America in 1793 closed down the French Prize Courts set up by the French envoy Genêt on her territory,1 it became recognised that such Prize Courts are inconsistent with the duty of impartiality incumbent upon a neutral, and Article 4 of Convention XIII. so enacts. § 328. It would, no doubt, be an indirect assistance Prizes in to the naval operations of a belligerent if a neutral Neutral allowed him to organise on neutral territory the safekeeping or sale of prizes. Belligerent's Ports. But the case of a temporary stay of a belligerent man-of-war with her prize in a neutral port is different. Neutral Powers may-although most maritime States no longer do-allow prizes to be brought temporarily into their ports.2 Articles 21 and 22 of Convention XIII. lay down the following rules: A prize may only be brought into a neutral port on account of unseaworthiness, stress of weather, or want of fuel or provisions; it must leave as soon as the circumstances which justified its entry are at an end, and if it does not, the neutral Power must order it to leave at once, and must, in case of disobedience, employ the means at its disposal to release the prize with its officers and crew, and to intern the prize crew; a prize brought into a neutral port for reasons other than unseaworthiness, stress of weather, or want of fuel or provisions,—for instance, to avoid recapture-must forthwith be released by the neutral Power. Article 22 does not mention that in such a case the prize crew must be interned, but there is no doubt that they must be.3 The question requires attention whether a prize, whose unseaworthiness is so great that it cannot be repaired, may be allowed to remain in the neutral port, and be there sold 4 after the competent Prize Court has 1 See above, § 291 (1). 2 See Trainé, Das Gastrecht im Seekrieg (1912), § 20; Scott in A.J., x. (1916), pp. 104-112. 3 The United States interned the prize crew in the case of The Appam. See below, § 328a. See Kleen, i. § 115. condemned it. Since Article 21 enacts that an admitted prize must leave the neutral port as soon as the circumstances which justified its entry are at an end, there is no doubt that it may remain if it cannot be repaired so as to be made seaworthy. There ought, consequently, to be no objection to its sale in the neutral port, provided it has previously been condemned by the proper Prize Court. While Article 21 cannot meet with any objection, Article 23 of Convention XIII. is of a very doubtful character. It enacts that a neutral Power may allow prizes to enter its ports, whether under convoy or not, when they are brought there to be sequestrated pending the decision of a Prize Court; and the restrictions imposed by Article 21 do not apply to prizes brought into a neutral port under Article 23. It would in practice enable a belligerent to safeguard all his prizes against recapture, and a neutral Power which allowed belligerent prizes access to its ports under it would indirectly render assistance to the naval operations of the belligerent concerned. For this reason, Great Britain, Japan and Siam, and also the United States of America when she acceded to the convention in December 1909, entered a reservation against Article 23. Be that as it may, those Powers which have accepted Article 23 will not, I believe, object to the sale in the neutral port of such sequestrated prizes, provided they have previously been condemned by the proper Prize Court. of The Аррат. § 328a. On several occasions during the World War The case German cruisers brought their prizes into neutral ports. Appam. Thus in March 1915 the German cruiser Prinz Eitel Friedrich conducted a French prize into a Chilian port, and at other times German war-vessels took the captured steamers Valentine, Helicon, and Sacramento into the Chilian harbour of Juan Fernandez. These acts were the subject of various protests.1 But the case which attracted most attention was that of The Appam. This British liner was captured by a German warvessel off the coast of Africa, and was navigated across the Atlantic by a prize crew, unaccompanied by the captor, to the then neutral American port of Newport News. The American Government thereupon liberated the ship's crew and passengers, and interned the prize crew, and the owners of the vessel instituted proceedings in the American courts for her release. The court of first instance held that Articles 21 and 22 of Hague Convention XIII.2 were declaratory of existing rules of International Law, under which neutral ports might not become places of asylum or permanent rendezvous for belligerent prizes; that the Appam had been brought to the United States for reasons other than unseaworthiness, stress of weather, or want of fuel or provisions, and must be set free. The Supreme Court affirmed this decision.3 