International Law. A Treatise Volume Ii Part 24

-- 176. It is evident that in times when a belligerent could destroy all public and private enemy property he was able to seize, no special rule existed regarding private enemy ships and private enemy property carried by them on the sea. But the practice of sea warfare frequently went beyond the limits of even so wide a right, treating neutral goods on enemy ships as enemy goods, and treating neutral ships carrying enemy goods as enemy ships. It was not until the time of the _Consolato del Mare_ in the fourteenth century that a set of clear and definite rules with regard to private enemy vessels and private enemy property on sea in contradistinction to neutral ships and neutral goods was adopted.

According to this famous collection of maritime usages observed by the communities of the Mediterranean, there is no doubt that a belligerent may seize and appropriate all private enemy ships and goods. But a distinction is made in case of either ship or goods being neutral.

Although an enemy ship may always be appropriated, neutral goods thereon have to be restored to the neutral owners. On the other hand, enemy goods on neutral ships may be appropriated, but the neutral ships carrying such goods must be restored to their owners. However, these rules of the _Consolato del Mare_ were not at all generally recognised, although they were adopted by several treaties between single States during the fourteenth and fifteenth centuries. Neither the communities belonging to the Hanseatic League, nor the Netherlands and Spain during the War of Independence, nor England and Spain during their wars in the sixteenth century, adopted these rules. And France expressly enacted by Ordinances of 1543 (article 42) and 1583 (article 69) that neutral goods on enemy ships as well as neutral ships carrying enemy goods should be appropriated.[344] Although France adopted in 1650 the rules of the _Consolato del Mare_, Louis XIV. dropped them again by the Ordinance of 1681 and re-enacted that neutral goods on enemy ships and neutral ships carrying enemy goods should be appropriated. Spain enacted the same rules in 1718. The Netherlands, in contradistinction to the _Consolato del Mare_, endeavoured by a number of treaties to foster the principle that the flag covers the goods, so that enemy goods on neutral vessels were exempt from, whereas neutral goods on enemy vessels were subject to, appropriation. On the other hand, throughout the eighteenth and during the nineteenth century down to the beginning of the Crimean War in 1854, England adhered to the rules of the _Consolato del Mare_. Thus, no generally accepted rules of International Law regarding private property on sea were in existence.[345] Matters were made worse by privateering, which was generally recognised as lawful, and by the fact that belligerents frequently declared a coast blockaded without having a sufficient number of men-of-war on the spot to make the blockade effective. It was not until the Declaration of Paris in 1856 that general rules of International Law regarding private property on sea came into existence.

[Footnote 344: _Robe d'ennemy confisque celle d'amy. Confiscantur ex navibus res, ex rebus naves._]

[Footnote 345: Boeck, Nos. 3-103, and Geffcken in Holtzendorff, IV. pp.

572-578, give excellent summaries of the facts.]

[Sidenote: Declaration of Paris.]

-- 177. Things began to undergo a change with the outbreak of the Crimean War in 1854, when all the belligerents proclaimed that they would not issue Letters of Marque, and when, further, Great Britain declared that she would not seize enemy goods on neutral vessels, and when, thirdly, France declared that she would not appropriate neutral goods on enemy vessels. Although this alteration of att.i.tude on the part of the belligerents was originally intended for the Crimean War only and exceptionally, it led after the conclusion of peace in 1856 to the famous and epoch-making Declaration of Paris,[346] which enacted the four rules--(1) that privateering is abolished, (2) that the neutral flag covers enemy goods[347] with the exception of contraband of war, (3) that neutral goods, contraband of war excepted, are not liable to capture under the enemy flag, (4) that blockades, in order to be binding, must be effective, which means maintained by a force sufficient really to prevent access to the coast of the enemy. Since, with the exception of a few States such as the United States of America, Colombia, Venezuela, Bolivia, and Uruguay, all members of the Family of Nations are now parties to the Declaration of Paris, it may well be maintained that the rules quoted are general International Law, the more so as the non-signatory Powers have hitherto in practice always acted in accordance with those rules.[348]

[Footnote 346: See Martens, _N.R.G._ XV. p. 767, and above, vol. I. -- 559.]

