4. NEUTRAL PROPERTY

456. Railway Material. — " Railway material coming from the territory of neutral Powers, whether belonging to those Powers or to companies or private persons, and recognizable as such, cannot be requisitioned or utilized by a belligerent, unless in the case of and to the extent required by absolute necessity. It shall be sent back, as soon as possible, to the country of its origin.

"The neutral Power may likewise, in case of necessity, retain and make use, to a corresponding extent, of railway material coming from the territory of the belligerent Power.

Compensation shall be paid, on either side, in proportion to the material used, and the duration of its use (Art. 19).

29 19

457. Neutral Property of other Kinds." Property of neutrals of other kinds, found in territory which is the scene of hostilities, even though not placed by them at the disposal of the enemy, is liable to be taken possession of, or even destroyed, for strategic reasons, by either belligerent; but compensation must in this case be made, by the belligerent so acting, to the neutral owners for the loss they have sustained." 20

19

5 H. C., 19. Cf. H. R. (1899), 54, which it replaces. This article was the result of a compromise between the opposing views of France and Germany with reference to railway material coming from neutral countries like Belgium and Luxemburg. The Conference adopted a middle course. But "the terms used in this Article leave the neutral very much at the mercy of the belligerent as regards the requisition and use of railway material. Who is to be the judge of the necessity, and what is to be the meaning of 'as soon as possible'?" Higgins, 294. For a contrary view, see 2 Westlake, 118 and 285-286.

On the Convention on Neutral Powers and Persons in Land Warfare as a whole, see: 1 and 3 Actes et doc. de la deux confér., 125-129, 131-164, and 33-88, 179-230, respectively; *De Bustamante, in 2 A. J. (1908), 95-120; *Higgins, 182-294; * Holland, 62-68; Lémonon, 409-467; Parl. Papers, Misc. Nos. 4 and 5 (1908), passim; *1 Scott, 541-555; 2 Westlake, 117-119, 284–287.

"This Convention affords, within modest limits, a starting point for future conferences, and a basis on which may be built further rules safeguarding neutral interests. It contains on the whole well-accepted principles which were ready for codification.

"All the Powers except China and Nicaragua [which have since adhered] have signed this Convention, but Great Britain has made reservations in regard to Articles 16, 17, and 18, and the Argentine Republic in regard to Article 18." Higgins,

294.

20 Holland, No. 140. This paragraph, which is not a part of 5 H. C., may be regarded as a sort of corollary. In any event, it states a rule of International Law. For select references on the Law of Neutrality as a whole, whether at sea or on land, see Bibliography at the end of the next chapter.

CHAPTER XXXI

NEUTRAL RIGHTS AND DUTIES IN MARITIME WARFARE

THE Hague Conference of 1907 adopted the following Convention respecting the "Rights and Duties of Neutral Powers in Maritime War":

I. PROHIBITIONS UPON BELLIGERENTS

458. General Principles." 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 a breach of neutrality on the part of the Powers which (knowingly) tolerated them (Art. 1).” 1

"All acts of hostility, including capture and the exercise of the right of search, committed by belligerent warships in the territorial waters of a neutral Power, constitute a violation of neutrality and are strictly forbidden (Art. 2).

7 2

113 H. C. (1907), 1. Cf. 5 H. C., I, supra, § 448. "If a violation of neutrality occurs, it is a neutral's duty to take steps to obtain redress, especially when the other belligerent is injuriously affected, but this is not definitely stated in the Convention." Higgins, 461.

-

This principle has been generally recognized both in theory and practice for over a century, though it was occasionally violated in the nineteenth century. The United States was guilty of at least two such violations during the Civil War the seizure of the Florida in Brazilian, and the Chesapeake in British waters; but in both these cases the acts were disavowed and ample apology and reparation made. If possible, prizes thus captured must be restored. It is unnecessary to multiply references on this point. The leading case is that of the Anna (5 C. Rob. 373), decided by Sir William Scott (later Lord Stowell).

The Japanese were guilty of a serious violation of this principle during the RussoJapanese War. On the night of Aug. 11, 1904, the partially disarmed Russian torpedo boat destroyer Ryeshitelni was seized in and towed out of the Chinese harbor of Chefoo (where she had taken refuge) by two Japanese destroyers.

