AMICABLE SETTLEMENT OF DISPUTES AND NON-HOSTILE REDRESS
88. +The Amicable Settlement of Disputes.+
(_a_) Diplomatic negotiation.
(_b_) Good offices.
(_c_) Conferences and congresses.
(_d_) Arbitration.
89. +None-hostile Redress.+
90. +Retorsion.+
91. +Reprisals.+
92. +Embargo.+
93. +Pacific Blockade.+
§ 88. The Amicable Settlement of Disputes
It is now generally admitted that in the settlement of international
disputes war should be regarded as a last resort. Other means of
amicable settlement should be exhausted before any measures of force are
tried. Among these amicable means the most common are diplomatic
negotiations, the good offices or friendly mediation of a third state,
conferences and congresses, and arbitration.[282]
(_a_) The settlement of disputes =by diplomatic negotiation= follows the
ordinary course of diplomatic business, whether committed to the regular
or to special agents. The larger number of disputed questions are
settled by diplomatic negotiation.
(_b_) In the case of disputes which are not easily settled by diplomatic
negotiations, a third state, friendly to the disputants, sometimes
offers its =good offices= as mediator to bring about an agreement. The
office of the mediating state is not to judge upon the merits of the
disputed question, but to devise a practicable means of settlement of
the question in view of the circumstances of the dispute. The tender of
good offices is a measure involving the least possible interference in
the dispute, and cannot be regarded as other than a friendly act. There
is no obligation to accept the tender, and either disputant may decline
it without offense. One of the disputants may request the tender of good
offices or of mediation. The distinction between good offices and
mediation is not always made in practice, though it may be said that
good offices extend only to the establishing of bases of negotiations
and the commencement of the negotiations. The more direct work of
carrying on the negotiations is of the nature of mediation. Either party
may at the beginning or at any time refuse the mediator's offices.
(_c_) The settlement of disputes or of questions liable to give rise to
disputes by =conferences and congresses= is common, and implies a
meeting of representatives of the interested parties for consideration
of the terms of agreement upon which a question may be adjudicated. In
general the conclusions of a congress are more formal and are regarded
as having more binding force than those of a conference, though this
distinction is not always made. States not directly interested may
participate in conferences or congresses, and sometimes as mediators
play a leading part.
(_d_) =Arbitration= involves an agreement between the disputants to
submit their differences to some person or persons by whose decision
they will abide. Arbitration has been common from early times. It is now
becoming common to insert in treaties clauses providing for arbitration
in cases of disagreement upon the interpretation of clauses of the
treaty, and to resort more and more to this method of settling disputed
international questions.
The parties submitting the question to arbitration usually provide for
the naming of the arbitrator or arbitrators, and for the rules and
principles in accord with which the decision shall be made.
It is generally admitted that a decision is not binding if it is not in
accord with the principles to which the disputants had agreed; if it is
flagrantly unjust; if it is equivocal and itself open to dispute; or if
the decision is obtained by fraud or force.
Of about thirty cases of arbitration during the nineteenth century, the
decision in one case was rejected by both parties to the dispute, and in
one case rejected by one of the parties. In several other instances one
party has refused to submit to arbitration questions readily lending
themselves to such settlement, even though requested by the other
party.[283]
§ 89. Non-hostile Redress
Good offices, mediation, and arbitration can only extend to
international differences of certain kinds. Such measures are not
applicable to all cases of disagreement, nor are such measures always
acceptable to both parties. Consequently certain other practices have
arisen with the view of obtaining satisfaction by measures short of war.
Formerly an individual might be commissioned by a letter of marque and
reprisal to obtain satisfaction from a state for injuries which he had
suffered. This practice is, however, discontinued,[284] and satisfaction
must be obtained through the proper state channels. The means by which
satisfaction may be claimed vary, and are usually classed as retorsions,
reprisals, of which embargo is an important variety, and pacific
blockades.
§ 90. Retorsion
Retorsion is a species of retaliation in kind.[285] Retorsion may not
consist in acts precisely identical with those which have given offense,
though it is held that the acts should be analogous. The offense in
consequence of which measures of retorsion are taken may be an act
entirely legitimate and desirable from the point of view of the
offending state. Another state may, however, consider the act as
discourteous, injurious, discriminating, or unduly severe. In recent
years commercial retorsion has become a very important means of
retaliation which, bearing heavily upon modern communities, may lead to
a speedy settlement of difficulties. The tariff wars of recent years
show the effectiveness of commercial retorsion, _e.g._ the measures in
consequence of the tariff disagreements between France and Switzerland
in 1892. These measures of retorsion should always be within the bounds
of municipal and international law.
§ 91. Reprisals
Reprisals are acts of a state performed with a view to obtaining redress
for injuries. The injuries leading to reprisals may be either to the
state or to a citizen, and the acts of reprisal may fall upon the
offending state or upon its citizens either in goods or person. The
general range of acts of reprisal may be by (1) the seizure and
confiscation of public property or private property, and (2) the
restraint of intercourse, political, commercial, or general. In extreme
cases, acts of violence upon persons belonging to one state, when in a
foreign state, have led to similar acts upon the part of the state whose
subjects are injured against the subjects of the foreign state. This
practice is looked upon with disfavor, though it might be sanctioned by
extremest necessity. Acts of retaliation for the sake of revenge are
generally discountenanced.
§ 92. Embargo
Embargo consists in the detention of ships and goods which are within
the ports of the state resorting to this means of reprisal. It may be
(1) civil or pacific embargo, the detention of its own ships, as by the
act of the United States Congress in 1807, to avoid risk on account of
the Berlin Decree of Napoleon, 1806, and the British Orders in Council,
1807; or (2) hostile, the detention of the goods and ships of another
state. It was formerly the custom to detain within the ports of a given
state the ships of the state upon which it desired to make reprisals,
and if the relations between the states led to war to confiscate such
ships. Hostile embargo may now be said to be looked upon with disfavor,
and a contrary policy is generally adopted, by which merchant vessels
may be allowed a certain time in which to load and depart even after the
outbreak of hostilities. The Naval War Code of the United States
provides that "Merchant vessels of the enemy, in ports within the
jurisdiction of the United States at the outbreak of war, shall be
allowed thirty days after war has begun to load their cargoes and
depart."[286] By the proclamation of the President of the United States
declaring that war with Spain had existed since April 21, 1898, it was
also declared that "Spanish merchant vessels, in any ports or places
within the United States, shall be allowed till May 21, 1898, inclusive,
for loading their cargoes and departing from such ports or places."[287]
Spain, by the royal decree of April 23, 1898, declared "A term of five
days from the date of the publication of the present royal decree in the
_Madrid Gazette_ is allowed to all United States ships anchored in
Spanish ports, during which they are at liberty to depart."[288]
§ 93. Pacific Blockade
Pacific blockade is a form of reprisal or constraint which consists in
the blockading by one or more states of certain ports of another state
without declaring or making war upon that state. In the conduct of such
blockades practice has varied greatly. In general, however, the vessels
of states not parties to the blockade are not subject to seizure. Such
vessels may be visited by a ship of the blockading squadron in order to
obtain proof of identity. Whether vessels under foreign flags are liable
to other inconveniences or to any penalties is not defined by practice
or opinion of text writers. "The Institute of International Law," in
1887, provided that pacific blockade should be effective against the
vessels of the blockaded party only. This position seemed to be one
which could be generally accepted. From the nature of pacific blockade
as a measure short of war, its consequences should be confined only to
the parties concerned. The pacific blockade of Greece in 1886 extended
only to vessels flying the Greek flag,[289] but the admirals of the
Great Powers in the pacific blockade of Crete in 1897 endeavored to
establish the right to control other than Greek vessels if they carried
merchandise for the Greek troops or for the interior of the island. As
no case arose to test the claim, this question cannot be regarded as
settled.
The provisions of the pacific blockade of Crete in 1897 were as
follows:--
"The blockade will be general for all ships under the Greek flag.
"Ships of the six powers or neutral may enter into the ports occupied
by the powers and land their merchandise, but only if it is not for
the Greek troops or the interior of the island. These ships may be
visited by the ships of the international fleets.
"The limits of the blockade are comprised between 23° 24' and 26° 30'
longitude east of Greenwich, and 35° 48' and 34° 45' north
latitude."[290]
The Secretary of State of the United States, in acknowledging the
receipt of the notification of the action of the powers, said, "I
confine myself to taking note of the communication, not conceding the
right to make such a blockade as that referred to in your communication,
and reserving the consideration of all international rights and of any
question which may in any way affect the commerce or interests of the
United States."[291] The weight of authority supports the position of
the United States.
The first attempt to establish a blockade without resorting to war was
in 1827, when Great Britain, France, and Russia blockaded the coasts of
Greece with a view to putting pressure upon the Sultan, its nominal
ruler. Since that time there have been pacific blockades varying in
nature: blockade of Tagus by France, 1831; New Granada by England, 1836;
Mexico by France, 1838; La Plata by France, 1838 to 1840; La Plata by
France and England, 1845 to 1848; Greece by England, 1850; Formosa by
France, 1884; Greece by Great Britain, Germany, Austria, Italy, and
Russia, 1886; Zanzibar by Portugal, 1888; and Crete by Great Britain,
Germany, Austria, France, Italy, and Russia, 1897. From these instances
it may be deduced (1) that pacific blockade is a legitimate means of
constraint short of war, (2) that those states parties to the blockade
are bound by its consequences, (3) that as a matter of policy it may be
advisable to resort to pacific blockade in order to avoid the more
serious resort to war, and (4) that states not parties to the pacific
blockade are in no way bound to observe it, though their ships cannot
complain because they are required to establish their identity in the
ordinary manner.
PART IV
INTERNATIONAL LAW OF WAR
CHAPTER XVI
WAR
94. +Definition.+
95. +Commencement.+
96. +Declaration.+
97. +Object.+
98. +General Effects.+
§ 94. Definition
Gentilis, one of the earliest writers on the laws of war, defined war in
1588 as "a properly conducted contest of armed public forces."[292] The
nature of such contests varied with circumstances, and wars were,
accordingly, classified by early writers as public, private, mixed,
etc., distinctions that now have little more than historical value.[293]
Wars are now sometimes classified as international and civil.
§ 95. Commencement
It is now assumed that peace is the normal relation of states. When
these relations become strained it is customary for one or both of the
states to indicate this condition by discontinuing some of the means of
peaceful intercommunication, or by some act short of war. The withdrawal
of a diplomatic representative, an embargo, or any similar action does
not mark the commencement of war. War commences with the first act of
hostilities, unless a declaration fixes an earlier date, and in case of
a declaration subsequent to the first act of hostilities, war dates from
the first act. A proclamation of the blockade of Cuban ports preceded
the declaration of war between Spain and the United States in 1898.[294]
Similarly, hostilities were begun before the declaration of war between
China and Japan in 1894.[295] Indeed, few of the wars of the last two
centuries have been declared before the outbreak of hostilities, and
many have not been declared formally at all. Declaration at the present
time is usually but a formal acknowledgment of a well-known fact. In the
case of the war in South Africa, early in October, 1899, the government
of the Transvaal requested the government of Great Britain to give "an
immediate and affirmative answer" not later than 5 P.M. on October 11th
to certain questions in the accompanying ultimatum as to settling
differences by arbitration, the withdrawal of British troops, etc.,
stating that if the answer was not satisfactory, it would be regarded as
"a formal declaration of war." The government of Great Britain replied
that the conditions demanded were such that the government deemed it
impossible to discuss them. Hostilities immediately followed.
Civil war naturally is not preceded by a declaration, but exists from
the time of the recognition of the belligerency by an outside state, or
from the date when the parent state engaged in some act of war against
the insurgent party.[296] In the case of the Civil War in the United
States, the proclamation of blockade of the Southern ports by President
Lincoln was held to be sufficient acknowledgment of a state of war.[297]
§ 96. Declaration
In ancient times wars between states were entered upon with great
formality. A herald whose person was inviolate brought the challenge, or
formal declaration, which received reply with due formality. At the
beginning of the eighteenth century this practice had become unusual,
and in the days of Vattel (1714-1767) the theory of the necessity of a
formal declaration was set aside. It was, however, maintained that a
proclamation or manifesto should be issued for the information of the
subjects of the states parties to the war, and for the information of
neutrals. The practice is now generally followed, and may be regarded as
obligatory.[298] Such action is reasonable in view of the changes which
a state of war brings about in the relations of the parties concerned,
and of neutrals. The proclamations usually specify the date from which
the war begins, and hence have weight in determining the nature of acts
prior to the proclamation, as the legal effects of war date from the
first act of hostilities if the proclamation does not fix an earlier
date. The constitution of a state, written or unwritten, determines in
what hands the right to declare war shall rest, _e.g._ in the United
States in Congress.
