It is highly desirable that these questions, as well as many others which have arisen, more particularly those relating to neutrality, contraband, and naval warfare, be discussed and, if possible, settled by the coming Hague Conference. In respect to the questions immediately under discussion in this chapter, it may be said that any claims for damages which may arise in the future in consequence of injury to neutrals from submarine mines should be referred to arbitration, preferably to the Hague Tribunal; but to wait until injury has actually resulted to neutral individuals or to neutral property before laying down the rule to be followed in such cases would not seem to be the part of wisdom or sound policy. Precautions should be taken in time, and any evil consequences which might follow upon uncertainty as to the rule ought to be averted, if possible. In respect to the laying of submarine mines, the very least that neutral states have a right to demand is that these highly dangerous explosives be restricted to territorial or belligerent waters; or, if their use be permitted upon the high seas for any purpose whatsoever, that they be anchored in such a way that they can not possibly become a menace to neutral vessels. In all such cases neutrals should receive due notice and the mines should be carefully removed after the special purpose for which they have been placed there has been fulfilled.35

three-mile limit) in favor of a zone of six marine miles for all territorial purposes and of permitting neutral states to extend it still farther in time of war for the purpose of defending their neutrality against a belligerent Power, provided the range of cannon was not exceeded. The maritime Powers were recommended to hold an International Congress for the purpose of adopting these and other rules, but no such Congress has ever been held. See Annuaire de l'Institut de Droit International for 1894-95, pp. 281-331.

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Oppenheim (II, § 182, p. 190), one of the most recent authorities on International Law, is of the opinion that "the matter ought to be regu

lated in the following way: Every belligerent is allowed to drop floating mechanical mines inside his own or the territorial waters of the enemy, provided warning is given to neutrals to avoid the waters concerned. On the open sea no dropping of such mines is allowed except inside a line of blockade. In any case, all floating mines must be properly moored, so as to prevent, as far as possible, their drifting away. Under no circumstances and conditions is it allowed to set floating mines adrift."

NOTE. At its recent session held in Ghent during the last week of September, 1906, the Institute of International Law adopted a series of articles relative to wireless telegraphy and submarine mines of which the following is a summary based on the best available accounts:

The regulations governing wireless telegraphy in time of peace are applicable in principle in time of war.

Belligerents may prevent the transmission of Hertzian waves by a neutral state over the high seas within the sphere of their military operations.

All persons taken prisoner while receiving or transmitting wireless messages from belligerent territory or between different sections of a belligerent army, are not to be considered spies, but are to be treated as prisoners of war, unless their operations were carried on under false pretenses.

Neutral ships and balloons proved to have been used to furnish an adversary with information helpful in the conduct of hostilities may be removed from the zone of hostilities and the wireless apparatus on board seized and sequestered.

A neutral state is not obliged to prevent the passage across its territory of Hertzian waves destined to a country at war. A neutral state has the right to close or take over the wireless telegraph station of a belligerent operated in its territory.

It is forbidden to place fixed or hidden mines in the open sea. Belligerents may place mines within their own waters and the waters of the enemy, with the exception of floating mines, or fixed mines liable to break loose and be a menace to navigation in waters not belonging to belligerents. The foregoing regulation applies to neutral states wishing to place mines in their own waters to prevent the violation of neutrality, but neutral states can not place such mines in the neighborhood of straits leading to the open sea. A belligerent, as well as a neutral state, must give due notification of the placing of mines. Any state violating the foregoing regulations will be held liable.

CHAPTER V

RUSSIAN SEIZURES OF NEUTRAL MERCHANTMEN-THE RIGHT OF VISIT AND SEARCH AND THE Alleged

RIGHT OF DESTROYING NEUTRAL PRIZES

The most important questions of International Law bearing upon the rights of neutrals which arose during the Russo-Japanese War grew out of the exercise of the right of visit and search for contraband of war and from the seizure of neutral vessels in the Red Sea by several cruisers of the Russian Volunteer Navy, as also the seizure and (in two cases) the sinking of neutral prizes in the Pacific Ocean by the Vladivostok squadron during the month of July,

1904.

