Слике страница
PDF
ePub

than to say that they may be open to the criticism of being too individualistic. It goes without saying that a young American should be able to make a living and should have every opportunity for vocational and technical training. There is no question, of course, but that it is this training of the individual which makes for the enrichment of society. And I am one of those who believe that the cultivation of the spirit, that one may have life more abundantly, is quite as important as the equipment which will enable one to secure the primary necessities of food and shelter or the means of a comfortable existence.

But along with the appropriate consideration of individual needs, there should go a more definite appreciation of the necessity of meeting the demands of training for citizenship. This implies adequate knowledge of our institutions, of their development and actual working. It means more than this in a world of new intimacies and perplexities. It means adequate knowledge of other peoples, and for this purpose there is nothing to take the place of the humanities, of the study of literature and history. When I speak of the study of history, I do not mean a superficial review, but the earnest endeavor to understand the life of peoples, their problems and aspirations. Nor is it simply or chiefly the history of a distant past that it is now most important to know. It is recent history that is of first importance, with sufficient acquaintance with the past to understand the happenings and the developments which have taken place in our own time. In our many years of schooling how difficult it is to give to our young men and women the knowledge that is worth while, which through a just and clear discernment will properly relate them to the duties and opportunities of their generation!

There are those who view the dislocations caused by the war, the present widespread impoverishment, the assaults and too frequent triumphs of unreason, the controversies over superficialities and the ignoring of the causes of distress and instability, with a feeling of hopelessness. But this is not the end of the world; rather it is the beginning of a new era, a formative period when it is the highest privilege to live and perform one's part. We need young men and women who are profound students of these developments, who are ready not only to grapple with the problems of our domestic life but who understand the origin and course of international difficulties and controversies and thus are able to take an intelligent and helpful part in forming a sound public opinion which will control America's conduct of foreign affairs. Above all we need the spirit of reasonableness which men and women of good sense and culture may bring to public discussion,—that calm judgment which proceeds from wide knowledge and keen insight.

Power and opportunity are yours. They are not confided to impersonal institutions. What will you do with them? Our ultimate security and the assurance of our progress will not be found in constitutions or statutes or treaties or conferences, important as these may be, but in the self-respect that will not permit abasement; in the national pride and just self-interest that will not tolerate interference with independence; in the spirit of helpfulness which seeks not alliances but honorable cooperation; in the love of justice which will not permit abuse of power and which scorns to profit by unjust accusation; in the insistence upon the processes of reason by which alone we can avoid the mistakes of prejudice; in the detestation of the demagogue and all his works, the most dangerous enemy of the republic; and in the sympathy with the weak and oppressed and in the dominant sentiment of human brotherhood through which we shall be able to reconcile our national aspirations with the full performance of our duty to humanity.

SEIZURES IN LAND AND NAVAL WARFARE DISTINGUISHED

By Manley O. Hudson
Professor of Law, Harvard University

Recent efforts to codify the international law of war have tended to differentiate more sharply between land warfare and naval warfare. But it is still frequently difficult to say where land warfare ends and naval warfare begins, and too little assistance is to be had from the few writers who have attempted to draw the line. The need of a clearly drawn line is evident when the capture of private property is being considered, for very different considerations apply in the two kinds of warfare.1 If a capture is governed by naval law, perplexing problems of prize court procedure may arise; but a seizure governed by land law is free from all necessity for prize court adjudication and confers a title which without more may be asserted in a neutral country. The applicability of the Hague Conventions may also depend on whether a seizure is governed by the law of land, or by that of maritime, warfare—the second Convention of 1899 and the fourth Convention of 1907 are strictly applicable only in land warfare,2 and the sixth and

1 See Annuaire de I'lnslitul de Droit International, 1913, p. 182.

» The Thalia (1905), Takahashi, Russo-Japanese War, pp. 605, 617. But see the fourth voeu expressed by the 1907 Hague Conference, in which the Conference expressed the opinion that "the Powers may apply, as far as possible, to war by sea the principles of the Convention relative to the laws and customs of war on land."