* * * * *
By act of the United States Congress of April 25, 1898,[299] it was
declared:--
"First, That war be, and the same is hereby, declared to exist, and
that war has existed since the twenty-first day of April, _Anno
Domini_ eighteen hundred and ninety eight, including said day, between
the United States of America and the Kingdom of Spain.
"Second, That the President of the United States be, and he hereby is,
directed and empowered to use the entire land and naval forces of the
United States, and to call into the actual service of the United
States the militia of the several States, to such extent as may be
necessary to carry this Act into effect."[300]
§ 97. Object
The object of war may be considered from two points of view, the
political and the military. International law cannot determine the
limits of just objects for which a state may engage in war. Politically
the objects have covered a wide range, though there is a growing
tendency to limit the number of objects for which a state may go to war.
It is generally held that self-preservation is a proper object, but as
each state must decide for itself what threatens its existence and
well-being, even this object may be very broadly interpreted. History
shows that it has not been difficult from the political point of view
to find an object of war when the inclination was present in the state.
The nominal are often not the real objects, and the changing conditions
during the progress of the war may make the final objects quite
different from the initial objects. The simple cost of carrying on
hostilities sometimes changes the conditions upon which peace can be
made. The classification of causes and objects formerly made have little
weight in determining whether a state will enter upon war. The questions
of policy and conformity to current standards are the main ones at the
present time.
The object of war in the military sense "is a renewed state of
peace,"[301] or as stated in the English manual, "to procure the
complete submission of the enemy at the earliest possible period with
the least possible expenditure of men and money." The "Institute of
International Law," Oxford session of 1880, gave as a general principle
that the only legitimate end that a state may have in war is to weaken
the military strength of the enemy.[302]
§ 98. General Effects
The general and immediate effects of war are:--
(_a_) To suspend all non-hostile intercourse between the states parties
to the war.
(_b_) To suspend the ordinary non-hostile intercourse between the
citizens of the states parties to the war.
(_c_) To introduce new principles in the intercourse of the states
parties to the war with third states. These impose new duties upon
neutrals and allies.
(_d_) To abrogate or suspend certain treaties:--
(1) To abrogate those treaties which can have force only in time of
peace, _e.g._ of amity, commerce, navigation, etc.
(2) To suspend those treaties which are permanent and naturally
revive at the end of the war, _e.g._ of boundaries, public debts, etc.
(3) To bring into operation treaties concerning the conduct of
hostilities.
The fuller consideration of the effects of war upon general relations
will be found in the succeeding chapters.
CHAPTER XVII
STATUS OF PERSONS IN WAR
99. +Persons affected by War.+
100. +Combatants.+
101. +Non-combatants.+
§ 99. Persons affected by War
(_a_) By the strict theory of war "the =subjects of enemy states= are
enemies."[303] The treatment of the subjects of enemy states is not,
however, determined by the allegiance alone, but in part by conduct and
in part by domicile of the subject.
(_b_) The =subjects of neutral states= are affected by their relations
to the hostile states as established by their own government, as
determined by their conduct, and as determined by their domicile.
(_c_) By conduct persons are divided into =combatants= and
=non-combatants=, according as they do or do not participate in the
hostilities. The status of such persons may be further modified by
domicile or by political allegiance.
§ 100. Combatants
Combatants in the full sense are the regularly authorized military and
naval forces of the states. They are liable to the risks and entitled to
the immunities of warfare, and if captured become prisoners of war.
(_a_) The =status of combatants= is also =allowed= to two classes which
engage in defensive hostilities:--
(1) The officers and crew of a merchant vessel which defends itself
by force are liable to capture as prisoners of war.
(2) With regard to _levies en masse_ much difference of opinion
exists. Article 10 of the Declaration of Brussels, 1874, was adopted
at the Hague Conference in 1899, and may be considered as representing
a generally accepted position, namely, "The population of a
non-occupied territory, who, on the approach of the enemy, of their
own accord take up arms to resist the invading troops, without having
had time to organize themselves in conformity with Article 9
[providing for responsible leader, uniform, etc.], shall be considered
as belligerents, if they respect the laws and customs of war."[304]
(_b_) The =status of combatants= is =not allowable= for those who,
without state authorization, engage in aggressive hostilities.
(1) When in the time of war the officers and crew of a merchant
vessel attack another merchant vessel, they are liable to punishment
according to the nature of their acts, and the state to which they owe
allegiance is only indirectly responsible, nor can they claim its
protection.
(2) When bands of men without state authorization and control, such
as guerrilla troops or private persons, engage in offensive
hostilities, they are liable to the same treatment as above mentioned.
(3) Spies are those who, acting secretly or under false pretenses,
collect or seek to collect information in the districts occupied by
the enemy, with the intention of communicating it to the opposing
force.[305] Such agents are not forbidden, but are liable to such
treatment as the laws of the capturing army may prescribe. This may be
death by hanging. The office of spy is not necessarily dishonorable.
§ 101. Non-combatants
Non-combatants include those who do not participate in the hostilities.
In practice this status is generally conceded to women, children,
clergy, scientists, artists, professional men, laborers, etc., who make
no resistance, whether subjects of the state or not. These are, of
course, liable to the hardships consequent upon war.
(_a_) When the armed forces of one state obtain authority over territory
previously occupied by the other state, the non-combatant population is
free from all violence or constraint other than that required by
military necessity. They are liable, however, to the burdens imposed by
civilized warfare.
(_b_) Subjects of one of the belligerent states sojourning within the
jurisdiction of the other were in early times detained as prisoners.
While Grotius (1625) allows this on the ground of weakening the forces
of the enemy,[306] and while Ayala had earlier (1597) sanctioned
it,[307] Bynkershoek, writing in 1737, mentions it as a right seldom
used. The detention of English tourists by Napoleon in 1803 was not in
accord with modern usage. During the eighteenth century, the custom was
to secure, by treaty stipulation, a fixed time after the outbreak of
hostilities during which enemy subjects might withdraw. While similar
provisions are inserted in many treaties of the nineteenth century, the
practice may be said to be so well established that, in absence of
treaty stipulations, a reasonable time would be allowed for withdrawal.
A large number of treaties of the nineteenth century have provisions to
the effect of Article XXVI. of the treaty between the United States and
Great Britain of 1795: "The merchants and others of each of the two
nations residing in the dominions of the other shall have the privilege
of remaining and continuing their trade, so long as they live peaceably
and commit no offense against the laws; and in case their conduct should
render them suspected, and their respective Governments should think
proper to order them to remove, the term of twelve months from the
publication of the order shall be allowed them for that purpose, to
remove with their families, effects, and property." This custom of
allowing enemy subjects to remain during good behavior has become
common, but can hardly be called a rule of international law. Persons
thus allowed to remain are generally treated as neutrals, though in the
case of Alcinous _v._ Nigreu[308] it was held that an enemy subject,
residing in England without a license, could not maintain an action for
breach of contract, though the contract which had been entered into
before the war was valid and might be enforced when peace was restored.
CHAPTER XVIII
STATUS OF PROPERTY ON LAND
102. +Public Property of the Enemy.+
103. +Real Property of Enemy Subjects.+
104. +Personal Property of Enemy Subjects.+
§ 102. Public Property of the Enemy
Formerly the public property of the enemy, whatever its nature, was
regarded as hostile, and liable to seizure. Practice of modern times has
gradually become less extreme, and the attitude of the powers in
restoring the works of art which Napoleon had brought to Paris shows the
sentiment early in the nineteenth century. The practice in regard to
public property of the enemy has now become fairly defined.
The public property of one belligerent state within the territory of the
other at the outbreak of war, if real property, may be administered
during the war for the benefit of the local state; if movable, it is
liable to confiscation. Works of art, scientific and educational
property, and the like are, however, exempt.[309] The Treaty of Aug. 20,
1890, between Great Britain and France, exempts public vessels employed
in the postal service.
In case one belligerent by military occupation acquires authority over
territory formerly within the jurisdiction of the other, the rules of
the Hague Conference of 1899 provide as follows:--
"+Art. 53.+ An army of occupation can only take possession of the
cash, funds, and property liable to requisition belonging strictly to
the State, depots of arms, means of transport, stores and supplies,
and generally, all movable property of the State which may be used for
military operations.
"Railway plant, land telegraphs, telephones, steamers, and other
ships, apart from cases governed by maritime law, as well as depots of
arms and, generally, all kinds of war material, even though belonging
to Companies or to private persons, are likewise material which may
serve for military operations, but they must be restored at the
conclusion of peace, and indemnities paid for them."
"+Art. 55.+ The occupying state shall only be regarded as
administrator and usufructuary of public buildings, real property,
forests, and agricultural works belonging to the hostile State, and
situated in the occupied country. It must protect the capital of these
properties, and administer it according to the rules of trusteeship.
"+Art. 56.+ The property of municipalities, that of religious,
charitable, and educational institutions, and those of arts and
science, even when State property, shall be treated as private
property.
"All seizure, destruction of, or intentional damage done to such
institutions, to historical monuments, works of art or science, is
prohibited, and should he made the subject of civil and criminal
proceedings."[310]
§ 103. Real Property of Enemy Subjects
The real property of the subject of one belligerent situated within the
territory of the other belligerent was in early times appropriated by
the state, later practice administered it during the war, for the
benefit of the state; but at present it is treated as the real property
of any non-hostile foreigner.
It is generally conceded that real property of the subjects of either
state is unaffected by hostile occupation by the forces of the other
state, except so far as the necessities of warfare may require.[311]
§ 104. Personal Property of Enemy Subjects
The _movable property_ of the subject of one of the belligerent states
in the territory of the other belligerent state was until comparatively
recent times appropriated. In the case of Brown _v._ United States,[312]
in 1814, the Supreme Court held that the "existence of war gave the
right to confiscate, yet did not of itself and without more, operate as
a confiscation of the property of an enemy," though it further held that
the court could not condemn such property unless there was a legislative
act authorizing the confiscation. Many modern treaties provide that in
case of war between the parties to the treaties subjects of each state
may remain in the other, "and shall be respected and maintained in the
full and undisturbed enjoyment of their personal liberty and property so
long as they conduct themselves peaceably and properly, and commit no
offense against the laws."[313] The most recent practice has been to
exempt personal property of the subject of one belligerent state from
all molestation, even though it was within the territory of the other at
the outbreak of war. Of course, such property is liable to the taxes,
etc., imposed upon others not enemy subjects.
In case of hostile occupation, the Hague Conference of 1899 summarized
the rules as follows:--
"+Art. 46.+ Private property cannot be confiscated.
"+Art. 47.+ Pillage is formally prohibited.
"+Art. 48.+ If, in the territory occupied, the occupant collects the
taxes, dues, and tolls imposed for the benefit of the State, he shall
do it, so far as possible, in accordance with the rules in existence
and the assessment in force....
"+Art. 49.+ If ... the occupant levies other money taxes in the
occupied territory, this can only be for military necessities or the
administration of such territory."
Articles 50, 51, 52, provide that burdens due to military occupation
shall be as equable as possible, and that payment shall be made for
contributions.[314]
The practice now is to exempt private property so far as possible from
the consequences of hostile occupation, and to take it only on the
ground of reasonable military necessity.[315]
With regard to one particular form of property, modern commercial
relations as influenced by state credit have been more powerful than
theory or country. The stock in the _public debt_ held by an enemy
subject is wholly exempt from seizure or sequestration, and practice
even demands that interest must be paid to enemy subjects during the
continuance of the war.[316]
In case of belligerent occupation, contributions, requisitions, and
other methods are sometimes resorted to in supplying military needs.
_Contributions_ are money exactions in excess of taxes.[317]
Contributions should be levied only by the general-in-chief.
_Requisitions_ consist in payment in kind of such articles as are of use
for the occupying forces, as food, clothes, horses, boats, compulsory
labor, etc. Requisitions may be levied by subordinate commanders when
there is immediate need, otherwise by superior officers. Such
requisitions should not be in excess of need or of the resources of the
region.
Receipts for the value of both contributions and requisitions should be
given, in order that subsequent impositions may not be made without due
knowledge, and in order that the sufferers may obtain due reparation
from their own state on the conclusion of peace.
