1899: 17, 81, 149, 150, 156, 222, 252; - of 1907: 81, 108, 123, 140, 222, 223, 224, 233, 234, 252, - 320, 383 - - Haimun, case of the, 437 - - Hale, case of Captain Nathan, 199 - - Hall, on requisitions and contributions in naval warfare, 264 - - Halleck, on: - abuse of flag of truce, 281 - ruses, 263 - stratagems and perfidy, 202 - - Hanover, subjugation of, 327 - - Hansa, the, 62, 219 - - Harmony, case of the, 110 - - Hautefeuille, on: - justification of blockade, 455 - right of visitation of neutral vessels, 534 - - Hay-Pauncefote Treaty (1901), 89 - - Heads of States: - power of making treaties when prisoner, 331 - violence against, 147, 153 - - Heffter on occupation of enemy territory, 205 - - Heilborn, on war material on neutral territory, 416 - - Henfield, Gideon, case of, 358 - - Hertha, case of the, 89 - - Herzog, case of the, 502, 552 - - Hesse-Cassel: - case of the Domains of, 344 - subjugation of, 327 - - Hipsang, case of the, 548 - - Hobbs _v._ Henning, 503 - - Holland, blockade of, 49 - - Holland on: - armistices, 290 - bombardment, 266 - contraband, 522 - doctrine of continuous voyage, 500, 503 - indemnities, 180 - pacific blockade, 48 - release of neutral prize, 552 - - Hon-kohe Bay, Russian fleet in, 404 - - Horses as contraband, 486 - - Hospital ships, 236, 254-257 emblem of, 258 - - Hostages, 153, 213, 246, 317-319 - - Hostilities: - between belligerents. _See_ War - by and against neutrals, 386, 387 - effect of simple cessation of, 323, 324 - instances of simple cessation of, 323 - - Hübner, proposal regarding Prize Courts, 559 - - Huddy, Joshua, case of, 306 - - Hussar, case of the, 263 - - -I - - Icona, case of the, 548 - - Iltis, case of the, 424 - - Imina, case of the, 503 - - Indemnities for: - neutral cargo on destroyed enemy vessels, 244, 245 - neutral innocent cargo on destroyed neutral vessels, 550 - private property, 142, 180, 182, 184 - - Indians, as members of regular forces, 99 - - Industrie, case of the, 525 - - Inflexible, case of the, 282 - - Information regarding military and naval operations, 211, 434 - - Inquiry Commissions, 7 - - Institute of International Law on: - aerial warfare, 151 - angary, 447 - bombardment, 266-268 - capture, 546 - carriage of contraband, 504, 510 - commencement of war, 123 - contributions and requisitions, 265 - effect of war on treaties, 131 - insurrection, 92, 366 - laws of war, 81 - mines, sub-marine, 229, 445 - neutrality, 408 - pacific blockade, 50, 53 - Prize Courts, 553, 560 - prizes, 244 - reprisals, 308-309 - submarine cables, 271, 272 - visitation, 534 - - Insurgents as belligerents, 69, 92 - - Intercourse: - between subjects of belligerents, 135-138, 275, 333 - between subjects of neutrals and belligerents, 117, 352, - 365, 385, 428 - - International Bureau of the International Court of - Arbitration, 27 - acts as registry for Commissions at the Hague, 8 - acts as registry for the International Prize Court, 562, - 569, 573, 579 - - International Commission of Inquiry: - in the Dogger Bank case, 7, 15 - procedure at an, 7-9 - - International Conference at the Hague (1904), 256, 257 - - International Convention for the Protection of Submarine - Telegraph Cables, 271 - - International Court of Arbitration. _See_ Permanent Court of - Arbitration - - International Postal Union, in time of war, 130 - - International Prize Court: - action in damages in the, 577-579 - Administrative Council of the, 569 - competence of the, 529, 541, 569-571 - constitution of the, 565-569 - Convention (XII.) for the establishment of an, 563 - costs of parties before the, 576 - expenses of the, 576 - law to be applied by the, 571 - personnel of the, 565 - procedure of the, 572-577, 578 - projects for an, 360, 559-563 - registry of the, 569, 573, 579 - seat of the, 568 - tasks for the, 542, 543, 544, 545, 554, 557 - - International Rivers, blockade of, 454 - - Intervention: - conception of, 54 - distinguished from participation, 54 - illegitimate warfare and, 302 - instance of, 388 - mode of, 55 - right of, 304 - time of, 55 - - Invasion in contradistinction to occupation, 98, 206 - - Invincible, case of the, 282 - - Ionian Islands, neutrality of, 88, 369 - - Irregular forces, definition of, 96 - - Italian Marine Code (1865), 222 - - Italian Prize Commission, 556 - - -J - - Jakoga, Major, case of, 199, 315 - - Jameson raid, 62 - - Jemchug, case of the, 423 - - Johanna Emilie, case of the, 110 - - Joinville, Prince de, on bombardment, 266 - - Jus: angariae, 45, 446 belli, 91 postliminii, 339 _See also_ Right - - -K - - Kaiserin Maria Theresia, case of the, 390 - - Kamranh Bay, Russian fleet in, 404 - - Keith, Lord, and