BRITISH PROCLAMATIONS, 1904.

21

reference to single belligerent ships of war proceeding for purpose of belligerent operations as above defined; provided that this is not to be applied to the case of vessels putting in on account of actual distress at sea, in which case the provision of rule No. 3 as published by proclamation No. 1 of the 12th February, 1904, shall be applicable.

It will be observed that this proclamation specifically announces the principle "that belligerent ships of war are admitted into neutral ports in view of exigencies of life at sea and the hospitality which it is customary to extend to vessels of friendly powers;" and that "this principle does not extend to enable belligerent ships of war to utilize neutral ports directly for the purpose of hostile operations." It is not the intention to extend hospitality to belligerent vessels proceeding to the seat of war or advancing for the purpose of belligerent operations, whether against other belligerents or against neutrals carrying contraband or otherwise involved in the war. In short, the doctrine would seem to involve the privilege of coaling for navigation to a home port, but no such privilege in order to reach the area of warfare or for direct hostile operations. This position taken by Great Britain is an advanced one. As was said in the discussions of the Naval War College in 1905, "It can not reasonably be expected that a neutral power will permit its own ports to be used as sources of supplies and coal, using which the belligerent vessel or fleet may set forth to seize the same neutral's commerce or interrupt its trade." ternational Law Topics and Discussions, 1905, p. 158.) Prof. Holland raises the question of supply of coal to a belligerent ship, and briefly summarizes the British practice as follows:

(In

May she also replenish her stock of coal? To ask this question may obviously, under modern conditions and under certain circumstances, be equivalent to asking whether belligerent ships may receive in neutral harbors what will enable them to seek out their enemy, and to maneuver while attacking him. It was first raised during the American Civil War, in the first year of which the Duke of Newcastle instructed colonial governors that "with respect to the supplying in British jurisdiction of articles ancipitis usus (such, for instance, as coal), there is no ground for any interference whatever on the part of colonial authorities." But, by the following year, the question had been more maturely considered, and Lord John Russell directed, on January 31,

1862, that the ships of war of either belligerent should be supplied with "so much coal only as may be sufficient to carry such vessel to the nearest port of her own country, or to some nearer destination." Identical language was employed by Great Britain in 1870, 1885, and 1898, but in the British instructions of February 10, 1904, the last phrase was strengthened so as to run: "Or to some nearer named neutral destination." The Egyptian proclamation of February 12, 1904, superadds the requirement of a written declaration by the belligerent commander as to the destination of his ship and the quantity of coal remaining on board of her, and Mr. Balfour, on July 11, informed the House of Commons that "directions had been given for requiring an engagement that any belligerent man-of-war, supplied with coal to carry her to the nearest port of her own nation, would in fact proceed to that port direct." Finally a still stronger step was taken by the Government of this country, necessitated by the hostile advance toward eastern waters of the Russian Pacific Squadron. Instructions were issued to all British ports, on August 8, which, reciting that "belligerent ships of war are admitted into neutral ports in view of the exigencies of life at sea, and the hospitality which is customary to extend to vessels of friendly powers; but the principle does not extend to enable belligerent ships of war to utilize neutral ports directly for the purpose of hostile operations," goes on to direct that the rule previously promulgated, "inasmuch as it refers to the extent of coal which may be supplied to belligerent ships of war in British ports during the present war, shall not be understood as having any application to the case of a belligerent fleet proceeding either to the seat of war, or to any position or positions on the line of route, with the object of intercepting neutral ships on suspicion of carrying contraband of war, and that such fleets shall not be permitted to make use, in any way, of any port, roadstead, or waters, subject to the jurisdiction of His Majesty, for the purpose of coaling either directly from the shore or from colliers accompanying such fleet, whether vessels of such fleet present themselves to such port or roadstead, or within the said waters, at the same time or successively; and that the same practice shall be pursued with reference to single belligerent ships of war proceeding for the purpose of belligerent operations, as above defined, provided that this is not to be applied to the case of vessels putting in on account of actual distress at sea. (83 Fortnightly Review, 1905, p. 795.)

These neutrality regulations of 1898 and 1904 were issued by the States named, but France, Germany, and Austria-Hungary did not issue similarly detailed regulations. The policy of France has not been the same as that of those States whose proclamations have been cited. Germany has usually been content with a more or less definite utterance to the effect that she would remain neutral.

ENGLISH OPINIONS.

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Opinion of Dr. Lawrence. Speaking in regard to coaling in May, 1904, during the Russo-Japanese war, Dr. Lawrence, at that time lecturer on international law at the British Royal Naval College, stated the British position:

war.