[Footnote 347: It has been a.s.serted--see, for instance, Rivier, II. p.

429--that the neutral flag covers only private, not public, enemy property, and therefore that such goods on neutral vessels as belong to the State of the enemy may be seized and appropriated. This opinion would seem, however, to be untenable in face of the fact that the Declaration of Paris speaks of _marchandise neutre_ without any qualification, only excepting contraband goods, thus protecting the whole of the cargo under the neutral flag, contraband excepted. See below, -- 319, p. 385, note 3.]

[Footnote 348: That there is an agitation for the abolition of the Declaration of Paris has been mentioned above, -- 83, p. 100, note 3.]

[Sidenote: The Principle of Appropriation of Private Enemy Vessels and Enemy Goods thereon.]

-- 178. The Declaration of Paris did not touch upon the old rule that private enemy vessels and private enemy goods thereon may be seized and appropriated, and this rule is, therefore, as valid as ever, although there is much agitation for its abolition. In 1785 Prussia and the United States of America had already stipulated by article 23 of their Treaty of Friendship[349] that in case of war between the parties each other's merchantmen shall not be seized and appropriated. Again, in 1871 the United States and Italy, by article 12 of their Treaty of Commerce,[350] stipulated that in case of war between the parties each other's merchantmen, with the exception of those carrying contraband of war or attempting to break a blockade, shall not be seized and appropriated. In 1823 the United States had already made the proposal to Great Britain, France, and Russia[351] for a treaty abrogating the rule that enemy merchantmen and enemy goods thereon may be appropriated; but Russia alone accepted the proposal under the condition that all other naval Powers should consent. Again, in 1856,[352] on the occasion of the Declaration of Paris, the United States endeavoured to obtain the victory of the principle that enemy merchantmen shall not be appropriated, making it a condition of their accession to the Declaration of Paris that this principle should be recognised. But again the attempt failed, owing to the opposition of Great Britain.

[Footnote 349: See Martens, _R._ IV. p. 37. Perels (p. 198) maintains that this article has not been adopted by the Treaty of Commerce between Prussia and the United States of May 1, 1828; but this statement is incorrect, for article 12 of this treaty--see Martens, _N.R._ VII. p.

615--adopts it expressly.]

[Footnote 350: See Martens, _N.R.G._ 2nd Ser. I. p. 57.]

[Footnote 351: See Wharton, III. -- 342, pp. 260-261, and Moore, VII. -- 1198, p. 465.]

[Footnote 352: See Wharton, III. -- 342, pp. 270-287, and Moore, VII. -- 1198, p. 466.]

At the outbreak of war in 1866, Prussia and Austria expressly declared that they would not seize and appropriate each other's merchantmen. At the outbreak of the Franco-German War in 1870, Germany declared French merchantmen exempt from capture, but she changed her att.i.tude when France did not act upon the same lines. It should also be mentioned that already in 1865 Italy, by article 211 of her Marine Code, enacted that, in case of war with any other State, enemy merchantmen not carrying contraband of war or breaking a blockade shall not be seized and appropriated, provided reciprocity be granted. And it should further be mentioned that the United States of America made attempts[353] in vain to secure immunity from capture to enemy merchantmen and goods on sea at the First as well as at the Second Hague Peace Conference.

[Footnote 353: See Holls, _The Peace Conference at the Hague_, pp.

306-321, and Scott, _Conferences_, pp. 699-707.]

It cannot be denied that the constant agitation, since the middle of the eighteenth century, in favour of the abolition of the rule that private enemy vessels and goods may be captured on the High Seas, might, during the second half of the nineteenth century, have met with success but for the decided opposition of Great Britain. Public opinion in Great Britain was not, and is not, prepared to consent to the abolition of this rule.

