The Spanish government likewise adopted the policy of internment of belligerent war ships and submarines which entered its ports in violation of the decree referred to above, and a number of German submarines incurred the penalty imposed by the decree. The internment in July, 1917, of the U-23, which entered the port of Corunna in a seriously damaged condition, was the subject of protest by the German government, which argued that the act was contrary to the Hague convention. It is difficult, however, to see any foundation for the contention.

8564. Treatment of Submarines in Neutral Waters. The right of belligerent war vessels which navigate the surface of the ocean to enter neutral ports for certain purposes and to remain there for a limited period is well established. The Hague convention, however, prescribes certain rules which such vessels must observe in neutral waters and it seems clear that neutrals may if they judge proper prescribe additional restrictions and they may undoubtedly prohibit absolutely the entrance of such vessels into their ports if they fail to conform to the neutrality regulations which have been issued.1 In practice they have usually been allowed to enter, although occasionally neutral governments have excluded them from all or certain of their territorial waters.2

waters of Chili and also as to what constituted internment, see sec. 562. Who shall bear the expense of internment? When the Chilian government interned the ships of the German Kosmos line, the Company insisted that the interning power must bear the expense and also assume the risk which the ships incur. The government of Chili took the position, and justly, it would seem, that the company whose vessels committed the infractions which caused them to be interned should bear the expense and assume all risks. Alvarez, La Grande Guerre Européenne et la Neutralité du Chili, p. 284. May a merchant vessel demand to be interned in a neutral port? Certain ships of the above-mentioned company finding themselves in Chilian ports and not wishing to incur the risk of being captured, in effect declared themselves to be interned. The question is not dealt with by the Hague convention. Article 24, which deals with the matter of internment, applies only to war ships, and even as to these it contains no rule as to the right of a ship to demand that it be interned.

1 Convention of 1907 concerning the rights and duties of neutral powers in naval war, art. 9.

2 In 1834 Austria closed the port of Cataro to the war ships of belligerents. During the same war the Danish government closed the port of Christiansand to all belligerent war ships. In 1870 the Swedish government similarly closed five of its ports to belligerent men of war. By a decree of December 20, 1912, belligerent war submarines were forbidden to navigate or sojourn in Swedish territorial waters. Its decision was notified to the powers, and no protest was made by

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What is the duty of a neutral government in respect to submarines of belligerent nationality? Do the rules which govern the entrance and stay of war vessels which navigate the surface of the ocean apply to submarines which navigate below the surface? This question was raised for the first time during the late war and the decisions reached by neutral governments were not uniform.

In August, 1916, the governments of Great Britain and France sent a memorandum to the various neutral governments urging them "to take effective measures if they have not already done so, with a view to preventing belligerent submarine vessels, whatever the purpose to which they are put, from making use of neutral waters, roadsteads and ports." The memorandum went on to say that as regards submarines "the application of the principles of the law of nations is affected by special and novel conditions: first, by the fact that these vessels can navigate and remain at sea submerged and can escape all control and observation; second, by the fact that it is impossible to identify them and establish their national character, whether neutral or belligerent, combatant or non-combatant, and to remove the capacity for harm inherent in the nature of such vessels." It was further added that any place which provides a submarine far from its base with an opportunity for rest and replenishment of its supplies thereby furnishes such addition to its powers as to give the place the character of a base of operations. In conclusion the memorandum expressed the opinion that "submarine vessels should be excluded from the benefit of the rules hitherto recognized by the law of nations regarding the admission of vessels of war or merchant vessels into neutral waters, roadsteads or ports and their sojourn in them." Any belligerent submarine entering a neutral port should therefore be detained.1

The allied memorandum appears not to have made a very favorable impression on the government of the United States.

any of them. By a royal order of the Danish government concerning the neutrality of Denmark in case of war between foreign powers, promulgated December 20, 1912, war vessels of belligerent powers were prohibited from entering the harbor and roadstead of Copenhagen and from entering inner-territorial waters whose entrances were closed by mines or other means of defence. The right was also reserved to prohibit entrance to other Danish ports or waters. 1 Text of the memorandum in New York Times, October 10, 1916.

In a communication of October 11 the secretary of state sent a reply in which he expressed "surprise" that there appeared to be an endeavor on the part of the allied powers to "determine the rule of action governing what they regard as a 'novel situation' in respect to the use of submarines in time of war and to enforce acceptance of that rule, at least in part, by warning neutral powers of the great danger to their submarines in waters that may be visited by belligerent submarines." 1 No circumstances, it was added, had been set forth by the allied governments concerning the use of submarines which would render the existing rules of international law inapplicable to them. The government of the United States would therefore reserve its liberty of action in all respects and would treat such vessels as in its opinion "becomes the action of a power which may be said to have taken the first steps toward establishing the principles of neutrality, and which for over a century has maintained those principles in the traditional spirit and with the high sense of impartiality in which they were conceived." The note concluded:

"In order, however, that there should be no misunderstanding as to the attitude of the United States, the government of the United States announces to the Allied Powers that it holds it to be the duty of belligerent Powers to distinguish between submarines of neutral and belligerent nationality and that responsibility for any conflict that may arise between belligerent warships and neutral submarines on account of the neglect of a belligerent to so distinguish between these classes of submarines must rest entirely upon the negligent Power."