On the Ryeshitelni Incident, see * Hershey, 260-263; Higgins, 463; *Lawrence, War and Neutrality, 291-294; Ibid., Principles (4th ed.), 229; 2 Oppenheim, 343; Smith and Sibley, 116 ff.; Takahashi, 437-444; 2 Westlake, 210.

2 H

*

465

459. Prizes captured in Neutral Waters. "When a ship has been captured in the territorial waters of a neutral Power, this Power must, if the prize is still within its jurisdiction, employ the means at its disposal to release the prize with its officers and crew, and to intern the prize crew.

"If the prize is not within the jurisdiction of the neutral Power, the captor Government must, on the demand of that Power, release the prize with its officers and crew (Art. 3)."

460. Prize Courts in Neutral Territory. "A Prize Court cannot be set up by a belligerent on neutral territory or on a vessel in neutral waters (Art. 4)." 4

461. Neutral Territory as Base of Operations." Belligerents are forbidden to use neutral ports and waters as a base of naval operations against their adversaries, particularly to erect wireless telegraph stations or any apparatus intended to serve as a means of communication with the belligerent forces on land or sea (Art. 5)." 5

2. PROHIBITIONS UPON NEUTRAL POWERS

462. Supply of War Materials, etc. "The supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of warships, ammunition, or war material of any kind whatever, is forbidden (Art. 6)." 6

I cannot agree with Westlake that the Japanese did not exceed their rights on this occasion, and repeat that the conduct of Japan in this matter, "although altogether exceptional, constitutes a blot upon a record which was otherwise remarkably clean and spotless from the standpoint of International Law." Hershey, 263.

3 13 H. C., 3. Cf. 12 H. C., 3, which permits an appeal to the International Prize Court in case of "an enemy ship captured in the territorial waters of a neutral Power, when that Power has not made the capture the subject of a diplomatic claim." This gives the neutral Power the alternative of a diplomatic demand or an appeal to the International Prize Court. See Higgins, 461–462.

4 13 H. C., 4. This rule requires no comment.

5 13 H. C., 5. Cf. 5 H. C., 3 (a), supra, § 440 of which this article is in part a repetition. A neutral Government is under the corresponding obligation to use due diligence, i.e. the means at its disposal, "not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of a renewal or augmentation of military supplies or arms, or the recruitment of men." Second Rule of the Treaty of Washington. See 7 Moore, § 1330.

6 13 H. C., 6. The continued sale and delivery by the United States Government to agents of the French Government of arms and munitions of war after the

"A neutral Power is not bound to prevent the export or transit, for the use of either belligerent, of arms, munitions of war, or, in general, of anything which could be of use to an army or fleet (Art. 7).” 7

463. Fitting out or Arming of Ships on Neutral Territory. "A neutral Government is bound to employ the means at its disposal to prevent the fitting out or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage in hostile operations against a Power with which that Government is at peace. It is also bound to display the same vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile operations, which has been adapted in whole or in part within the said jurisdiction to warlike use (Art. 8)." 8

outbreak of the Franco-German War of 1870 have been defended on the ground that the sales had begun prior to the opening of hostilities, but they cannot be justified. See 7 Moore, § 1309.

Germany appears to have evaded this rule during the Russo-Japanese War by permitting the sale and delivery to Japan of a number of vessels practically forming part of her Auxiliary Navy, though belonging to the North German Lloyd and German Hamburg American Steamship Companies. True it is that the sale of merchant vessels by neutral individuals to belligerents has been generally upheld in spite of the adaptability of many of these vessels to warlike purposes; but the fact that these vessels appear to have been auxiliary cruisers of the German navy puts a different face on the matter. "In view of the close and intimate relations which subsist between these companies and the German Government, the sale and delivery of such vessels would seem to be impossible without the consent or connivance of that Government, and it can hardly be contended that such consent or connivance could be given without a serious breach of neutral obligation." Hershey, The Russo-Japanese War, 110. For the facts and further discussion, see Ibid., 91; Holland, in 37 R. D. I. (1905), 362 f.; Hyde, in 2 A. J. (1908), 511; 2 Oppenheim, § 321; and Takahashi, 485-489.

