CHAP. indefinite. The same article further provided that a town must not be bombarded "solely because automatic submarine contact mines are anchored off the harbor"; but to this provision four of the Great Powers took exception. Further, it remained uncertain whether coast-defenses situated at some distance from a coast town constituted a "defense" which would subject the town to attack.1 The general rule was still further weakened by permitting the belligerent to destroy military works, depots of arms, and plants for the manufacture of war material, and excusing him from responsibility "for any unavoidable damage which may be caused by a bombardment under such circumstances. The bombardment of undefended towns was further permitted as a means of forcing compliance with a demand for requisitions, although not permitted to enforce payment of money contributions. The belligerent was obligated, in carrying out a bombardment, to "spare as far as possible" buildings devoted to public worship, art, science, or charity, which buildings were to be indicated by prescribed visible signs. A conditional obligation was laid down that "if the military situation permits, the commander of the attacking naval force, before commencing the bombardment, must do his utmost to warn the authorities"; while an absolute prohibition was laid against the pillage of a town, even when taken by assault.5 The numerous loopholes of escape contained in the provisions of the convention left its obligations largely dependent in concrete cases upon the arbitrary judgment of naval commanders. Moreover, during the World War its provisions were not technically binding upon the belligerents. In consequence, there was little room for an appeal to the convention when a number of British coast towns were bombarded by German naval forces without warning. On its side, the German Government alleged that the presence in the towns of troops, barracks, or land batteries made them "defended" towns. Reprisals also figured in the German defense of the bombardment." 5 1E.g., in the instance of the city of New York, the guns placed at Sandy Hook. 2 Art. 2. Art. 3, 4. Art. 5. " Art. 6, 7. Garner observes with reference to the bombardment of Scarborough, Hartlepool, and Whitby: "If these bombardments are not forbidden by the Hague convention, it is a fair question to raise whether any bombardments are forbidden. We may not agree with the verdict of the coroner's jury at the inquest over the victims at Scarborough that they met their death as the result of a 'murderous attack,' but it is hard to avoid the conclusion that the act was contrary to the elementary rules of honorable warfare and in violation of the spirit if not the express terms of the Hague convention." Op. cit., I, 432. XXIX of enemy An important method of maritime warfare must be mentioned CHAP. here, although the problems to which it has given rise bear principally upon the rights of neutral states and are more commonly Blockade and properly discussed in that connection.1 The belligerent right country to blockade enemy ports is, in so far as regards the enemy, as complete as the belligerent right to invest defended inland towns and reduce them to surrender by starvation. In the case of maritime warfare, however, blockade seeks to bring economic pressure to bear upon the enemy state as a whole, with resulting distress not merely to the non-combatants of the blockaded ports but to the entire civilian population. Such was the purpose of the blockade of the Confederate States by the United States from 1861 to 1865 and of the "blockade" of Germany by Great Britain from 1914 to 1918.2 In maintaining such a blockade, however, belligerents are bound by certain limitations, prescribed primarily in the interest of neutral states, but indirectly to the benefit of the blockaded state. Should these rules be violated by one of the belligerents it would appear that the injured belligerent may institute a claim against neutrals for their failure to hold the belligerent to the observance of their rights. By inference from general principles it would appear that the injured belligerent may, as in the case of other violations of the law, resort to reprisals to coerce the offender to desist from his unlawful conduct.3 By an old rule of international law, firmly rooted in custom, a e. Capture of private belligerent has the right to capture and confiscate the private prop- property erty of enemy subjects when found upon the high seas and, with certain exceptions, when found in the territorial waters of either belligerent. This rule is in marked contrast with the exemptions from confiscation accorded in modern times to private property of enemy subjects on land. The survival of the right at sea long after the right in land warfare was abandoned is to be explained chiefly by the fact that the right to destroy the merchant marine and overseas commerce of the enemy has been a powerful weapon in the hands of states having formidable navies. The persistent agitation of the United States for the abolition of the right to capture enemy private property on the seas was consistently opposed by 1 See below, pp. 537 ff. For the German complaint of the unlawfulness of the British blockade during the World War, see Garner, II, § 523. For the attitude of the United States as a neutral, see below, p. 542. 4 Such was the position taken by Germany in 1915. Ibid., I, § 230. CHAP. Exception of enemy Great Britain, and was, as has been seen, the ground of the refusal of the United States to adhere to the Declaration of Paris1 and also to sign the Convention relating to the Conversion of Merchant Ships into Warships, adopted at the Hague Conference of 1907.2 At this conference the United States again introduced its proposal of the inviolability of private property at sea, but the proposal met with opposition from Great Britain, whose delegates were supported by those of France, Russia, and Japan and other smaller states; so that under the rules of the conference the proposition, although supported by a majority, could not be considered as adopted.3 The general rule permitting a belligerent to capture private property of the enemy upon the seas and in the territorial waters of the belligerents is subject to a number of exceptions originating as customary law and confirmed and extended by convention. The most important of these relates to the conditional immunity from capture of enemy merchant vessels, privately owned, which are found by a belligerent in its ports upon the outbreak of war. This exception, however, is not strictly a qualification of the rule of liability to capture at sea, but rather an extension to merchant vessels in port of the general exemption of enemy alien property within the territorial jurisdiction of the belligerent state. It is, therefore, more logically classified under that heading. By an extension of the conditional exemption accorded to enemy merchant vessels in port, custom and convention sanction the immunity from capture of the same vessels while returning to their home ports, as well as of enemy merchant vessels which left their last port of departure before the commencement of the war and are encountered at sea while ignorant of the outbreak of hostilities.