III NEUTRALS AND MILITARY PREPARATIONS Hall, §§ 217-218, 221-225-Lawrence, §§ 234-240-Westlake, ii. pp. 210-227 -Manning, pp. 227-244-Phillimore, iii. §§ 142-1516-Twiss, ii. §§ 223225-Halleck, ii. pp. 165-185-Taylor, §§ 616, 619, 626-628-Walker, §§ 62-66-Wharton, iii. §§ 392, 395-396-Wheaton, §§ 436-439-Moore, vii. §§ 1293-1305-Heffter, §§ 148-150-Geffcken in Holtzendorff, iv. pp. 658-660, 676-684—Ullmann, § 191-Bonfils, Nos. 1458-1459, 14641466-Despagnet, Nos. 692-693-Rivier, ii. pp. 395-408-Calvo, iv. §§ 2619-2627-Fiore, iii. Nos. 1551-1570-Kleen, i. §§ 76-89, 114Mérignhac, iii. pp. 522-547-Pillet, pp. 288-290-Dupuis, Nos. 322331, and Guerre, Nos. 290-294-Land Warfare, §§ 472-476-Einicke, Rechte und Pflichten der neutralen Mächte im Seekrieg (1912), pp. 71153-Wehberg, § 11. 1 See Garner, ii. § 566. 2 See above, § 328. 3 (1917) 243 U.S. 124; Garner, ii. § 567. See also Scott in A.J., x. (1916), pp. 809-831; Coudert in A.J., and Factories on Territory. § 329. Although, according to the present intense Depots conception of the duty of impartiality, neutrals need not1 prohibit their subjects from supplying belli- Neutral gerents with arms and the like in the ordinary way of trade, a neutral must 2 prohibit belligerents from erecting, and maintaining on his territory, depots and factories of arms, ammunition, and military provisions. However, belligerents can easily evade this rule by not keeping depots and factories, but contracting with subjects of the neutral concerned in the ordinary way of trade for any amount of arms, ammunition, and provisions.3 and the § 330. In former centuries neutrals were not required Levy of to prevent belligerents from levying troops on their Troops, neutral territories; indeed, a neutral often himself like. levied troops on his territory for belligerents without thereby violating his duty of impartiality as understood in those times. In this way the Swiss Confederation frequently used to furnish belligerents, and often both parties, with thousands of recruits, although she herself always remained neutral. But at the end of the eighteenth century a movement was started which tended to change this practice. In 1793, President Washington of the United States of America interdicted the levy of troops for belligerents on American territory, and by and by many other States followed the example. During the nineteenth century, the majority of writers maintained that the duty of impartiality must prevent a neutral from allowing the levy of troops; and the few 4 writers who differed made it a condition that a neutral, if he allowed it at all, must allow it to both 1 See below, § 350. * See Bluntschli, § 777, and Kleen, i. § 114. The distinction made by some writers between an occasional supply by subjects of neutrals and an organised supply in large propor- See, for instance, Twiss, ii. § of belligerents alike. The controversy was settled by Articles 4 and 5 of Hague Convention v., which lay down the rules that corps of combatants may not be formed, nor recruiting offices opened, on the territory of a neutral Power, and that neutral Powers must not allow these acts. The duty of impartiality must likewise prevent a neutral from allowing a belligerent man-of-war reduced in her crew to enrol sailors in his ports, with the exception of such few men as are absolutely necessary to navigate the vessel to the nearest home port.1 Akin to the levy of troops on neutral territory was the granting of letters of marque to vessels belonging to the merchant marine of neutrals. Since privateering has disappeared, the question whether neutrals must prohibit their subjects from accepting letters of marque from a belligerent 2 need not be discussed. Passage § 331. A neutral is not obliged by his duty of imparof Mentiality to prohibit passage through his territory of men intending who intend to enlist, whether they pass singly or in to Enlist. numbers. Thus, in 1870, Switzerland did not object to Frenchmen travelling through Geneva for the purpose of reaching French corps, or to Germans travelling through Basle for the purpose of reaching German corps, under the condition, however, that these men travelled without arms and uniform. On the other hand, when France during the Franco-German War organised an office in Basle for the purpose of sending bodies of Alsatian volunteers through Switzerland to the south of France, Switzerland correctly closed it down because this official organisation of the passage of whole bodies of volunteers through her neutral 1 See Article 18 of Convention XIII. and below, § 333 (3), and § 346. * See above, § 83. With the assertion of many writers that a subject of a neutral who accepts letters of marque from a belligerent may be treated as a pirate, I cannot agree. See above, vol. i. § 273. 3 See Bluntschli, § 770. |