International Law. A Treatise Volume Ii Part 25

(3) When anch.o.r.ed automatic contact mines are employed, every possible precaution must be taken for the security of peaceful navigation. The belligerents must provide, as far as possible, for these mines becoming harmless after a limited time has elapsed, and, where the mines cease to be under observation, to notify the danger zones as soon as military exigencies permit, by notice to mariners, which must also be communicated to the Governments through the diplomatic channel (article 3).

(4) At the close of the war, each Power must remove the mines laid by it. As regards anch.o.r.ed automatic contact mines laid by one of the belligerents off the coasts of the other, their position must be notified to the other party by the Power which laid them, and each Power must proceed with the least possible delay to remove the mines in its own waters (article 5).

(5) The Convention remains in force for seven years, but, unless denounced, it continues in force afterwards (article 11). According to article 12, however, the contracting Powers agree to reopen the question of the employment of automatic contact mines after six and a half years unless the Third Peace Conference has already taken up and settled the matter.

[Footnote 359: See Lawrence, _War_, pp. 93-111; Wetzstein, _Die Seeminenfrage im Volkerrecht_ (1909); Rocholl, _Die Frage der Minen im Seekrieg_ (1910); Barclay, pp. 59 and 158; Lemonon, pp. 472-502; Higgins, pp. 328-345; Boidin, pp. 216-235; Dupuis, _Guerre_, Nos.

331-358; Scott, _Conferences_, pp. 576-587; Mart.i.tz in the _Report of the 23rd Conference (1906) of the International Law a.s.sociation_, pp.

47-74; Stockton in _A.J._ II. (1908), pp. 276-284.]

[Footnote 360: As regards neutrals, see below, -- 363_a_.]

[Footnote 361: France and Germany have signed with reservations against article 2.]

There is no doubt that the stipulations of Convention VIII. are totally inadequate to secure the safety of neutral shipping, and it is for this reason that Great Britain added the following reservation in signing the Convention:--"In placing their signatures to this Convention the British plenipotentiaries declare that the mere fact that the said Convention does not prohibit a particular act or proceeding must not be held to debar His Britannic Majesty's Government from contesting its legitimacy." It is to be hoped that the Third Peace Conference will produce a more satisfactory settlement of the problem. The Inst.i.tute of International Law studied the matter at its meetings at Paris in 1910 and at Madrid in 1911, and produced a _Reglementation_[362]

_internationale de l'usage des mines sous-marines et torpilles_, comprising nine articles, of which the more important are the following:--

(1) It is forbidden to place anch.o.r.ed or unanch.o.r.ed automatic mines in the Open Sea (the question of the laying of electric contact mines in the Open Sea being reserved for future consideration).

(2) Belligerents may lay mines in their own and in the enemy's territorial waters, but it is forbidden (_a_) to lay unanch.o.r.ed automatic contact mines which do not become harmless one hour at most after those who laid them have lost control over them; (_b_) to lay anch.o.r.ed automatic contact mines which do not become harmless as soon as they have broken loose from their moorings.

(3) A belligerent is only allowed to lay mines off the coasts and ports of the enemy for naval and military purposes, he is not allowed to lay them there in order to establish or maintain a commercial blockade.

(4) If mines are laid, all precautions must be taken for the safety of peaceful navigation, and belligerents must, in especial, provide that mines become harmless after a limited time has elapsed. In case mines cease to be under observation the belligerents must, as soon as military exigencies permit, notify the danger zones to mariners and also to the Governments through the diplomatic channel.

(5) The question as to the laying of mines in straits is reserved for future consideration.

(6) At the end of the war each Power must remove the mines laid by it.

As regards anch.o.r.ed automatic contact mines laid by one of the belligerents off the coasts of the other, their position must be notified to the other party by the Power which laid them, and each Power must proceed with the least possible delay to remove the mines in its own waters. The Power whose duty it is to remove the mines after the war must make known the date at which the removal of the mines is complete.

(7) A violation of these rules involves responsibility on the part of the guilty State. The State which has laid the mines is presumed to be guilty unless the contrary is proved, and an action may be brought against the guilty State, even by individuals who have suffered damage, before the competent International Tribunal.

[Footnote 362: See _Annuaire_, XXIV. (1911), p. 301.]

[Sidenote: Duty of giving Quarter.]

