International Law. A Treatise Volume Ii Part 48

A sufficient number of men must, however, be always left on board for looking after the vessel. The officers may be left at liberty on giving their word not to quit neutral territory without permission."

If a vessel is granted asylum for the whole time of the war--see below, -- 347 (3 and 4)--and is, therefore, dismantled, she loses the character of a man-of-war, no longer enjoys the privilege of exterritoriality due to men-of-war in foreign waters, and prisoners on board become free, although they must be detained by the neutral concerned.

[Sidenote: Facilities to Men-of-War during Asylum.]

-- 346. A belligerent man-of-war, to which asylum is granted in a neutral port, is not only not disarmed and detained, but facilities may even be rendered to her as regards slight repairs, and the supply of provisions and coal. However, a neutral may only allow small repairs of the vessel herself and not of her armaments;[669] for he would render a.s.sistance to one of the belligerents, to the detriment of the other, if he were to allow the damaged armaments of a belligerent man-of-war to be repaired in a neutral port. And, further, a neutral may only allow a limited amount of provisions and coal to be taken in by a belligerent man-of-war in neutral ports;[670] for, if he did otherwise, he would allow the belligerent to use the neutral ports as a base for operations of war.

And, lastly, a neutral may allow a belligerent man-of-war in his ports to enrol only such a small number of sailors as is necessary to navigate her safely to the nearest port of her home State.[671]

[Footnote 669: See above, -- 333 (5), and below, -- 347 (3).]

[Footnote 670: See above, -- 333 (4).]

[Footnote 671: See above, ---- 330 and 333 (3).]

[Sidenote: Abuse of Asylum to be prohibited.]

-- 347. It would be easy for belligerent men-of-war to which asylum is granted in neutral ports to abuse such asylum if neutrals were not required to prohibit such abuse.

(1) A belligerent man-of-war can abuse asylum, firstly, by ascertaining whether and what kind of enemy vessels are in the same neutral port, accompanying them when they leave, and attacking them immediately they reach the Open Sea. To prevent such abuse, in the eighteenth century several neutral States arranged that, if belligerent men-of-war or privateers met enemy vessels in a neutral port, they were not to be allowed to leave together, but an interval of at least twenty-four hours was to elapse between the sailing of the vessels. During the nineteenth century this so-called twenty-four hours rule was enforced by the majority of States, and the Second Peace Conference, by article 16 of Convention XIII., has made it a general rule[672] by enacting:--"When war-s.h.i.+ps belonging to both belligerents are present simultaneously in a neutral port or roadstead, a period of not less than twenty-four hours must elapse between the departure of the s.h.i.+p belonging to one belligerent and the departure of the s.h.i.+p belonging to the other. The order of departure is determined by the order of arrival, unless the s.h.i.+p which arrived first is so circ.u.mstanced that an extension of its stay is permissible. A belligerent war-s.h.i.+p may not leave a neutral port or roadstead until twenty-four hours after the departure of a merchant s.h.i.+p flying the flag of its adversary."

(2) Asylum can, secondly, be abused by wintering in a port in order to wait for other vessels of the same fleet, or by similar intentional delay. There is no doubt that neutrals must prohibit this abuse by ordering such belligerent men-of-war to leave the neutral ports.

Following the example set by Great Britain in 1862,[673] several maritime States have adopted the rule of not allowing a belligerent man-of-war to stay in their neutral ports for more than twenty-four hours, except on account of damage or stress of weather. Other States, such as France, do not, however, object to a more prolonged stay in their ports. Article 12 of Convention XIII. prescribes the twenty-four hours rule only for those neutral countries which have not special provisions to the contrary in their Munic.i.p.al Laws.[674]

(3) Asylum can, thirdly, be abused by repairing a belligerent man-of-war which has become unseaworthy. Although small repairs are allowed,[675] a neutral would violate his duty of impartiality by allowing such repairs as would make good the unseaworthiness of a belligerent man-of-war.

During the Russo-j.a.panese War this was generally recognised, and the Russian men-of-war _Askold_ and _Grossovoi_ in Shanghai, the _Diana_ in Saigon, and the _Lena_ in San Francisco had therefore to be disarmed and detained. The crews of these vessels had likewise to be detained for the time of the war.

