the conversion of merchantmen into ships of war on the high seas and neutral ports, the use of floating mines in war time on the high seas, the opening by belligerents to neutrals of trade closed in time of peace, the use of projectiles and explosives from balloons, and the use and status of submarine cables in war time. 207. Days of Grace at the Outbreak of War.-The convention (VI) of the Hague conference of 1907 treating upon this subject was so unsatisfactory to the American delegation that they declined to sign it, and consequently it was not submitted to the United States Senate for ratification. The reason given for this procedure was "based on the ground that the convention is an unsatisfactory compromise between those who believe in the existence of a right and those who refuse to recognize the legal validity of the custom which has grown up in recent years."1 The first article of this convention provides that “when a merchant ship of one of the belligerent powers is at the commencement of hostilities in an enemy port, it is desirable that it should be allowed to depart freely, either immediately or after a sufficient term of grace, and to proceed direct, after being furnished with a passport, to its port of destination or such other port as shall be named by it. "The same applies in the case of a ship which left its last port of departure before the commencement of the war and enters an enemy port in ignorance of hostilities."2 As this is only a pious wish, it does not require any action of favor or grace from any of the belligerents, and seizure in port of an enemy vessel can be made immediately upon the outbreak of war. The article is not as liberal as the practice has been in the past. The policy of the United States in such matters was shown in the Spanish-American War in the rules laid down by the Presi 1 Higgins, "Hague Conferences," p. 307. p. 295. dent in his proclamation of April 26, 1898, the fourth article of which reads as follows: "Article 4. Spanish merchant vessels, in any ports or places within the United States, shall be allowed till May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places; and such Spanish merchant vessels, if met at sea, by any United States ship, shall be permitted to continue their voyage, if, on examination of their papers, it shall appear that their cargoes were taken on board before the expiration of the above term: Provided, that nothing herein contained shall apply to Spanish vessels having on board any officer in the military or naval service of the enemy, or any coal (except such as may be necessary for their voyage), or any other article prohibited or contraband of war, or any despatches of or to the Spanish Government." This rule is an extremely liberal one and it is doubtful whether it would be generally accepted, especially in the case of states of Europe where quick mobilization maintains as a rule. 208. The Question of Domicile or Nationality as the Determining Factor in Maritime Capture. This question shows the diverging views of what has been roughly stated as the views of the Anglo-American versus the continental schools or doctrine. It is a matter of regret that it was not decided by the declaration of London upon one basis or the other, but the London conference was evenly divided upon the subject, showing that it was no longer a question confined to the states holding the classification or doctrines just mentioned. Five of the powers represented favored the principle of domicile of the proprietor as the criterion of character of the goods found in an enemy vessel and five favored the nationality of the owner as deciding the matter. The former represented the old Anglo-American doctrine, the latter that of the continental states. So far as ships are concerned it was agreed that the flag determines the character of the vessel without regard to 1 Moore's "Digest," vol. VII, p. 454. the character of the individual owner, but as to the cargoes the above difference was developed. "The Anglo-American system," says Westlake, "makes the enemy or neutral character of an individual, so far as it is important for the purpose of maritime capture, depend, not on his political nationality, but on his domicile in a peculiar sense known as trade domicile in war. At the same time it upholds the importance of the fact that a house of business is established in the enemy's country. Both these branches of the doctrine are defended on the ground that trade, whether industrial or commercial, is a source of wealth and therefore of strength to the country in which it is carried on, by the money spent there and the liability of the profits to taxation."1 "If a person of European or American blood has a trade domicile or a house of business in an Eastern country under the protection of his consul, that is considered as a trade domicile or a house of business in his own country." It may be said in behalf of the continental doctrine that the criterion of nationality is one of greater simplicity. 209. The Conversion of Merchantmen into Vessels of War upon the High Seas or in Neutral Waters. This is a question left unsettled by The Hague conferences and also by the London naval conference. Convention VII of the second Hague conference on the general subject of the conversion of merchant ships into war-ships was not signed by the American delegation and hence not submitted to the United States Senate for ratification. This convention involved the declaration of Paris to such an extent that the American delegation, in view of the non-adherence on the part of the United States to that declaration, felt that they could not with propriety be a signatory to the convention. In the preamble the subject of the place of transfer is referred to as follows: "As, however, the contracting powers having been unable to come to an agreement on the question whether the conver'Westlake, 2d ed., vol. II, p. 164. 2 Dana's "Wheaton," par. 333. sion of a merchant ship into a war-ship may take place upon the high seas, it is understood that the question of the place where such conversion is effected remains outside the scope of this agreement, etc." In the London naval conference the same difficulty of agreement obtained. Great Britain, Spain, Holland, Japan, and the United States opposed conversion upon the high seas and favored the conversion only in the ports of the country of the belligerent or those under his military occupation. Germany, Russia, Austria-Hungary, Italy, and France considered it permissible upon the high seas. A conversion of a merchantman in neutral ports or waters would be a violation of neutrality that had been, in effect, more than once condemned in past usages and rules and in the spirit if not the letter of the conventions of The Hague. With the question of conversion was also involved that of subsequent reconversion to merchantmen from men-of-war. It was generally admitted that a captured enemy merchant vessel could at once be turned into a vessel of war upon the high seas. From this fact it was urged that the right of conversion should be extended upon the high seas to a belligerent so far as his own ships were concerned, especially when at a great distance from his home ports, which may also by war blockade be closed to him. On the other hand, those against the conversion of merchant ships on the high seas expressed their willingness to relinquish the right to convert captured enemy merchantmen on the high seas and claimed that ships known to belong to regular mercantile lines might sail as innocent merchant vessels, then suddenly throw off their peaceful character on the high seas and search and perhaps capture neutral merchantmen while in their company. On the other hand, they might voyage from one neutral port to another, receiving the treatment of merchantmen, running in to avoid capture, remaining in port indefinitely, taking in frequent and unlimited supplies of all kinds, and then suddenly assuming at sea the belligerent character with its consequent activities. The Italian proposition for a compromise seems to hold out the best hopes of agreement. It is to the effect that conversion on the high seas should be limited only to ships which left their last neutral port of departure, or their last national port, before the commencement of hostilities. In the meantime every country is free to do what it pleases in this matter on the high seas, but a conversion in a neutral port is manifestly a violation of neutrality which should be prohibited by the neutral state. 210. The Use of Floating Mines on the High Seas.-The Hague conference of 1907 left this subject in an unsatisfactory condition. There is nothing in the convention treating of the subject prohibiting the use and laying of mines on the high seas. The British delegation on signing the convention upon the subject made the reservation that, although the action was of a negative character, they considered the fact that a proceeding not under prohibition is not to be considered as recognized as being legally permissible.1 Higgins in treating of the subject said that "the officers and crew of a merchant ship which was converted into a mine layer on the high seas, after having enjoyed the security of neutral ports till she could safely sally forth to lay a minefield on some parts of the ocean to be traversed by a portion of the enemy's fleet, would, if subsequently captured by one of the enemy's cruisers, incur the very probable risk of finding themselves dealt with as illegitimate combatants." Recent experience shows that the probability would be an instant sinking of the mine layer, especially if caught in the act. Since The Hague convention (VIII) which forbids the laying of automatic contact mines off the coasts and ports of the enemy, with the sole object of intercepting commercial ship 'Higgins, "War and the Private Citizen," p. 163. |