RIGHT TO REGULATE SUPPLY OF FUEL.

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adopted by them." It is an obligation resting on neutrals to apply these enactments impartially.

When, in time of war between States X and Y, the authorities of neutral State Z inform the commander of a detachment of armed vessels of State X, entering port B of State Z for the purpose of coaling from colliers accompanying the detachment, that he will be allowed to take from the colliers coal sufficient only to proceed to the nearest home port or to a port already passed en route to port B, the authorities are acting within their rights. A State has the right to make such regulations as it may regard necessary for the protection of its neutrality provided these do not violate conventions to which the State is a party. Such a restriction as State Z announces is in accord with the clause of Article 19 of the Hague Convention respecting the Rights and Duties of Neutral Powers in Maritime War, which provides that belligerent ships of war "may only ship sufficient fuel to enable them to reach the nearest port in their own country." The addition of the provision allowing the detachment to ship fuel sufficient to reach "a port already passed en route" does not deprive the belligerent of any right, but may enlarge his privileges.

The provision of the Hague Convention leaves to the neutral State the determination of the amount of fuel necessary, if the neutral State adopts as the standard the amount necessary to take the ships of war to the nearest home port. To deny this amount in a port which ships of war were permitted to enter would result practically in the internment of such ships. The protest of State Yagainst any coaling within port B of neutral State Z would not be valid. It has been recognized in recent years that coaling from colliers in a neutral port, if not in violation of the amount allowed and if not within the period during which coaling is prohibited because of previous coaling in a port of the same State, is not a breach of neutrality. Indeed it is considered that coaling from colliers accompanying a fleet, if under proper regulations, may be less in contravention of neutrality than taking a supply of coal from the merchants of a neutral State, since the

reserve coal supply of the belligerent would be by that amount reduced.

The protest of State Y is not valid. The rules established by State Z must, of course, be impartially applied.

State Z is competent to make the regulation mentioned in Situation I (a). The enforcement of the rule in case of the detachment of the fleet of State X is justified.

Certain aspects of the question as regards coaling in a neutral port or roadstead and coaling in neutral waters outside of these limits were discussed in Situation IV of the International Law Situations of 1908. It was stated (p. 97) that

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.

There is a difference in the actual degree of control which a neutral exercises over a port or roadstead and that which the neutral exercises over the territorial waters along the open coast. The Hague Convention of 1907, respecting the Rights and Duties of Neutral Powers in Maritime War, provides in Article 10 that

The neutrality of a Power is not affected by the mere passage through its territorial waters of ships of war or of prizes belonging to belligerents.

Prizes belonging to belligerents are in general not to be brought into neutral ports except under stress of weather or other force majeure. Thus the status of a prize is not the same in a neutral port as in passage through neutral waters outside a port. The obligation of the neutral power to exercise jurisdiction does not extend in the same manner to the marine league along the coast as within its ports.

The United States declaration of neutrality in 1904, regulating the taking of coal by the belligerents during the Russo-Japanese war, extended to "any port, harbor, roadstead, or waters within the jurisdiction of the United States." The British wording is similar. Most of the other proclamations mention coaling in "neutral ports" only.

COLLIERS SENT TO MEET FLEET.

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(b) Colliers sent to meet fleet.-In a neutral port coaling from the shore, from colliers accompanying the fleet, or from colliers sent to meet the fleet would be analogous. The acts would in each case be performed within jurisdiction of the authorities of the neutral port B. As explained above under (a), the neutral State Z has a right to make regulations for the protection of its neutrality and for the use of its ports by belligerents in time of war. The neutral State has, according to the Hague Convention respecting the Rights and Duties of Neutral Powers in Maritime War, Article 26, the right to enforce the regulations:

The exercise by a neutral Power of the rights laid down in the present Convention can never be considered as an unfriendly act by either belligerent who has accepted the Articles relating thereto.

This is simply an enunciation of the general principle that a neutral may protect its neutrality. Each neutral must judge what is necessary for such protection. If it is neglectful one belligerent may claim that it has not used "due diligence;" if it is too rigorous in the regulations and in their enforcement the other belligerent may feel aggrieved. It is, however, for the neutral to determine where the line shall be drawn.

In the situation under consideration there would be no difference in the solution owing to the fact that the colliers had been sent to the neutral port B, to meet the detachment of the fleet instead of accompanying the fleet. The explanation given of the British rule met with little objection when Lord Lansdowne wrote to Sir C. Hardinge on August 16, 1904, in regard to belligerent vessels that "Such fleet can not be permitted to make use in any way of a British port for the purpose of coaling, either directly from the shore or from colliers accompanying the fleet, whether the vessels of the fleet present themselves at the port at the same time or successively."

(c) General control of waters.-From all points of view it is evident that a neutral State can not exercise the same effective jurisdiction over remote waters along the coast as over the waters of the ports and roadsteads.

The

time of arrival, the amount of coal taken, and other data necessary for the determination of the treatment of the belligerent fleet might not and probably would not be available.

While the obligation of the neutral according to article 25 of the Hague Convention concerning the Rights and Duties of Neutral Powers in Naval War is that "A neutral Power is bound to exercise such surveillance as the means at its disposal allow to prevent any violation of the provisions of the above Article occurring in its ports or roadsteads or in its waters," the belligerent is bound "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 non-fulfilment of their neutrality." (Art. 1.) Such acts would be, if no provisions were announced to the contrary, sojourn for more than 24 hours (Art. 18), taking in more than coal sufficient to reach nearest home port (Art. 19).

Conclusion. The obligation upon the belligerent is to observe the regulations prescribed by the neutral under penalty of denial of the use of neutral waters or such other measures as the neutral may be able to take (Art.25). The neutral would be justified in regulating the supply of coal as specified in (a); the only difference would be in the fact that the neutral would not be under equal obligation to exercise surveillance over all coast waters.

SOLUTION.

(a) State Z is competent to make the regulation allowing within neutral jurisdiction coal sufficient only to proceed to the nearest home port or to a port already passed en route to port B. State Z might be at liberty to adopt the rule of full bunker supply.

(b) The same rule would apply in case of colliers sent to meet the belligerent fleet at the neutral port of State Z.

(c) The same rule would apply if the coaling were not in port but merely within the three-mile limit off the coast of State Z.

SITUATION II.

DECLARATION OF WAR.

The relations between the United States and State X are strained. The United States issues an ultimatum on July 1 to the effect that, if certain demands are not satisfied before July 10, war will exist from that date.

State X breaks off diplomatic relations with the United States on July 3 and announces that unless the demands of the United States are withdrawn before July 7 war will be declared on that date.

On July 8 a war vessel of the United States whose commander knows only that neither the United States nor State X has withdrawn its demands meets a merchant vessel of State Y which in case of war would be neutral. This vessel is known to be loaded with coal and is bound for a port of State X which, besides being a large commercial port, also contains a naval station.

What action should the commander take?

SOLUTION.

Unless exempt by treaty or otherwise the commander. should send the merchant vessel of State Y to a prize court on the ground that the cargo was contraband of war if the vessel sailed with knowledge of the existence of the

war.

If the vessel clearly had no knowledge of the existence. of the war, he should consider that the cargo will probably be liable to expropriation rather than condemnation.

NOTES.

Historical. It was in early times considered necessary that there should be some formal declaration of war. It was thought that a war should not be begun by what without State authorization might be regarded simply as a violent act of an individual. It was considered at one time that to commit an act of hostility before a public declaration of war would be perfidious.