Complaints were heard almost at the very beginning of the war against the searching and detention of neutral merchantmen by the Russian Mediterranean fleet in the Red Sea and against the detention of several British and American ships at Port Arthur.1 The temporary detention of the British and American vessels at Port Arthur, whether due

'It was also reported by Admiral Alexieff that the German cruiser Hansa, engaged in transporting German subjects from Port Arthur, was fired upon by Japanese warships; but the circumstances were not described, and, according to Admiral Alexieff's own admission, the vessel appears to have harbored Russians in the guise of Germans. The incident seems to have attracted but little attention. From the military correspondent of the London Times, February 17, 1904.

A British steamer (the Fu Ping) was also fired upon by a Russian guardship as it was leaving Port Arthur. This was said by Admiral Alexieff to have been due to a misunderstanding.

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to the fact that they harbored Japanese refugees2 or whether caused by motives of military expediency, does not seem to have been regarded as a serious matter by either of the neutral Governments concerned, although there appears to have been some diplomatic correspondence on the subject, and, in one case at least, a claim for the payment of demurrage.* It is probable that the temporary detention for military purposes of neutral merchantmen in a beseiged or blockaded port, more particularly at the beginning of a war, would be regarded with a certain degree of leniency by friendly neutrals. A payment of demurrage by the belligerent government to the neutral owners is probably the utmost that would be expected by a neutral government under these circum

stances.

A much more serious matter was the stopping and searching of a number of neutral merchantmen in the Red Sea by the Russian Mediterranean fleet on its return from a projected voyage to the Far East during the second week of the war. Three neutral colliers laden with steam coal (which was doubtless destined either directly or indirectly for

'As reported in the case of the British steamer Wen Chow. See London Times (weekly edition), February 19, 1904.

The American steamship Pleiades was by some supposed to have been detained for strategic reasons. See New York Times for February 14, 1904.

We note that the Russian Government granted compensation to the owners of the British vessel-the steamer Foxton Hall-for loss sustained during her detention at Port Arthur in February. See New York Times for August 4, 1904.

"It would, of course, be different in the case of a war vessel.

Two of them, the Frankly and the Ettrickdale, were British and one, the Matilda, was Norwegian. For a summary of the facts see Lawrence, War and Neutrality (2d ed.), pp. 114 f. The Russian Government agreed to indemnify the owners of the British colliers Frankly and Ettrickdale. See New York Times for September 10, 1904.

Japan) were seized and brought as prizes into the Gulf of Suez within Egyptian territorial waters. Here they were detained for about four days, and in the meantime these waters were used as a base of anchorage from which to overhaul neutral vessels, in spite of the protests of the Egyptian Government. The colliers were soon released, however, in response to a telegraphic order from the Czar, on the ground that these captures had been made before the Russian Government had fomally declared coal contraband of war.

The return of the Russian Mediterranean fleet to the Baltic, the prolonged inactivity of the Baltic fleet, and the practical bottling up or blockade of the Russian fleet at Port Arthur almost from the beginning of the war, left the control of the high seas and of contraband trade in the hands of neutral nations and the Japanese, except for an occasional sortie by the Vladivostok fleet which inflicted some serious damage upon Japanese transports. There seems to have been no serious interference with neutral trade until the seizure of the Allanton on June 16 and the Cheltenham early in July, 1904,' for the carriage of contraband.

These seizures had excited some interest and controversy, when the world was suddenly electrified by the news that two cruisers, the Peterburg and the Smolensk, belonging to the Russian Volunteer fleet in the Black Sea, had made their way early in July, 1904, out of the Bosporus and the Dardanelles into the Mediterranean as merchantmen (both of them flying the commercial flag), passed through the Suez Canal, and were holding up and seizing neutral vessels in the Red Sea. These vessels had apparently passed through

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7 These seizures will be discussed in the next chapter.

The Russian Volunteer steamer Sevastopol was also reported to have passed the Bosporus on July 6, in company with the Peterburg.