-- 183. As soon as an attacked or counter-attacked vessel hauls down her flag and, therefore, signals that she is ready to surrender, she must be given quarter and seized without further firing. To continue an attack although she is ready to surrender, and to sink her and her crew, would const.i.tute a violation of customary International Law, and would only as an exception be admissible in case of imperative necessity or of reprisals.

[Sidenote: Seizure.]

-- 184. Seizure is effected by securing possession of the vessel through the captor sending an officer and some of his own crew on board the captured vessel. But if for any reason this is impracticable, the captor orders the captured vessel to lower her flag and to steer according to his orders.

[Sidenote: Effect of Seizure.]

-- 185. The effect of seizure is different with regard to private enemy vessels, on the one hand, and, on the other, to public vessels.

Seizure of _private_ enemy vessels may be described as a parallel to occupation of enemy territory in land warfare. Since the vessel and the individuals and goods thereon are actually placed under the captor's authority, her officers and crew, and any private individuals on board, are for the time being submitted to the discipline of the captor, just as private individuals on occupied enemy territory are submitted to the authority of the occupant.[363] Seizure of private enemy vessels does not, however, vest the property finally in the hands of the belligerent[364] whose forces effected the capture. The prize has to be brought before a Prize Court, and it is the latter's confirmation of the capture through adjudication of the prize which makes the appropriation by the capturing belligerent final.[365]

[Footnote 363: Concerning the ultimate fate of the crew, see above, -- 85.]

[Footnote 364: It is a.s.serted that a captured enemy merchantman may at once be converted by the captor into a man-of-war, but the cases of the _Ceylon_ (1811) and the _Georgina_ (1814), 1 Dodson 105 and 397, which are quoted in favour of such a practice, are not decisive. See Higgins, _War and the Private Citizen_ (1912), pp. 138-142.]

[Footnote 365: See below, -- 192.]

On the other hand, the effect of seizure of _public_ enemy vessels is their immediate and final appropriation. They may be either taken into a port or at once destroyed. All individuals on board become prisoners of war, although, if perchance there should be on board a private enemy individual of no importance, he would probably not be kept for long in captivity, but liberated in due time.

As regards goods on captured public enemy vessels, there is no doubt that the effect of seizure is the immediate appropriation of such goods on the vessels concerned as are enemy property, and these goods may therefore be destroyed at once, if desirable. Should, however, neutral goods be on board a captured enemy public vessel, it is a moot point whether or no they share the fate of the captured ship. According to British practice they do, but according to American practice they do not.[366]

[Footnote 366: See, on the one hand, the _f.a.n.n.y_ (1814), 1 Dodson, 443, and, on the other, the _Nereide_ (1815), 9 Cranch, 388. See also below, -- 424, p. 542 note 2.]

[Sidenote: Immunity of Vessels charged with Religious, Scientific, or Philanthropic Mission.]

-- 186. Enemy vessels engaged in scientific discovery and exploration were, according to a general international usage in existence before the Second Peace Conference of 1907, granted immunity from attack and seizure in so far and so long as they themselves abstained from hostilities. The usage grew up in the eighteenth century. In 1766, the French explorer Bougainville, who started from St. Malo with the vessels _La Boudeuse_ and _L'etoile_ on a voyage round the world, was furnished by the British Government with safe-conducts. In 1776, Captain Cook's vessels _Resolution_ and _Discovery_, sailing from Plymouth for the purpose of exploring the Pacific Ocean, were declared exempt from attack and seizure on the part of French cruisers by the French Government. Again, the French Count Laperouse, who started on a voyage of exploration in 1785 with the vessels _Astrolabe_ and _Boussole_, was secured immunity from attack and seizure. During the nineteenth century this usage became quite general, and had almost ripened into a custom; examples are the Austrian cruiser _Novara_ (1859) and the Swedish cruiser _Vega_ (1878). No immunity, however, was granted to vessels charged with religious or philanthropic missions. A remarkable case occurred during the Franco-German war. In June, 1871, the _Palme_, a vessel belonging to the Missionary Society of Basle, was captured by a French man-of-war, and condemned by the Prize Court of Bordeaux. The owners appealed and the French Conseil d'etat set the vessel free, not because the capture was not justified but because equity demanded that the fact that Swiss subjects owning sea-going vessels were obliged to have them sailing under the flag of another State, should be taken into consideration.[367]

[Footnote 367: See Rivier, II. pp. 343-344; Dupuis, No. 158; and Boeck, No. 199.]