capitulation of El Arish, 288 - - Kléber, General, and capitulation of El Arish, 287 - - Kleen, on carriage of contraband, 504 - - Knight Commander, case of the, 548 - - Korea, 87 as theatre of war, 387, 395 - - Korietz, case of the, 388, 424, 442 - - Kow-shing, case of the, 114, 424 - - _Kriegs-manier_, 84 - - Kruger, President, conveyance to Europe, 433 - - -L - - La Santissima Trinidad, case of the, 405 - - Lambermont, Baron, cited on private individuals who commit - hostile acts, 66 - - Land warfare: - aims of, 144 - assault, 191-193 - asylum during. _See_ Neutral asylum bombardment, 191-195 - captivity. _See_ Captivity - contributions, 153, 186, 212 - convoys of evacuation, 160 - dead, treatment of the, 162 - distinguished from sea warfare, 145 - emblems denoting medical establishments and personnel, 161, - 203 - enemy property. _See_ Public enemy property; Private enemy - Property - espionage, 196-199 - expanding bullets, 149 - explosive bullets, 149 - explosives from balloons, 150 - flags of truce, 278 - killing of combatants, 146 - lawful practices in, 144, 148 - means of, 144 - medical establishments, units, and material, 158, 195, 493 - medical personnel, 159 - objects of means of, 145 - occupation. _See_ Enemy territory, occupation of - prisoners, who may be made, 151, 152, 153, 169. _See also_ - Prisoners of War - projectiles: - from balloons, 150 - diffusing noxious gases, 150 - quarter, refusal of, 147 - requisitions, 153, 183-186, 212 - ruses, 200-203 - sick, treatment of, 154-165 - siege, 191-194 - stratagems, 200-203 - treason, 199 - unlawful practices in, 144, 148, 192, 193 - violence against enemy persons, 146, 151, 153 - wounded, treatment of, 154-165 - wounding of combatants, 146, 148 - - Lapérouse, Count, granted safe-conduct, 233 - - Laws of war: binding force of, 83 - development of, 79-83 - origin of, 78, 79 - treaties regarding, 79-83 - - Legitimate warfare, means of securing, 300-321 - - Le Hardy contre La Voltigeante, 111 - - Lena, case of the, 422 - - L'Espiègle, case of the, 443 - - Letters of marque, 42, 46, 100, 220, 239, 351, 357, 399, 534 - - Levies: - _en masse_, 97, 152, 190, 313 - forcible, 205, 211 - on neutral territories forbidden, 398 - - Licences: - special, of ingress and egress during blockade, 453 - to trade, 275 - - Lichtenstein, war with Prussia, 323 - - Lieber, on rules of war, 80 - - Lien on war material, 416 - - Lion, case of the, 424 - - Lippencott, Captain, case of, 307 - - Loans, 430-432 - - London: Declaration of. _See_ Declaration of London - Naval Conference of (1908-9), 108, 360, 536, 577 - Treaty of (1863), 88 - - Louis XIV.: - Ordinance of 1681, concerning neutral property, 219 - practice of embargo, 446 - - Louis Napoleon, award of, in the case of the General Armstrong, 442 - - Ludwig, case of the, 244 - - Lushington, on blockade, 462, 463, 464 - - Luxemburg, neutrality of, 91, 368, 393, 413 - - Luxor, case of the, 507, 558 - - -M - - Madison, Mr., reprisal by, 307 - - Magellan, Straits of, neutralisation of, 89 - - Mailbags during war, 237, 385, 524 - - Mailboats during war, 236, 526, 531, 535 - - Malacca, case of the, 102 - - Manchuria, 87, 387, 395 - - Man-of-war, neutral, as an asylum, 423 - - Manouba, case of the, 531 - - Marauding, 316 - - Maritime Convention of St. Petersburg (1801), 356, 536 - - Martens, von, 18 - - Mason, Mr., case of seizure of, 519, 530 - - Mediation, 10-15 - difference between good offices and, 11 - duty of asking for, 13 - duty of offering, 10, 13 - duty of receiving, 13 - Hague Convention, rules regarding, 12-14 - legal value of, 5 - occasions for, 10, 303, 328 - particular form of, 14 - right of offering, 10, 15 - value of, 14 - - Mediatorial Conference possible, 10 - - Medical establishments, &c. _See_ Land Warfare, _also_ Naval - warfare - - Menam, blockade of, 49 - - Menou, General, and capitulation of El Arish, 288 - - Merchantmen, enemy: - appropriation of, 218-224, 238-249 - attacking, 313 - attack on, 104, 225, 226 - conversion into men-of-war, 100-104 - conversion into men-of-war after capture, 104, 231 - crews of, 104, 250 - destruction of, 242-245 - immunity from seizure of, 234, 235 - neutral goods on, 218-220, 244, 384 - ransom of, 245 - restoration of, 247 - sale of, 117, 248 - sale of goods on, _in transitu_, 119, 249 - seizure of, 231 - status of, at outbreak of war, 140-143 - voyage of, at outbreak of war, 235 - - Merchantmen, neutral: - crews of, 250 - enemy goods on, 115, 218-224, 356, 385 - giving transport to belligerents, 433, 525 - rendering unneutral service, 386, 434, 524 - rescuing wounded, &c., 259 - under convoy, 355, 535, 543 - under