And there is no doubt that the abolition of the rule would involve a certain amount of danger to a country like Great Britain whose position and power depend chiefly upon her navy. The possibility of annihilating an enemy's commerce by annihilating his merchant fleet is a powerful weapon in the hands of a great naval Power. Moreover, if enemy merchantmen are not captured, they can be fitted out as cruisers, or at least be made use of for the transport of troops, munitions, and provisions. Have not several maritime States made arrangements with their steamship companies to secure the building of their Transatlantic liners according to plans which make these merchantmen easily convertible into men-of-war?

The argument that it is unjust that private enemy citizens should suffer through having their property seized has no weight in face of the probability that fear of the annihilation of its merchant fleet in case of war may well deter a State intending to go to war from doing so. It is a matter for politicians, not for jurists, to decide whether Great Britain must in the interest of self-preservation oppose the abolition of the rule that sea-borne private enemy property may be confiscated.

However this may be, since the end of the nineteenth century it has not been the att.i.tude of Great Britain alone which stands in the way of the abolition of the rule. Since the growth of navies among continental Powers, these Powers have learnt to appreciate the value of the rule in war, and the outcry against the capture of merchantmen has become less loud. To-day, it may perhaps be said that, even if Great Britain were to propose the abolition of the rule, it is probable that a greater number of the maritime States would refuse to accede. For it should be noted that at the Second Peace Conference, France, Russia, j.a.pan, Spain, Portugal, Mexico, Colombia, and Panama, besides Great Britain, voted against the abolition of the rule. And there is noticeable a slow, but constant, increase in the number of continental publicists[354] who oppose the abolition of the once so much objected to practice of capturing enemy merchantmen.

[Footnote 354: See, for instance, Perels, -- 36, pp. 195-198; Ropcke, _Das Seebeuterecht_ (1904), pp. 36-47; Dupuis, Nos. 29-31; Pillet, p.

119; Giordana, _La proprieta privata nelle guerre maritime, etc._ (1907); Niemeyer, _Prinzipien des Seekriegsrechts_ (1909); Boidin, pp.

144-167. On the other hand, the Inst.i.tute of International Law has several times voted in favour of the abolition of the rule; see _Tableau General de l'Inst.i.tut de droit International_ (1893), pp. 190-193. The literature concerning the question of confiscation of private enemy property on sea is abundant. The following authors, besides those already quoted above at the commencement of -- 173, may be mentioned:--Upton, _The Law of Nations affecting Commerce during War_ (1863); Cauchy, _Du respect de la propriete privee dans la guerre maritime_ (1866); Vidari, _Del rispetto della proprieta privata fra gli stati in guerra_ (1867); Gessner, _Zur Reform des Kriegsseerechts_ (1875); Klobukowski, _Die Seebeute oder das feindliche Privateigenthum zur See_ (1877); Bluntschli, _Das Beuterecht im Kriege und das Seebeuterecht insbesondere_ (1878); Boeck, _De la propriete privee ennemie sous pavillon ennemi_ (1882); Dupuis, _La guerre maritime et les doctrines anglaises_ (1899); Leroy, _La guerre maritime_ (1900); Ropcke, _Das Seebeuterecht_ (1904); Hirst, _Commerce and Property in Naval Warfare: A Letter of the Lord Chancellor_ (1906); Hamman, _Der Streit um das Seebeuterecht_ (1907); Wehberg, _Das Beuterecht im Land und Seekrieg_ (1909); Cohen, _The Immunity of Enemy's Property from Capture at Sea_ (1909); Macdonell, _Some plain Reasons for Immunity from Capture of Private Property at Sea_ (1910). See also the literature quoted by Bonfils, No. 1281, Pradier-Fodere, VIII. Nos. 3070-3090, and Boeck, Nos.

