CHAPTER XXIV RIGHTS AND OBLIGATIONS OF NEUTRALS AND 179. The Inviolability of Neutral Territory and Waters.The first article of Convention XIII of The Hague conference respecting the rights and duties of neutral powers in maritime war treats of the inviolability of neutral territory and waters in maritime war. It is in a sense a repetition of Article 1 of Convention V, relating to land warfare but emphasizing the water area of that territory. The articles that follow detail some of the possible violations. The first article reads as follows: "Belligerents are bound to respect the sovereign rights of neutral powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any power, constitute a violation of neutrality." This is a sound general principle based upon the right of sovereignty, which is a fundamental right of a sovereign state and "includes the complete inviolability of its territory from belligerent operations." "If a violation of neutrality," says Higgins, "occurs, it is a neutral's duty to take steps to obtain redress, especially where the other belligerent is injuriously affected; but this is not definitely stated in the convention." "1 Article 2 goes on to say: "Any act of hostility, including therein capture and the exercise of the right of search, committed by belligerent warships in the territorial waters of a neutral power constitutes a violation of neutrality and is strictly forbidden." 1 1 Higgins, “Hague Conferences," p. 461. The application of the general principle in the article just given follows logically and is recognized in theory and generally in practice, though there have been violations in practice in recent wars. In the War of 1812 neutral territory was violated by the capture of the Essex and the privateer General Armstrong by a British naval force. In our Civil War neutral territory was violated by the capture of the Florida in Bahia, a Brazilian port, and of the Chesapeake in a port in Nova Scotia, by vessels of the United States, while as late as the Russo-Japanese War the capture of the partly dismantled destroyer Ryeshitelni, in the Chinese port of Chifu by Japanese destroyers is one of the most recent examples of violation of neutral territory.1 It is held by some writers, Hall among the number, that in case of hostilities in neutral waters, the neutral is freed from responsibility when the vessel attacked defends itself instead of relying entirely upon the protection of the neutral power. A decision to that effect was given by Louis Napoleon, then President of the French Republic, in 1852, in the case of the General Armstrong, attacked by a British fleet in the harbor of Fayal in 1814. This view and award cannot be considered as an accepted one at the present time. The circumstances of the case, with an attack impending for some little time and with the privateer practically under the guns of a battery of the neutral, justifies the claim made by the United States for reparation from the neutral. In cases of hostilities in neutral waters the best ruling seems to the writer to be that, if a belligerent vessel is attacked in neutral waters and it has reason to believe that sufficient protection will be seasonably afforded by the neutral, it should not engage in hostilities; but that otherwise it has a right to defend itself. If, on the contrary, a vessel captured in neutral territory was 1 See The Anna (5 Rob. 375); The Anne (3 Wheaton, 435); The Eliza Ann (1 Dod, 244); and The Florida (101 U. S. 37). the one to commence the attack she forfeits neutral interven tion upon her behalf for restoration.1 Article 3 of this convention treats further upon this subject and says: "When a ship has been captured in the territorial waters of a neutral power, such power must, if the prize is still within its jurisdiction, employ the means at its disposal to release the prize-crew. "If the prize is not within the jurisdiction of the neutral power, the captor government on the demand of that power must liberate the prize with its officers and crew." This convention was signed by the United States and ratified by action of the Senate, April 17, 1908, with the understanding that the last clause of Article 3—which is the previous paragraph-implies the duty of a neutral power to make the demand therein mentioned for the return of a ship captured within the neutral jurisdiction and no longer within that jurisdiction. In Article 3 of Convention XII of the second Hague conference, which has been ratified by the United States with an additional protocol, provides that judgments can be brought before the international prize-court in case of an enemy ship captured in the territorial waters of a neutral power, when that power has not made the capture the subject of a diplomatic claim. The decision of the Supreme Court of the United States is thus overruled by these conventions as treaty law so far as the signatories are concerned, when it stated in the case of the Sir William Peel that "neither an enemy nor a neutral acting on the part of an enemy can demand restitution of captured property on the sole ground of capture in neutral waters." It may be mentioned, however, that this opinion of the Supreme Court in this case was practically reversed by the award of 2 1 Stockton, "Manual for Naval Officers,” p. 226. Moore's "International Arbitrations," vol. IV, pp. 3935-48. the mixed commission for the arbitration of certain claims of British subjects against the United States arising during the Civil War. The award of the commission was made upon the ground "that the capture within neutral waters of Mexico was absolutely illegal and void." Proceeding with Convention XIII, we find in Article 4 that "it is provided that a prize-court cannot be set up by a belligerent on neutral territory or on a vessel in neutral waters." This is in accordance with the historical policy of the United States, established definitely from the attempts of M. Gênet to establish French prize-courts on American territory. The use of the word "belligerent" in this case allows the establishment of an international prize-court on neutral territory. 180. The Use of Neutral Waters as a Base of Naval Operations. In Article 5 of the Convention XIII now under consideration it reads: "Belligerents are forbidden to use neutral ports and waters as a base of naval operations against their adversaries and, in particular, to erect wireless-telegraph stations or any apparatus intended to serve as a means of communication with the belligerent forces on land or sea." The first part of this article embodies the principle of the first part of the second rule of the treaty of Washington of 1871, which is worded from the standpoint of the duty of a neutral state as follows: "A neutral government is bound . . . 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." The possible uses of a port or waters of a neutral as a base of supplies and operations are given in fuller detail in many of the pertinent articles that follow in this convention. Jomini gives the definition of a base of operations as a place from which an army draws its resources and reinforcements, from which it sets forth on an offensive expedition, and in which it finds a refuge at need. The crucial test of a naval base in these days in a neutral country is not the frequency of resort, but the fulness of the necessary supplies and repairs attained and the length of stay permitted. In the days of the auxiliary steamers like the Shenandoah, a Confederate cruiser during the Civil War, a base like Melbourne gave to that ship the opportunity to make a campaign that extended to the extreme North Pacific Ocean and enabled a return from there to the home base of English waters without resort to any other port or to the facilities of any other base.1 During the Russo-Japanese War the governor of Malta issued a proclamation refusing hospitality to belligerent ships proceeding to the seat of war or engaged in the search for contraband. The length of the stay of a belligerent cruiser is also a determining question as to the use of a port as a base or asylum, and it should not exceed the time for the urgent necessities, and if prolonged the vessel and its personnel should be interned. 181. Obligations of Neutrals as to Their Waters.-"The supply in any manner," says Article 6 of the XIII Convention of the second Hague conference, "directly or indirectly, by a neutral power to a belligerent power, of war-ships, ammunition, or war material of any kind is forbidden." This would have prevented the sale of discarded arms by the United States Government to the French during the Franco-German War of 1870. Although this sale began before the outbreak of hostilities, its continuance afterward was unjustifiable. During the Russo-Japanese War several merchant steamers of the North German Lloyd and of the Hamburg-American steamship lines were sold to the Russian Government and at once enrolled in the Russian navy as second-class cruisers. Hershey says of this that "in view of the close and intimate 1 Stockton, "Manual for Naval Officers," pp. 223-5. |