Shortly thereafter the American policy was put to the test by the arrival in the harbor of Newport of the German war submarine U-53. During its voyage across the Atlantic the submarine had sunk a number of British merchantmen and several neutral vessels. The submarine, however, was allowed to enter American waters, to remain there for some hours, and to depart freely, after which it resumed its attacks upon enemy merchant vessels off the American coast. The submarine appears not to have taken on any supplies while in American waters or to have committed any unneutral acts. Its purpose in

1 In the concluding paragraph of the memorandum the allied governments took occasion "to point out to the neutral powers the grave danger incurred by their submarines in the navigation of regions frequented by belligerent submarines."

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entering an American port was not clear and was the subject of more or less conjecture. It was suggested that it came in with a view to seeking information which might be of value to it and other submarines in the prosecution of their operations against enemy merchantmen, but whether it succeeded in obtaining any such information is not known. The decision of the American government to accord hospitality to the submarine was the subject of considerable criticism in the English and French press, although neither the British nor French government appears to have made a formal protest against the action of the American government. The matter, however, was brought up for discussion in the British House of Lords, and it was evident that the action of the American government did not meet the approval of the British authorities.

Regarding the merits of the allied contention that the rules of international law concerning the admission to neutral ports of war ships which navigate on the surface of the ocean were inapplicable to submarines, it must be admitted that there was ground for the distinction. The existing rules were undoubtedly framed upon the theory of surface navigation, and the ability of a submarine to submerge and traverse neutral waters below the surface and thus evade the port regulations would certainly justify the neutral in subjecting it to different rules or even to exclude it from entering altogether. This, however, is a matter between the neutral government and the belligerent in whose service the submarine is operating. Nevertheless, as the allied memorandum pointed out, to allow a submarine operating far from its base to enter a neutral port for the purpose of resting and replenishing its supplies would clearly give the port the character of a base of operations. But since the U-53 did not make use of the port for these purposes it is doubtful whether the enemy belligerents had good ground for protest. Had its acts been otherwise, a different question would have arisen. In that case the duty of the American government would have been to refuse the hospitality of its ports to such craft and the German government could not have justly complained.

Unlike the policy of the American government, which was to deal with each case as it arose and according to the facts of the particular case, certain other neutral governments announced

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general rules which they proposed to apply to submarines in their ports. Thus the Norwegian government, by a decree of October 13, 1916, forbade armed belligerent submarines from traversing Norwegian waters except in case of force majeure, resulting from stress of weather or unseaworthiness, and in the latter case they were required to navigate the surface of the water and to fly the national flag. By the same decree commercial submarines were allowed in Norwegian waters only during daylight and on condition that they refrained from submerging and that they carried the national flag. The Norwegian decree was the subject of bitter attack by the German press and the German government is reported to have addressed a protest to the Norwegian government in which it attacked the decree as being contrary to the Hague convention and incompatible with an impartial neutrality. The Norwegian differentiation between submarines and other war ships, it was said, was not justified, and it was contrasted with the attitude of the American government in the case of the U-53, which represented the "true spirit of a neutral." Threats are said to have been made by high German officials that the German government would not tolerate the Norwegian policy of differential treatment and that the terms of the decree would be ignored, as they appear in fact to have frequently been. The geographical proximity of Norway to Germany and the character of its coast line gave the question an aspect entirely different from that which confronted the United States. It was notorious that German submarines made use of Norwegian waters for rest and recuperation and perhaps for conferring with German spies, with which Norway was overrun.2 As is well known, German submarines also stationed themselves outside the marginal waters and sank large numbers of Norwegian merchant vessels as they emerged from their home ports, and there appear indeed to have been a good many instances in which they sank vessels well within the territorial waters of Norway. Under these circumstances the Norwegian government was clearly within its rights. Not

1 Text in 44 Clunet, p. 322.

American Scandinavian Review, March-April, 1917, p. 118. As to German submarine activities in Norwegian waters and the measures adopted by the Norwegian government cf. 45 Clunet, pp. 323 ff. Regarding the use of Norwegian ports by belligerent war ships cf. the Norwegian orange book, issued in 1916, Pp. 2 ff.