In naval warfare "reasonable requisitions for provisions and supplies
essential at the time"[318] is allowed. Such requisitions may be
enforced by bombardment if necessary. Contributions, however, cannot be
exacted unless after actual and complete belligerent occupation, as by
land forces. Contributions in the form of ransom to escape bombardment
cannot be levied, as in such cases occupation is not a fact.[319]
_Foraging_ is resorted to in cases where lack of time makes it
inconvenient to obtain supplies by the usual process of requisition, and
consists in the actual taking of provisions for men and animals by the
troops themselves.
_Booty_ commonly applies to military supplies seized from the enemy. In
a more general sense it applies to all property of the enemy which is
susceptible of appropriation. Such property passes to the state of the
captor, and its disposition should be determined by that state.
CHAPTER XIX
STATUS OF PROPERTY AT SEA
105. +Vessels.+
(_a_) Public vessels.
(_b_) Private vessels.
106. +Goods.+
107. +Submarine Telegraphic Cables.+
§ 105. Vessels
Vessels may be classed as public, belonging to the state, and private,
belonging to citizens of the state.
(_a_) =Public vessels= of a belligerent are liable to capture in any
port or sea except in territorial waters of a neutral. The following
public vessels are, however, exempt from capture unless they perform
some hostile act:--
(1) Cartel ships commissioned for the exchange of prisoners.
(2) Vessels engaged exclusively in non-hostile scientific work and
in exploration.[320]
(3) Hospital ships, properly designated and engaged exclusively in
the care of the sick and wounded.
(_b_) =Private vessels= of the enemy are liable to capture in any port
or sea except in territorial waters of a neutral. The following private
vessels are, however, exempt from capture unless they perform some
hostile act:--
(1) Cartel ships.
(2) Vessels engaged in explorations and scientific work.
(3) Hospital ships.
(4) Small coast fishing vessels. This exemption is not allowed to
deep sea fishing vessels.[321]
(5) Vessels of one of the belligerents in the ports of the other at
the outbreak of hostilities are usually allowed a specified time in
which to take cargo and depart. In the war between the United States
and Spain, 1898, Spanish vessels were allowed thirty days in which to
depart and were to be exempt on homeward voyage. Vessels sailing from
Spain for the United States ports before the declaration of war were
to be allowed to continue their voyages.[322] Spain allowed vessels of
the United States five days in which to depart.[323] It did not
prohibit the capture of such ships after departure. No provision was
made for vessels sailing from the United States for Spanish ports
before the declaration of war.
In the Prize Law of Japan, 1898, the following exemptions of enemy's
vessels are made:--
"(1) Boats engaged in coast fisheries.
"(2) Ships engaged exclusively on a voyage of scientific discovery,
philanthropy, or religious mission.
"(3) Vessels actually engaged in cartel service, and this even when
they actually have prisoners on board.
"(4) Boats belonging to lighthouses."[324]
§ 106. Goods
In general all public goods found upon the seas outside of neutral
jurisdiction are liable to capture. Works of art, historical and
scientific collections are sometimes held to be exempt, and probably
would not be captured.
Private hostile property at sea and not under the flag of a neutral is
liable to capture unless such property consist of vessels, etc., exempt
under § 105, (_b_).
Contraband of war under any flag, outside of neutral territory, and
destined for the enemy, is liable to capture.
Neutral goods in the act of violating an established blockade may be
captured.
Previous to the Treaty of Paris in 1856 great diversity in the treatment
of maritime commerce prevailed. This treaty provided that:--
"The neutral flag covers enemy's goods, with the exception of contraband
of war," and
"Neutral goods, with the exception of contraband of war, are not liable
to capture under the enemy's flag."[325]
Nearly all the important states of the world acceded to these provisions
except the United States and Spain, and both of these powers formally
proclaimed that they would observe these provisions in the war of
1898.[326]
§ 107. Submarine Telegraphic Cables
The position of submarine telegraphic cables has in recent years become
of great importance. Such a cable easily becomes an instrument of value
in the carrying on the operations of war. A convention of
representatives of the important states of the world met at Paris in
1884, and agreed upon rules for the protection of submarine cables.[327]
Article XV. of this convention announces that, "It is understood that
the stipulations of this convention shall in no wise affect the liberty
of action of belligerents." The principles recognized in war seem to
accord with Article 5 of the Naval War Code of the United States, which
provides that:--
"The following rules are to be followed with regard to submarine
telegraphic cables in time of war irrespective of their ownership:--
"(_a_) 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.
"(_b_) Submarine telegraphic cables between the territory of an enemy
and neutral territory may be interrupted within the territorial
jurisdiction of the enemy.
"(_c_) Submarine telegraphic cables between two neutral territories
shall be held inviolable and free from interruption."[328]
There is reason to believe that a submarine cable connecting the enemy's
country with a neutral country is liable to such censorship as will
render it neutral; and if this cannot be secured, it is liable to
interruption outside of neutral jurisdiction, otherwise it might become
a most dangerous organ of unneutral service.[329]
CHAPTER XX[330]
CONDUCT OF HOSTILITIES
108. +Belligerent Occupation.+
109. +Forbidden Methods.+
110. +Privateers.+
111. +Volunteer and Auxiliary Navy.+
112. +Capture and Ransom.+
113. +Postliminium.+
114. +Prisoners and their Treatment.+
(_a_) Quarter and retaliation.
(_b_) Employment.
(_c_) Exchange.
(_d_) Parole.
(_e_) Sick and wounded.
115. +Non-hostile Relations of Belligerents.+
(_a_) Flag of truce.
(_b_) Cartels.
(_c_) Passports, safe-conducts, safeguards.
(_d_) License to trade.
(_e_) Suspension of hostilities, truce, armistice.
(_f_) Capitulation.
§ 108. Belligerent Occupation
This is defined by the "Institute of International Law," Oxford, 1880,
as follows:--
"A territory is considered to be occupied, when, as the result of its
invasion by an enemy's force, the State to which it belongs has
ceased, in fact, to exercise its ordinary authority within it, and the
invading State is alone in a position to maintain order. The extent
and duration of the occupation are determined by the limits of space
and time within which this state of things exists."[331]
The sovereignty of the occupied territory does not pass to the occupying
state, but only the right to exercise the authority necessary for safety
and operations of war. Belligerent occupation was formerly held to carry
with it the right to full disposition of whatever appertained to the
territory. During the nineteenth century it has been given a clearer
definition. Belligerent occupation is a fact impairing the usual
jurisdiction, but it does not transfer sovereignty.
In general the civil laws of the invaded state continue in force in so
far as they do not affect the hostile occupant unfavorably. The regular
judicial tribunals continue to act in cases not affecting the military
occupation. Administrative officers continue to perform their functions
in absence of orders to the contrary, though of course purely political
officers would be limited in the exercise of their functions; _e.g._
registrars of marriages, births, and deaths might act as usual, while
the authority of a governor might be suspended. There is no doubt that
the freedom of the press cannot be claimed, as this might bring grave
consequences upon the occupying force.
The belligerent occupant may destroy or appropriate public property
which may have a hostile purpose, as forts, arms, armories, etc. The
occupying force may enjoy the income from the public sources. Strictly
private property should be inviolable, except so far as the necessity of
war requires contrary action.
Means of transportation, railways, boats, etc., as of direct use in
military operations, can be appropriated for the use of the invader.
"Their destruction is forbidden, unless it be required by the
necessities of war. They are restored, at the peace, in the state in
which they then are."[332]
The invader is bound to give such measure of protection to the
inhabitants of the occupied territory as he is able.[333]
Belligerent occupation begins when an invaded territory is effectively
held by a military force.
§ 109. Forbidden Methods
In the conduct of hostilities certain methods of action and certain
instruments are generally forbidden.
Deceit involving perfidy is forbidden.[334] As there are certain
conventional agreements held to exist even between enemies, violations
of these agreements remove from the violator the protection of the laws
of war. On land it is not permitted to use the flag or uniform of the
enemy for purposes of deceit.[335] Article 7 of the Naval War Code of
the United States provides that "The use of false colors in war is
forbidden, and when summoning a vessel to lie to, or before firing a
gun in action, the national colors should be displayed by vessels of the
United States."[336] Not all authorities agree in regard to the
provision forbidding false colors, though agreeing upon the other
provisions. The use of the conventional flag of truce, a white flag, or
of the hospital flag, red cross on white ground, to cover military
operations or supplies is forbidden.[337] Stratagems, such as feigned
attacks, ambush, and deceit not involving perfidy are allowed.[338]
Assassination by treachery is forbidden.[339]
"The bombardment, by a naval force, of unfortified and undefended
towns, villages, or buildings is forbidden, except when such
bombardment is incidental to the destruction of military or naval
establishments, public depots of munitions of war, or vessels of war
in port, or unless reasonable requisitions for provisions and supplies
essential at the time to such naval vessel or vessels are forcibly
withheld, in which case due notice of bombardment shall be given. The
bombardment of unfortified and undefended towns and places for the
nonpayment of ransom is forbidden."[340]
By the declaration of the Hague Conference of 1898, "the contracting
parties agree to prohibit, for a term of five years, the launching of
projectiles and explosives from balloons or by other new methods of a
similar nature."[341]
The use of poison, of projectiles or weapons inflicting unnecessary
suffering, is prohibited.[342] The Hague Conference also declared
against the "use of projectiles, the object of which is the diffusion
of asphyxiating or deleterious gases."[343]
Retaliation, devastation, refusal of quarter, and other severe methods
once resorted to are now generally forbidden, except as punishment for
violation of the laws of war.
§ 110. Privateers
A private armed vessel owned and manned by private persons and under a
state commission called a "letter of marque,"[344] is a privateer.
This method of carrying on hostilities has gradually met with less and
less of favor.[345] From the early days of the fifteenth century
neutrals were given commissions. Toward the end of the eighteenth
century treaties and domestic laws gradually provided against this
practice, though letters of marque were offered to foreigners by Mexico
in 1845, and by the Confederate States in 1861-1865. These were not
accepted, however, as such action had then come to be regarded as piracy
by many states. Privateering of any kind, as Kent said, "under all the
restrictions which have been adopted, is very liable to abuse. The
object is not fame or chivalric warfare, but plunder and profit. The
discipline of the crews is not apt to be of the highest order, and
privateers are often guilty of enormous excesses, and become the scourge
of neutral commerce.... Under the best regulations, the business tends
to blunt the sense of private right, and to nourish a lawless and fierce
spirit of rapacity."[346] The granting of letters of marque to private
persons of either of the belligerent states was attended with grave
evils, and, by the Declaration of Paris, 1856, "Privateering is, and
remains, abolished."[347] This declaration was agreed to by the leading
states of the world, with the exception of the United States, Spain,
Mexico, Venezuela, and China. In the Spanish-American War of 1898 the
United States formally announced that it would not resort to
privateering.[348] Spain, while maintaining her right to issue letters
of marque, declared the intention to organize for the present (May 3,
1898) a service of "auxiliary cruisers of the navy." The importance of
the subject of privateering is now largely historical, as it is doubtful
whether any civilized state would resort to this method of carrying on
maritime war.
§ 111. Voluntary and Auxiliary Navy
The relations of private vessels to the state in time of war, which had
been settled by the Declaration of Paris in 1856, was again made an
issue by the act of Prussia in the Franco-German War. By a decree of
July 24, 1870, the owners of vessels were invited to equip them for war
and place them under the naval discipline. The officers and crews were
to be furnished by the owners of the vessels, to wear naval uniform, to
sail under the North-German flag, to take oath to the articles of war,
and to receive certain premiums for capture or destruction of the
enemy's ships. The French authorities complained to the British that
this was privateering in disguise and a violation of the Declaration of
Paris. The law officers of the crown declared that there was a
"substantial difference" between such a volunteer navy and a system of
privateering, and that the action of Prussia was not contrary to the
Declaration of Paris. With this position some authorities agree, while
others dissent.[349] The weight of the act as a precedent is less on
account of the fact that no ships of this navy ever put to sea.
Similarly, the plan of Greece for a volunteer navy in 1897 was never put
into operation.[350]
Russia, in view of possible hostilities with England in 1877-1878,
accepted the offer of certain citizens to incorporate into the navy
during the war vessels privately purchased and owned. Such vessels are
still numbered in the "volunteer fleet," and though privately owned and
managed are, since 1886, under the Admiralty. These vessels may easily
be converted into cruisers, and are, so far as possible, favored with
government service. There seems to be little question as to the
propriety of such a relationship between the state and the vessels which
may be used in war.
