GENEVA ARBITRATION AS TO COALING.

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"I will not say that the simple fact of having allowed a greater amount of coal than was necessary to enable a vessel to reach the nearest port of its country constitutes in itself a sufficient grievance to call for an indemnity. As the Lord Chancellar of England said on the 12th of June, 1871, in the House of Lords, England and the United States equally hold the principle that it is no violation of international law to furnish arms to a belligerent. But if an excessive supply of coal is connected with other circumstances which show that it was used as a veritable res hostilis, then there is an infringement of the second rule of Article VI of the treaty. It is in this sense also that the same Lord Chancellor, in the speech before mentioned, explained the intention of the latter part of the said rule. Thus, when I see, for example, the Florida and the Shenandoah choose for their field of action, one, the stretch of sea between the Bahama Archipelago and Bermuda, to cruise there at its ease, and the other, Melbourne and Hobson's Bay, for the purposes, immediately carried out, of going to the Arctic seas, there to attack the whaling vessels, I can not but regard the supplies of coal in quantities sufficient for such purposes as infringements of the second rule of the sixth article."

Mr. Adams, in his opinion, said:

"This question of coals was little considered by writers on the law of nations, and by sovereign powers, until the present century. It has become one of the first importance, now that the motive power of all vessels is so greatly enhanced by it.

"The effect of this application of steam power has changed the character of war on the ocean, and invested with a greatly preponderant force those nations which possess most largely the best material for it within their own territories and the greatest number of maritime places over the globe where deposits may be conveniently provided for their use. "It is needless to point out the superiority in this respect of the position of Great Britain. There seems no way of discussing the question other than through this example.

"Just in proportion to these advantages is the responsibility of that country when holding the situation of a neutral in time of war.

"The safest course in any critical emergency would be to deny altogether to supply the vessels of any of the belligerents, except perhaps when in positive distress.

"But such a policy would not fail to be regarded as selfish, illiberal, and unkind by all belligerents. It would inevitably lead to the acquisition and establishment of similar positions for themselves by other maritime powers, to be guarded with equal exclusiveness, and entailing upon them enormous and continual expenses to provide against rare emergencies.

"It is not therefore either just or in the interest of other powers, by exacting severe responsibilities of Great Britain in time of war, to force her either to deny all supplies, or, as a lighter risk, to engage herself in

war.

"It is in this sense that I approach the arguments that have been presented in regard to the supply of coals given by great Britain to the insurgent American steamers as forming a base of operations.

"It must be noted that throughout the war of four years supplies of coal were furnished liberally at first, and more scantily afterwards, but still indiscriminately to both belligerents.

"The difficulty is obvious how to distinguish those cases of coals given to either of the parties as helping them impartially to other ports from those furnished as a base of hostile operations.

"Unquestionably, Commodore Wilkes, in the Vanderbilt, was very much aided in continuing his cruise at sea by the supplies obtained from British sources. Is this to be construed as getting a base of operations?

"It is plain that a line must be drawn somewhere, or else no neutral power will consent to furnish supplies to any belligerent whatever in time of war.

"So far as I am able to find my way out of this dilemma, it is in this wise:

"The supply of coals to a belligerent involves no responsibility to the neutral when it is made in response to a demand presented in good faith, with a single object of satisfying a legitimate purpose openly assigned.

"On the other hand, the same supply does involve a responsibility if it shall in any way be made to appear that the concession was made, either tacitly or by agreement, with a view to promote or complete the execution of a hostile act.

"Hence I perceive no other way to determine the degree of the responsibility of a neutral in these cases than by an examination of the evidence to show the intent of the grant in any specific case. Fraud or falsehood in such a case poisons everything it touches. Even indifference may degenerate into willful negligence, and that will impose a burden of proof to excuse it before responsibility can be relieved.

"This is the rule I have endeavored to apply in judging the nature of the cases complained of in the course of this arbitration."

Sir Alexander Cockburn contended that the term "base of naval operations" had no relation to the case of a vessel which, while cruising against an enemy's ships, puts into a port, and after obtaining necessary supplies again pursues her course, but that it referred to the use of a port or water as a place from which a fleet or a ship might watch an enemy and sally forth to attack him, with the possibility of falling back upon the port or water in question for fresh supplies, or shelter, or a renewal of operations. The term signified "a local position which serves as a point of departure and return in military operations, and with which a constant connection and communication can be kept up, and which may be fallen back upon whenever necessary.'

Mr. Staempfli, in his opinion in the case of the Sumter, said: "The permission given to the Sumter to remain and to take in coal at Trinidad does not in itself constitute a sufficient basis for accusing the

DISCUSSION OF COALING, 1906.

13

British authorities of having failed in the observance of their duties as neutrals, because this fact can not be considered by itself, since the Sumter, both before and after that time, was admitted into the ports of many other States, where it stayed and took in coal, and it is proved that the last supply she obtained to cross the Atlantic did not take place in a British port; so that it can not be held that the port of Trinidad served as a base of operations for the Sumter.”

The tribunal of arbitration, in its award, said:

"In order to impart to supplies of coal a character inconsistent with the second rule, prohibiting the use of neutral ports or waters as a base of naval operations for a belligerent, it is necessary that the said supplies should be connected with special circumstances of time, of persons, or of place, which may combine to give them such character." In signing the award, Viscount d'Itajubá made the following state

ment:

"Viscount d'Itajubá, while signing the decision, remarks, with regard to the recital concerning the supply of coals, that he is of opinion that every Government is free to furnish to the belligerents more or less of that article."