382-572, where the arguments of the authors against and in favour of the present practice are discussed.]

[Sidenote: Impending Codification of Law of Sea Warfare.]

-- 179. Be that as it may, the time is not very far distant when the Powers will perforce come to an agreement on this as on other points of sea warfare, in a code of regulations regarding sea warfare as a pendant to the Hague Regulations regarding warfare on land. An initiative step was taken by the United States of America by her Naval War Code[355]

published in 1900, although she withdrew[356] the Code in 1904.

Meanwhile, the Second Peace Conference has produced a number of Conventions dealing with some parts of Sea Warfare, namely: (1) the Convention (VI.) concerning the status of enemy merchantmen at the outbreak of hostilities; (2) the Convention (VII.) concerning the conversion of merchantmen into warships; (3) the Convention (VIII.) concerning the laying of automatic submarine contact mines; (4) the Convention (IX.) concerning the bombardment by naval forces; (5) the Convention (XI.) concerning restrictions on the exercise of the right of capture in maritime war.

[Footnote 355: See above, vol. I. -- 32.]

[Footnote 356: See above, -- 68, p. 83, note 1.]

II

ATTACK AND SEIZURE OF ENEMY VESSELS

Hall, ---- 138 and 148--Lawrence, -- 182--Westlake, II. pp. 133-140, 307-331--Phillimore, III. -- 347--Twiss, II. -- 73--Halleck, II. pp.

105-108--Taylor, ---- 545-546--Moore, VII. ---- 1175-1183, &c.,--Walker, -- 50, p. 147--Wharton, III. -- 345--Bluntschli, ---- 664-670--Heffter, ---- 137-139--Ullmann, -- 188--Bonfils, Nos.

1269-1271, 1350-1354, 1398-1400--Despagnet, Nos. 650-659--Rivier, -- 66--Nys, III. pp. 467-478--Pradier-Fodere, VIII. Nos. 3155-3165, 3176-3178--Calvo, IV. ---- 2368-2378--Fiore, III. Nos. 1414-1424, and Code, Nos. 1643-1649--Pillet, pp. 120-128--Perels, -- 35--Testa, pp. 155-157--Lawrence, _War_, pp. 48-55, 93-111--Ortolan, II. pp. 31-34--Boeck, Nos. 190-208--Dupuis, Nos.

150-158, and _Guerre_, Nos. 74-112--U.S. Naval War Code, articles 13-16--Bernsten, ---- 7-8.

[Sidenote: Importance of Attack and Seizure of Enemy Vessels.]

-- 180. Whereas in land warfare all sorts of violence against enemy individuals are the chief means, in sea warfare attack and seizure of enemy vessels are the most important means. For together with enemy vessels, a belligerent takes possession of the enemy individuals and enemy goods thereon, so that he can appropriate vessels and goods, as well as detain those enemy individuals who belong to the enemy armed forces as prisoners of war. For this reason, and compared with attack and seizure of enemy vessels, violence against enemy persons and the other means of sea warfare play only a secondary part, although such means are certainly not unimportant. For a weak naval Power can even restrict the operations of her fleet to mere coast defence, and thus totally refrain from directly attacking and seizing enemy vessels.

[Sidenote: Attack when legitimate.]

-- 181. All enemy men-of-war and other public vessels, which are met by a belligerent's men-of-war on the High Seas or within the territorial waters of either belligerent,[357] may at once be attacked, and the attacked vessel may, of course, defend herself by a counter-attack.

Enemy merchantmen may be attacked only if they refuse to submit to visit after having been duly signalled to do so. And no duty exists for an enemy merchantman to submit to visit; on the contrary, she may refuse it, and defend herself against an attack. But only a man-of-war is competent to attack men-of-war as well as merchantmen, provided the war takes place between parties to the Declaration of Paris, so that privateering is prohibited. Any merchantman of a belligerent attacking a public or private vessel of the enemy would be considered and treated as a pirate, and the members of the crew would be liable to be treated as war criminals[358] to the same extent as private individuals committing hostilities in land warfare. However, if attacked by an enemy vessel, a merchantman is competent to deliver a counter-attack and need not discontinue her attack because the vessel which opened hostilities takes to flight, but may pursue and seize her.