Still less open to objection is the plan adopted by Great Britain in
1887 and by the United States in 1892, by which these governments,
through agreements with certain of their great steamship lines, could
hire or purchase at a fixed price specified vessels for use in case of
war. The construction of such vessels is subject to government approval,
and certain subsidies are granted to these companies. In time of war
both officers and men must belong to the public forces. The plans of
Russia, Great Britain, and the United States have met with little
criticism.[351]
§ 112. Capture and Ransom
For more than one hundred years the capture of private property at sea
has been regarded with disfavor both on the continent of Europe and in
America.
The attitude of the United States is shown by the provision in the
Treaty with Prussia of 1785, whereby merchant vessels of either state
are to pass "free and unmolested."[352] John Quincy Adams, in 1823,
proposed to England, France, and Russia to exempt private property from
capture. This proposition was not accepted.[353] The United States
withheld its approval of the Declaration of Paris of 1856 because
private property was not exempted from capture. The resolution in the
United States House of Representatives of Mr. Gillett of Massachusetts,
of April 25, 1898, exempting merchant ships from capture, failed to
pass, the argument being advanced that Spain had shown a lack of
reciprocity. States in practice have attempted to introduce the
principle of exemption of private property from capture, as at the
inception of the Franco-German War in 1870. The voice of the publicists
seems to be strongly in favor of exemption. By international law private
property cannot be said to be exempt, though the feeling in favor of
exemption is growing.
Article 11 of the Naval War Code of the United States provides that "The
personnel of a merchant vessel of an enemy captured as a prize can be
held, at the discretion of the captor, as witnesses, or as prisoners of
war when by training or enrollment they are immediately available for
the naval service of the enemy, or they may be released from detention
or confinement."[354]
Passengers on such vessels should be treated with consideration and
landed at a convenient port.[355]
Capture is complete when the hope of recovery has ceased and surrender
has taken place. It was long held that twenty-four hours of possession
constituted valid capture. In earlier times the capture was complete
when the property seized was brought within the firm possession of the
captor, as within a camp, fortress, fleet, etc. This rule seems to be
more equable, as the effective possession is a better ground than the
lapse of time.
The evidence of intention to capture must be shown by some act, such as
the placing of a prize crew or prize master on board a captured vessel,
though the vessel has been held to be under the control of the captor,
even when by reason of the weather no one has been placed on board.[356]
The captor should bring his prize into port for adjudication by the
court. The title to the prize immediately vests in the state, and is to
be disposed of only by state authority. However, an enemy's vessel may
be destroyed when it is no longer seaworthy, when it impedes unduly the
progress of the capturing force, when its recapture is threatened by
the enemy, when the capturing force is unable to place a sufficient
prize crew on board without impairing too much its own efficiency, and
when a port of the capturing force to which the prize may be brought is
too far away.[357] The United States, in the War of 1812, directed its
officers to destroy all the enemy's vessels captured, unless very
valuable and near a port. This was necessary on account of the fewness
of its forces.
Sometimes the original owner is allowed to ransom by repurchase property
which has been captured. In such case the transaction is embodied in a
"ransom bill," by which the master agrees that the owner will pay to the
captor a certain sum of money. A duplicate copy of this bill serves as a
safe-conduct for the ransomed vessel so long as there is no departure
from its terms in regard to the course to be sailed, the ports to be
entered, the time of sailing, etc. The contract is not violated when the
ransomed vessel is driven from her course by stress of weather or by
circumstances beyond her control.
The captor takes from the captured vessel a hostage for the fulfillment
of the ransom contract. Should the captor's vessel be taken with the
hostage and ransom bill on board by a vessel of the enemy, the ransom
bill is discharged. The captor may bring suit in the courts of the
captured vessel's state usually, though in England the process is by
action of the imprisoned hostage to recover his freedom. Some of the
European states forbid the practice, others limit it, and others, like
the United States, allow ransom.
§ 113. Postliminium
The word "postliminium" is derived from the Roman Law idea that a person
who had been captured and afterwards returned within the boundaries of
his own state was restored to all his former rights, for _jus
postliminium_ supposes that the captive has never been absent.[358] The
attempt to incorporate this fiction into international law has obscured
the fact for which it stands. The fact is that the rights of an owner
are suspended by hostile occupation or capture. These rights revive when
the occupation or capture ceases to be effective. The consequences of
acts of the enemy involving the capture while in the enemy's possession
are not necessarily invalidated if these acts were within his competence
by the laws recognized by civilized states. Thus taxes paid during a
hostile occupation or penalties for crime imposed by the invader are
held to discharge the obligation as if imposed by the regular
authorities.
When the restoration of the property or territory which has been in the
captor's possession is accomplished by a party other than the owner, the
service of restoration should receive proper acknowledgment as in other
cases of service. If territory is restored through the coöperation of an
ally, the conditions of the alliance will determine the obligation of
the original possessor.
Most states have definite rules as to the restoration of ships, as well
as other property, and the granting of salvage. The United States
provides that when any vessel or other property already captured shall
be recaptured, the same not having been condemned as prize before
recapture, the court shall award salvage according to the circumstances
of the case. If the captured property belonged to the United States,
salvage and expenses shall be paid from the treasury of the United
States; if to persons under the protection of the United States, salvage
and expenses shall be paid by them on restoration; if to a foreigner,
restoration shall be made upon such terms as by the law of his country
would be required of a citizen of the United States under like
circumstances of recapture; but, if there be no law, it shall be
restored upon the payment of such salvage and expenses as the court may
order. But these rules are not to contravene any treaty.[359] When the
original crew of the vessel arise and take the vessel from their
captors, it is called a rescue and the crew is not entitled to salvage.
When an American ship, on a voyage to London in 1799, was captured by
the French and afterward rescued by her crew, the British sailors
working their passage to London in the ship were allowed salvage.[360]
While Prussia was in possession of a portion of France during the
Franco-Prussian War of 1870, Prussia contracted with certain persons for
a sale of a portion of the public forests in France. The purchasers paid
for the privilege of felling the forests, but had not completed the
cutting of the trees when the Prussian occupation ceased. The purchasers
claimed that they had the right to complete their contract, but France
maintained that her rights revived when the Prussian occupation ceased,
and this position was accepted by Prussia in an additional article to
the treaty of peace of Dec 11, 1871.
§ 114. Prisoners and their Treatment
"A prisoner of war is a public enemy armed or attached to the hostile
army for active aid, who has fallen into the hands of the captor, either
fighting or wounded, on the field, or in the hospital, by individual
surrender, or capitulation.... Citizens who accompany an army for
whatever purpose, such as sutlers, editors, or reporters of journals, or
contractors, if captured, may be made prisoners of war, and be detained
as such." "All persons who are of particular and singular use and
benefit to the hostile army or its government"[361] are liable to
capture. Levies _en masse_ are now treated as public enemies. Within
recent years persons who by reason of their trades or training may be of
special use to the enemy are included among those liable to capture; as
the personnel of captured merchantmen.[362]
It is now a fundamental principle of law that the treatment of a
prisoner of war is not to be penal, unless the penalty is imposed for
some act committed after his capture. A prisoner of war is subject to
such restraint as is necessary for his safe custody. A prisoner of war
may be killed while attempting to escape, but if recaptured no
punishment other than such confinement as is necessary for his safe
keeping is allowable.
(_a_) The refusal of =quarter= to prisoners of war is not now allowed.
Those who have violated the laws of war or the principles of humanity
are liable to =retaliation= as a measure of protective retribution only.
It "shall only be resorted to after careful inquiry into the real
occurrence, and the character of the misdeeds that may demand
retribution."[363]
(_b_) =Employment.= Prisoners may be "employed upon public works which
have no direct relation to the operations carried on in the theatre of
war."[364] Such labor must be in accord with the rank of the prisoner
and not detrimental to health. Prisoners who are allowed to engage in
private industries do so with the understanding that their pay may be
devoted to the bettering of their condition, or if expedient may be
reserved for them and be paid to them on their release. From this amount
may be deducted the expense of the maintenance while in captivity.
(_c_) The =exchange= of prisoners of war is purely a voluntary act on
the part of the states at war. This takes place under an agreement
called a "cartel." The exchange is usually rank for rank, number for
number, value for value, though it is sometimes necessary to agree upon
certain conventional values where those of the same rank are not among
the captives, as in 1862, when the United States exchanged a captain in
the army for six privates, etc.
(_d_) Prisoners of war may be released =on parole=, which is a promise
to do or to refrain from doing certain acts in consideration of the
grant of freedom in other respects. The punishment for breach of parole
is death if the person is again captured.[365]
(_e_) The =sick and wounded= taken in the field become prisoners of war.
Their treatment is now determined for nearly all the important states by
the provisions of the Geneva Convention of 1864. This convention
provides for the neutralizing of hospitals and ambulances under proper
restrictions, for the protection of those engaged in the care of the
sick and wounded, and for such distinctive marks as shall identify those
engaged in this service, particularly the Red Cross.[366]
§ 115. Non-hostile Relations of Belligerents
(_a_) In time of war it is necessary that belligerents should have
certain relations not strictly hostile. Negotiations are often opened
under a =flag of truce=. In regard to this the Brussels Code, Article
43, provides:--
"An individual authorized by one of the belligerents to confer with
the other on presenting himself with a white flag, accompanied by a
trumpeter (bugler or drummer), or also by a flag-bearer, shall be
recognized as the bearer of a flag of truce. He as well as the
trumpeter (bugler or drummer), and the flag-bearer, who accompanies
him, shall have the right of inviolability."[367]
He may be accompanied, "if necessary, by a guide and an interpreter." A
commander is not obliged to receive the bearer of a flag of truce, and
may take necessary measures to prevent injury on account of his
presence. He may be blindfolded, detained at an outpost, or be put under
other restrictions. If the bearer take advantage of his privilege to spy
upon the enemy, he is liable to treatment as a spy, though he may report
such military information as he may acquire without effort on his own
part. If a bearer present himself during active operations, firing need
not necessarily cease, and the bearer is liable to such consequences as
his act may bring upon himself.
"In operations afloat the senior officer alone is authorized to
dispatch or to admit communication by flag of truce; a vessel in
position to observe such a flag should communicate the fact promptly.
The firing of a gun by the senior officer's vessel is generally
understood as a warning not to approach nearer. The flag of truce
should be met at a suitable distance by a boat or vessel in charge of
a commissioned officer, having a white flag plainly displayed from the
time of leaving until her return."[368]
(_b_) =Cartels= are agreements made to regulate intercourse during war.
Such conventions may regulate postal and telegraphic communication, the
reception of flags of truce, the exchange of prisoners, the care and
treatment of the same and of the sick and wounded.
A cartel ship is a vessel sailing under a safe-conduct for the purpose
of carrying exchanged prisoners. When thus employed the vessel is not
subject to seizure, although this exemption does not extend to a voyage
from one port to another in her own state for the sake of taking on
prisoners. The immunity is lost if the vessel departs from the strict
line of service by engaging in ordinary commerce, transportation, or
hostile acts.[369] Such a vessel may carry one gun for the purpose of
salutes.
(_c_) =Passports, safe-conducts, and safeguards= are sometimes given in
time of war.
A passport is a written permission given by the belligerent government
or by its authorized agent to the subject of the enemy state to travel
generally in belligerent territory.
A safe-conduct is a pass given to an enemy subject or to an enemy
vessel, allowing passage between defined points. Safe-conducts are
granted either by the government or by the officer in command of the
region within which it is effective.[370]
A safeguard is a protection granted by a commanding officer either to
person or property within his command. "Sometimes they are delivered to
the parties whose persons or property are to be protected; at others
they are posted upon the property itself, as upon a church, museum,
library, public office, or private dwelling."[371] When the protection
is enforced by a detail of men, this guard must use extreme measures, if
necessary to fulfill their trust, and are themselves exempt from attack
or capture by the enemy.
(_d_) =A license to trade= is a permission given by competent authority
to the subject of that authority or to another to carry on trade even
though there is a state of war. These licenses may be general or
special. A general license grants to all the subjects of the enemy
state or to all its own subjects the right to trade in specified places
or in specified articles. A special license grants to a certain person
the right to trade in the manner specified in his license. Neutrals may
receive a license to trade in lines which otherwise would not be open to
them.
A general license is granted by the head of the state. A special license
may be granted by a subordinate, valid in the region which he commands
so far as his subordinates are concerned. His superior officers are not
necessarily bound by his act, however.[372]
It is held that a license must receive a reasonable construction. In
general, fraud vitiates a license; it is not negotiable unless expressly
made so; a fair compliance in regard to the terms as to goods is
sufficient; a deviation from the prescribed course invalidates the
license unless caused by stress of weather or by accident; and a delay
in completing a voyage within the specified time invalidates the license
unless caused by enemy or the elements.[373] When a license becomes
void, the vessel is liable to the penalties which would fall upon it if
it had committed the act without license.