(4) Asylum can, lastly, be abused by remaining in a neutral port an undue length of time in order to escape attack and capture by the other belligerent. Neutral territorial waters are in fact an asylum for men-of-war which are pursued by the enemy, but, since nowadays a right of pursuit into neutral waters, as a.s.serted by Bynkershoek,[676] is no longer recognised, it would be an abuse of asylum if the escaped vessel were allowed to make a prolonged stay in the neutral waters. A neutral who allowed such abuse of asylum would violate his duty of impartiality, for he would a.s.sist one of the belligerents to the disadvantage of the other.[677] Therefore, when after the battle off Port Arthur in August 1904 the Russian battles.h.i.+p _Cesarewitch_, the cruiser _Novik_, and three destroyers escaped, and took refuge in the German port of Tsing-Tau in Kiao-Chau, the _Novik_, which was uninjured, had to leave the port after a few hours,[678] whereas the other vessels, which were too damaged to leave the port, were disarmed and, together with their crews, detained till the conclusion of peace. And when, at the end of May 1905, after the battle of Tsu s.h.i.+ma, three injured Russian men-of-war, the _Aurora_, _Oleg_, and _Jemchug_, escaped into the harbour of Manila, the United States of America ordered them to be disarmed and, together with their crews, to be detained during the war.

[Footnote 672: See above, -- 333 (2), and Hall, -- 231, p. 651.]

[Footnote 673: See Hall, -- 231, p. 653.]

[Footnote 674: See above, -- 333 (6)--Germany, Domingo, Siam, and Persia have entered a reservation against article 12.]

[Footnote 675: See above, -- 333 (5) and -- 346.]

[Footnote 676: _Quaest. jur. publ._ I. c. 8. See also above, -- 288, p.

352, and -- 320, p. 387.]

[Footnote 677: It was only during the Russo-j.a.panese War in 1904 that this became generally recognised, and article 24 of Convention XIII.

places it beyond all doubt. Until the Russo-j.a.panese War it was still a controverted question whether a neutral is obliged either to dismiss or to disarm and detain such men-of war as had fled into his ports for the purpose of escaping attack and capture. See Hall, -- 231, p. 651, and Perels, -- 39, p. 213, in contradistinction to Fiore, III. No. 1578. The "Reglement sur le regime legal des navires et de leurs equipages dans les ports etrangers," adopted by the Inst.i.tute of International Law in 1898 at its meeting at the Hague--see _Annuaire_, XVII. (1898), p.

273--answers (article 42) the question in the affirmative.]

[Footnote 678: This case marks the difference between the duties of neutrals as regards asylum to land and naval forces. Whereas land forces crossing neutral frontiers must either be at once repulsed or detained, men-of-war may be granted the right to stay for some limited time within neutral harbours and to leave afterwards unhindered; see above, -- 342.

The supply of a small quant.i.ty of coal to the _Novik_ in Tsing-Tau was criticised by writers in the Press, but unjustly. For--see above, -- 346--a neutral may allow a belligerent man-of-war in his port to take in so much coal as is necessary to navigate her to her nearest home port.]

[Sidenote: Neutral Men-of-War as an Asylum.]

-- 348. It can happen during war that neutral men-of-war pick up and save from drowning soldiers and sailors of belligerent men-of-war sunk by the enemy, or that they take belligerent marines on board for other reasons.

Such neutral men-of-war being an asylum for the rescued marines, the question has arisen whether such rescued marines must be given up to the enemy, or must be detained during the war, or may be brought to their home country. Two cases are on record which ill.u.s.trate this matter.

(1) At the beginning of the Chino-j.a.panese War, on July 25, 1894, after the j.a.panese cruiser _Naniwa_ had sunk the British s.h.i.+p _Kow-s.h.i.+ng_, which served as transport carrying Chinese troops,[679] forty-five Chinese soldiers who clung to the mast of the sinking s.h.i.+p were rescued by the French gunboat _Lion_ and brought to the Korean harbour of Chemulpo. Hundreds of others saved themselves on some islands near the spot where the incident occurred, and 120 of these were taken on board the German man-of-war _Iltis_ and brought back to the Chinese port of Tientsin.[680]

(2) At the beginning of the Russo-j.a.panese War, on February 9, 1904, after the Russian cruisers _Variag_ and _Korietz_ had accepted the challenge[681] of a j.a.panese fleet, fought a battle outside the harbour of Chemulpo, and returned, crowded with wounded, to Chemulpo, the British cruiser _Talbot_, the French _Pascal_, and the Italian _Elba_ received large numbers of the crews of the disabled Russian cruisers.

The j.a.panese demanded that the neutral s.h.i.+ps should give up the rescued men as prisoners of war, but the neutral commanders demurred, and an arrangement was made according to which the rescued men were handed over to the Russians under the condition that they should not take part in hostilities during the war.[682]

[Footnote 679: See above, -- 89, p. 114, note 1.]

[Footnote 680: See Takahas.h.i.+, _Cases on International Law during the Chino-j.a.panese War_ (1899), pp. 36 and 51.]

[Footnote 681: See above, -- 320 (1).]

[Footnote 682: See Lawrence, _War_, pp. 63-75, and Takahas.h.i.+, pp.

