1 tion of fare. very far distant when the Powers would perforce come Codificato an agreement on this, as on other points of sea war- Law of fare, in a code of regulations regarding sea warfare Sea Waranalogous to the Hague Regulations regarding warfare on land. A beginning was made by the United States of America by her Naval War Code 1 published in 1900, although she withdrew it in 1904. Later, the Second Hague Conference produced a number of conventions dealing with some parts of sea warfare, namely: (1) the vith, relative to the Status of Enemy Merchantships at the Outbreak of Hostilities; (2) the viith, relative to the Conversion of Merchant-ships into Warships; (3) the vinth, relative to the Laying of Automatic Submarine Contact Mines; (4) the Ixth, respecting Bombardments by Naval Forces; (5) the xith, relative to certain Restrictions on the Exercise of the Right of Capture in Maritime War.2 Since then, however, the World War has been fought, and it has become impossible to forecast the future of the movement for the immunity of private enemy property from capture at sea, or of the laws of sea warfare in general. II ATTACK AND SEIZURE OF ENEMY VESSELS Hall, §§ 138, 148-Lawrence, § 182-Westlake, ii. pp. 154-162, 312-316Phillimore, iii. § 347-Twiss, ii. § 73-Halleck, ii. pp. 105-108-Taylor, §§ 545-546-Moore, vii. §§ 1175, 1183, etc.-Walker, § 50, p. 147Wharton, iii. § 345-Hershey, Nos. 404, 405, 423-426-Bluntschli, §§ 664-670-Heffter, §§ 137-139-Ullmann, § 188-Bonfils, Nos. 1269-12733, 1350-1354, 1398-1400-Despagnet, Nos. 654-659-Rivier, ii. § 66-Nys, iii. pp. 432-449-Pradier-Fodéré, viii. Nos. 3155-3165, 3176-3178 1 See above, vol. i. § 32, and Stockton in the Proceedings of the American Society of International Law, vi. (1913), pp. 115-123. As to the Naval Codes of some other Powers, see Garner, i. §§ 7-9. 2 The Institute of International Law, at its meeting at Oxford in Import ance of Seizure of Attack, when legitimate. Calvo, iv. §§ 2368-2378-Fiore, iii. Nos. 1414-1424, and Code, Nos. 1665-1671-Pillet, pp. 121-128-Perels, § 35-Testa, pp. 155-157Lawrence, War, pp. 48-55, 93-111-Ortolan, ii. pp. 31-34-Boeck, Nos. 190-208-Dupuis, Nos. 150-158, and Guerre, Nos. 74-112-U.S. Naval War Code, Articles 13-16-Bernsten, §§ 7-8-Schramm, § 8-Wehberg, pp. 174-207-Garner, i. §§ 214-215, 220-222, ii. §§ 532-537. § 180. Whereas in land warfare all sorts of violence against enemy individuals are the chief means, in sea warfare attack and seizure of enemy vessels are the most important means. For together with enemy vessels, a belligerent takes possession of the enemy individuals and enemy goods thereon, so that he can appropriate vessels and goods, as well as detain those enemy individuals who are liable to be interned as prisoners of war. For this reason, and compared with attack and seizure of enemy vessels, violence against enemy persons, and the other means of sea warfare, play only a secondary part, although they are certainly not unimportant. For a weak naval Power can even restrict the operations of its fleet to mere coast defence, and thus totally refrain from directly attacking and seizing enemy vessels. § 181. All enemy men-of-war and other public vessels, which are met by a belligerent's men-of-war on the high seas, or within the territorial waters 1 of either 1 Whether enemy merchantmen may be captured in rivers is a controverted question. See Wehberg, pp. 60-61, and Biensfeldt in Z. V., x. (1917), pp. 375-381, and the several authors there quoted. There ought to be no doubt that they may be captured in parts of rivers which are navigable from the sea by sea-going vessels, and that sea-going vessels may also be captured in parts of rivers not navigable from the sea, if they have been brought there for the purpose of saving them from capture. The Institute of International Law (see Article 1 of its Manuel de la Guerre maritime (1913)) had answered the question in the nega. tive; but during the World War the various Prize Courts have answered it in the affirmative. In a judgment of the Italian Prize Court (see The Cervignano and The Friuli), condemning in 1917 two dismantled Austrian vessels moored in a river port, it is mentioned that the German Prize Courts had condemned some Belgian ships moored in the German Rhine port of Duisburg, and the Russian vessel Primula, captured in the river Trave which leads from Lübeck to Frauenmünde. Different is the question of the capture of enemy vessels on inland lakes not connected with, and navi. gable from, the sea. In Re Craft captured on Victoria Nyanza, (1918) 3 B. and C. P. C. 295, it was belligerent,1 may at once be attacked, and the attacked vessel may, of course, defend 2 herself by a counterattack. Enemy merchantmen3 may be attacked only if they refuse to submit to visit after having been duly signalled to do so. No duty exists for an enemy merchantman to submit to visit; on the contrary, she may refuse, and defend herself against an attack. But only a man-of-war is competent to attack either men-of-war or merchantmen, in a war between parties to the Declaration of Paris, by which privateering is prohibited. Any merchantman of a belligerent attacking a public or private vessel of the enemy would be considered a pirate and treated as such, and the members of the crew would be liable to be treated as war criminals 5 to the same extent as private individuals committing hostilities in land warfare. However, if attacked by an enemy vessel, a merchantman is competent to deliver a counter-attack, and need not discontinue her attack because the vessel which opened hostilities takes to flight, but may pursue and seize her. Moreover, if merchantmen must expect to be attacked without warning by a lawless enemy, they need not wait for attack before they themselves resort to hos held that the right of capture can be exercised on such large inland lakes as belong in part to the territory of each belligerent, both having armed vessels thereon. 