International Law. A Treatise Volume Ii Part 46

[Footnote 636: Germany, Domingo, Siam, and Persia have entered a reservation against article 12.]

[Footnote 637: Germany has entered a reservation against article 13.]

[Sidenote: Building and Fitting-out of Vessels intended for Naval Operations.]

-- 334. Whereas a neutral is in no[638] wise obliged by his duty of impartiality to prevent his subjects from selling armed vessels to the belligerents, such armed vessels being merely contraband of war, a neutral is bound to employ the means at his disposal to prevent his subjects from building, fitting out, or arming, to the order of either belligerent, vessels intended to be used as men-of-war, and to prevent the departure from his jurisdiction of any vessel which, by order of either belligerent, has been adapted to warlike use.[639] The difference between selling armed vessels to belligerents, on the one hand, and building them to order, on the other hand, is usually defined in the following way:--

An armed ship, being contraband of war, is in no wise different from other kinds of contraband, provided she is not manned in a neutral port so that she can commit hostilities at once after having reached the Open Sea. A subject of a neutral who builds an armed ship or arms a merchantman, not to order of a belligerent but intending to sell her to a belligerent, does not differ from a manufacturer of arms who intends to sell them to a belligerent. There is nothing to prevent a neutral from allowing his subjects to sell armed vessels, and to deliver them to belligerents, either in a neutral port or in a port of the belligerent.

In the case of the _La Santissima Trinidad_[640] (1822), as in that of the _Meteor_[641] (1866), American courts have recognised this.[642]

[Footnote 638: See below, ---- 350 and 397.]

[Footnote 639: See article 8 of Convention XIII.]

[Footnote 640: 7 Wheaton, -- 340.]

[Footnote 641: See Wharton, III. -- 396, p. 561.]

[Footnote 642: See Phillimore, III. -- 151B, and Hall, -- 224.]

On the other hand, if a subject of a neutral builds armed ships to order of a belligerent, he prepares the means of naval operations, since the ships on sailing outside the territorial waters of the neutral and taking in a crew and ammunition can at once commit hostilities. Thus, through carrying out the order of the belligerent, the neutral territory concerned has been made the base of naval operations. And as the duty of impartiality includes the obligation of the neutral to prevent either belligerent from making neutral territory the base of military or naval operations, a neutral violates his neutrality by not preventing his subjects from carrying out an order of a belligerent for the building and fitting out of men-of-war.

This distinction, although of course logically correct, is hair-splitting. It only shows that neutral States ought[643] to be required to prevent their subjects from supplying arms, ammunition, and the like, to belligerents. But so long as this progress is not made, the above distinction will probably continue to be drawn, in spite of its hair-splitting character.

[Footnote 643: See below, -- 350.]

[Sidenote: The _Alabama_ Case and the Three Rules of Washington.]

-- 335. The movement for recognition of the fact that the duty of impartiality requires a neutral to prevent his subjects from building and fitting out to order of belligerents vessels intended for naval operations, began with the famous case of the _Alabama_. It is not necessary to go into all the details[644] of this case. It suffices to say that in 1862, during the American Civil War, the attention of the British Government was drawn by the Government of the United States to the fact that a vessel for warlike purposes was built in England to order of the insurgents. This vessel, afterwards called the _Alabama_, left Liverpool in July 1862 unarmed, but was met at the Azores by three other vessels, also coming from England, which supplied her with guns and ammunition, so that she could at once begin to prey upon the merchantmen of the United States. On the conclusion of the Civil War, the United States claimed damages from Great Britain for the losses sustained by her merchant marine through the operations of the _Alabama_ and other vessels likewise built in England. Negotiations went on for several years, and finally the parties entered, on May 8, 1871, into the Treaty of Washington[645] for the purpose of having their difference settled by arbitration, five arbitrators to be nominated--Great Britain, the United States, Brazil, Italy, and Switzerland, each choosing one. The treaty contained three rules, since then known as "The Three Rules of Washington," to be binding upon the arbitrators, namely:[646]--

"A neutral Government is bound--

"_Firstly._ To use due diligence to prevent the fitting out, arming, or equipping within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or carry on war against a Power with which it is at peace, and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted in whole or in part, within such jurisdiction, to warlike use.

"_Secondly._ Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.