(_e_) =The cessation of hostilities= for a time is sometimes brought
about by agreement between the parties to the conflict. When this
cessation is for a temporary or military end, and for a short time or
within a limited area, it is usually termed a suspension of hostilities.
When the cessation is quite general, for a considerable time, or for a
political end, it is usually termed a truce or armistice.
Acts of hostility done in ignorance of the existence of the cessation of
hostilities are not violations of the agreement unless there has been
negligence in conveying the information to the subordinates. Prisoners
and property captured after the cessation in a given region must be
restored. During the period of the truce, the commercial and personal
intercourse between the opposing parties is under the same restrictions
as during the active hostilities, unless there is provision to the
contrary in the agreement. The relative position of the parties is
supposed to be the same at the end of the truce as at the beginning.
Hall says, "The effect of truces and like agreements is therefore not
only to put a stop to all directly offensive acts, but to interdict all
acts tending to strengthen a belligerent which his enemy, apart from the
agreement, would have been in a position to hinder."[374] Acts which the
enemy would not have been in a position to hinder, even in the absence
of a truce, are not necessarily interrupted by the agreement.[375]
The provisioning of a besieged place during a truce has been the subject
of some difference of opinion. If the conditions of the truce are to be
fair to the besieged party, that party must be allowed to bring in a
supply of provisions equal to the consumption during the continuance of
the truce.[376] At the present time this matter is usually provided for
in the terms of the truce.
A truce or other form of cessation of hostilities, if for a definite
time, comes to an end by the expiration of the time limit; if for an
indefinite time, by notice from one party to the other, or is terminated
by the violation of the conditions by either of the parties. A violation
of a truce by an individual renders him liable to such punishment as his
state may prescribe.[377]
(_f_) =A capitulation= is an agreement defining the conditions of
surrender of military forces, places, or districts within the command of
an officer. Such agreements are purely military and can have no
political force. The capitulation agreed upon between Generals Sherman
and Johnston, in 1865, was not sanctioned because it involved political
provisions. By the capitulation of Santiago, July, 1898, the American
commander agreed to transport the Spanish troops to Spain. The
conditions involved in a capitulation may vary greatly, but at the
present time it is usually possible to obtain the sanction of the
political authority before entering upon an agreement, owing to the
improved methods of communication. It is therefore hardly probable that
the terms of capitulations will be set aside, as in the celebrated case
of El Arisch, in 1800.[378] Agreements made by officers not possessing
proper authority or made in excess of authority, are called _sponsions_
or _sub spe rati_, and require ratification or acceptance by the state
to render them effective.[379]
CHAPTER XXI
TERMINATION OF WAR
116. +Methods of Termination.+
117. +By Conquest.+
118. +By Cessation of Hostilities.+
119. +By a Treaty of Peace.+
§ 116. Methods of Termination
War may come to an end, (1) by the complete submission of one of the
parties to the conflict or by conquest, (2) by the cessation of
hostilities between the parties to the conflict, or (3) by a treaty of
peace duly concluded.[380]
The object of war in early times was often conquest, and the conflict
ended only with the submission of one of the parties. This end is at
present usually disavowed, and the object of war is proclaimed to be
some purpose that will meet with as little disapproval as possible.[381]
The conditions under which the war will be brought to an end will be in
some measure determined by the object for which the war was undertaken.
§ 117. By Conquest
Conquest in the complete sense, as in the case of the _debellatio_ of
the Romans, is not now common. This implies a submission of one of the
parties without condition. There have been examples of absorption of the
sovereignty of the vanquished state in recent times, as in the Prussian
Decree of Sept. 20, 1866, by which conquered Hanover, Hesse, Nassau, and
Frankfort were incorporated into the Prussian state. Similarly, some of
the Italian states were absorbed by the kingdom of Italy after the
Treaty of Villafranca, 1859, and Madagascar became a part of France in
1896.
Conquest is held to be complete when the fact is evident from actual,
continued, and recognized possession. All of these evidences may not be
present in a given case, but if the intention and the fact of the
conquest and the submission are fully shown, it is sufficient to
constitute validity.[382]
§ 118. By Cessation of Hostilities
Certain wars have terminated by the simple cessation of hostilities.
Cases of such termination are rare. Such a method leaves in doubt the
relations of the parties to the conflict, and occasions inconvenience to
all states which may have intercourse with the contestants. The war
between Sweden and Poland in 1716, and also the war between France and
Spain in 1720, came to an end in this way. The war between Spain and her
American colonies ceased in 1825, but no diplomatic relations were
established with them till 1840, and the independence of Venezuela was
not recognized till 1850. After the hostilities between France and
Mexico, 1862-1867, no diplomatic relations were entered into till 1881.
It is only fair to neutrals that a declaration of the conclusion of
hostilities should be made.
§ 119. By Treaty of Peace
War is most often terminated by a treaty of peace, which is usually a
diplomatic agreement upon the manner of cessation of hostilities and
upon the conditions of the reëstablishment of friendly relations. In
recent years such treaties have often been preceded by preliminary
agreements. These are sometimes preceded by an armistice in order that
the terms may not be changed from day to day by the current fortunes of
war, as was the case in the discussions pending the Treaty of Westphalia
in 1648. In the war between China and Japan, in 1894-1895, an agreement
for the suspension of hostilities was made on March 30, 1895, but the
treaty of peace was not signed till April 17th. These preliminary
agreements may sometimes be made through the friendly offices of a third
power, as in the protocol of Aug. 12, 1898, in regard to the suspension
of hostilities between Spain and the United States. The ambassador of
France acted for Spain.[383] These preliminary agreements can be
concluded only by those persons delegated for the purpose, and they are
as binding as any international agreement in the matters upon which they
touch.
A treaty of peace usually covers, (1) the cessation of hostilities, (2)
the subjects which have led to war,[384] (3) agreements for immunity
for acts done during the war without sufficient authority or in excess
of authority. Such acts might otherwise become bases for civil or
criminal process. Acts not consequent upon the existence of war, but
such as are actionable under the ordinary laws of the state, as for
violation of private contract, ordinary debts, etc., are not included
unless there is a direct stipulation to that effect. This immunity is
commonly called amnesty. (4) Provision for the release of the prisoners
of war is often included. (5) The renewal of former treaties is provided
for in many peace agreements. (6) Special provision may be made for
cession of territory, indemnity, boundaries, or other contingent
points.[385]
A treaty of peace is usually held to be effective from the date of
signature, or from the date set in the treaty. Provisions fixing the
time at which hostilities shall cease at different points are common.
Acts of war committed after the conclusion of peace or after the
official notice of the termination of hostilities, are void.[386] The
Treaty of Frankfort, 1871, provides that maritime captures not condemned
at the conclusion of the war are not good prize.
"The general effect of a treaty of peace is to replace the belligerent
countries in their normal relation to each other."[387] In case of no
stipulations to the contrary, the doctrine of _uti possidetis_ applies,
by which the property and territory in the actual possession of either
of the belligerents at the conclusion of the war vests in the one having
possession.
Private rights suspended during the war revive on the conclusion of
peace. Though it was once held that debts could be confiscated during
war, this is now nowhere maintained.[388] In such cases the obligation
revives on the conclusion of peace, and by the Statute of Limitations
the period of the war is not reckoned in the time specified as the
period at which debts become outlawed.[389]
PART V
INTERNATIONAL LAW OF NEUTRALITY
CHAPTER XXII
DEFINITION AND HISTORY
120. +Definition.+
121. +Forms of Neutrality and of Neutralization.+
122. +History.+
123. +Declaration.+
124. +Divisions.+
§ 120. Definition
Neutrality is the relation which exists between states which take no
part in the war and the belligerents. Impartial treatment of the
belligerents is not necessarily neutrality. The modern idea of
neutrality demands an entire absence of participation, direct or
indirect, however impartial it may be.
§ 121. Forms of Neutrality and of Neutralization
The first form of neutrality is what was formerly known as perfect
neutrality, in distinction from imperfect neutrality, which allowed a
state to give to one of the belligerents such aid as it might have
promised by treaty entered into before and without reference to the war.
At the present time the only neutrality that is recognized is perfect,
_i.e._ an entire absence of participation in the war. A second form of
neutrality is commonly known as armed neutrality. This implies the
existence of an understanding, on the part of some of the states not
parties to the contest, in accordance with which they will resist by
force certain acts which a belligerent may claim the right to perform.
The armed neutralities of Feb. 28, 1780, and of Dec. 16, 1800, defended
the principle of "free ships, free goods."[390]
Neutralization is an act by which, through a conventional agreement, the
subject of the act is deprived of belligerent capacity to a specified
extent. Neutralization may apply in various ways.
(1) _Neutralized states are bound to refrain from offensive
hostilities_, and in consequence cannot make agreements which may demand
such action. Thus it was recognized that Belgium itself, a neutralized
state, could not guarantee the neutrality of Luxemburg in the Treaty of
London, in 1867. Belgium is, however, a party to the Treaty of Berlin of
1885, agreeing to respect the neutrality of the Congo State. This
agreement "to respect" does not carry with it the obligation to defend
the neutrality of the Congo State.
The important instances of neutralization are those agreed upon by
European powers. By the declaration signed at Vienna, March 20, 1815,
the powers (Austria, France, Great Britain, Prussia, and Russia)
"acknowledged that the general interest demands that the Helvetic States
should enjoy the benefits of perpetual neutrality," and declared "that
as soon as the Helvetic Diet should accede to the stipulations"
prescribed, her neutrality should be guaranteed.[391] The Swiss
Confederation acceded on the 27th of May, 1815, and the guaranteeing
powers gave their acknowledgment on the 20th of November, 1815.[392] The
powers also guaranteed the neutrality of a part of Savoy at the same
time. The neutralization of Belgium is provided for by Article VII. of
the Treaty of London, of Nov. 15, 1831, "Belgium, within the limits
specified in Articles I., II., and IV., shall form an independent and
perpetually Neutral State. It shall be bound to observe such Neutrality
towards all other States."[393]
(2) _A portion of a state may be the subject of an act of
neutralization_, as in the case of the islands of Corfu and Paxo by the
Treaty of London, of March 29, 1864. By Article II., "The Courts of
Great Britain, France, and Russia, in their character of Guaranteeing
Powers of Greece declare, with the assent of the Courts of Austria and
Prussia, that the Islands of Corfu and Paxo, as well as their
Dependencies, shall, after their Union to the Hellenic Kingdom, enjoy
the advantages of perpetual Neutrality. His Majesty the King of the
Hellenes engages, on his part, to maintain such Neutrality."[394]
(3) _The neutralization of certain routes of commerce_ has often been
the subject of convention. The United States guaranteed the "perfect
neutrality"[395] of the means of trans-isthmian transit when the State
of New Granada controlled the Isthmus of Panama in 1846. By the Treaty
of 1867 with Nicaragua the United States guarantees "the neutrality and
innocent use" of routes of communication across the state of
Nicaragua.[396] The Nine Powers by the Convention of Constantinople, of
Oct. 29, 1888, Great Britain making certain reservations, agree, by a
conventional act upon "a definite system destined to guarantee at all
times, and for all the powers, the free use of the Suez Maritime
Canal."[397] Full provisions for the maintenance of the neutrality of
the canal were adopted at this time also.
(4) _The Geneva Convention of 1864 neutralized persons and things_
employed in the amelioration of the condition of the sick and wounded in
the time of war.[398] At the present time hospital ships properly
certified and designated by flags and by bands of color on the outside
are neutralized by general practice.[399]
§ 122. History
Neutrality as now understood is of recent growth. In early times, and in
general throughout the Middle Ages, the fear of retaliation alone
deterred states from hostile action against belligerent states with
which they were formally at peace. A belligerent in the prosecution of
war might disregard the territorial, personal, or property rights in a
neutral state without violation of the principles of public law then
accepted.
A gradual formulation of principles which gave the basis of a more
equable practice came through the custom of making treaty provisions in
regard to the conduct of one of the parties when the other was at war
with a third state. Thus it was usually provided that no aid should be
given to the third state. By the end of the seventeenth century that
which had formerly been a matter of treaty stipulation became quite
generally accepted as a rule of action. Grotius, in 1625, gives only
about a fourth of a short chapter to the consideration of the duties of
the neutral toward the belligerents and the balance of the same chapter
to the duties of belligerents toward those not parties to the war.