1 But not, of course, in territorial waters of neutral States; see The De Fortuyn, (1760) Burrell 175; The Bangor, (1916) 2 B. and C. P. C. 206; The Düsseldorf, (1919) 3 B. and C. P. C. 466, [1920] A. C. 1034; The Valeria, [1920] P. 81; The Pellworm, [1920] P. 347. But see The Tinos, above, § 71 n., and The Ekaterinoslav and The Mukden, below, § 320 n. 2 See above, § 85. That a merchant vessel could defend herself against an attack of an enemy manof-war had formerly never been doubted. But see Schramm, p. 308, who asserts that self-defence is not admissible. 3 The term 'enemy merchantman' is here to be taken in its wider sense, in which it is identical with 'private vessels.' There ought, therefore, to be no doubt that yachts may be captured as well as other private vessels, although Wehberg, p. 177, denies this. See the German case of The Primavera (1916), cited above, § 102a n. This rule is, of course, valid also with regard to attacks by submarines. On the practice of German and Austrian submarines during the World War, see below, § 194a. 254. See above, § 85, and below, § Attack, how effected. tilities. Thus, when in 1915, during the World War, Germany resorted to her nefarious submarine practice, and merchantmen were torpedoed without warning, or if they were warned, their crews were endangered in their lives by being put in lifeboats on the high seas, it was perfectly legitimate for merchantmen of the Allies to attempt to ram German submarines, even if signalled to stop and submit to visitation. The conviction and execution by the Germans in July 1916 of Captain Fryatt,1 the commander of the Brussels, for having attempted in March 1915 to ram the German submarine U 33, was nothing else than a judicial murder. An attack upon an enemy vessel on the sea by forces on the shore, for instance, by coast batteries, is only permissible if the vessel is an enemy man-of-war. Enemy merchantmen may not be attacked in this way; for they may only be attacked by men-of-war after having been signalled in vain to submit to visit. § 182. One mode of attack which was in use in the time of sailing ships, namely, boarding and fighting the crew, which can be described as analogous to assault in land warfare, is no longer common; but if an instance occurs, it is perfectly lawful. Attack is nowadays generally effected by cannonade, torpedoes,2 and, if opportunity arises, by ramming; and except in so far as the Hague Declaration which prohibits such attacks by aircraft is binding,3 nothing forbids an attack on enemy vessels by launching projectiles and explosives from air-vessels. In case the attacked vessel not only takes to flight, but defends herself by a counter-attack, all modes of attack are lawful against her, just as she 1 See Scott in A.J., x. (1916), pp. 865-877. The attempt of Jerusalem in Z. V., xi. (1918), pp. 563-585, to justify the conviction and execution of Captain Fryatt is futile. 2 Article 1 of Hague Convention VIII. prohibits the use of torpedoes which do not become harmless if they miss their mark. 3 See above, § 114, and below, § 214a. herself is justified in applying all modes of attack by way of defence.1 marine § 182a. A mode of attack which requires special Subattention 2 is by means of floating mechanical, in con- Contact tradistinction to so-called electro-contact, mines. The Mines. latter need not specially be discussed, because they are connected with a battery on land, can naturally only be laid within territorial waters, and present no danger to neutral shipping except on the spot where they are laid. But floating mechanical mines can be dropped as well in the open sea as in territorial waters; they can, moreover, drift away to any distance from the spot where they were dropped, and thus become a great danger to navigation in general. Mechanical mines were extensively used by both parties in the Russo-Japanese War, during the blockade of Port Arthur in 1904, and the question of their admissibility was raised in the press of all neutral countries, the danger to neutral shipping being obvious. The Second Hague Conference took the matter up, and, in spite of the opposing views of the Powers, produced Convention VIII. relative to the Laying of Automatic Submarine Contact Mines. This convention comprises thirteen articles and was signed, with or without reservation, by the majority of the Powers represented at the conference. Twenty States ratified it, but some made reservations. This convention prohibited belligerents 4 from laying unanchored automatic contact mines, unless they were so constructed as to become harmless one hour 1 But air-vessels must not attack merchantmen without summoning them to surrender, and if they sink the vessel, they must save the crew. See below, § 194. See Lawrence, War, pp. 93-111; Wetzstein, Die Seeminenfrage im Völkerrecht (1909); Rocholl, Die Frage der Minen im Seekrieg (1910); Barclay, Problems, pp. 59 and 158; Lémanon, pp. 472-502; Higgins, pp. 328-345; Boidin, pp. 216-235; 3 See above, vol. i. § 568a. |