enemy flag, 112-115, 233, 248 - - Messina, blockade of, 49 - - Meteor, case of the, 405 - - Metz, battle of, 393, 413 - - Mexico, blockade of, 49 - - Military operations and neutrals, 386-397 - - Military preparations and neutrals, 397-409 - - Militia, 94 - - Mines: - Convention concerning the laying of, 228, 463 - floating mechanical, 227-231 - submarine contact, 227-231, 445, 463 - - Mitylene, seizure of the island of, 43 - - Modena, subjugation of, 327 - - Modeste, case of the, 441 - - Money as contraband, 487 - - Montara, case of the, 114 - - Moynier, Gustave, 155 - - Municipal neutrality laws, 364, 375, 418, 422 - - Municipal officials, deposition by enemy, 214 - - -N - - Nancy Court of Appeal, case of, 215 - - Naniwa, case of the, 114, 423 - - Napoleon I.: - act of reprisals by, 131 - Berlin decrees of (1806), 357, 453 - seizure of works of art by, 177 - troops ordered by, to march through neutral territory, 391 - - Nassau, subjugation of, 327 - - Nationality of owner determines character of goods, 116 - - Naval Code: Italian, 222 United States. _See_ United States - - Naval Conference of London. _See_ London - - Naval Prize Act (1864), 245, 247 - - Naval Prize Bill (1911), 240, 245, 247 - - Naval warfare: - aims of, 216 - asylum during. _See_ Neutral asylum - bombardment of enemy coast, 266-270 - cables, interference with submarine, 271 - contributions, 264 - dead, treatment of, 254 - enemy merchantmen. _See_ Merchantmen; Prizes - espionage, 262 - flags of truce, 278 - French Ordinances relating to, 219 - hospital ships, 236, 254-257 - hospital staff on ships, 260 - law of, impending codification, 224 - lawful practices, 217 - means of, 216, 225 - medical staff on ship, 260 - objects of, 218 - prisoners, who may be made, 250 - private property at sea during, 218-223 - prizes. _See_ Prizes; Prize Courts - religious staff on ship, 260 - requisitions, 264 - restrictions on the right of capture, 232-237 - ruses, 262 - shipwrecked, treatment of, 253 - sick, treatment of, 253 - treason, 262 - unlawful practices, 217 - violence: - against combatants, 249 - against non-combatants, 250 - against enemy civilians, 251 - wounded: - articles destined for the, 493 - treatment of, 253 - neutral ships assisting, 259, 423-425 - - Navarino, battle of, 48 - - Negotiation: - conception of, 6 - effect of, 9 - importance of, 9 - legal value of, 5 - peace, 328 - procedure during, 6 - - Negroes, as members of regular forces, 99 - - Nelson, 356 - - Nereide, case of the, 542 - - Netherlands, right of convoy claimed by the, 535 - - Neumayr de Ramsla, 349 - - Neutral asylum: - abuse of, 420-423 - exterritoriality of men-of-war in, 419 - facilities rendered to vessels in, 402, 404, 420, 422, 423 - fugitive soldiers and, 413-415 - in general, 409 - land and naval forces distinguished as regards, 417 - land forces and, 409-416 - naval forces and, 417-425 - neutral men-of-war as, 423 - non-combatants of belligerent forces and, 415 - option of State to grant, 417 - prisoners of war and, 410, 419 - vessels in distress in, 418 - war material in, 415 - - Neutral goods: - innocent, on destroyed neutral vessels, 550 - on enemy men-of-war, 232, 542 - on such enemy merchantmen as are being destroyed, 244 - - Neutralisation, temporary, 89 - - Neutralised States as belligerents, 91, 93, 386-389 - - Neutrality: - angary, right of, 446-449 - armed, definition of, 369 - the First and the Second. _See_ First Armed Neutrality; - Second Armed Neutrality - asylum, to land forces, 409-416 - naval forces, 417-425 - war material, 415 - belligerents to recognise, 367 - benevolent, 370 - blockade. _See_ Blockade characteristics of, 361-368 - civil war and, 365 - commencement of, 373-377 - conception of, 361 - contraband. _See_ Contraband of war Conventions, 383 - conventional, 369 - declarations of, 374 - definition of, 361 - development and institution of, 347-360 - different kinds of, 368-372 - end of, 377 - in general, 369 - impartiality, contents of duty of, 362, 381, 383 - instances of, 350 - intercourse during, no cessation of, 365, 385 - knowledge of war necessary for, 373 - laws prescribing attitude of, 375-377 - military operations and, 386-397 - military preparations and, 397-409 - oath of, 212, 364 - partial, 369 - perfect, 370 - perpetual, 368 - qualified, 370-372, 389, 392 - rights and duties derived from, 363, 378-386 - rule of 1756, 114, 353, 499 - treaties affecting, 371-372 - violation of. _See_ Violation of neutrality - voluntary, 369 - - Neutrals: - asylum. _See_ Neutral asylum - belligerents occupying territory of, 394 - conduct in general of, 362, 378 - depôts and factories of belligerents