INTERNMENT, IN NEUTRAL PORT, OF BELLIGERENT WARSHIP, ITS OFFICERS AND CREW. If, notwithstanding the notification of the neutral Power, a belligerent ship of war does not leave a port where it is not entitled to remain, the neutral Power is entitled to take such measures as it considers necessary to render the ship incapable of taking the sea during the war, and the commanding officer of the ship must facilitate the execution of such measures. When a belligerent ship is detained by a neutral Power, the officers and crew are likewise detained. The officers and crew thus detained may be left in the ship or kept either on another vessel or on land, and may be subjected to the measures of restriction which it may appear necessary to impose upon them. A sufficient number of men for looking after the vessel must, however, be always left on board. The officers may be left at liberty on giving their word not to quit the neutral territory without permission.-Hague Convention XIII, 1907, Article 24. Where they [belligerent vessels] enter [a neutral port] on sufferance they must respect the wishes of those who permit their presence. Lawrence, p. 624. * * * * * $ belligerent men-of-war are expected to comply with all orders which the neutral makes for the purpose of preventing them from making his ports the base of their operations of war And, if they do not comply voluntarily, they may be made to do so through application of force, for a neutral has the duty to prevent by all means at hand the abuse of the asylum granted. Oppenheim, vol. 2, p. 419. *** when after the battle off Port Arthur in August 1904 the Russian battleship Cesarewitch, the cruiser Novik, and three destroyers escaped, and took refuge in the German port of Tsing-Tau in Kiao-Chau, the Norik, which was uninjured, had to leave the port after a few hours, whereas the other vessels, which were too damaged to leave the port, were disarmed and, together with their crews, detained till the conclusion of peace. And when, at the end of May 1905, after the battle of Tsu Shima, three injured Russian men-of-war, the Aurora, Oleg, and Jemchug, escaped into the harbour of Manila, the United States of America ordered them to be disarmed and, together with their crews, to be detained during the war. Oppenheim, vol. 2, p. 423. Laws of United States. It shall be lawful for the President, or such person as he shall empower for that purpose, to employ such part of the land or naval forces of the United States, or of the militia thereof, as shall be necessary to compel any foreign vessel to depart the United States in all cases in which, by the laws of nations or the treaties of the United States, she ought not to remain within the United States. Sec. 5288, Revised Statutes. October 7, 1905, the Commander of the United States naval forces in the Philippines cabled that Admiral Enquist [Commander of the Russian vessels interned at Manila] had asked permission for Shipbuilder Lohvitzky to return to Russia on parole for urgent and satisfactory personal reasons. Under the conditions then existing, it being assumed that a "shipbuilder" was not an active combatant, permission was granted without obtaining the consent of the Japanese Government. * Moore's Digest, vol. vii., p. 995. * * the President [of the United States] on the afternoon of the 15th of September [1904] issued an order directing that the Lena [a Russian vessel] be taken into custody by the naval authorities of the United States and disarmed under the following conditions: (1) That the vessel be taken to the Mare Island Navy-Yard and there disarmed by removal of small guns, breechblocks, small arms, ammunition, and ordnance stores, and such other dismantlement as might be prescribed by the commandant of the navy-yard; (2) that the captain of the Lena should give a written guarantee that she should not leave San Francisco till peace had been concluded, and that the officers and crew should be paroled not to leave San Francisco till some other understanding as to their disposal might be reached between the United States and both belligerents: (3) that, after disarmament, the vessel might be removed to a private dock for such reasonable repairs as would make her seaworthy and preserve her in good condition during detention, or be so repaired at the navy-yard, should the Russian commander so elect, and that while at the private dock the commandant of the navy-yard should have the custody of the ship, and that the repairs should be overseen by an engineer officer to be detailed by him; (4) that the cost of repairs, of private docking, and of maintenance of the ship, officers, and crew while in custody should be borne by the Russian Government, but the berthing at Mare Island and the custody and surveillance of the vessel by the United States; (5) that the vessel, when repaired, if peace had not then been concluded, should be taken back to Mare Ísland and there held in custody till the end of the war. The Russian ambassador expressed the adherence of his Government to these conditions, but asked that the officers and crew of the vessel, except 5 officers and 100 seamen, who were necessary for her care, might be permitted to leave the United States. The Japanese Government, on the other hand, asked that all the officers and crew be detained in the United States till the termination of hostilities. The President decided that it would not be consistent with neutrality to grant the request for the repatriation of any of the officers or crew of the Lena, unless both the belligerents agreed to it. Without such an agreement he regarded the position of the men as being identical in principle with that of a military force entering neutral territory and there necessarily held by the neutral. Moore's Digest, vol. vii, pp. 999, 1000; For. Rel. 1904, 428-430. Article 24, Hague Convention XIII, 1907, is substantially identical with section 144, Austro-Hungarian Manual, 1913. OBLIGATION OF NEUTRAL POWER TO PREVENT VIOLATION, IN ITS PORTS, ROADSTEADS, or Waters, oF PROVISIONS OF HAGUE CONVENTION XIII, 1907-EXERCISE OF NEUTRAL RIGHTS UNDER CONVENTION NOT TO BE REGARDED AS UNFRIENDLY ACT. 