Grotius maintains that "it is the duty of those who have no part in the
war to do nothing which may favor the party having an unjust cause, or
which may hinder the action of the one waging a just war, ... and in a
case of doubt to treat both belligerents alike, in permitting transit,
in furnishing provisions to the troops, in refraining from assisting the
besieged."[400] In Barbeyrac's note to Pufendorf, 1706, the discussion
shows that the idea of neutrality is clearer, but still confused by the
attempt to admit a variety of qualified forms by which a state may be
neutral in some respects and not in others.[401] Bynkershoek in 1737
said, "I call those _non hostes_ who are of neither party."[402] This
statement of Bynkershoek furnishes a convenient starting-point for his
successors. Vattel, in 1758, accepting this definition, also says that a
state may give such aid as has been promised in a treaty of alliance
previously made with one of the states, and still preserve exact
neutrality toward the other state.[403]
By Article XVII. of the Treaty of Amity and Commerce between the United
States and France, in 1778, "It shall be lawful for the ships of war of
either party, and privateers, freely to carry whithersoever they please
the ships and goods taken from their enemies; ... on the contrary, no
shelter or refuge shall be given in their ports to such as shall have
made prize of the subjects, people or property of either of the
parties," except when driven in by stress of weather. By Article XXII.
of the same treaty, foreign privateers were not allowed to be fitted out
or to sell their prizes in the ports of either party. In 1793 M. Genêt,
the French minister, began to fit out privateers, to give commissions to
citizens of the United States to cruise in the service of France against
the British, and to set up prize courts in the French consulates. He
justified himself under the provisions of the Treaty of 1778. His action
threatened to bring the United States into war with Great Britain and
led to the enunciation of the principles by the United States
authorities, of which Canning in 1823 said, "If I wished for a guide in
a system of neutrality, I should take that laid down by America in the
days of the presidency of Washington and the secretaryship of
Jefferson."[404] The President's Proclamation of Dec. 3, 1793, declares
that, in the war of France and the European powers, "the duty and
interest of the United States require that they should with sincerity
and good faith adopt and pursue a conduct friendly and impartial toward
the belligerent powers."[405] While the Proclamation does not mention
"neutrality," the orders and instructions issued in accordance with it
use the word. By the Act of Congress of June 5, 1794, and by subsequent
acts codified in 1818,[406] the United States assumed a position which
marks an epoch in the history of neutrality. The principles then
enunciated are the generally accepted rules of the present day. Great
Britain passed similar enactments in 1819, and made these more definite
and stringent by the Foreign Enlistment Act of 1870.[407]
§ 123. Declaration
In recent years it has become customary to issue proclamations of
neutrality, or to make known the attitude of the state by some public
announcement. This method publishes to other states and to the subjects
of the state issuing the announcement the position which the state will
take during the hostilities. Ordinarily some specifications as to what
may be done during the war accompany the proclamation.
In the war between the United States and Spain in 1898, practically all
the leading states of the world made known their neutrality. Germany,
according to the custom in that state for twenty years preceding, made
no public proclamation, but the neutrality of the Empire was announced
less formally by the Emperor in a speech before the Reichstag. The
British proclamation of April 23, 1898, is, however, a very full
statement of the principles which are to be observed during the
hostilities.[408]
A clause from the Russian Declaration of April 18, 1898, is an example
of the announcement of the general fact of neutrality: "It is with keen
regret that the Imperial Government witnesses an armed conflict between
two states to which it is united by old friendship and deep sympathy. It
is firmly resolved to observe with regard to these two belligerents a
perfect and impartial neutrality."[409]
§ 124. Divisions
The relations between neutrals and belligerents naturally fall into two
divisions:--
1. The relations between neutral states and belligerent states as
states. These relations are determined by the respect for sovereignty,
by international usage, and by treaties.
2. Relations between the states and individuals. These relations
involve:--
(1) Ordinary commerce.
(2) Contraband.
(3) Unneutral service.
(4) Visit and search.
(5) Convoy.
(6) Blockade.
(7) Continuous voyage.
(8) Prize and prize courts.
CHAPTER XXIII
RELATIONS OF NEUTRAL STATES AND BELLIGERENT STATES
125. +General Principles of the Relations between States.+
126. +Neutral Territorial Jurisdiction.+
127. +Regulation of Neutral Relations.+
(_a_) To belligerent troops.
(_b_) Asylum for vessels.
(_c_) Ordinary entry.
(_d_) Sojourn of vessels.
128. +No Direct Assistance by Neutral.+
(_a_) Military.
(_b_) Supplies.
(_c_) Loans.
(_d_) Enlistment.
129. +Positive Obligations of a Neutral State.+
§ 125. General Principles of the Relations between States
Of the general principle Wheaton says, "The right of every independent
state to remain at peace whilst other states are engaged in war is an
incontestable attribute of sovereignty."[410] Equally incontestable is
the right of a belligerent state to demand that a state not a party to
the war shall refrain from all participation in the contest, whether it
be direct or indirect.
The modern tendency is to remove from the neutral all possible
inconveniences which might result from war between states with which the
neutral is at peace. The normal relations between neutral and neutral
are unimpaired. As the neutral is at peace with the belligerents, the
relations between the neutral and the belligerents are affected only so
far as the necessities of belligerent operations demand. "Every
restriction, however, upon the rights of a neutral or belligerent must
have a clear and undoubted rule and reason. The burden of proof lies
upon the restraining government."[411]
§ 126. Neutral Territorial Jurisdiction
One of the earliest principles to receive the sanction of theory and
practice was that of the inviolability of territorial jurisdiction of
neutrals. This principle has been liberally interpreted in recent times,
and the tendency has been to make increasingly severe the penalties for
its violation.
(_a_) The troops of a belligerent may not engage in hostilities in the
land of a neutral.
(_b_) Belligerent persons who enter neutral land for warlike purposes,
whether actually committing hostilities or merely organized for such
purpose, should be interned "at points as far removed as possible from
the theater of war." Those entering for asylum to escape death or
captivity should be similarly treated.
Formerly it was held that the right of passage might be granted by a
neutral to both belligerents on the same terms, or to one of the
belligerents if in accord with an agreement entered into before the war.
There are many examples of this practice before the nineteenth century,
but at the present time it is the rule that a belligerent body of troops
may not pass through neutral territory. In the Franco-German War of 1870
the application of Germany to transport its wounded by railway across
Belgium was denied. It was claimed that the grant of this privilege
would enable Germany to use its own lines of railway for strictly
hostile purposes in the way of the transportation of troops, war
supplies, etc., thus relieving Germany of a part of the burdens of war.
(_c_) The rules applicable to the maritime jurisdiction of a neutral are
somewhat different from those of the land. The neutral does not control
with the same absolute authority the waters washing its shores and the
land within its boundaries. That portion of the sea which is within the
three-mile limit is for the purposes of peaceful navigation a part of
the open sea. The simple passage of ships of war through these waters is
permitted. All belligerent acts within the maritime jurisdiction of a
neutral are forbidden.[412]
The waters which appertain more strictly to the exclusive jurisdiction
of the neutral, such as harbors, ports, enclosed bays, and the like, are
subject to the municipal laws of the neutral.[413] Asylum in case of
imminent danger is, however, not to be denied; otherwise these waters
are open to belligerent ships of war only on condition that they observe
the regulations prescribed by the neutral. Such regulations must of
course be impartial. These regulations are now often announced in the
proclamations of neutrality, as was the case in the war of the United
States and Spain in 1898.
(_d_) Neutral territory may not be used as the base of military
operations or for the organization or fitting out of warlike
expeditions.
Sir W. Scott said in the case of the _Twee Gebroeders_ that, "no
proximate acts of war are in any manner to be allowed to originate on
neutral grounds."[414] This would without doubt apply to filibustering
expeditions. Many acts are of such nature as to make it impossible to
determine whether this principle is violated until the actor is beyond
the jurisdiction of the neutral. In such cases the neutral sovereignty
is "violated constructively."[415] A second act of this kind might
constitute the neutral territory a base of military operations.
It is difficult to distinguish in some cases between those expeditions
which have a warlike character and those which cannot at the time of
departure be so classed.
In 1828, during the revolution in Portugal, certain troops took refuge
in England. In 1829 these men, unarmed but under military command, set
out from Plymouth in unarmed vessels, ostensibly for Brazil. Arms for
their use had been shipped elsewhere as merchandise. Off the island of
Terceira, belonging to Portugal, they were stopped by English vessels
within Portuguese waters, and taken back to a point a few hundred miles
from the English Channel. The Portuguese then put into a French port.
Most authorities are agreed that the expedition was warlike, but that
the British ministers should have prevented the departure of the
expedition from British waters where they had jurisdiction, instead of
coercing it in Portuguese waters.[416]
During the Franco-German War of 1870 a large body of Frenchmen left New
York in French vessels bound for France. These vessels also carried
large quantities of rifles and cartridges. The Frenchmen were not
organized, the arms were proper articles of commerce, and the two were
not so related as to render them immediately effective for war. The
American Secretary held that this was not a warlike expedition. In
discussing this case Hall says, "The uncombined elements of an
expedition may leave a neutral state in company with one another,
provided they are incapable of proximate combination into an organized
whole."[417]
In order, therefore, that an expedition may be warlike there must be an
organized body of men, under military or naval direction, and intending
to engage in war in the near future.
§ 127. Regulation of Neutral Relations
The relations between the belligerent and the neutral may in some
respects be regulated by the neutral. Such regulations find expression
in neutrality laws, in proclamations of neutrality, and in special
regulations issued under exceptional circumstances or by joint agreement
of several states.
(_a_) While it is admitted that the =belligerent troops= may not use the
land of a neutral, yet the neutral is under obligation to offer asylum
to those seeking refuge to escape death or captivity. It is the duty of
a neutral state, within whose territory commands, or individuals, have
taken refuge, to intern them at points as far removed as possible from
the theater of war. Interned troops may be guarded in camps, or
fortified places. The expenses occasioned by the internment are
reimbursed to the neutral state by the belligerent state to whom the
interned troops belong.[418]
(_b_) In general a belligerent vessel has the =right of asylum= in a
neutral port. It may enter to escape the perils of the sea or to
purchase provisions, and to make repairs indispensable to the
continuance of the voyage. A vessel entering a neutral port after defeat
by the enemy is not disarmed, as would be the case with land forces
under similar conditions, though the neutral may prescribe the
conditions of its sojourn and departure.[419]
(_c_) =Ordinary entry= depends upon the will of the neutral, and is
subject to conditions imposed upon all belligerents alike.[420] These
conditions usually allow a vessel to take on necessary provisions and
supplies to enable her to reach the nearest home port. A regulation of
the Netherlands as to the vessels of the Spanish-American War of 1898
prescribes that "Coal shall not be supplied them so long as they are in
possession of prizes," otherwise a supply sufficient to bring the vessel
to a home port or to the port of an ally was allowed.