"_Thirdly._ To exercise due diligence in its waters, and as to all persons within its jurisdiction, to prevent any violations of the foregoing obligations and duties."

[Footnote 644: See Mountague Bernard, _Neutrality of Great Britain during the American Civil War_ (1870), pp. 338-496; Geffcken, _Die Alabama Frage_ (1872); Pradier-Fodere, _La Question de l'Alabama_ (1872); Caleb Cushing, _Le Traite de Washington_ (1874); Bluntschli in _R.I._ II. (1870), pp. 452-485; Balch, _L'evolution de l'arbitrage international_ (1908), pp. 43-70.]

[Footnote 645: Martens, _N.R.G._ XX. p. 698.]

[Footnote 646: See Moore, VII. -- 1330.]

In consenting that these rules should be binding upon the arbitrators, Great Britain expressly declared that, in spite of her consent, she maintained that these rules were not recognised rules of International Law at the time when the case of the _Alabama_ occurred, and the treaty contains also the stipulation that the parties--

"Agree to observe these rules as between themselves in future, and to bring them to the knowledge of other Maritime Powers, and to invite them to accede to them."

The appointed arbitrators[647] met at Geneva in 1871, held thirty-two conferences there, and gave decision[648] on September 14, 1872, according to which England had to pay 15,500,000 dollars damages to the United States.

[Footnote 647: See Moore, _Arbitrations_, I. pp. 495-682.]

[Footnote 648: The award is printed in full in Moore, _Arbitrations_, I.

pp. 653-659, and in Phillimore, III. -- 151.]

The arbitrators put a construction upon the term _due diligence_[649]

and a.s.serted other opinions in their decision which are very much contested and to which Great Britain never consented. Thus, Great Britain and the United States, although they agreed upon the three rules, did not at all agree upon the interpretation thereof, and they could, therefore, likewise not agree upon the contents of the communication to other maritime States stipulated by the Treaty of Washington. It ought not, therefore, to be said that the Three Rules of Washington[650] have literally become universal rules of International Law. Nevertheless, they were the starting-point of the movement for the universal recognition of the fact that the duty of impartiality obliges neutrals to prevent their subjects from building and fitting out, to order of belligerents, vessels intended for warlike purposes, and to prevent the departure from their jurisdiction of any vessel, which, by order of a belligerent, has been adapted to warlike use. Particular attention must be paid to the fact that, although article 8 of Convention XIII. in other respects copies almost verbally the first of the Three Rules of Washington, it differs from it in so far as it replaces the words "to use due diligence" by "to employ the means at its disposal." For this reason the construction put by the Geneva arbitrators upon the term _due diligence_ cannot find application to the rule of article 8, the employment of the means at the disposal of a neutral to prevent the acts concerned being a mere question of fact.

[Footnote 649: See below, -- 363.]

[Footnote 650: As regards the seven rules adopted by the Inst.i.tute of International Law, at its meeting at the Hague in 1875, as emanating from the Three Rules of Washington, see _Annuaire_, I. (1877), p. 139.]

IV

NEUTRAL ASYLUM TO LAND FORCES AND WAR MATERIAL

Vattel, III. ---- 132-133--Hall, ---- 226 and 230--Halleck, II. p.

150--Taylor, -- 621--Wharton, III. -- 394--Moore, VII. ---- 1314-1318--Bluntschli, ---- 774, 776-776A, 785--Heffter, -- 149--Geffcken in Holtzendorff, IV. pp. 662-665--Ullmann, -- 191--Bonfils, Nos. 1461-1462--Rivier, II. pp. 395-398--Calvo, IV.

---- 2668-2669--Fiore, III. Nos. 1576, 1582, 1583--Martens, II. -- 133--Merignhac, pp. 370-376--Pillet, pp. 286-287--Kleen, II. ---- 151-157--Holland, War, Nos. 131-133--Zorn, pp. 316-352--Heilborn, _Rechte und Pflichten der neutralen Staaten in Bezug auf die wahrend des Krieges auf ihr Gebiet ubertretenden Angehorigen einer Armee und das dorthingebrachte Kriegsmaterial der kriegfuhrenden Parteien_ (1888), pp. 12-83--Rolin-Jaequemyns in _R.I._ III.

(1871), pp. 352-366--_Land Warfare_, ---- 485-501.

