International Law. A Treatise Volume Ii Part 51

[Footnote 721: See _Annuaire_, XXIV. (1911), p. 302.]

IX

RIGHT OF ANGARY

Hall, -- 278--Lawrence, -- 233--Westlake, II. p. 119--Phillimore, III. -- 29--Halleck, I. p. 485--Taylor, -- 641--Walker, -- 69--Bluntschli, -- 795A--Heffter, -- 150--Bulmerincq in Holtzendorff, IV. pp. 98-103--Geffcken in Holtzendorff, IV. pp.

771-773--Ullmann, -- 192--Bonfils, No. 1440--Despagnet, No.

494--Rivier, II. pp. 327-329--Kleen, II. ---- 165 and 230--Perels, -- 40--Hautefeuille, III. pp. 416-426--Holland, _War_, Nos.

139-140--_Land Warfare_, ---- 507-510--Albrecht, _Requisitionen von neutralem Privateigenthum, insbesondere von Schiffen_ (1912), pp.

24-66.

[Sidenote: The Obsolete Right of Angary.]

-- 364. Under the term _jus angariae_[722] many writers on International Law place the right, often claimed and practised in former times, of a belligerent deficient in vessels to lay an _embargo_ on and seize neutral merchantmen in his harbours, and to compel them and their crews to transport troops, ammunition, and provisions to certain places on payment of freight in advance.[723] This practice arose in the Middle Ages,[724] and was made much use of by Louis XIV. of France. To save the vessels of their subjects from seizure under the right of angary, States began in the seventeenth century to conclude treaties by which they renounced such right with regard to each other's vessels. Thereby the right came into disuse during the eighteenth century. Many writers[725]

a.s.sert, nevertheless, that it is not obsolete, and might be exercised even to-day. But I doubt whether the Powers would concede to one another the exercise of such a right. The facts that no case happened in the nineteenth century and that International Law with regard to rights and duties of neutrals has become much more developed during the eighteenth and nineteenth centuries, would seem to justify the opinion that such angary is now probably obsolete,[726] although some writers[727] deny this.

[Footnote 722: The term _angaria_, which in medieval Latin means _post station_, is a derivation from the Greek term ???a??? for messenger. _Jus angariae_ would therefore literally mean a right of transport.]

[Footnote 723: See above, -- 40.]

[Footnote 724: On the origin and development of the _jus angariae_, see Albrecht, _op. cit._ pp. 24-37.]

[Footnote 725: See, for instance, Phillimore, III. -- 29; Calvo, III. -- 1277; Heffter, -- 150; Perels, -- 40.]

[Footnote 726: See Article 39 of the "Reglement sur le regime legal des navires ... dans les ports etrangers" adopted by the Inst.i.tute of International Law (_Annuaire_, XVII. 1898, p. 272): "Le droit d'angarie est supprime, soit en temps de paix, soit en temps de guerre, quant aux navires neutres."]

[Footnote 727: See Albrecht, _op. cit._ pp. 34-37.]

[Sidenote: The Modern Right of Angary.]

-- 365. In contradistinction to this probably obsolete right to compel neutral ships and their crews to render certain services, the modern right of angary consists in the right of belligerents to make use of, or destroy in case of necessity, _for the purpose of offence and defence_, neutral property on their own or on enemy territory or on the Open Sea.

In case property of subjects of neutral States is vested with enemy character,[728] it is not neutral property in the strict sense of the term neutral, and all rules respecting appropriation, utilisation, and destruction of enemy property obviously apply to it. The object of the right of angary is _such property of subjects of neutral States as retains its neutral character from its temporary position on belligerent territory and which therefore is not vested with enemy character_. All sorts of neutral property, whether it consists of vessels or other[729]

means of transport, or arms, ammunition, provisions, or other personal property, may be the object of the right of angary, provided the articles concerned are serviceable to military ends and wants. The conditions under which the right may be exercised are the same as those under which private enemy property may be utilised or destroyed, but in every case the neutral owner must be fully indemnified.[730]

[Footnote 728: See above, -- 90.]

[Footnote 729: Thus in 1870, during the Franco-German War, the Germans seized hundreds of Swiss and Austrian railway carriages in France and made use of them for military purposes.]