on territory of, 397 - fugitive soldiers in custody of, 413-415 - hostilities by and against, 386-389 - impartiality of, 362, 381-383, 386 - intercourse between enemy and, 365, 385 - loans by, to belligerents, 430 - on the part of subjects of, 430-432 - men-of-war, built and fitted out by, 405-409 - passage of, through waters of, 393 - rescuing wounded, &c., 259, 424 - supplied by, 389 - military operations and, 386-397 - information regarding, 434-437 - military preparations and, 397-409 - mines, laying of, by, 445 - naval operations and, 400-409 - information regarding, 434-437 - organisation of hostile expeditions by, 400 - pilotage by, 432 - Prize Courts on territory of, 395 - prizes of belligerents and, 395 - relations of, with belligerents, 378-449 - representation at International Prize Court, 569 - rights and duties of, 363, 378-386 - services by, to belligerents, 389, 432-437 - subjects of, fighting for belligerents, 390 - supplies by, to belligerents, 375, 405-409, 426-430 - on part of subjects of, 427-430 - transport by, 424, 433-434 - troops, levy of, by, 398 - supplied by, 389, 398 - vessels of, rescuing wounded, 259, 424 - - Neutral territory: - as a base of naval operations forbidden, 400-404 - as an asylum, 410-416, 425 - despatches carried over, 435 - other uses made of, by belligerents, 394-399, 400 - passage through, 372, 382, 391-394, 399 - shipwrecked, the, on, 424 - - Newspaper correspondents in naval warfare, 437 - - Niagara, case of the, 465 - - Nickolsburg, Preliminaries of, 329 - - Nigretia, case of the, 519 - - Nimeguen, Peace of (1678), 61 - - Non-combatants: - attached to armies, 95, 151, 158-161, 169 - attached to naval forces, 250, 254-257, 415 - - Non-hostile relations, 273-299 - - North-Eastern Boundary Dispute between U.S.A. and Great Britain, 19 - - North-German Confederation, 100 - - North Sea outrage. _See_ Dogger Bank - - Northern war, selling of territories during, 205 - - Notification: - of blockade, 457-459 - of bombardment, 194 - of contraband, 484, 488 - of outbreak of war, 125, 374 - - Novara, case of the, 233 - - Novik, case of the, 423 - - -O - - Occupation of enemy territory. _See_ Enemy territory - - Oki, Captain Teisuki, 199, 315 - - Oldhamia, case of the, 548 - - Oleg, case of the, 423 - - Open Sea: - angary, right of, on, 447 - belligerents in neutral ports leaving for, 401, 402, 421 - capture on the, 526 - contraband on, 495 - despatch carriers on, 526, 528, 531 - enemy property found on, by belligerents, 547 - goods on neutral vessels on, 495-514 - jurisdiction over foreign subjects on, 364 - mechanical mines in, 227 - neutral merchantmen on, 128 - neutralisation of parts of, 88-90 - order on the, in thirteenth century, 239 - region of war, 85 - telegraph cables in, 271, 272 - visitation on, 534 - - Orange Free State, annexation of, 327 - effective occupation of, 209 - - Ordinances by France on neutral ships and goods, 219 - - Orinoco Steamship Company, case of, 19 - - Orozembo, case of the, 518 - - Outbreak of war: - after declaration, 123 - after initiative hostile acts, 126 - after ultimatum, 125 - effects of. _See_ Effects of outbreak of war - in general, 121 - notification of, 125 - - -P - - Pacific blockade: - admissibility of, 50, 52 - development of, 48 - disposal of vessels seized during, 52 - instances of, 48, 49, 51, 52 - mode of, 52 - third States and, 51 - value of, 53 - variations of practice in, 51 - war not necessarily caused by, 53 - - Pacifico, Don, case of, 41, 49 - - Palme, case of the, 233 - - Panama Canal, neutralisation of the, 89 - - Papal States, 327 - - Paris: - Act of November (1815), 392 - Declaration of (1856). _See_ Declaration of Paris - Peace treaty of. _See_ Peace treaty - - Parma, subjugation of, 327 - - Parole, release on, 170, 172 - - Pascal, case of the, 424 - - Passage through neutral territory: - of individuals intending to enlist, 399 - of prisoners of war and wounded, 412 - of troops, 372, 382, 391 - of wounded, 392 - - Passports, 276 - - Paul, Emperor, armed neutrality in reign of, 355, 356 - - Paxo, neutralisation of, 88, 369 - - Peace: - negotiations for, 328 - preliminaries of, 329 - restoration of condition of, 332 - - Peace Conferences. _See_ Hague Peace Conferences - - Peace Societies, so-called, 22 - - Peace treaty of: - Amiens (1802), 332 - Berlin (1878), 330 - Bukarest (1886), 92 - Frankfort (1871), 329, 338, 343 - Frederikshamm (1809), 205 - London (1863), 88; (1864), 88 - Nimeguen (1678), 61 - Paris (1856), 11 - Portsmouth (1905), 15, 329, 331, 555 - Prague (1866), 329 - Pyrenees (1659), 537 - San Stefano (1878), 330, 335 - Westminster (1654), 535 - Zürich (1859), 329 - - Perfidy, instances of, 202, 263, 281, 285 - - Permanent Court of Arbitration, 13, 22, 23, 26, 157, 561 - Administrative Council of the, 565, 569 - International Bureau of the, 8, 27, 562, 569, 573, 579 - procedure of the, 27-31 - - Persia, emblem of medical service, 161, 259 - - _Persona standi in judicio_ of alien enemies, 133 - - Peterburg, case of the, 102 - - Peterhoff, case of the, 454, 470, 500, 501 - - Phillimore on: - blockade, 462 - continuous voyage, 500 - reprisals, 42 - violations of neutrality, 371 - - Pillage, 181 - - Pilotage by neutrals, 432 - - Poison in warfare, 85, 148, 193, 249 - - Port Arthur, battle of, 423 - blockade of, 227, 436 - surrender of, 285 - - Portalis, declaration by, 64 - - Portsmouth, Peace treaty of (1905), 15, 329, 331, 555 - - Portugal, treaty affecting neutrality of, 372 - - Postal Convention: - between Great Britain and Holland (1843), 237 - between Great Britain and France (1860), 236 - - Postal correspondence during war 236, 385, 524 - - Postilion, case of the, 112, 115 - - Postliminium: - conception of, 339 - effects of, 340 - illegitimate acts and, 343 - interregnum debars, 343 - legitimate acts unaffected by, 342 - revival of former state of things, 341 - - Prague, Treaty of (1866), 329 - - Preliminaries of peace, 329 - - Prévost, General, reprisal by, 307 - - Princesse Marie, case of the, 548 - - Prisoners of war, 134, 151, 152, 153, 165-173, 250, 306, 308, - 316, 335, 411, 419, 420 - - Private enemy property: - appropriation of, 174, 179-182 - at sea, 218, 221-224 - booty on battlefield, 163, 177, 181 - conveyed into belligerents' territory, 182 - destruction of, 187-191 - during bombardment, 194, 195 - immovable, 179 - on enemy territory, 139-143 - personal, 180 - transport, means of, 180 - utilisation of, 179 - war material, 180 - works of art and science, 180, 195 - - Private individuals: - during siege and bombardment, 193, 194 - hostility in arms of, 97, 152, 312 - intercourse and trade with enemy subjects, 135, 405, - 427-432, 434-437 - of neutral States, treatment of, 363-365 - _persona standi in judicio_, 133 - position at outbreak of war, 131 - position in general as regards war, 63-67 - property of, on enemy territory, 139 - requisitions in kind and service from, 152, 184-187, 211-213 - violence against, 151, 251 - - Privateering, 103, 219, 353 - - Privateers, 99, 357, 372, 534 - - Prize Courts: - adjudication by, 231, 240 - appeal against judgment of, 241, 529, 530, 555, 557 - blockade runners, adjudication of, 476 - captured neutral vessel to be tried by, 510-514, 529, 530, - 544, 547-552 - claims after judgment of, 557 - conduct of neutral vessels to, 547 - continuous voyage and, 499 - discretion of, as to confiscation, 544 - origin of, 238 - practice of, 553 - purpose of, 239 - reform projects for, 559 - territory on which instituted, 240, 395 - - Prizes: - abandonment of, 246 - cargo of, 242 - conduct of, to Prize Court, 241, 546 - crew of, 105, 231, 242, 547 - destruction of, 242, 547 - distribution of prize money, 248 - fate of, 231, 247 - hostage for ransom, 246 - loss of, 246 - neutral goods on, 242, 244, 530 - ransom of, 245 - recapture of, 246, 551 - safe keeping on neutral territory, 395 - sale of, 396 - effect of, 248 - - Property. _See_ Private enemy property; Public enemy property - - Prussian Regulations regarding Naval Prizes, 505 - - Public enemy property: - appropriation of, 174-178, 183 - at sea, 218 - booty on battlefield, 163, 177 - destruction of. _See_ Destruction of enemy - property during bombardment, 195 - immoveable, 174-175 - moveable, 176-177 - on enemy territory, 139 - utilisation of, 175, 176 - - Pufendorf, 295 - - Pursuit, right of. _See_ Right of pursuit - - Pyrenees, Peace treaty of (1659), 537 - - -Q - - Qualification of belligerents, 90-92 - - Qualified neutrality, 370-372, 389, 392 - - Quarter: - duty of giving, 147, 231, 249 - refusal of, 147 - - Quartering of soldiers, 181, 185 - - -R - - Railways, use of, in war, 139, 176, 180, 447, 448 - - Ramillies, case of the, 263 - - Ransom of prize, 245 - - Rapid, case of the, 522 - - Ras-el-Tin Fort, case of, 282 - - Rebellion contrasted with war, 62 - - Rebels, 70 - - Recapture of prizes, 246, 551 - - _Receptum arbitri_, 17 - - Recognition as a belligerent Power, 69 - - Red Cross, 161, 164, 203, 258 - - Red Sea, proposed neutralisation of, 90 - - Region of war, 85-90 - exclusion from, through neutralisation, 88 - - Relief Societies, 171 - - Reparation for: - exercise of right of angary, 385 - violation of neutrality, 352, 380, 442 - - Repatriation, 172, 173 - - Reprisals: - admissibility of, 40, 46, 281, 