(_d_) =The time of sojourn= is usually limited to twenty-four hours,
unless a longer time is necessary for taking on supplies, completing
necessary repairs, or from stress of weather. Regulations as to the time
of departure of hostile vessels from a neutral port were quite fully
outlined in President Grant's proclamations of Aug. 22 and of Oct. 8,
1870, during the Franco-Prussian War.[421] He declared that no vessel of
war of either belligerent should leave the
"waters subject to the jurisdiction of the United States from which a
vessel of the other belligerent ... shall have previously departed,
until after the expiration of at least twenty-four hours from the
departure of such last-mentioned vessel beyond the jurisdiction of the
United States. If any ship of war or privateer of either belligerent
shall, after the time this notification takes effect, enter any ...
waters of the United States, such vessel shall be required ... to put
to sea within twenty-four hours after her entrance into such ...
waters, except in case of stress of weather or of her requiring
provisions or things necessary for the subsistence of her crew, or for
repairs; in either of which cases the authorities ... shall require
her to put to sea as soon as possible after the expiration of such
period of twenty-four hours, without permitting her to take in
supplies beyond what may be necessary for her immediate use; and no
such vessel ... shall continue within such ... waters ... for a longer
period than twenty-four hours after her necessary repairs shall have
been completed, unless within such twenty-four hours a vessel ... of
the other belligerent, shall have departed therefrom, in which case
the time limited for the departure ... shall be extended so far as may
be necessary to secure an interval not less than twenty-four hours
between such departure and that of any ... ship of the other
belligerent which may have previously quit the same ... waters. No
ship of war ... of either belligerent shall be detained in any ...
waters of the United States more than twenty-four hours, by reason of
the successive departures from such ... waters of more than one vessel
of the other belligerent. But if there be several vessels of each or
either of the two belligerents in the same ... waters, the order of
their departure therefrom shall be so arranged as to afford the
opportunity of leaving alternately to the vessels of the respective
belligerents, and to cause the least detention consistent with the
objects of this proclamation. No ship of war ... of either belligerent
shall be permitted, while in any ... waters within the jurisdiction of
the United States, to take in any supplies except provisions and such
other things as may be requisite for the subsistence of her crew, and
except so much coal only as may be sufficient to carry such vessel, if
without sail power, to the nearest European port of her own country;
or in case the vessel is rigged to go under sail, and may also be
propelled by steam power, then with half the quantity of coal which
she would be entitled to receive if dependent upon steam alone; and no
coal shall be again supplied to any such ship of war ... in the same
or in any other ... waters of the United States, without special
permission, until after the expiration of three months from the time
when such coal may have been last supplied to her within the waters of
the United States, unless such ship of war ... shall, since last
supplied, have entered a European port of the government to which she
belongs."[422]
The tendency at the present time is to make regulations which shall
guard most effectively against any possible use of neutral maritime
jurisdiction for hostile purposes. In the Spanish-American War of 1898,
Brazil provided that in case of two belligerent vessels:--"If the vessel
leaving, as well as that left behind, be a steamer, or both be sailing
vessels, there shall remain the interval of twenty-four hours between
the sailing of one and the other. If the one leaving be a sailing vessel
and that remaining a steamer, the latter may only leave seventy-two
hours thereafter."[423] Many states have adopted the practice of
absolutely refusing entrance within their waters to belligerent vessels
with prizes, except in case of distress. Some states prescribe that, in
such cases, the prizes should be liberated. There are examples of this
refusal in the neutrality proclamations of 1898. All forms of sale or
disposal of prize in neutral jurisdiction is of course generally
forbidden.
§ 128. No Direct Assistance by the Neutral
The neutral state may not furnish to a belligerent any assistance in
military forces, supplies of war, loans of money, or in any similar
manner.
(_a_) Formerly =military assistance= was often furnished to one of the
belligerents by a state claiming to be neutral on the ground that such
action was justified by a treaty obligation entered into before the war
could be foreseen. This position was supported by some of the ablest of
the authorities of the nineteenth century,[424] but is denied by the
latest writers.
(_b_) It is generally held that a neutral state may not furnish to one
or both of the belligerents =supplies of war=. As Hall says, "The
general principle that a mercantile act is not a violation of a state of
neutrality, is pressed too far when it is made to cover the sale of
munitions or vessels of war by a state."[425]
A case that aroused discussion was occasioned by the action of the
authorities of the United States conformably to a joint resolution of
Congress of July 20, 1868, by which the Secretary of War was to cause
"to be sold, after offer at public sale on thirty days' notice, ... the
old cannon, arms, and other ordnance stores ... damaged or otherwise
unsuitable for the United States military service, etc."[426] Complaint
was made that sales made under this act during the time of the
Franco-German War were in violation of neutrality. A committee appointed
by the United States Senate to investigate these charges reported that
sales "were not made under such circumstances as to violate the
obligations of our government as a neutral power; and this, to
recapitulate, for three reasons: (1) The Remingtons [the alleged
purchasing agents of the French government] were not, in fact, agents of
France during the time when sales were made to them; (2) if they were
such agents, such fact was neither known nor suspected by our government
at the time the sales were made; and (3) if they had been such agents,
and that fact had been known to our government, or if, instead of
sending agents, Louis Napoleon or Frederick William had personally
appeared at the War Department to purchase arms, it would have been
lawful for us to sell to either of them, in pursuance of a national
policy adopted by us prior to the commencement of hostilities."[427]
This last statement does not accord with the best opinion and doubtless
would not be maintained at the present time. The first and second claims
might justify the sale, though it would be in better accord with a
strict neutrality for a state to refrain from all sale of supplies of
war during the period of war between two states, toward which states it
professes to maintain a neutral attitude. This, of course, does not
affect the rights of commerce in arms on the part of the citizens of a
neutral state.
(_c_) The authorities are practically agreed that =loans of money= to a
belligerent state may not be made or guaranteed by a neutral state. This
does not, however, affect the commerce in money which may be carried on
by the citizens of a neutral state.
(_d_) A neutral may not permit the =enlistment of troops= for
belligerent service within its jurisdiction. This applies to such action
as might assume the proportions of recruiting. The citizens or subjects
of a neutral state may enter the service of one of the belligerents in a
private manner.
§ 129. Positive Obligations of a Neutral State
Not only must a neutral state refrain from direct assistance of either
belligerent, but it must also put forth positive efforts to prevent
acts which would assist a belligerent. If a state has neutrality laws,
it is under obligations to enforce these laws, and is also under
obligation to see that the principles generally recognized by
international law are observed. Most states make provision for the
enforcement of neutrality. In the United States the President is
authorized to employ the land and naval forces or militia to execute the
law.[428] Jefferson said that, "If the United States have a right to
refuse the permission to arm vessels and raise men within their ports
and territories, they are bound by the laws of neutrality to exercise
that right, and to prohibit such armaments and enlistments."[429] There
can be no difference of opinion upon the proposition that a neutral
state is bound to restrain within its jurisdiction all overt acts of a
character hostile to either belligerent.
There are, however, many acts which in themselves have no necessarily
warlike character. Whether such acts are in violation of neutrality must
be determined by inference as to their purpose. By such acts, as Hall
says, "the neutral sovereignty is only violated constructively."[430]
These acts vary so much in character and are of so wide a range that the
determination of their true nature often imposes severe burdens upon the
neutral attempting to prevent them. The destination of a vessel that is
in the course of construction may determine its character so far as the
laws of neutrality are concerned. If it is for a friendly state which is
at peace with all the world, no objection to its construction and sale
can be raised. If a subject of a neutral state builds a vessel for one
of the belligerents, such an act has sometimes been regarded as a
legitimate business transaction, at other times as an act in violation
of neutrality. As a business transaction, the vessel after leaving
neutral territory is liable to the risk of seizure as contraband. As an
act in violation of neutrality, the neutral state is bound to prevent
the departure of the vessel by a reasonable amount of care. The line of
demarcation which determines what acts a neutral state is under
obligation to prevent, and what acts it may allow its subjects to
perform at their own risk, is not yet clearly drawn. It is certain that
a state is bound to use "due diligence" to prevent the violation of its
neutrality. In the case of the _Alabama_,[431] this phrase was given
different meanings by the representatives of the United States and Great
Britain. The arbitrators declared that "due diligence" should be "in
exact proportion to the risks to which either of the belligerents may be
exposed from a failure to fulfill the obligations of neutrality on their
part."[432] This definition is not satisfactory, and the measure of care
required still depends upon the circumstances of each individual case,
and is therefore a matter of doubt.
CHAPTER XXIV
NEUTRAL RELATIONS BETWEEN STATES AND INDIVIDUALS
130. +Ordinary Commerce.+
(_a_) Destination.
(_b_) Ownership of goods.
(_c_) Nationality of vessel.
(_d_) Declaration of Paris.
131. +Contraband.+
132. +Penalty for Carrying Contraband.+
133. +Unneutral Service.+
134. +Visit and Search.+
(_a_) Right.
(_b_) Object.
(_c_) Method.
(_d_) Ship's papers.
(_e_) Grounds of seizure.
(_f_) Seizure.
135. +Convoy.+
136. +Blockade.+
(_a_) Historical.
(_b_) Conditions of existence.
(_c_) A war measure.
(_d_) Who can declare.
(_e_) Notification.
(_f_) Must be effective.
(_g_) Cessation.
137. +Violation of Blockade.+
138. +Continuous Voyages.+
139. +Prize and Prize Courts.+
§ 130. Ordinary Commerce
As a general principle, subjects of a neutral state may carry on
commerce in the time of war as in the time of peace. At the same time,
owing to the fact of war, a belligerent has the right to take measures
to reduce his opponent to subjection. The general right of the neutral
and the special right of the belligerent come into opposition. The
problem becomes one of "taking into consideration the respective rights
of the belligerents and of the neutrals; rights of the belligerents to
place their opponent beyond the power of resistance, but respecting the
liberty and independence of the neutral in doing this; rights of the
neutrals to maintain with each of the belligerents free commercial
relations, without injury to the opponent of either."[433]
In regard to commerce in the time of war, the matters of destination,
ownership of goods, and the nationality of the vessel have been the
facts ordinarily determining the treatment by the belligerent. If there
is nothing hostile in the destination of the commercial undertaking, in
the nature of the goods, or in the means of transport, the commerce is
free from interruption by the belligerent.
(_a_) The questions arising in regard to =destination= will naturally be
treated under the subjects of blockade and continuous voyage.
(_b_) =The ownership of goods= has usually been a fact determining their
liability to capture.
The rules of the _Consolato del Mare_, compiled in the thirteenth or
fourteenth century, looked to the protection of the neutral vessel and
the neutral goods on the one hand, and to the seizure of the enemy
vessel and of the enemy goods on the other hand. The goods of an enemy
could be seized under a neutral flag, and the goods of a neutral were
free even though under an enemy flag. This doctrine considered mainly
the character of the goods. These rules were held in favor till the
sixteenth century, from which time the practice varied greatly,
sometimes being regulated by treaty. In the sixteenth century France
advanced the doctrine of _hostile contagion_, maintaining the principle
of "enemy ships, enemy goods," and "enemy goods, enemy ships."[434] The
practice of states was far from uniform in the various wars.
(_c_) =The nationality of the vessel= has been sometimes regarded as the
sole fact determining liability of goods to capture, and at other times
affecting only the vessel itself.
Under the rules of the _Consolato_, the flag determined the liability of
the vessel only. Under the French ordinances, the flag contaminated the
goods. From 1778, the doctrine that the neutral flag covered enemy goods
became more commonly accepted. This was especially emphasized by the
armed neutrality of 1780.
Some of the agreements of the United States will show the variety of
practice even in recent times. By Art. XXIII. of the Treaty of 1778 with
France it is provided, "that free ships shall also give a freedom to
goods, and that everything shall be deemed to be free and exempt which
shall be found on board the ships belonging to the subjects of either
of the confederates, although the whole lading or any part thereof
should appertain to the enemies of either, contraband goods being always
excepted." In the Treaty of 1785 with Prussia occurs the following:
"free vessels making free goods, insomuch that all things shall be
adjudged free which shall be on board any vessel belonging to the
neutral party, although such things belong to an enemy of the other." In
the Treaty of 1795 with Spain is a similar provision, excepting,
however, contraband of war. It is asserted in the Treaty of 1799 with
Prussia that as the doctrine of "free ships make free goods" has not
been respected "during the two last wars," and in the one "which still
continues," the contracting parties propose "after the return of a
general peace" to confer with other nations and meantime to observe "the
principles and rules of the law of nations generally acknowledged." The
Treaty of 1819 with Spain interprets the clause of the Treaty of 1795,
in which it is stipulated that the flag shall cover the property, by
saying, "that this shall be so understood with respect to those Powers
who recognize this principle; but if either of the two contracting
parties shall be at war with a third party, and the other neutral, the
flag of the neutral shall cover the property of enemies whose Government
acknowledges this principle, and not of others." The Treaty of 1794 with
Great Britain expressly provides that property of an enemy on a neutral
vessel shall be good prize. In 1887 it was agreed in the treaty with
Peru "that the stipulation in this article declaring that the flag shall
cover the property shall be understood as applying to those nations only
who recognize this principle; but if either of the contracting parties
shall be at war with a third, and the other shall remain neutral, the
flag of the neutral shall cover the property of enemies whose
Governments acknowledge this principle, and not that of others."[435] In
spite of these variations, the practice of the United States has been
much more uniform than that of the states in which the foreign relations
have exercised a more direct influence.
(_d_) Since 1856 the principles enunciated in the =Declaration of Paris=
have generally prevailed. The provisions in regard to the flag and goods
are:--
"2. The neutral flag covers enemy's goods, with the exception of
contraband of war.
"3. Neutral goods, with the exception of contraband of war, are not
liable to capture under the enemy's flag."[436]
This agreement bound only those states which signed it. A few states,
including the United States, Spain, Mexico, Venezuela, and China, did
not accede to these provisions. The United States declined because the
government desired a provision exempting all private property at sea
from capture.[437] In the War of 1898, the United States announced that
the rules of the Declaration of Paris would be observed, and Spain made
a similar announcement except as to the clause in regard to
privateering.[438] Spain did not, however, make use of privateers. The
goods of a neutral embarked in a belligerent carrying vessel are liable
to the damages or destruction which may be the consequence of necessary
acts of war. Destruction not the result of such necessary acts would be
in violation of the spirit of the Declaration of Paris, and the neutral
might justly demand reparation.