[Footnote 357: But not, of course, in territorial waters of neutral States; see the _De Fortuyn_ (1760), Burrell 175.]

[Footnote 358: See above, -- 85, and below, -- 254. Should a merchantman, legitimately--after having been herself attacked--or illegitimately, attack an enemy vessel, and succeed in capturing her, the prize, on condemnation, becomes _droits_ of Admiralty and, therefore, the property of the British Government; see article 39 of the Naval Prize Act, 1864, and article 44 of the Naval Prize Bill introduced in 1911.]

It must be specially mentioned that an attack upon enemy vessels on the sea may be made by forces on the sh.o.r.e. For instance, this is done when coast batteries fire upon an enemy man-of-war within reach of their guns. Enemy merchantmen, however, may not be attacked in this way, for they may only be attacked by men-of-war after having been signalled in vain to submit to visit.

[Sidenote: Attack how effected.]

-- 182. One mode of attack which was in use at the time of sailing ships, namely, boarding and fighting the crew, which can be described as a parallel to a.s.sault in land warfare, is no longer used, but if an instance occurred, it would be perfectly lawful. Attack is nowadays effected by cannonade, torpedoes, and, if opportunity arises, by ramming; and nothing forbids an attack on enemy vessels by launching projectiles and explosives from air-vessels, provided the belligerents are not parties to the Declaration--see above, -- 114--which prohibits such attacks. As a rule attacks on merchantmen will be made by cannonade only, as the attacking vessel aims at seizing her on account of her value. But, in case the attacked vessel not only takes to flight, but defends herself by a counter-attack, all modes of attack are lawful against her, just as she herself is justified in applying all modes of attack by way of defence.

As regards attack by torpedoes, article 1 No. 3 of Convention VIII. of the Second Peace Conference enacts that it is forbidden to use torpedoes which do not become harmless if they miss their mark.

[Sidenote: Submarine Contact Mines.]

-- 182_a_. A new mode of attack which requires special attention[359] is that by means of floating mechanical, in contradistinction to so-called electro-contact, mines. The latter need not specially be discussed, because they are connected with a battery on land, can naturally only be laid within territorial waters, and present no danger to neutral shipping except on the spot where they are laid. But floating mechanical mines can be dropped as well in the Open Sea as in territorial waters; they can, moreover, drift away to any distance from the spot where they were dropped and thus become a great danger to navigation in general.

Mechanical mines were for the first time used, and by both parties, in the Russo-j.a.panese War during the blockade of Port Arthur in 1904, and the question of their admissibility was at once raised in the press of all neutral countries, the danger to neutral shipping being obvious. The Second Peace Conference took the matter up and, in spite of the opposing views of the Powers, was able to produce the Convention (VIII.) concerning the laying of automatic submarine contact mines. This Convention comprises thirteen articles and was signed, although by some only with reservations, by all the Powers represented at the Conference, except China, Montenegro, Nicaragua, Portugal, Russia, Spain, and Sweden. Most of the signatory States have already ratified, and Nicaragua has since acceded. The more important stipulations of this Convention are the following:--

(1) Belligerents[360] are forbidden to lay _unanch.o.r.ed_ automatic contact mines, unless they be so constructed as to become harmless one hour at most after those who laid them have lost control over them, and it is forbidden to lay _anch.o.r.ed_ automatic contact mines which do not become harmless as soon as they have broken loose from their moorings (article 1).

(2) It is forbidden to lay automatic contact mines off the coasts and ports of the enemy, with the sole object of intercepting commercial navigation (article 2).[361]