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The report of the delegates of the United States to the Hague Conference of 1907 briefly summarizes the American attitude toward such a rule and shows its possibilities of abuse:

Articles 21 to 25 relate to the admission of prizes to neutral ports. Articles 21 and 22 seem to be unobjectionable. Article 23 authorizes the neutral to permit prizes to enter its ports and to remain there pending action on their cases by the proper prize courts. This is objectionable, for the reason that it involves a neutral in participation in the war to the extent of giving asylum to a prize which the belligerent may not be able to conduct to a home port. This article represents the revival of an ancient abuse and should not be approved. In this connection it is proper to note that a proposition absolutely forbidding the destruction of a neutral prize, which was vigorously supported by England and the United States, failed of adoption. Had the proposition been adopted, there would have been some reason for authorizing such an asylum to be afforded in the case of neutral prizes.

The United States ratified the Convention concerning the Rights and Duties of Neutral Powers in Naval War, on April 17, 1908, with the following reservations:

Resolved (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the adherence of the United States to a convention adopted by the Second International Peace Conference held at The Hague from June 15 to October 18, 1907, concerning the rights and duties of neutral powers in naval war, reserving and excluding however Article XXIII thereof, which is in the following words: "A neutral power may allow prizes to enter its ports and roadsteads, whether under convoy or not, when they are brought there to be sequestrated pending the decision of a prize court. It may have the prize taken to another of its ports. If the prize is convoyed by a war ship, the prize crew may go on board the convoying ship. If the prize is not under convoy, the prize crew are left at liberty.”

Resolved, further, That the United States adheres to this convention with the understanding that the last clause of Article III implies the duty of a neutral power to make the demand therein mentioned for the return of a ship captured within jurisdiction and no longer within that jurisdiction.

Article XXVIII of the Convention concerning the Rights and Duties of Neutral Powers in Naval War provides that

The provisions of the present convention do not apply except to the contracting powers, and then only if all the belligerents are parties to the convention.

As regards Article XXIII allowing sequestration of prize in a neutral port pending decision by a prize court, the United States is not a contracting party and therefore the convention does not apply. As the convention. applies "only if all the belligerents are parties to the convention," it would not be applicable so far as France is concerned even if France and State X were both parties to the convention. In this question it would therefore be, in the words of the convention, "expedient to take into consideration the general principles of the law of nations.”

"Taking into consideration the general principles of the law of nations," as the preliminary articles of the convention advise, it would be possible, in accord with certain opinions and precedents, to take the captured vessel into the French port to be sequestrated, provided France allowed such action. The convention by Article XXIII does not make it obligatory to allow prize to be thus brought in, but only permits a state to grant the privilege. In case of such grant, it would be directly contrary to the spirit of the preceding articles, which provide―

ARTICLE XXI.

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. If it does not, the neutral power must order it to leave at once; should it fail to obey, the neutral power must employ the means at its disposal to release it with its officers and crew and to intern the prize crew.

ARTICLE XXII.

A neutral power must, similarly, release a prize brought into one of its ports under circumstances other than those referred to in Article XXI.

The United States is a party to the above articles, but not to Article XXIII, which permits sequestration. Articles XXI and XXII may therefore be taken as showing the attitude of the United States Government in regard to the sending in of prize. The commander of the war ship making the capture of the merchant

ship should not therefore take the merchant ship into a neutral port to be sequestrated pending the action of the prize court. He should observe the principles followed in recent United States practice, as shown in General Order 492 of the Navy Department in 1898, and in the action of the Government in adherence to the Convention concerning the Rights and Duties of Neutral Powers in Naval War.

CONCLUSION.

The commander should not take the prize into French port to be sequestrated pending prize proceedings unless instructed. He should act in accord with General Orders 492 of the Navy Department, 1898.

20. Prize should be sent in for adjudication, unless otherwise directed, to the nearest home port in which a prize court may be sitting.

SITUATION IV.

COALING IN NEUTRAL WATERS.

While there is war between States X and Y and other States are neutral, a war vessel of State X coals from a collier just off the coast within three miles of State Z. A month later the same war vessel enters a port of State Z and requests a reasonable supply of coal. This is refused on the ground that the vessel has taken coal within the waters of State Z within three months.

Is the contention of State Z correct?

SOLUTION.

The contention of State Z is correct.

NOTES ON SITUATION IV.

Wording of the Hague Convention respecting the Rights and Duties of Neutral Powers in Naval War.-It has been suggested that the wording of this convention in articles. 18, 19, and 20 gives rise to the opinion that what a belligerent may do within neutral waters will depend upon the nature of the control which the neutral may be exercising over the waters, i. e., that certain actions might be prohibited in the ports which would be perImitted in the roadsteads; that certain actions would be prohibited in the roadsteads which would be allowed in outer territorial waters.

This opinion is based on the decreasing area of prohibition mentioned in the successive articles.

The prohibition in Article XVIII of this convention is comprehensive.

Belligerent war ships may not make use of neutral ports, roadsteads, or territorial waters for replenishing or increasing their supplies of war material or their armament, or for completing their crews.

The inclusion of the words "territorial waters" was at the suggestion of the British delegate in order to conform to the second rule of the treaty of Washington and shows that the prohibition was intended to be general.

The prohibition in Article XIX is less extended and extends to "neutral ports or roadsteads."

ART. XIX. Belligerent war ships may only revictual in neutral ports or roadsteads to complete their supplies up to amount usual in time of peace.

Similarly these vessels may only ship sufficient fuel to enable them to reach the nearest port of their country. They may, however, fill up their bunkers built to carry fuel, when in neutral countries which have adopted this method of determining the amount of fuel to be supplied.

If, in accordance with the law of the neutral power, the ships are not supplied with coal within twenty-four hours of their arrival, the permissible duration of their stay is extended by twenty-four hours.

The prohibition in Article XX extends merely to such ships as have taken coal "in a port belonging to a neutral power."

Belligerent war ships which have shipped fuel in a port belonging to a neutral power may not within the succeeding three months replenish their supply in a port of the same power.

As M. Hagerup pointed out at the Second Hague Conference in 1907, there is a difference between the waters within the jurisdiction of a State and the ports of the state:

Ils existent entre les ports et les eaux territoriales des différences de fait et de droit.

Les différences de fait se font valoir et quant au contrôle et quant aux mesures de réaction qu'il est possible d'y employer.

Ils peuvent y avoir des pays qui ont un littoral très étendu, peu peuplé et entouré des îles et des rochers, comme la Norvège par exemple; il est évident que l'Etat ne pourra dans des eaux territoriales comme celles-ci exercer aucun contrôle efficace.

Les ports sont soumis entièrement à la juridiction et à la souveraineté de l'Etat qui peut en interdire l'entrée à tous les navires.

Pour les eaux territoriales, au contraire, le passage inoffensif des navires est permis même en temps de guerre.

L'étendue d'un port est bien définie; il n'y a aucun doute là-dessus; il n'est pas ainsi pour l'étendue des eaux territoriales, sur laquelle il n'y a pas d'accord général. Cette dernière incertitude existe du reste dans le droit et dans le fait.

Ces différences doivent nécessairement exercer en temps de guerre une influence sur le régime auquel doivent être soumis les ports et les eaux territoriales.

Cela est surtout évident pour ce qui concerne les devoirs des neutres. Si l'on peut prescrire pour les eaux territoriales également que pour

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