The rules of the Declaration of Paris have been so generally accepted in
practice that there is little possibility that they will be disregarded
by the civilized states of the world.
§ 131. Contraband
Contraband is the term applied to those articles which from their
usefulness in war a neutral cannot transport without risk of seizure.
While a state is under obligation to prevent the fitting out of hostile
expeditions and to refrain from furnishing belligerent ships warlike
material, a state is not bound to prevent the traffic of its citizens or
subjects in contraband of war. Such articles as are contraband may be
seized on the high seas,[439] and by the Declaration of Paris are not
protected by the neutral flag.[440]
Of the articles of commerce themselves, Grotius makes three general
classes:--
"1. Those which have their sole use in war, such as arms."
"2. Those which have no use in war, as articles of luxury."
"3. Those which have use both in war and out of war, as money,
provisions, ships, and those things appertaining to ships."[441]
Grotius regards articles of the first class as hostile, of the second as
not a matter of complaint, and of the third as of ambiguous use (_usus
ancipitis_), of which the treatment is to be determined by their
relation to the war.
While the general principle may be clear, the application of the
principle is not simple. Those articles whose sole use is in war are,
without question, contraband. Articles exclusively for peaceful use are
not contraband. Between these two classes are many articles in regard to
which both practice and theory have varied most widely.[442] The
theorists have usually endeavored to give the neutral the largest
possible liberty in commerce, on the ground that those who were not
parties to the war should not bear its burdens. This has been the
opinion most approved by the jurists of Continental Europe. Great
Britain and the United States have been inclined to extend the range of
articles which might on occasion be classed as contraband.
The attitude of the United States may be seen from the following
enumeration of articles, which is practically the same as was declared
contraband in the Spanish War of 1898:--
"+Absolutely Contraband.+--Ordnance; machine guns and their appliances
and the parts thereof; armor plate and whatever pertains to the
offensive and defensive armament of naval vessels; arms and
instruments of iron, steel, brass, or copper, or of any other
material, such arms and instruments being specially adapted for use in
war by land or sea; torpedoes and their appurtenances; cases for
mines, of whatever material; engineering and transport materials, such
as gun carriages, caissons, cartridge boxes, campaigning forges,
canteens, pontoons; ordnance stores; portable range finders; signal
flags destined for naval use; ammunition and explosives of all kinds
and their component parts; machinery for the manufacture of arms and
munitions of war; saltpeter; military accouterments and equipments of
all sorts; horses and mules."
"+Conditionally Contraband.+--Coal, when destined for a naval station,
a port of call, or a ship or ships of the enemy; materials for the
construction of railways or telegraphs; and money; when such materials
or money are destined for the enemy's forces; provisions, when
actually destined for the enemy's military or naval forces."[443]
The range of articles classed as contraband will naturally vary from
time to time as changes in the method of carrying on war occur. Horses
have usually been regarded as contraband by France, England, and the
United States, except in their dealings with Russia, which state has
always opposed this inclusion. The increasing importance of coal during
the latter half of the nineteenth century has led to the policy of
determination of its character by its destination. Provisions are in
practically the same position as coal.[444] In the war with Spain in
1898, the United States included as absolute contraband, horses, and as
conditionally contraband, coal, money, and provisions, which Spain did
not mention. Spain mentioned by name sulphur, which the United States
did not specify, though it might be included in some of the general
classes. "As the supply of sulphur is chiefly obtained from Sicily, the
Spanish government would have had a rare opportunity to seize and
confiscate it as it passed through the Straits of Gibraltar. But upon
the request of the Italian government it ... refrained from treating
sulphur as contraband."[445]
§ 132. Penalty for Carrying Contraband
No penalty attaches to the simple act of transportation of contraband.
It is the hostile destination of the goods that renders them liable to
penalty and the vessel liable to delay or other consequences according
to circumstances.
The general rules are as follows:--
1. When the ship and the contraband cargo belong to the same owner, both
are liable to be condemned.
2. When the ship and the contraband cargo belong to different owners,
the cargo only is liable to be condemned.
3. When the owner of the cargo is also part owner of the ship, it has
been held that his part of the ship is also liable to be condemned.[446]
4. When non-contraband goods on the ship belong to the same owner with
the contraband goods, it has been held that these goods are also liable
to be condemned. "To escape from the contagion of contraband, the
innocent articles must be the property of a different owner."[447]
5. A vessel which would otherwise be free when carrying contraband may
become liable to condemnation on account of fraud. Such fraud may
consist in bearing false papers or claiming a false destination.
6. In certain instances, vessels have been held liable to condemnation
because carrying articles which by treaty between the state of the
captor and the state of the carrier are specially forbidden.
As Perels maintains, it is difficult to see how the fourth rule can be
enforced consistently with the Declaration of Paris, by which they would
be exempt even if belonging to the enemy.[448]
The neutral carrier loses freight on the contraband goods and suffers
such inconvenience and delay as the bringing in of the contraband and
its adjudication in a proper court may entail.
Under special circumstances goods have been treated as liable to
preëmption instead of absolute seizure. Of this Hall says, "In
strictness every article which is either necessarily contraband, or
which has become so from the special circumstances of war, is liable to
confiscation; but it is usual for those nations who vary their list of
contraband to subject the latter class to preëmption only, which by the
English practice means purchase of the merchandise at its mercantile
value, together with a reasonable profit, usually calculated at ten per
cent on the amount."[449] This practice is not viewed with favor upon
the Continent as indicating a departure from the generally accepted
practice.[450]
§ 133. Unneutral Service
Unneutral service differs from the carriage of contraband, particularly
in being hostile in its nature and involving a participation in the
contest. Such service involves assistance in the performance of warlike
acts. While the destination is a question of vital importance in the
case of contraband, the intent of the act is a matter of highest
importance in cases of unneutral service.
The acts generally regarded as in the category of unneutral service
are:--
1. The carriage of enemy dispatches.
2. The carriage of certain belligerent persons.
3. Aid by auxiliary coal, repair, supply, or transport ships.
4. Knowing coöperation in the transmission of certain messages and
information to the belligerent.
(1) Of the _carriage of dispatches_, in the case of the _Atalanta_, Lord
Stowell said:--
"How is the intercourse between the mother country and the colonies
kept up in the time of peace? By ships of war or by packets in the
service of the state. If a war intervenes, and the other belligerent
prevails to interrupt that communication, any person stepping in to
lend himself to effect the same purpose, under the privilege of an
ostensible neutral character, does in fact place himself in the
service of the enemy state."[451]
"A neutral vessel carrying hostile dispatches, when sailing as a
dispatch vessel practically in the service of the enemy, is liable to
seizure. Mail steamers under neutral flags carrying dispatches in the
regular and customary manner, either as a part of their mail in their
mail bags, or separately as a matter of accommodation and without
special arrangement or remuneration, are not liable to seizure and
should not be detained, except upon clear grounds of suspicion of a
violation of the laws of war with respect to contraband, blockade, or
unneutral service, in which case the mail bags must be forwarded with
seals unbroken."[452]
Regular diplomatic and consular correspondence is not regarded as
hostile unless there is some special reason for such belief.
(2) The limitation in regard to the _carriage of certain belligerent
persons_ applies to those who travel in such manner as to make it
evident that they travel in the military or naval service of the
belligerent state. If the carriage of the person or persons is paid by
the state, or is done under state contract, it is regarded as sufficient
evidence of unneutral service.[453] The neutral carrier engaged in
ordinary service is not obliged to investigate the character of persons
who take passage in the usual way. The case of the _Trent_ had no
particular bearing upon this subject, as it merely emphasized an already
settled principle "that a public ship, though of a nation at war, cannot
take persons out of a neutral vessel at sea, whatever may be the claim
of her government on those persons."[454]
(3) _Auxiliary coal, repair, supply, or transport ships_, as, directly
in the service of the belligerent, have an undoubted hostile
character.[455]
(4) Knowing coöperation in the _transmission of certain messages_ for
the belligerent renders the ship liable to penalty. Such an act as the
repetition of signals would fall in this class. Submarine telegraphic
cables between a belligerent and a neutral state may become liable to
censorship or to interruption beyond neutral jurisdiction if used for
hostile purposes. A neutral vessel engaged in the laying, cutting, or
repair of war telegraph cables is held to be performing unneutral
service.
The general penalty for the performance of unneutral service is the
forfeiture of the vessel so engaged.
§ 134. Visit and Search
(_a_) "The right of visiting and searching merchant ships upon the
seas--whatever be the ships, whatever be the cargoes, whatever be the
destinations--is an incontestable right of the lawfully commissioned
cruisers of a belligerent nation,"[456] is the statement of the general
principle laid down in the case of the _Maria_. Judge Story says that
the right is "allowed by the general consent of nations in the time of
war and limited to those occasions."[457] There is, however, a qualified
right of search in the time of peace in case of vessels suspected of
piracy or of slave trade. Under these circumstances the right must be
exercised with the greatest care, otherwise the searching party is
liable to damages.[458]
(_b_) =The Object.= In the time of war the right is exercised in order
to secure from the neutral the observance of the laws of neutrality, or
specifically, according to the regulations of the United States:--
1. To determine the nationality of a vessel.
+Note.+ The right of approach to ascertain the nationality of a vessel
is generally allowed in time of peace. "International Law," Naval War
College, p. 165.
2. To ascertain whether contraband of war is on board.
3. To ascertain whether a breach of blockade is intended or has been
committed.
4. To ascertain whether the vessel is engaged in any capacity in the
service of the enemy.[459]
(_c_) =The Method.= The vessel is usually brought to by firing a gun
with a blank charge, or if this is not sufficient, a shot across the
bows or even by the use of necessary force. The cruiser should then send
a small boat with an officer to conduct the search. Arms may be carried
in the boat but not upon the persons of the men. The officer should not
be accompanied on board the vessel by more than two men. He should
examine the papers of the vessel. "If the papers show contraband, an
offense in respect to blockade, or enemy service, the vessel should be
seized; otherwise she should be released, unless suspicious
circumstances justify a further search. If the vessel be released, an
entry in the log book to that effect should be made by the boarding
officer."[460]
(_d_) =Ship's Papers.= The papers expected to be on board as evidence of
the character of the vessel are:--
1. The register.
2. The crew and passenger list.
3. The log book.
4. A bill of health.
5. The manifest of cargo.
6. A charter party, if the vessel is chartered.
7. Invoices and bills of lading.[461]
(_e_) =Grounds of Seizure.= It is generally held that a vessel may be
seized in case of:--
1. Resistance to visit and search.
2. Clear evidence of attempt to avoid visit and search by escape.
3. Clear evidence of illegal acts on the part of the neutral vessel.
4. Absence of or defect in the necessary papers.
(_a_) Fraudulent papers.
(_b_) Destruction, defacement, or concealment of papers.
(_c_) Simple failure to produce regular papers.
(_f_) =Seizure.= In case of seizure it is held that the neutral vessel
and property vests in the neutral till properly condemned by a duly
authorized court. The captor is therefore under obligation:--
1. To conduct the seizure with due regard to the person and property
of the neutral.
2. To exercise reasonable diligence to bring the capture quickly to
a port for its adjudication.
3. To guard the capture from injury so far as within his power.
Failure to fulfill these obligations renders the belligerent liable to
damages.[462]
In the Chino-Japanese War of 1894, the Japanese war vessels visited
eighty-one neutral vessels but only one was brought to the prize
court.[463]
§ 135. Convoy
A neutral merchant vessel is sometimes placed under the protection of a
ship of war of its own state, and is then said to be under convoy.
It has been claimed by many authorities, particularly those of
Continental Europe, that such a merchant vessel is exempt from
visitation and search upon the declaration of the commander of the
neutral ship of war that the merchantman is violating no neutral
obligation. England has uniformly denied the validity of this claim.
Practice has been very divergent in most states. From the middle of the
seventeenth century the right of convoy has been asserted. From the end
of the eighteenth century the claim has gained in importance.[464] The
United States has made many treaties directly recognizing the practice,
and instructs naval officers that, "Convoys of neutral merchant vessels,
under escort of vessels of war of their own State, are exempt from the
right of search, upon proper assurances, based on thorough examination,
from the commander of the convoy."[465]
In the war of 1894,--