[Sidenote: On Neutral Asylum in general.]

-- 336. Neutral territory, being outside the region of war,[651] offers an asylum to members of belligerent forces, to the subjects of the belligerents and their property, and to war material of the belligerents. Since, according to the present rules of International Law, the duty of either belligerent to treat neutrals according to their impartiality must--the case of extreme necessity for self-preservation excepted--prevent them from violating the territorial supremacy of neutrals, enemy persons as well as enemy goods are perfectly safe on neutral territory. It is true that neither belligerent has a right to demand from a neutral[652] such asylum for his subjects, their property, and his State property. But neither has he, on the other hand, any right to demand that a neutral refuse such asylum to the enemy. The territorial supremacy of the neutral enables him to use his discretion, and either to grant or to refuse asylum. However, the duty of impartiality inc.u.mbent upon him must induce a neutral granting asylum to take all such measures as are necessary to prevent his territory from being used as a base of hostile operations.

[Footnote 651: See above, ---- 70 and 71.]

[Footnote 652: The generally recognised usage for a neutral to grant temporary hospitality in his ports to vessels in distress of either belligerent is an exception to be discussed below in -- 344.]

Now, neutral territory may be an asylum, first, for private enemy property; secondly, for public enemy property, especially war material, cash, and provisions; thirdly, for private subjects of the enemy; fourthly, for enemy land forces; and, fifthly, for enemy naval forces.

Details, however, need only be given with regard to asylum to land forces, war material, and naval forces. For with regard to private property and private subjects it need only be mentioned that private war material brought into neutral territory stands on the same footing as public war material of a belligerent brought there, and, further, that private enemy subjects are safe on neutral territory even if they are claimed by a belligerent for the committal of war crimes.

Only asylum to land forces and war material will be discussed here in ---- 337-341, asylum to naval forces being reserved for separate discussion in ---- 342-348. As regards asylum to land forces, a distinction must be made between (1) prisoners of war, (2) single fugitive soldiers, and (3) troops or whole armies pursued by the enemy and thereby induced to take refuge on neutral territory.

[Sidenote: Neutral Territory and Prisoners of War.]

-- 337. Neutral territory is an asylum to prisoners of war of either belligerent in so far as they become free _ipso facto_ by their coming into neutral territory. And it matters not in which way they come there, whether they escape from a place of detention and take refuge on neutral territory, or whether they are brought as prisoners into such territory by enemy troops who themselves take refuge there.[653]

[Footnote 653: The case of prisoners on board a belligerent man-of-war which enters a neutral port is different; see below, -- 345.]

The principle that prisoners of war regain their liberty by coming into neutral territory has been generally recognised for centuries. An ill.u.s.tration occurred in 1558, when several Turkish and Barbary captives escaped from one of the galleys of the Spanish Armada which was wrecked near Calais, and, although the Spanish Amba.s.sador claimed them, France considered them to be freed by the fact of their coming on her territory, and sent them to Constantinople.[654] But has the neutral on whose territory a prisoner has taken refuge the duty to retain such fugitives and thereby prevent them from rejoining the enemy army?

Formerly this question was not settled. In 1870, during the Franco-German War, Belgium answered the question in the affirmative, and detained a French non-commissioned officer who had been a prisoner in Germany and had escaped into Belgian territory with the intention of rejoining at once the French forces. Whereas this case was controversial,[655] all writers agreed that the case was different if escaped prisoners wanted to remain on the neutral territory. As such refugees might at any subsequent time wish to rejoin their forces, the neutral was by his duty of impartiality considered to be obliged to take adequate measures to prevent their so doing. There was likewise no unanimity regarding prisoners brought into neutral territory by enemy forces taking refuge there. It was agreed that such prisoners became free by being brought into neutral territory; but whereas some writers[656] maintained that they could not be detained in case they intended at once to leave the neutral territory, others a.s.serted that they must always be detained and that they must comply with such measures as the neutral considers necessary to prevent them from rejoining their forces.

[Footnote 654: See Hall, -- 226, p. 641, note 1.]

[Footnote 655: See Rolin-Jaequemyns in _R.I._ III. (1871), p. 556; Bluntschli, -- 776; Heilborn, _Rechte_, pp. 32-34.]

[Footnote 656: For instance, Heilborn, _Rechte_, pp. 51-52.]