® In the latter case, however, the enemy vessel is subject to detention or requisition. By customary law fishing-vessels engaged in coast fisheries, as The literature upon the subject of the proposed abolition of the capture of enemy private property upon the seas is voluminous. A summary of the position of the United States may be found in the address of Mr. Choate before the Fourth Commission of the Hague Peace Conference, June 28, 1907. Proceedings, III, 752 ff. For a brief bibliography see Hershey, Elements of International Law, 441, n. 56. An exposition of the political motives influencing the attitude of the different powers toward the question may be found in Hyde, International Law, II, §§ 771-772. The history of the subject is sketched in Quigley, Immunity of Private Property from Capture at Sea. See above, p. 450. "The exemption is implied in Article 1 of the Convention relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities. Art. 3, ibid. XXIX of fishing distinct from deep-sea fisheries, have been regarded as exempt CHAP. from the rule of capture of enemy property at sea. The ground of this exemption was stated by the United States Supreme Court in Exemption the case of the Paquete Habana1 as being "considerations of vessels humanity to a poor and industrious order of men" and "the mutual convenience of belligerent states." The court reached the conclusion in the above case that "by the general consent of the civilized nations of the world, and independently of any express treaty or other public act," it was an established rule of international law "that coast fishing vessels, with their implements and supplies, cargoes and crews, unarmed and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war. At the Second Hague Conference the Convention (XI) relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War was adopted, which confirmed the customary rule of exempting from capture coastal fishing-vessels, and included with them "small boats employed in local trade." The scope of the latter exemption was not definite, but it would appear that large coasting-steamers are excluded. In both instances the exemption was made conditional upon the vessels not taking "any part whatever in hostilities." Further, the convention provided that "vessels charged with religious, scientific, or philanthropic missions are likewise exempt from capture," thus confirming another customary rule. spondence of A new rule of law was introduced by the Eleventh Convention Postal correin the provision that the postal correspondence of belligerents, belligerents "whatever its official or private character may be," with the exception of correspondence destined for or proceeding from a blockaded port, is inviolable. When the ships are detained the 175 U. S., 677 (1900). Scott, Cases, 12; Evans, 602. 'It would appear that the recognition by Great Britain of the rule was as one of courtesy only, and not of legal decision." See the case of the Young Jacob and Johanna, 1 C. Rob., 20 (1798). A minority of the court in the Paquete Habana case dissented on the ground that a rule to which Great Britain had not assented could not be regarded as a general custom. In reaching its conclusion the court referred to the historical practice of maritime states, to treaties, judicial decisions, and the evidence presented by jurists and commentators upon international law. See above, p. 68. The case also contains a statement of the relation of international law to municipal law. See above, p. 79. Art. 3. Malloy, Treaties, II, 2348. "Art. 4. Art. 1. The rule extends as well to postal correspondence of the enemy found in neutral ships, a matter belonging n.ore properly to the law of neutrality. See below, pp. 532 ff. ОНАР. XXIX Enemy goods found on neutral vessels The test of enemy character: vessels correspondence must be forwarded by the captor with the least possible delay. The exemption of postal correspondence does not, however, extend to enemy mail ships themselves, a limitation apparently due to the fact that such vessels are of too great potential value to the enemy, owing to the possibility of their conversion into auxiliary ships of war. In addition to the above exemptions, there are the special cases of cartel ships, engaged in the transportation of exchanged prisoners of war, as well as hospital-ships engaged in the relief of the sick and wounded.2 In accordance with a rule of international law which found recognition in the Consolato del Mare of the fifteenth century, the ownership of the property determined its liability to capture. Consequently, the goods of an enemy might be seized, even if found in a neutral vessel, and irrespective of the vessel's destination. This rule was contested by Holland in the seventeenth century, and the principle was advanced that "free ships make free goods"; that is to say, a neutral ship not subject to capture gives immunity by its flag to all goods found within it. The new principle, supported by Sweden and Russia in 1780,3 fought its way against the old rule enforced chiefly by Great Britain and the United States,* until it was finally adopted as contractual law by the states parties to the Declaration of Paris of 1856. The declaration provided that "the neutral flag covers enemy's goods, with the exception of contraband of war.' The exemption thus granted was, indeed, rather a concession to the claims of neutral ships than a limitation of the general right to capture enemy property, and the subject, therefore, belongs more properly to the law of neutrality," although convenience warrants its consideration at this point. In 1898 the United States, although not a party to the Declaration of Paris, referred to the above rule, with others, as "recognized rules of international law."6 Owing to the liability of enemy property to capture at sea, the problem has long been presented to prize-courts, when passing upon the legality of captures, to determine what properly constiDuring the World War the Eleventh Convention was not technically binding upon the belligerents owing to the failure of Russia to sign it. Consequently only such of its provisions as were previously part of customary law were binding. 4 'See above, p. 502. 'See below, p. 533. For the conflicting attitudes of the judicial and the executive branches of the American Government, see Moore, Digest, VII, § 1195; Hyde, International Law, II, 762. See also the case of the Nereide, 9 Cranch, 388 (1815), below, p. 533. "See below, p. 532. Moore, Digest, VII, 452. |