The Second Peace Conference embodied the previous usage concerning immunity of vessels of discovery and exploration in a written rule and extended the immunity to vessels with a religious or philanthropic mission, for article 4 of Convention XI. enacts that vessels charged with religious, scientific, or philanthropic missions are exempt from capture.

It must be specially observed that it matters not whether the vessel concerned is a private or a public vessel.[368]

[Footnote 368: See U.S. Naval War Code, article 13. The matter is discussed at some length by Kleen, II. -- 210, pp. 503-505. Concerning the case of the English explorer Flinders, who sailed with the vessel _Investigator_ from England, but exchanged her for the _c.u.mberland_, which was seized in 1803 by the French at Port Louis, in Mauritius, as she was not the vessel to which a safe-conduct was given, see Lawrence, -- 185.]

[Sidenote: Immunity of Fishing-boats and small boats employed in local Trade.]

-- 187. Coast fishing-boats, in contradistinction to boats engaged in deep-sea fisheries, were, according to a general, but not universal, custom in existence during the nineteenth century, granted immunity from attack and seizure so long and in so far as they were unarmed and were innocently employed in catching and bringing in fish.[369] As early as the sixteenth century treaties were concluded between single States stipulating such immunity to each other's fishing-boats for the time of war. But throughout the seventeenth and eighteenth centuries there were instances of a contrary practice, and Lord Stowell refused[370] to recognise in strict law any such exemption, although he recognised a rule of comity to that extent. Great Britain has always taken the standpoint that any immunity granted by her to fishing-boats was a relaxation[371] of strict right in the interest of humanity, but revocable at any moment, and that her cruisers were justified in seizing enemy fishing-boats unless prevented therefrom by special instructions on the part of the Admiralty.[372] But at the Second Peace Conference she altered her att.i.tude, and agreed to the immunity not only of fishing vessels, but also of small boats employed in local trade. Article 3 of Convention XI. enacts, therefore, that vessels employed exclusively in coast fisheries, and small boats employed in local trade, are, together with appliances, rigging, tackle, and cargo, exempt from capture.

[Footnote 369: The _Paquette Habana_ (1899), 175, United States, 677.

See U.S. Naval War Code, article 14; j.a.panese Prize Law, article 3 (1).]

[Footnote 370: The _Young Jacob and Joanna_ (1798), 1 C. Rob, 20.]

[Footnote 371: See Hall, -- 148.]

[Footnote 372: See Holland, _Prize Law_, -- 36.]

It must be specially observed that boats engaged in deep-sea fisheries and large boats engaged in local trade do not enjoy the privilege of immunity from capture, and that the fishing vessels and small boats employed in local trade lose that privilege in case they take any part whatever in hostilities. And article 3 expressly stipulates that belligerents must not take advantage of the harmless character of the said boats in order to use them for military purposes while preserving their peaceful appearance.

[Sidenote: Immunity of Merchantmen at the Outbreak of War on their Voyage to and from a Belligerent's Port.]

-- 188. Several times at the outbreak of war during the nineteenth century belligerents decreed that such enemy merchantmen as were on their voyage to one of the former's ports at the outbreak of war, should not be attacked and seized during the period of their voyage to and from such port. Thus, at the outbreak of the Crimean War, Great Britain and France decreed such immunity for Russian vessels, Germany did the same with regard to French vessels in 1870,[373] Russia with regard to Turkish vessels in 1877, the United States with regard to Spanish vessels in 1898, Russia and j.a.pan with regard to each other's vessels in 1904. But there is no rule of International Law which compels a belligerent to grant such days of grace, and it is probable that in future wars days of grace will not be granted. The reason is that the steamboats of many countries are now built, according to an arrangement with the Government of their home State, from special designs which make them easily convertible into cruisers, and that a belligerent fleet cannot nowadays remain effective for long without being accompanied by a train of transport-vessels, colliers, repairing-vessels, and the like.[374]

[Footnote 373: See, however, above, -- 178, p. 222.]

[Footnote 374: This point is ably argued by Lawrence, _War_, pp 54-55.]

In case, however, merchantmen, other than those constructed on special lines in order to make them easily convertible into cruisers, are, at the outbreak of war, on their voyage to an enemy port and are ignorant of the outbreak of hostilities, article 3 of Convention VI.[375] of the Second Peace Conference must find application. They may not, therefore, be confiscated, but may only be captured on condition that they shall be restored after the conclusion of peace, or that indemnities shall be paid for them if they have been requisitioned or destroyed.

[Footnote 375: See above, -- 102_a_, Nos. 3 and 4.]