CHAP. XXXII h. Prize courts violation of the treaties of 1799 and 1828. Germany contested the interpretation of the treaties, and further defended the capture on the ground that the cargo, being destined to fortified ports, was conditional contraband. In its controversy with Holland over the sinking of the Maria and the Medea, Dutch vessels carrying conditional contraband, the German Government relied upon the provisions of the Declaration of London as corresponding "in substance with the generally recognized principles of international law," although not formally ratified." The determination of the legality of the capture by a belligerent of enemy or neutral merchant vessels and of their liability to confiscation rests with the prize courts of the belligerent state. These courts are domestic tribunals, organized and exercising their functions in accordance with the provisions of national legislation. But although the authority and jurisdiction of prize courts is derived from national law, the rules which they apply to the cases coming before them are the rules of international law, except in so far as special national legislation may have prescribed a particular interpretation of these rules. As a matter of fact, national legislation has frequently intervened to direct the judgment of prize courts, and their decisions must be discounted to that extent when cited as evidence of international law. Since it is a violation of neutrality for a belligerent to set up a prize court in the ports of a neutral state, the decision of such a court would not be accepted by third states as passing title to the condemned property. In the case of the Flad Oyen the British High Court of Admiralty refused to recognize the title of a Danish purchaser who had bought a ship condemned as prize by the French consul in the neutral port of Bergen. Owing to the numerous controversies between belligerents and neutral states arising from the diverse interpretation of interna 1Am. White Book, II, 185 ff., III, 311 ff. See above, p. 537. See Garner, op. cit., II, 271. The classic statement of the functions of prize courts is that given in the case of the Maria, 1 C. Rob., 340 (above, p. 550): "I trust that it has not escaped my anxious recollection for one moment what it is that the duty of my station calls for from me;-namely, to consider myself as stationed here not to deliver occasional and shifting opinions to serve present purposes of particular national interest, but to administer with indifference that justice which the law of nations holds out, without distinction, to independent states, some happening to be neutral and some to be belligerent. The seat of judicial authority is, indeed, locally here, in the belligerent country, according to the known law and practice of nations; but the law itself has no locality." *1 C. Rob., 135 (1799). Scott, Cases, 1070; Evans, 606. CHAP. The International Court of 1907 tional law by belligerent prize courts, as well as from contested points of fact, proposals were made from time to time looking to the creation in time of war of prize courts upon which neutral states as well as both belligerents would be represented.1 These Prize efforts culminated in the adoption by the Second Hague Conference of the Convention (XII) relative to the Establishment of an International Prize Court, based chiefly upon German and British drafts presented to the conference. The convention, although not signed by all the powers, and not ratified by any, is of sufficient importance as a constructive proposal to merit study. It provided that, while national courts should continue to exercise original jurisdiction over prize cases, an appeal might be taken in all cases involving the property of neutrals and in certain cases involving enemy property. This appeal might be brought by a neutral power, by a neutral individual, or by an enemy individual according to the conditions laid down.3 The law to be applied by the court was, in the absence of treaty provisions, to be "the rules of international law." If no generally recognized rule existed, the court was to give judgment "in accordance with the general principles of justice and equity." It was the uncertainty attaching to the law to be applied by the court that led to the calling of the London Naval Conference and the formulation of the Declaration of London as a definite code of naval warfare.5 of the The composition of the court was the result of a compromise Composition between the claim of the smaller states to equal representation and court the obvious impossibility of a court representing the entire body of states. Judges and deputy judges were to be appointed by each state, and from among these a court of fifteen judges was to be set up, eight of whom, representing the Great Powers, were to be permanent members. The other seven were to be occasional members sitting by rotation according to a table annexed to the convention, which gave a longer or shorter term to the lesser states according to the rank assigned to them. This practical denial of the principle of the equality of states led to the refusal of a number of states, notably Brazil, to sign the convention, while eleven other states signed with reservation of the offending article. Ratification of the convention was delayed pending a more definite understanding as to the law to be applied by the court." For details, see Oppenheim, International Law, II, 559 ff. 2 Art. 1, 2, 3. Art. 4. a. Duty of abstention Commercial relations between neutral and belligerent states CHAPTER XXXIII NEUTRAL DUTIES As has been pointed out above, neutral duties represent the conduct which it is the right of the belligerent to demand of a neutral state as the condition of its neutrality. These duties may, for convenience of legal treatment, be divided into two groups.1 The first and less important of these groups includes the negative or passive duties deducible from the general obligation of the neutral state to abstain from participation in the war. Direct participation under treaty obligation, such as was possible in the eighteenth century, is now out of the question. Indirect participation by the grant to one belligerent of privileges which are not accorded to the other, such as was provided for in the treaty of 1778 between the United States and France,' is likewise no longer compatible with neutrality. Moreover, abstention by the neutral state from participation in a war is something more than the mere impartial treatment of the contending parties. As Vattel pointed out, "the same number of troops, the same quantity of arms, munitions, etc., furnished under different circumstances, do not amount to equivalent help." 3 Not only does the duty of abstention forbid a neutral state to participate directly or indirectly in the conduct of hostilities, but it prescribes that the state may not in its corporate capacity maintain certain commercial relations with a belligerent which would have the effect of furnishing him with the sinews of war. What individual citizens of the neutral state may do is another question ;* the state itself, acting through its government, must forego such transactions as lending money to the belligerents, guaranteeing a There is no standard classification adopted by either customary or conventional law. The Hague Conventions merely distinguish between neutral rights and duties in war on land and in maritime war. Treaties and texts vary widely in their method of handling the subject. 