[Footnote 730: See article 6 of U.S. Naval War Code:--"If military necessity should require it, neutral vessels found within the limits of belligerent authority may be seized and destroyed, or otherwise used for military purposes, but in such cases the owners of the neutral vessels must be fully recompensed. The amount of the indemnity should, if practicable, be agreed upon in advance with the owner or master of the vessel; due regard must be had for treaty stipulations upon these matters." See also Holland, _War_, No. 140.]

A remarkable case[731] happened in 1871 during the Franco-German War.

The Germans seized some British coal-vessels lying in the river Seine at Duclair, and sank them for the purpose of preventing French gunboats from running up the river. On the intervention of the British Government, Count Bismarck refused to recognise the duty of Germany to indemnify the owners of the vessels sunk, although he agreed to pay indemnities.

[Footnote 731: See Albrecht, _op. cit._ pp. 45-48.]

However, it may safely be maintained that a duty to pay indemnities for any damage done by exercising the right of angary must nowadays be recognised. Article 53 of the Hague Regulations stipulates the payment of indemnities for the seizure and utilisation of all appliances adapted to the transport of persons or goods which are the private property of inhabitants of occupied enemy territory, and article 52 of the Hague Regulations stipulates payment for requisitions; if, thus, the immunity from confiscation of private property of inhabitants is recognised, all the more must that of private neutral property temporarily on occupied enemy territory be recognised also.

[Sidenote: Right of Angary concerning Neutral Rolling Stock.]

-- 366. A special case of the right of angary has found recognition by article 19 of Convention V. of the Second Peace Conference enacting that railway material coming from the territory of a neutral Power, whether belonging to the neutral State or to companies or private persons, shall not be requisitioned or utilised by a belligerent, _except in the case of and to the extent required by absolute necessity_, that it shall as soon as possible be sent back to the country of origin, and that compensation shall be paid for its use.[732] But it must be mentioned that article 19 gives a right to a neutral Power, whose railway material has been requisitioned by a belligerent, to retain and make use of, to a corresponding extent, railway material coming from the territory of the belligerent concerned.

[Footnote 732: See Nowacki, _Die Eisenbahnen im Kriege_ (1906), pp.

115-126, and Albrecht, _op. cit._ pp. 22-24.]

[Sidenote: Right of Angary not deriving from Neutrality.]

-- 367. Whatever the extent of the right of angary may be, it does not derive from the law of neutrality. The correlative duty of a belligerent to indemnify the neutral owner of property appropriated or destroyed by the exercise of the right of angary does indeed derive from the law of neutrality. But the right of angary itself is rather a right deriving from the law of war. As a rule this law gives, under certain circ.u.mstances and conditions, the right to a belligerent to seize, make use of, or destroy private property of inhabitants only of occupied enemy territory, but under other circ.u.mstances and conditions, and very exceptionally, it likewise gives a belligerent the right to seize, use, or destroy such neutral property as is temporarily on occupied enemy territory.

CHAPTER III

BLOCKADE

I

CONCEPTION OF BLOCKADE

Grotius, III. c. 1, -- 5--Bynkershoek, _Quaest. jur. publ._ I. c.

2-15--Vattel, III. -- 117--Hall, ---- 233, 237-266--Lawrence, ---- 246-252--Westlake, II. pp. 228-239--Maine, pp. 107-109--Manning, pp. 400-412--Phillimore, III. ---- 285-321--Twiss, II. ---- 98-120--Halleck, II. pp. 182-213--Taylor, ---- 674-684--Walker, ---- 76-82--Wharton, III. ---- 359-365--Moore, VII. ---- 1266-1286--Wheaton, ---- 509-523--Bluntschli, ---- 827-840--Heffter, ---- 154-157--Geffcken in Holtzendorff, IV. pp. 738-771--Ullmann, -- 182--Bonfils, Nos. 1608-1659--Despagnet, Nos.

620-640--Pradier-Fodere, VI. Nos. 2676-2679, and VIII. Nos.

3109-3152--Nys, III. pp. 224-244, 693-694--Rivier, II. pp.

288-298--Calvo, V. ---- 2827-2908--Fiore, III. Nos.