The case of coal is peculiar and unsatisfactory. There is great need. of a further advance in the rules which deal with it. Before the application of steam to navigation no one gave it a thought in connection with warlike purposes. Belligerent ships were as little likely to ask for it as they are to-day to demand granite or sand. But when, in the middle of the last century, the navies of the world changed from sailing vessels to steamships, it suddenly became immensely.important. Yet the law of nations, based upon the practice of nations, still regarded it as an innocent article which might be supplied without restraint to any belligerent ship whose commander was so curiously constituted as to want it. But in 1862 Great Britain led the way in an attempt to put it on a more satisfactory footing. Taking advantage of the power possessed by neutrals to make reasonable regulations for their own protection, she issued in the midst of the great American Civil War a number of rules which dealt, among other matters, with supplies of coal. They were limited almost exactly as they are in the present We have kept to our rules ever since, when neutral in a maritime struggle; and several powers, notably the United States, have adopted them. Meanwhile coal has become much more important for warlike purposes than it was in 1862. Without it a ship of war is a useless log. It is as essential for fighting purposes as ammunition, and much more essential for chasing or escaping. Moreover, the great increase in the size, or speed, or both, of modern vessels causes them to consume it in much greater quantities than before. A belligerent which can obtain full supplies of it in neutral harbors gains thereby an enormous advantage. The neutral may be perfectly willing to grant similar supplies to the other side, but its wants may never be so great, and consequently the assistance given to it may never be so effective. Besides it is of the essence of neutrality that no aid should be given to the belligerents, and this is by no means the same thing as giving aid to both equally. Is it not time we went further and prohibited all supplies of coal to belligerent vessels in our ports? Probably some powers would follow our example, as happened when we strengthened our rules in 1862. Certainly some would not. France, who has not yet come up to our standard of 40 years ago, and whose policy with regard to coal in warfare is to place no restrictions upon the trade in it, could hardly be expected to come into line with us at first. But if she persisted in granting supplies when most other countries refused them, she might lay herself open to awkward remonstrances and demands on the part of a belligerent who had suffered severely in consequence of her liberality. An experience like our own in the matter

of the Alabama claims might convert her to our views. But even if she remained unconverted, we could go on acting as we deem best. We have more to gain than most States by the changes I suggest. Their first result would be to make warships dependent upon the coal they obtained in their own ports, or from colliers sent out by their Government. We are better off for coaling stations than any other power, and we have greater facilities for keeping our fleets supplied by colliers. On the other hand, we have more to lose than most States by the present system, for our sea-borne trade is so enormous and so important that an enemy could do vast damage by means of two or three swift commerce destroyers, which might for a time obtain coal in neutral ports, though we had closed all their own against them. The Egyptian neutrality order of February 12, 1904, lays down that before the commander of a belligerent ship of war is allowed to obtain coal in any port of Egypt he must obtain an authorization from the authorities of the port specifying the amount which he may take, and such authorization is to be granted only after the receipt from him of a written statement setting forth his destination, and stating the amount of coal he has in his bunkers. Probably this is as far as it is possible to go at present. (Problems of Neutrality, Journal of the Royal United Service Institution, vol. 48, pt. 2, p. 922.)

Elsewhere Dr. Lawrence speaks of the absolute refusal of coal to belligerent ships of war in a neutral port:

No doubt we should be told that if such ships are no longer to be allowed to buy coal in our ports we can hardly claim for our merchantmen the right to carry it to their ports unmolested, as long as they are not ports of naval equipment. And yet this argument does not seem conclusive. An article of commerce may be so essential for hostile purposes that no warship ought to be supplied with it in neutral waters, and yet so essential for the ordinary purposes of civil life that it ought not to be prevented from reaching the peaceful inhabitants of belligerent countries. The two propositions are not inconsistent. If both are upheld in reference to coal, we can work for the abolition of the present liberty to supply it to combatant vessels when visiting neutral ports and harbors, and at the same time maintain that when it is sent abroad in the way of ordinary trade belligerents must treat it as conditionally and not absolutely contraband. But at present, as we have seen (see pp. 129–132), there can be no question of complete prohibition. All we can hope to gain is a rule which will deny coal in future to war vessels when they have broken the conditions on which neutrals allowed them to take a supply. Such an advance in strictness would in no way conflict with our existing doctrine that coal is properly placed among goods conditionally contraband. (War and Neutrality in the Far East, 2d ed., p. 161.)

Opinion of Prof. Westlake. The principles enumerated in the British proclamations of 1862 were reaffirmed in

ENGLISH OPINIONS.

25

the proclamations of 1870 during the Franco-Prussian War and during the Spanish-American War of 1898. The regulations during the Russo-Japanese War of 1904–5 were more detailed and imposed greater restraint upon the belligerents particularly as regards the supply of coal. Of these stricter rules Prof. Westlake says:

It is understood that the coal supplied under such a rule shall be used in proceeding to the destination which the commander of the ship named as being that of which the distance authorized the supply, and it may fairly be argued that in proceeding to that destination she shall make no captures, since her making any during a voyage which she had been expressly coaled for would constitute the neutral port her base of operations for the specific operation of war constituted by them; only if she is attacked during that voyage she may of course defend herself. But the legitimation by international practice, however faulty in principle, of the mere receipt of supplies without a specification of the use to which they are to be put, must imply the legitimation of any use to which they may be put. (International Law, Part II, War, p. 211.). ·Hall's opinion.-Hall states the conditions under which neutral territory is sometimes used by belligerents:

such

Much the larger number of cases in which the conduct of a neutral forms the subject of complaint is when a belligerent uses the safety of neutral territory to prepare the means of ultimate hostility against his enemy, as by fitting out expeditions in it against a distant objective point, or by rendering it a general base of operations. In many cases the limits of permissible action on the part of the belligerent, and of permissible indifference on the part of the neutral, have not yet been settled. Generally the neutral sovereignty is only violated constructively. The acts done by the offending belligerent do not involve force, and need not entail any interference with the supreme rights of the State in which they are performed. They may be, and often are, innocent as regards the neutral except in so far as they endanger the quiescence of his attitude toward the injured belligerent; and their true quality may be, and often is, perceptible only by their results. (International Law, 5th ed., p. 603.)

Speaking of the limitation to the amount necessary to reach the nearest home port and of refusal of a second supply till after three months he says:

There can be little doubt that no neutral States would now venture to fall below this measure of care; and there can be as little doubt that their conduct will be as right as it will be prudent. When vessels were at the mercy of the winds it was not possible to measure with accuracy the supplies which might be furnished to them, and as blockades were seldom continuously effective, and the nations which carried on distant