2 Malloy, Treaties, I, 468. Droit des Gens, III, § 104. See below, p. 565. Vattel thought it no offense to lend money to one belligerent rather than to the other so long as it appears that the nation is lending its money solely for the purpose of obtaining interest," believing that it can get better security from one belligerent than from the other. Droit des Gens, Bk. III, § 110. But the United States refused to make a loan to France in 1798 on the ground that it would be a violation of neutrality. XXXIII belligerent loan floated in the neutral country, selling military CHAP. supplies to the belligerent, etc.-all unobjectionable in time of peace. During the Franco-Prussian War the United States sold surplus supplies of munitions which, being bought by French agents in the open market, went to the use of the French armies.1 The sales were subsequently defended on the ground that they had been begun before the outbreak of war; but the present conception of neutral obligation is better expressed by the Thirteenth Hague Convention, which provides that "the supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of war-ships, ammunition, or war material of any kind whatever, is forbidden." 2 courtesy The obligation of complete abstention from participation in Acts of the war does not, however, prevent a neutral state from continuing to exhibit toward the belligerents certain acts of friendliness, such as the furnishing of warships with limited supplies of food and coal, which involve a measure of indirect help to the belligerent and may, under the circumstances, benefit one belligerent more than the other. The line between such permissible acts of courtesy and other forbidden acts has not been determined upon principle, but has been worked out synthetically by the practice of states. The Thirteenth Hague Convention adopted specific rules on the subject which put an end to some, if not all, of the controversial issues. But whether the conduct of the neutral in this matter be guided by customary or by conventional law, the strictest impartiality must be shown in extending the same privileges to both belligerents.* prevention In addition to its negative or passive duties of abstention, a b. Duties of neutral state is held to certain positive or active duties of prevention. It is not sufficient for the neutral state to refrain from giving help to either belligerent by any act of its own; it must go farther and prevent any use of its territory by either of the belligerents, or by persons acting in their interest, which would give one of them. an advantage over the other. The legal basis of these duties of prevention is the sovereign right of the neutral state over the territory subject to its jurisdiction. If belligerents may not violate 1See Moore, Digest, VII, § 1309. Art. 6, Convention respecting the Rights and Duties of Neutral Powers in Maritime War. 'See below, p. 557. The subject is treated below under the heading of "Duties of Prevention," because of the fact that controversies as to the observance of neutral duty in this respect have turned upon the failure of the neutral to take active steps to prevent the abuse of its hospitality. CHAP. XXXIII Acts of the belligerents themselves Measures short of actual hostilities the neutrality of a state by committing acts of hostility within its territory, no more may a neutral state acquiesce in such acts without giving ground of complaint to the injured party. 2 With respect to acts of hostility committed by the belligerents themselves within neutral territory, the neutral may not always be able to prevent the actual commission of the offense, but it can at least make such redress to the injured belligerent as it is able on its part to exact from the offending belligerent. The obligation imposed by the Hague convention that "a neutral power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory" obviously does not impose an obligation beyond the physical powers of the neutral. A small state is, therefore, not called upon to intervene forcibly between the contending belligerents. The non-resistance of Luxemburg to the German armies in 1914 was not an offense on its part. Nevertheless, the neutral must do what it can to make redress. If a capture has been made in its territorial waters, as in the case of the Florida, the neutral must demand restoration, and if this cannot be effected the neutral must make compensation to the injured belligerent. In the case of the General Armstrong, an American privateer attacked by a British cruiser in Portuguese waters, the United States demanded redress of Portugal for its failure to protect the vessel, although the claim was disallowed by the arbitrator on the ground that the vessel had not asked protection from the Portuguese authorities. The Thirteenth Hague Convention confirms customary law in requiring that if a prize has been captured in neutral waters, and is still within the neutral jurisdiction, the neutral must use the means at its disposal to release the prize with its officers and crew and to intern the prize crew." Belligerent measures short of the actual commission of hostilities must be checked by the neutral state as soon as it has become aware of them. In war on land the neutral must prevent the passage across its territory of belligerent troops or convoys of See above, p. 524. Art. 5, Convention respecting the Rights and Duties of Neutral Powers and Persons in War on Land. The use of force is, however, justified as a matter of neutral right, if the Moore, International Arbitrations, II, 1071; Digest, II, § 210. |