It did not appear that in any case Great Britain was held responsible for the acts of a vessel in consequence of supplies of coal. (4 Moore, International Arbitrations, p. 4097.)

Discussion of 1906.-Under Topic IV of the Naval War College International Law Topics and Discussions of 1906 (p. 66) the subject of supplying fuel and oil in a neutral port was considered. The development of the recognition of neutral obligations was set forth at that time in considerable detail. The proclamations of various States in recent wars are also shown, and the policy and practice of some of the more important States is discovered to be divergent. A regulation was proposed in 1906 as follows:

The supply of fuel or oil within a neutral port to vessels in belligerent service in no case shall exceed what is necessary to make the total amount on board sufficient to reach the nearest unblockaded port of the belligerent vessel's own State or some nearer named destination.

The supply may be subject to such other regulation as the neutral may deem expedient. (International Law Topics and Discussions, Naval War College, 1906, p. 87.)

The reasons for this conclusion in 1906 were based upon the general drift of policy and practice toward restriction, as shown in recent wars and in opinions of writers. In the way of a general statement as to the reasons for the regulation proposed in 1906 in answer to the question,

"What regulations should be made in regard to the supplying of fuel or oil to belligerent vessels in neutral ports?" it was said

The proposition to limit the supply to the amount necessary to take the ship to the nearest port of her home country, which has been a form often used and was that approved by the Institute of International Law in 1898, leaves much to be desired. The nearest port may not be in the direction in which the vessel may be voyaging, or if it is it may not be a port suitable for the entrance of such a vessel. The gradual change in recent years has shown that this formula is not sufficient. Such words as the following have been added in certain proclamations: "Or to some nearer neutral destination," or that coal shall not be supplied to “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."

In most declarations there has been a provision against allowing a neutral port to become a base for equipping a belligerent's vessel with coal, oil, or other supplies. By "base, as thus used, is meant a place to which the vessel frequently returns. The idea of "frequent, " as thus used, is generally covered by the prohibition against taking a new supply of coal from the same neutral port till after the expiration of a period of three months. Some States, however, allow such supply within three months, provided permission is obtained from the proper authority.

It would seem to be evident that while the supplying of coal to a belligerent is not prohibited by international law, though it has been prohibited in many proclamations, yet the supplying of coal at such frequent intervals as would make the neutral port a base is generally regarded as prohibited by international law, as is practically admitted in the reply of France to Japan in 1905.

It seems to be the general opinion that the supply of fuel, etc., to belligerents should be somewhat retricted in neutral ports.

There are differences of opinion as to the extent of necessary restrictions. Doubtless there would be need of special restriction in special cases. Some degree of freedom should remain to the neutral in making provisions for special conditions. It would seem reasonable that the neutral should not afford a greater supply of coal or oil even for lubricating purposes than an amount sufficient to carry the vessel to the home port. The purpose is to guard against the furnishing of supplies for hostile uses and at the same time not to intern a vessel of a belligerent which may enter a neutral port. It would probably be desirable to restrict the supply of oil for purposes of fuel, which would be included under the general head of fuel, and for lubricating purposes, which makes necessary specific mention of oil. (Ibid., p. 86.)

DISCUSSION OF COALING, 1908.

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International Law Situations, 1908.-The Naval War College in 1908 again considered the question of supply of coal in neutral waters after the Second Hague Peace Conference, 1907. The résumé of the reasoning upon which the conclusion of International Law Situation IV of 1908 was based is as follows:

By Article 1 of the Convention concerning the Rights and Duties of Neutral Powers in Naval War:

"Belligerents are bound to respect the sovereign rights of neutral Powers and to abstain, in neutral territory or neutral waters, from all acts which would constitute on the part of the neutral Powers which knowingly permitted them, a nonfulfilment of their neutrality.”

Unrestrained or repeated coaling in neutral waters, if knowingly permitted by a neutral, would unquestionably constitute a nonfulfilment of neutrality, and is therefore an act from which the belligerent is bound to refrain. Further, Article 18 of the same convention prohibits the use of territorial waters for "replenishing or increasing" supplies of "war material" or "armament." Coal destined for the belligerent forces has in recent years been regarded as war material. In Situation IV there has been within three months an actual increasing of the supply of war material within neutral jurisdiction. Under the spirit of Article 18, the taking on of coal would not be allowed to the war vessel of State X.

As is evident from the neutrality proclamations of recent years it is the purpose of neutrals to strictly limit the use of neutral territorial waters by belligerents to such purposes as the neutrals may specifically enumerate. In most proclamations prohibitions have been extended to ports, roadsteads, and territorial waters.

The provisions of the Convention concerning the Rights and Duties of Neutral Powers were agreed upon to harmonize divergent views. The divergency of view in regard to coaling was in regard to the amount rather than in regard to the frequency and place of coaling. This convention also provides that "it is expedient to take into consideration the general principles of the law of nations."

From the general principles set forth in the Convention, from the neutrality proclamations, from practice in recent wars, and from the general principles of the laws of nations it is evident that the contention of State Z (in Situation IV of 1908) is correct. Very wide freedom has been allowed to belligerents in matter of coaling. The use of any place within neutral jurisdiction, except under the terms of the convention regulating the supply of coal to belligerents, would be using such place as a base, which is prohibited. Certain propositions made by neutral States have not only prescribed the refusal of such supplies, but also the interning of a belligerent vessel which disregards such neutral regulations. (International Law Situations, Naval War College, 1908, p. 96.)