305 - arbitrariness in, danger of, 306 - by whom performed, 41 - cessation of, 46 - conception of, 38 - embargo, 40, 44. _See also_ Embargo - inception of, 46 - instances of, 131, 147, 306-308 - kinds of, 42, 44 - laws of war not binding in case of, 84 - objects of, 42 - peace, distinguished from war, 46, 305 - proportionate to wrong done, 44 - restriction of, proposed, 308 - value of, 46, 305 - - Requisitions, 153, 181, 183-186, 212, 264, 267 - - Reshitelni, case of the, 389, 442 - - Resistance to visitation, forcible, 540-543 - - Retorsion: - conception and characteristics of, 36 - exercise of, 37 - importance of, 36 - justification for, 37 - reprisals contrasted with, 38 - value of, 38 - - Reuss, M. de, 40 - - Riga, blockade of, 464 - - Right: - of angary, 446-449, 510 - of convoy, 535 - of pursuit of a vanquished army into neutral territory, 352, 387 - of pursuit of a defeated fleet into neutral waters, 352, 387, 422 - of stoppage _in transitu_, 120 - of visit and search, 290, 533 - _See also_ Jus - - Rio de Janeiro, blockade of, 49 - - Rio Grande, blockade of the, 454 - - Rivier, 84 - - Riza Bey, Colonel, made prisoner, 531 - - Roberts, Lord: - action concerning train wrecking, 318 - proclamations during South African War, 318 - reprisal by, 306 - - _Robe d'ennemy confisque celle d'amy_, 219 - - Roche, Hon. J. B., case of, 376 - - Rojdestvensky, Admiral, in territorial waters, 404 - North Sea outrage and, 7 - - Rouen, blockade of, 454 - - Rule of 1756, 114, 353, 499 - - Ruses: - characteristics of, 200 - distinguished from perfidy, 202 - kinds of, 201, 262 - - Russo-Japanese War referred to on: - armistice, 331 - asylum to men-of-war, 422, 423 - booty on battlefield, 182 - capitulation, 285 - contraband, 486, 488 - declaration of war, 123 - destruction of enemy merchantmen, 243 - destruction of neutral prizes, 548 - Dogger Bank case, 7 - disguised soldiery, 202, 302 - enemy subjects on belligerent's territory, 132 - hospital ships, 256 - intervention, 388 - irregular forces, 96 - loans, flotation of, 431, 432 - mechanical mines, 227 - merchantmen at outbreak of war, 235 - neutrality, 87, 359, 375, 387, 390, 422 - peace negotiations, 329, 331 - prisoners of war, 336, 424 - prizes, destruction of, 243 - region of war, 87, 387, 395 - release of neutral prizes, 555 - telegraphic facilities, 436 - unneutral service, 519, 525 - volunteer fleets, 102 - warships in neutral waters, 404 - war treason, 315 - - Russo-Swedish War (1788), referred to on neutrality, 372, 389 - - Russo-Turkish War (1877), referred to on: - flag, use of false, 262 - loans, 431 - merchantmen at outbreak of war, 235 - peace negotiations, 330 - - -S - - Safe-conducts, granting of, 232, 276 - - Safeguards, 277 - - St. Kilda, case of the, 548 - - St. Petersburg: - Declaration of. _See_ Declaration of St. Petersburg - Maritime Convention of (1801), 356, 536 - - Sale of vessels in time of war, 117, 248, 390, 426 - - San Stefano, Peace treaty of, 330, 335 - - Sardinia, subjugation of States by, 327 - - Scott, Sir William: - neutral property on armed enemy vessels condemned by, 542 - on capture of enemy vessels in neutral waters, 443 - on contraband, 503 - on unneutral service, 519 - on vessels under neutral convoy, 543 - _See also_ Stowell, Lord - - Scouting, 197 - - Scouts, use of armed natives as, 99 - - Sea warfare. _See_ Naval warfare - - Search: - resistance to, 540-545 - right of, over merchantmen, 533-540 - during armistice, 290 - - Second Armed Neutrality, 355-357, 370, 461, 468, 481, 536 - - Sedan, battle of, 393 - - Seizure, immunity of vessels from, 232-237 - _See also_ Enemy vessels - - Servia, 62, 91 - - Seven Years' War, forcible levies in, 205 - - Ship. _See_ Enemy vessels; Merchantmen - - Ship papers, 543-545 - - Shipwrecked, treatment of the, 252-262, 424 - - Sicilian sulphur monopoly, 39, 45 - - Sicilies, subjugation of the Two, 327 - - Sick-bays, 257 - - Siege, 191, 193 - - Silesia, passage of troops through, 391 - - Silesian loan, case of the, 44, 557 - - Sinnet, Mr., case of, 376 - - Slidell, Mr., case of seizure of, 519, 530 - - Smith, Sir Sidney, and capitulation of El Arish, 287 - - Smolensk, case of the, 102 - - Solferino, battle of, 155 - - South African Republic: - annexation of, 326, 327 - effective occupation of, 209 - - South African War referred to on: - amnesty, 334 - concentration camps, 190 - devastation, 190 - enemy character, 109 - enemy subjects on belligerent's territory, 132 - hostages, 318 - natives as scouts, 99 - need of an International Prize Court, 561 - neutrality, 359 - neutrals' subjects fighting in the, 109 - passage of troops, 372 - prisoners, 147 - repatriation, 173 - reprisals during, 306 - subjugation, 327 - transport, 433 - vessel, release of, 552 - - Spanish-American War referred to on: - cable laying, 436 - cancellation of treaties, 129 - flag, use of false, 262 - merchantmen at outbreak of war, 235 - - Spanish Armada, prisoners from, on neutral territory, 411 - - Spanish Colonies' War of Independence, sale of vessels in (1825), 426 - - Spies, 196, 262 - - Springbok, case of the, 470, 500, 501 - - Stackelburg, Baron de, case of, 43 - - State differences: - amicable settlement of, 3-33 - four ways, 5 - compulsive settlement of, 34-56 - conception, 34 - four ways, 5, 34 - ultimatums and demonstrations, 35 - war distinguished from, 34 - Law of Nations and, 4 - legal, 3-5 - causes of, 3 - settlement of, 4 - political, 3-5 - causes of, 3 - settlement of, 4 - - States: - duty of, in neutrality, 363 - qualification to make war, 90-93 - - Stephen Hart, case of the, 470 - - Stockholm, Convention of (1905), 89 - - Stoessel, General accused of perfidy, 285 - - Stone-blockade, 450, 463 - - Stoppage _in transitu_, right of, 120 - - Story, Mr. Justice, 501, 542 - - Stowell, Lord: - on immunity of fishing-boats, 234 - on Prize Courts, 554 - _See also_ Scott, Sir William - - Strassburg, 61, 193 - - Stratagems. _See_ Ruses - - Strategic blockade, 452 - - Subjugation: - definition of, 326 - formal end of war, 326 - instances of, 326 - - Submarine cables, 271, 436 - - Submarine mines. _See_ Mines - - Subsidies, 430-432 - - Suez Canal, neutralisation of, 88, 102 - - Suspension of arms, 291 - - Swineherd, case of the, 332 - - Swiss Bundesrath, on treatment of wounded, 155 - - Swiss Federal Council and the Geneva Convention, 164 - - Switzerland, neutralisation of, 91, 348, 358, 363, 368, 369, - 392, 413, 415, 428 - troops marched through, 392 - - Sybille, case of the, 263 - - -T - - Tagus, blockade of the, 49 - - Talbot, case of the, 424 - - Telegraph cable, interference with submarine, 271-272 - use of, by belligerents, 435-437 - - Telegraphy, wireless, 436, 437 - - Temeraire, case of the, 282 - - Tetardos, case of the, 548 - - Tetens, proposal regarding Prize Courts, 560 - - Thea, case of the, 548 - - Theatre of war, 85 - - Torpedoes, 227 - - Trading between belligerent's subjects. _See_ Intercourse - - Train-wrecking, 318 - - Traitors, 105 - - Transfer: of enemy goods, 119 - of enemy vessels, 117 - - Transmission of intelligence for the enemy, 521 - - Transport on the part of neutrals, 424, 433, 434 - - Transvaal. _See_ South African Republic - - Treason, 199, 262, 313-316, 318 - - Treaties: - cancellation of, at outbreak of war, 129 - cancellation through violation by one party, 339 - interpretation of, 20, 26 - of Arbitration, 16, 20, 21 - of Commerce (1871), 221, 509 - (1894), 17 - of Friendship and Commerce (1785), 167, 221, 508 - (1778), 371 - - Treaty of: - Buenos Ayres (1881), 89 - Copenhagen (1830), 542 - Washington (1871), 557 - Westminster (1654), 535 - - Treaty of peace: - amnesty under, 334 - breach of, 338 - competence to conclude, 330 - contracts, suspended, and, 333 - date of, 331 - effects of, 332-337 - forces in distant parts, effect on, 332 - form of, 330 - interpretation of stipulations of, 337 - negotiations for, 328 - normal end of war, 327 - parts of, 330 - performance of, 337 - preliminaries of, 329 - principle of _uti possidetis_, 334 - prisoners of war, release of, 335 - revival of treaties, 336 - - Trent, case of the, 519, 530 - - Trial of captured neutral vessels, 553-558 - - Tripoli, ultimatum threatening occupation of, 126 - - Tsu Shima, battle of, 423 - - Turco-Italian War (1911), referred to on: - bombardment by naval forces, 269, 303 - carriage of contraband, 506 - complaints to neutral Powers during, 303 - mediation, 11 - Red Sea, proposed neutralisation of, 90 - region of war, 87, 89 - rules of the Declaration of London, 360 - subjects of belligerent expelled from enemy territory, 132 - subjects of belligerent on enemy territory, 132 - unneutral service, 531 - - Turco-Servian War (1877), violation of neutrality during, 391 - - Turkey, emblem of medical service of, 161, 259 - - Tuscany, subjugation of, 327 - - Twee Gebroeders, case of the, 443 - - -U - - Ukase of 1809, 357 - - Ultimatum, 35, 125 - - Umpire in arbitration, 16, 32 - - United States of North America: - Foreign Enlistment Act of, 358, 375 - Instructions for the Government of Armies of the, in the - Field (1863), 67, 80, 98 - International Prize Court and the, 577 - neutrality of, 371, 398, 400 - War code: land, 67, 80, 98 - naval 83, 217, 224, 233, 243, 262, 265, 272, 285, 447, - 460, 486 - - Unneutral service, 386, 434 - capture for, 526 - carriage of despatches, 515, 521-524, 528, 531, 532 - consequences of, 526-532 - diplomatic personages, carriage of, for enemy, 519, 532 - enemy character created by, 524 - enemy persons, carriage of, 515, 517-521 - kinds of, 515 - mailboats carrying despatches, 526, 531 - penalty for, 527 - seizure of despatches, 530, 531 - seizure of enemy persons, 530, 531 - transmission of intelligence, 521 - - Uriu, Admiral, in Korean neutral waters, 388 - - _Uti possidetis_, principle of, 324, 334 - - _Usus in bello_, 78 - - -V - - Variag, case of the, 388, 424, 442 - - Vassal States, wars by, 62, 68, 91, 92 - - Vattel on: - armistices, 295 - loans to belligerents, 430 - neutrality, 350 - occupation of territory, 205 - perfidy, 263 - reprisals, 44 - - Vega, case of the, 233 - - Venezuela: - blockade of, 50, 52 - boundary dispute (1900), 18 - - Venus, case of the, 112 - - Versailles, Preliminaries of Peace of, 329 - - Vessels. _See_ Enemy vessels; Contraband vessels - - Victor, case of the, 427 - - Vienna Congress, Act of 1815, 88 - - _Vigilantibus jura sunt scripta_, 295 - - Villafranca, preliminaries of Peace Treaty of, 329 - - Violation of: armistices, 297 - capitulations, 289 - neutral territory, 384 - neutrality, 93, 438-445, 371, 380, 507 - conception of, 438 - consequences of, 439 - distinguished from end of, 439 - mines laid to prevent, 445 - negligence by neutrals conducive to, 444 - neutrals and, 440 - reparation from belligerents for, 352, 380, 442 - what constitutes, 389-409, 412, 422, 426, 429, 430, 433, - 435-437 - peace treaties, 338 - rules of war, 310 - - Violence: - in land warfare, 146-154 - in naval warfare, 249-251 - - Visitation of neutral vessels: - armistice and, 534 - conception of right of, 533 - convoyed vessels, 355, 535-537, 542 - exercise of, 534 - mailboats, 535 - men-of-war, 535 - papers and, 543-545 - private vessels, 535 - procedure, 538 - resistance to, 540-543 - by neutral convoy, 543 - consequences of, 540 - rules regarding, no universal, 537 - search, 539 - stopping vessels for purpose of, 538 - what constitutes, 541 - - Vladimirowka, occupation by the Japanese, 96 - - Voluntary Aid Societies, 158-160 - - Volunteer corps, 94 - - Volunteer fleet, 100-104 - - Vorwärts, case of the, 244 - - Vrow Houwina, case of the, 501 - - -W - - War: - aerial warfare, 150, 192, 207, 227 - armed forces in, 63 - belligerents. _See_ Belligerents - causes of, 72-75 - just, 74 - pretexts distinct from, 75 - cessation of hostilities, simple, 290, 323-324 - characteristics of, 59-72 - civil, 68, 323 - commencement of, 121 - conception of, 60-63 - declaration of, 122-125 - diminution of, 75 - effects of the outbreak of, 128-143 - ends of, 67, 76 - enemy character. _See_ Enemy character - guerilla, 70-72 - illegitimate, 300 - initiative hostile acts, 126-128 - kinds of, 76 - land. _See_ Land warfare - laws of. _See_ Laws of war - legality of, 59 - legitimate, 300 - means of securing, 300-321 - manifestoes of, 121 - naval. _See_ Naval warfare - non-hostile relations of belligerents during, 273-299 - outbreak of, 121-128. _See also_ - Effects of outbreak of war participants in, 62 - poison and poisoned arms in, 85, 148, 193, 249 - _postliminium._ _See_ Postliminium - pretexts for, 75 - private individuals: - status during, 63-67 - hostilities by, 97, 152, 298, 312 - purpose of, 67 - region of, 85-90 - right to make, 91 - sea. _See_ Naval warfare - subjugation. _See_ Subjugation - temporary condition, a, 322 - termination of, 322-332 - territory neutralised in case of, 88-90 - theatre of, 85 - treaty of peace. _See_ Treaty of peace - ultimatum, 125 - violation of rules of, 310 - - War crimes: - conception of, 309 - kinds of, 310-316 - punishment for committing, 316 - effect of treaty of peace on, 335 - - War criminals: - in land warfare, 66, 96, 97, 197, 289, 303, 334 - in naval warfare, 226 - - War of Secession (1861), 63 - - Washburne, case of Mr., 194 - - Washington: Three Rules of, 18, 406, 444 Treaty of, 557 - - Wellington, Duke of, on bombardment, 266 - - Westlake, proposition for Court of Appeal in prize cases, 560 - - Westminster, Treaty of (1654), 535 - - Wheaton, on resistance to visitation, 542 - - William, case of the, 499 - - Wireless telegraphy, use of by belligerents, 435-437 - - Wounded: - articles for the use of, 493 - treatment of, 154-165, 252-262, 393 - - -Z - - Zouche, on contraband, 508 - - Zürich, Peace of (1859), 329 - - - - -THE END - - - - -Printed by BALLANTYNE, HANSON & CO. - -Edinburgh & London - - - - - -End of the Project Gutenberg EBook of International Law. 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