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 Articles occurring in its ports or roadsteads or in its waters. The exercise by a neutral Power of the rights laid down in the present Convention can under no circumstances be considered as an unfriendly act by one or other belligerent who has accepted the articles relating thereto.-Hague Convention XIII, 1907, Articles 25 and 26. The neutral authorities shall see that the provisions of this article [relative to the conduct of belligerent war ships in a neutral port] are respected using force if necessary. Institute, 1898, p. 155. It is not only the right of the neutral state to protect the property of the belligerents, when within the neutral jurisdiction, but it is a part of the duty of neutrality to defend such property while under neutral protection, and to punish any and every offense against the rights of neutrality, even, if necessary, by a resort to force. Livy relates that Syphax enforced peace between the Carthagenian and Roman gallies while lying in a neutral port. The Venetians prevented the Greeks from attacking the Turks in the neutral port of Chalcocondylas. The same may be said of the Venetians and Turks at Tunis, of the Pisans and Genoese in Sicily, and numerous other cases mentioned in history. The Dutch East Indian fleet having put into Bergen, in Norway, in 1666, to avoid the English, were attacked by them; but the governor of Bergen fired on the assailants, and the court of Denmark complained to the English government of the violation of its sovereignty. Halleck, p. 530. Roughly speaking, the neutral is bound to prevent within its jurisdiction what the belligerent is bound to abstain from doing therein. But though this statement is accurate as far as it goes, it is by no means exhaustive; for neutral governments are, as we shall see, obliged by International Law to exert themselves in order to stop the consummation of certain acts when done by private individuals on their own initiative. And in all cases their action must be strong and resolute, not weak and perfunctory. Various attempts have been made to define or describe the standard of vigilance expected from them. By the Treaty of Washington of 1871 three rules were laid down, whereby Great Britain consented to be judged in the Arbitra 66 tion on what were known generically as the Alabama Claims. The first and third of these declared it to be the duty of a neutral state to use "due diligence" in order to prevent various violations of its neutrality. Immediately a controversy arose as to the true meaning of the phrase. Great Britain contended that due diligence “signifies that measure of care which the government is under an obligation to use for a given purpose,"-an explanation which fails conspicuously to explain. The United States that it must be a diligence commensurate with the emergency or with the magnitude of the results of negligence"-an explanation which imposes a variable standard. The Arbitrators decided that it must be a diligence exercised by neutrals "in exact proportion to the risks to which either of the belligerents may be exposed from a failure to fulfil the obligations of neutrality on their part"-an explanation which destroys impartiality. Much has been written on the subject since the award was given in 1872, but an authoritative standard of due diligence remains to be found. The attempt to find it was abandoned by the Second Hague Conference when it negotiated its Convention concerning the Rights and Duties of Neutral Powers in Maritime War. The eighth article, which reproduces with a few verbal changes the first of the three rules of the Treaty of Washington, alters the words "A neutral government is bound to use diligence" into "A neutral government is bound to use the means at its disposal," and a similar phrase occurs in the twenty-fifth article. Whether the substitute will prove more satisfactory than the original remains to be seen. Let us suppose for a moment that the law of a neutral state is lax in this particular, and confers on its government insufficient means of maintaining neutrality. How would its Minister of Foreign affairs meet the argument of the aggrieved belligerent that a state is bound to arm its executive officers with powers sufficient to enable them to perform the obligations imposed on it by International Law? The zeal and vigilance required in such cases should, we venture to suggest, be the same as that which a well-governed state applies to its own internal affairs. Lawrence, pp. 633, 634. Laws of the United States. [The district courts shall take cognizance of all complaints, by whomever instituted, in cases of captures made within the waters of the United States, or within a marine league of the coasts or shores thereof.] In every case in which a vessel is fitted out and armed, or attempted to be fitted out and armed, or in which the force of any vessel of war, cruiser, or other armed vessel is increased or augmented. or in which any military expedition or enterprise is begun or set on foot, contrary to the provisions and prohibitions of this Title (R. S.. 5281-5291); and in every case of the capture of a vessel within the jurisdiction or protection of the United States as before defined: and in every case in which any process issuing out of any court of the United States is disobeyed or resisted by any person having the custody of any vessel of war, cruiser, or other armed vessel of any foreign prince or state, or of any colony, district, or people, or of any subjects or citizens of any foreign prince or state, or of any colony. district, or people, it shall be lawful for the President, or such other 1 |