During the recent war, the question was more important with reference to the second Convention of 1899. Many of the belligerents had not ratified the fourth Convention of 1907, and by Article 2 it was applicable between the Powers which had ratified "only if all the belligerents are parties to the convention." But the second Convention of 1899 had been ratified by all the belligerents except Liberia and San Marino, omitting from the list of belligerents some of the new states which were signatories of the Treaty of Versailles, viz., Hedjaz, Poland and Czecho-Slovakia. The insignificance of Liberia and San Marino as belligerents in the war might justify ignoring them for the purpose of meeting the provision in Article 2 of the 1899 Convention that the annexed regulations "cease to be binding from the time when, in a war between contracting Powers, a non-contracting Power joins one of the belligerents." Sir Samuel Evans in The Moewe [1914], 1 British and Colonial Prize Cases, 60, [1915] Probate 1, and the German Prize Court in The Fenix [1914], Entscheidungen des OberprisengerichU 1, were willing to disregard the belligerency of Serbia and Montenegro in applying the sixth Convention of 1907. See also The Blonde [1922] 1 A. C. 313, 325; Garner, International Law and The World War, I, pp. 25 ff.

But the question then arises as to the extent to which the 1899 Convention has been superseded by the 1907 Convention. On this point, Article 4 of the 1907 Convention is not as clear as it might be, for it does not sufficiently definitely provide for the continuance of the 1899 Convention between all Powers which have ratified the 1899 Convention, even though some of them engaged in a war may also have ratified the 1907 Convention. The Conference ninth Conventions of 1907 are applicable only in maritime warfare. Some general lines must, therefore, be drawn.

The question has arisen during the past war with reference to boats seized on inland rivers in Europe, and the extent to which military or naval operations on a river are to be governed by land or maritime law has given rise to some controversy. On large highways like the Danube,3 the seizure of river boats has raised the question in an interesting way, and the decision of Mr. Walker D. Hines, as Arbitrator under Article 300 of the Treaty of St. Germain, has established an interesting precedent. The question arose, during the recent war, also, in connection with British operations in German South-West Africa, and Italian operations along the Austrian coast.

CONVENTIONAL STATEMENTS AS TO THEATRE OF OPERATIONS

"International law as applied to warfare is a body of limitations, and is not a body of grants of power." 4 For this reason, descriptions of the theatre of naval operations are usually exclusive and not inclusive—they simply exclude naval operations in the territorial waters of neutral states. The United States Naval Instructions of 1917 provide that "enemy vessels are liable to capture outside of neutral jurisdiction." 6 The provision in some naval codes is that capture may be effected "in any waters except the territorial waters of a neutral state." e The effect of such provisions is usually interpreted to be that capture may be effected either on the high seas or in the territorial waters of the belligerents. But the recent Italian rules restrict this to the high seas and "interior waters open to maritime navigation," 7

may have envisaged this result, Actes et Documents, I, 77, and it has been contended for by M. Fauchille, in 22 Revue Generate de Droit International Pvblic, 106. Professor Garner's conclusion on this point seems to give insufficient attention to Article 4 of the 1907 Convention. Garner, International Law and the World War, I, p. 20. The editorial comment in 9 American Journal of International Law, 193, is more adequate.

3 It is sometimes stated that the lower Danube had been neutralized by the Treaty of Berlin of 13 July, 1878. See Bonfils, Manuel de Droit International Public (7th ed.), p. 1133; Sec. 3 of the German Prize Code as in force on 1 July, 1915. But Article 52 of that treaty only forbids the erection of fortifications and the navigation of the river by vessels of war, 69 British and Foreign State Papers, 749, 765.