7

13 H. C., 7. Cf. 5 H. C., 7 which is couched in identical terms. See supra, § 450, for comment and references.

It should be noted that warships are not specifically mentioned in this article. Is this by way of exclusion or inclusion? This question appears to be unanswered. For a discussion, see note 8, below.

8 13 H. C., 8. This is substantially a repetition of the First Rule of the Treaty of Washington (1871), relating to the arbitration of the Alabama Claims. For the text of these rules, see 7 Moore, Digest, § 1330. As to their origin, see 1 Moore, Int. Arbitrations, 495 ff. It will be noted that the phrase due diligence used in the Treaty of Washington is replaced by means at its disposal in 13 H. C., 8. Whether this furnishes a more definite test with a clearer meaning remains to be seen.

It should also be noted that 13 H. C., 8 adopts the Anglo-American doctrine of intent, but it is the intent which determines the probable destination or use of the vessel rather than that of the owner or shipbuilder. The British Act of

3. APPLICATION OF THE RULE OF IMPARTIALITY

464. General Principles. "A neutral Power must apply impartially to the two belligerents the conditions, the restrictions, or prohibitions, issued by it in regard to the admission into its ports, roadsteads, or territorial waters, of belligerent warships or of their prizes.

1870 goes further, and prohibits not only the actual commissioning, equipping, and dispatching, but also the building or equipping under contract of any "ship with intent or knowledge, or having reasonable cause to believe that the same shall or will be employed in the naval or military service of any foreign State at war with any friendly State."

Is the export, sale, or delivery of a warship to a belligerent purchaser or destination ever permissible? American statesmen and jurists have always held that “there is nothing in our laws, or in the Law of Nations, that forbids our citizens from sending armed vessels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation." Judge Story, in the Santissima Trinidad (1827), 7 Wheat. 283, and Scott, 701. Cf. U. S. v. Quincy (1832), 6 Peters, 445, and Scott, 706; and U. S. v. The Meteor (1866), Scott, 711. For a brief review of these cases, see 2 Westlake, 188-189. For a digest of leading American cases, see Dana, note 215 to Wheaton, pp. 543-547. For opinions of American statesmen and judges, see Moore, Digest, §§ 1295 ff. and 1307 ff.; and 3 Wharton, Digest, §§ 393 and 396.

But this view can scarcely be longer maintained in the face of the First Rule of the Treaty of Washington, now incorporated in 13 H. C., 8. As one of our leading American authorities, Dr. Freeman Snow, has well said: "In considering this question, it should be remembered that, by the introduction of steam as the motive power of ships, and of iron and steel as the material of their construction, the conditions of maritime warfare have been very radically changed. What might have been a reasonable rule as applied in the time of sailing ships might now in the age of swift ironclads, be intolerably oppressive. In the cases of Santissima Trinidad, U. S. v. Quincy, and the Meteor, the courts were dealing with small sailing vessels, which had been converted into privateers, the possession of which by one or the other belligerent Power made very little difference in the general result of the struggle; whereas, the possession of an iron-clad ship might well turn the scale one way or the other, as indeed it did in the war between Chile and Peru in 1880-1881. This great power of inflicting injury upon one of the belligerents, it is fair to say, ought not to be permitted to neutral citizens, and the neutral nation is alone in a position to restrain them.

"In view of these facts, it is believed that the doctrine set up by the United States Neutrality Act and the Federal Courts, that the 'intent' of the owner or shipbuilder is the criterion by which his guilt or innocence is to be judged, is wholly inadequate; it would not for a moment stand the test of due diligence as applied by the Geneva Tribunal." Snow, Cases, note on pp. 437-438. Cf. Scott, Cases,

720.

For a complete history of the "Alabama" cases and the Geneva Award of 1872, see U. S. Diplomatic Correspondence for the years 1863-1871; Papers relating to the Treaty of Washington; Case of Great Britain with Appendix; Case of U.S.; Claims