1606-1629--Martens, II. -- 124--Pillet, pp. 129-144--Kleen, I. ---- 124-139--Ortolan, II. pp. 292-336--Hautefeuille, II. pp.

189-288--Gessner, pp. 145-227--Perels, ---- 48-51--Testa, pp.

221-229--Dupuis, Nos. 159-198, and _Guerre_, Nos. 113-136--Boeck, Nos. 670-726--Holland, _Prize Law_, ---- 106-140--U.S. Naval War Code, articles 37-43--Bernsten, -- 10--Nippold, II. -- 32--Bargrave Deane, _The Law of Blockade_ (1870)--Fauchille, _Du blocus maritime_ (1882)--Carnazza-Amari, _Del blocco maritimo_ (1897)--Fremont, _De la saisie des navires en cas de blocus_ (1899)--Guynot-Boissiere, _Du blocus maritime_ (1899)------ 35-44 of the "Reglement international des prises maritimes" (_Annuaire_, IX. 1887, p. 218), adopted by the Inst.i.tute of International Law--Atherley-Jones, _Commerce in War_ (1906) pp.

92-252--Soderquist, _Le Blocus Maritime_ (1908)--Hansemann, _Die Lehre von der einheitlichen Reise im Rechte der Blockade und Kriegskonterbande_ (1910)--Guldenagel, _Verfolgung und Rechtsfolgen des Blockadebruches_ (1911)--Hirschmann, _Das internationale Prisenrecht_ (1912) ---- 17-23--Kennedy in _The Journal of the Society of Comparative Legislation_, New Series, IX. (1908), pp. 239-251--Myers in _A.J._ IV. pp. 571-595--General Report presented to the Naval Conference of London by its Drafting Committee, articles 1-21.

[Sidenote: Definition of Blockade.]

-- 368. Blockade is the blocking by men-of-war[733] of the approach to the enemy coast or a part of it for the purpose of preventing ingress and egress of vessels of all nations. Blockade must not be confounded with siege, although it may take place concurrently with siege. Whereas siege aims at the capture of the besieged place, blockade endeavours merely to intercept all intercourse, and especially commercial intercourse, by sea between the coast and the world at large. Although blockade is, as shown above in ---- 173 and 174, a means of warfare against the enemy, it concerns neutrals as well, because the ingress and egress of neutral vessels are thereby interdicted and may be punished.

[Footnote 733: When in 1861, during the American Civil War, the Federal Government blocked the harbour of Charleston by sinking ships laden with stone, the question arose whether a so-called stone-blockade is lawful.

There ought to be no doubt--see below, -- 380--that such a stone-blockade is not a blockade in the ordinary sense of the term, and that neutral ships may not be seized and confiscated for having attempted egress or ingress. But, on the other hand, there ought to be no doubt either that this mode of obstructing an enemy port is as lawful as any other means of sea warfare, provided the blocking of the harbour is made known so that neutral vessels can avoid the danger of being wrecked. See Wharton, III. -- 361A; Fauchille, _Blocus_, pp. 143-145; Perels, -- 35, p. 187.]

Blockade in the modern sense of the term is an inst.i.tution which could not develop until neutrality was in some form a recognised inst.i.tution of the Law of Nations, and until the freedom of neutral commerce was in some form guaranteed. The inst.i.tution of blockade dates from the sixteenth century,[734] but it has taken several hundred years for the inst.i.tution to reach its present condition, since, until the beginning of the nineteenth century, belligerents frequently made use of so-called paper blockades, which are no longer valid, a blockade now being binding only if effective.

[Footnote 734: See Fauchille, _Blocus_, pp. 2-6.]

It is on account of the practical importance of blockade for the interests of neutrals that the matter is more conveniently treated with neutrality than with war. And it must be noted that blockade as a means of warfare must not be confounded with so-called pacific blockade, which is a means of compulsive settlement of State differences.

Apart from the stipulation of the Declaration of Paris that a blockade to be binding must be effective, no conventional rules concerning blockade were in existence until the Declaration of London, nor was the practice of the States governed by common rules covering all the points concerned. But articles 1-21 of the Declaration of London now offer a code of the law of blockade and will, should this Declaration be ratified, in time produce a common practice of all maritime States.

[Sidenote: Blockade, Strategic and Commercial.]