4 Walker D. Hines, Determination in the Matter of Questions Arising as to Danube Shipping (1921), p. 8.

8 Instructions for the Navy of the United States Governing Maritime Warfare, 1917, p. 26.

'Holland, Manual of Prize Law, 1888, p. 1; Russian Reglement des Prises Maritime, 27 March, 1895, Art. 16; Japanese Prize Regulations, 7 March, 1904, Art. 2; Roumanian Prize Code, Art. 24, 5 Bulletin de I'lnslitut Intermediate International, p. 342. The Turkish law of 31 January, 1912, explicitly authorizes seizure of boats and cargoes by sea or land forces, 5 Bulletin de I'lnslitut Intermediaire International, p. 137. Cf. Chinese Prize Regulations of 30 October, 1917, 26 Revue de Droit International Public, 496; Cheng, Judgments of the High Prize Court of China, p. 136.

7 Italian Rules Governing the Exercise of the Right of Prize, 25 March, 1917, Art. 5. A French translation is published in Fauchille et Basdevant, Jurisprudence Italienne en Matiere Des Prises Maritime, p. xlix.

adopting the restriction embodied by the Institute of International Law in the Oxford Manual of Naval Law of 1913.8

The purpose of such definitions of the theatre of naval operations is usually to emphasize the impropriety of captures effected in the territorial waters of neutrals, and beyond this emphasis little attempt is made to describe precisely the geographical limits of naval capture as distinguished from seizure in land operations. As it is used in naval codes, the term "territorial waters" seems to cover inland rivers,' although in some instances it may be confined to marginal seas. The generalization is sometimes drawn from these definitions that naval capture is limited to property at sea or afloat,10 and the conclusion is drawn that any seizure of property afloat must be governed by naval law. But this conclusion is hardly warranted by the expressions found in the naval codes, and it affords little assistance in the effort to determine whether seizures of river boats engaged in inland navigation should be governed by the law of land or by the law of sea operations.

CAPTURE OF RIVER BOATS

The question as to the capture of river boats must have arisen many times during the past century, yet court adjudications on it seem to be rare.11 The countries having navigable rivers and large river fleets have not often been invaded, and in the cases where river boats have been seized there has usually been no necessity for court proceedings. If the law of maritime capture applies, the necessity for prize court proceedings would exist only for the satisfaction of neutrals, for between the belligerents it would seem to be unnecessary;1* if the law of land warfare applies to the seizure, on the other hand, there is no necessity for court proceedings even when a title is asserted in a neutral country.1' Perhaps boats on most rivers so seldom have occasion to navigate in neutral waters or to enter neutral ports that prize court proceedings seem superfluous, even if proper.

Annuaire de I'lnstitut de Droit International, 1913, p. 610. See also the Report of the International Law Association, 1920, p. 169.

• Cf. Oppenheim, International Law (2 ed.), I, p. 235.

10 See Baty and Morgan, War, p. 338; Rivier, Droit des Gens, II, p. 341.

11 Cf. United States v. H69\ Bales of Cotton (1868), 1 Woolworth, 236, 259.

u This position was ably stated in Secretary Lansing's note to the British Government concerning The Farn, a British vessel captured by a German cruiser and brought into an American port during the days of American neutrality, as follows: "In the opinion of this Government an enemy vessel which has been captured by a belligerent cruiser becomes as between the two governments the property of the captor without the intervention of a prize court. If no prize court is available this Government does not understand that it is the duty of the captor to release his prize, or to refuse to impress her into its service." 9 American Journal of International Law, Spec. Supp., p. 364.

13 O'Neil v. Central Leather Co. (1915) 87 N. J. Law 552; Oetjen v. Central Leather Co. (1918) 246 U. S. 297; Ricaud v. Am. Metal Co. (1918) 246 U. S. 304, 250 Fed. 853; Terrazas v. Holmes (Tex., 1920) 225 S. W. 848; Terrazas v. Donahue (Tex., 1920) 227 S. W. 206.

« ПретходнаНастави »