462-466.]

The Second Peace Conference has settled the question, for article 13 of Convention X. enacts:--"If wounded, sick, or s.h.i.+pwrecked are taken on board a neutral man-of-war, precaution must be taken, so far as possible, that they do not again take part in the operations of the war."

[Sidenote: Neutral Territory and s.h.i.+pwrecked Soldiers.]

-- 348_a_. Just as in war on land members of the belligerent forces may find themselves on neutral territory, so in war on sea s.h.i.+pwrecked or wounded or sick belligerent soldiers can be brought into neutral territory. Two cases of this kind must be distinguished:--

(1) According to article 14 of Convention X. it is left to the belligerent man-of-war who captures s.h.i.+pwrecked, wounded, or sick enemy soldiers to send them to a neutral port. The neutral Power concerned need not receive them, but, on the other hand, may grant them asylum. If asylum is granted, the neutral Power is, according to article 15 of Convention X., obliged--unless there is an arrangement to the contrary between the neutral Power and both belligerents--to guard them so as to prevent them from again taking part in the war,[683] the expenses for tending and interning them to be paid by the belligerent to whom they belong.

(2) Neutral merchantmen[684] can either of their own accord have rescued wounded, sick, or s.h.i.+pwrecked men, or they can have taken them on board on appeal by belligerent men-of-war. The surrender of these men may, according to article 12 of Convention X., be demanded at any time by any belligerent man-of-war. But if such demand be not made and the men be brought into a neutral port, they need not be detained by the neutral concerned.

[Footnote 683: See above, -- 205.]

[Footnote 684: See above, -- 208 (2).]

VI

SUPPLIES AND LOANS TO BELLIGERENTS

Vattel, III. -- 110--Hall, ---- 216-217--Lawrence, -- 235--Westlake, II. pp. 217-219--Phillimore, III. -- 151--Twiss, II. -- 227--Halleck, II. p. 163--Taylor, ---- 622-625--Walker, -- 67--Wharton, III. ---- 390-391--Moore, VII. ---- 1307-1312--Bluntschli, ---- 765-768--Heffter, -- 148--Geffcken in Holtzendorff, IV. pp. 687-700--Ullmann, ---- 191-192--Bonfils, Nos.

1471-1474--Despagnet, Nos. 693-694--Rivier, II. pp.

385-411--Calvo, IV. ---- 2624-2630--Fiore, III. Nos.

1559-1563--Martens, II. -- 134--Kleen, I. ---- 66-69, 96-97--Merignhac, pp. 360-364--Pillet, pp. 289-293--Dupuis, Nos.

317-319--_Land Warfare_, ---- 477-480.

[Sidenote: Supply on the part of Neutrals.]

-- 349. The duty of impartiality must prevent a neutral from supplying belligerents with arms, ammunition, vessels, and military provisions.[685] And it matters not whether such supply takes place for money or gratuitously. A neutral who sold arms and ammunition to a belligerent at a profit would violate his duty of impartiality as also would one who transferred such arms and ammunition to a belligerent as a present. This is a settled rule so far as direct transactions regarding such supply between belligerents and neutrals are concerned. The case is different where a neutral does not directly and knowingly deal with a belligerent, although he may, or ought to, be aware that he is indirectly supplying a belligerent. Different States have during neutrality taken up different att.i.tudes regarding such cases. Thus in 1825, during the War of Independence which the Spanish South American Colonies waged against their mother country, the Swedish Government sold three old men-of-war, the _Forsigtigheten_, _Euridice_, and _Camille_ to two merchants, who on their part sold them to English merchants, representatives of the Government of the Mexican insurgents. When Spain complained, Sweden rescinded the contract.[686] Further, the British Government in 1863, during the American Civil War, after selling an old gunboat, the _Victor_, to a private purchaser and subsequently finding that the agents of the Confederate States had obtained possession of her, gave the order that during the war no more Government s.h.i.+ps should be sold.[687] On the other hand, the Government of the United States of America, in pursuance of an Act pa.s.sed by Congress in 1868 for the sale of arms which the end of the Civil War had rendered superfluous, sold in 1870, notwithstanding the Franco-German War, thousands of arms and other war material which were s.h.i.+pped to France.[688] This att.i.tude of the United States is now generally condemned, and article 6 of Convention XIII. may be quoted against a repet.i.tion of such a practice on the part of a neutral State. This article prohibits the supply in any manner, directly or _indirectly_, by a neutral to a belligerent, of wars.h.i.+ps, ammunition, or war material of any kind whatever.

[Footnote 685: See article 6 of Convention XIII.]

[Footnote 686: See Martens, _Causes Celebres_, V. pp. 229-254.]

[Footnote 687: See Lawrence, -- 235.]