Слике страница
PDF
ePub

ference, speaking of the question of limitation of the supply of coal in neutral ports, says:

The proposition advanced by England represented the strict views of neutral rights and duties which are held by States maintaining powerful naval establishments, supplemented by a widely distributed system of coaling stations and ports of call, in which their merchant vessels could find convenient refuge at the outbreak of war and which enable them to carry on operations at sea quite independently of a resort to neutral ports for the procurement of coal or other supplies or for purposes of repair. As the policy of the United States Government has generally been one of strict neutrality, the delegation found itself in sympathy with this policy in many, if not most, of its essential details. France for many years past has taken a somewhat different view of its neutral obligations, and has practiced a liberal, rather than a strict, neutrality. The views of France in that regard have received some support from the Russian delegation and were favored to some extent by Germany and Austria.

It was constantly borne in mind by the delegation, in all deliberations in committee, that the United States is, and always has been, a permanently neutral power, and has always endeavored to secure the greatest enlargement of neutral privileges and immunities. Not only are its interests permanently neutral, but it is so fortunately situated, in respect to its military and naval establishments, as to be able to enforce respect for such neutral rights and obligations as flow from its essential rights of sovereignty and independence.

With a view, therefore, to secure to neutral States the greatest possible exemption from the burdens and hardships of war, the delegation of the United States gave constant support to the view that stipulations having for that purpose the definition of the rights and duties of neutrals should, as a rule, take the form of restrictions and prohibitions upon the belligerents, and should not, save in case of necessity, charge neutrals with the performance of specific duties. This rule was only departed from by the delegation in cases where weak neutral powers demanded, and need, the support of treaty stipulations in furtherance of their neutral duties. It was also borne in mind that a State resorting to certain acts with a view to prevent violations of its neutrality derives power to act from the fact of its sovereignty, rather than from the stipulations of an international convention. (Senate Doc., 60th Cong., 1st sess., No. 444, p. 50.).

Résumé.-By Article I of the Convention concerning the Rights and Duties of Neutral Powers in Naval War:

Belligerents are bound to respect the sovereign rights of neutral powers and to abstain, in neutral territory or neutral waters, from any act which would, if knowingly permitted by any power, constitute a violation of neutrality.

Unrestrained or repeated coaling in neutral waters, if knowingly permitted by a neutral, would unquestionably

constitute a violation of neutrality and is therefore an act from which the belligerent is bound to refrain. Further, Article XVIII of the same convention prohibits the use of territorial waters for "replenishing or increasing" supplies of "war material" or "armament." Coal destined for the belligerent forces has in recent years been regarded as war material. In Situation IV there has been within three months an actual increasing of the supply of war material within neutral jurisdiction. Under the spirit of Article XVIII, the taking on of coal would not be allowed to the war vessel of State X.

As is evident from the neutrality proclamations of recent years, it is the purpose of neutrals to strictly limit the use of neutral territorial waters by belligerents to such purposes as the neutrals may specifically enumerate. In most proclamations prohibitions have been extended to ports, roadsteads, and territorial waters.

The provisions of the Convention concerning the Rights and Duties of Neutral Powers were agreed upon to harmonize divergent views. The divergency of view in regard to coaling was in regard to the amount rather than in regard to the frequency and place of coaling. This convention also provides that "it is expedient to take into consideration the general principles of the law of nations."

From the general principles set forth in the convention, from the neutrality proclamations, from practice in recent wars, and from the general principles of the laws of nations it is evident that the contention of State Z is correct. Very wide freedom has been allowed to belligerents in matter of coaling. The use of any place within neutral jurisdiction, except under the terms of the convention regulating the supply of coal to belligerents, would be using such place as a base, which is prohibited. Certain propositions made by neutral States have not only prescribed the refusal of such supplies, but also the interning of a belligerent vessel which disregards such neutral regulations.

CONCLUSION.

The contention of State Z is correct.

55983-09-7

SITUATION V.

BLOCKADING BY MINES.

There is war between States X and Y. Other States are neutral. War vessels of State X are blockading a port of State Y. Two of the war vessels of State X are called away, leaving only two to aid in maintaining an effective blockade. The two remaining vessels lay a line of automatic contact mines of which they give notice to neutrals.

The neutrals protest on the ground that this is not a legitimate method of blockade and maintain that the mines should be removed.

What action should be taken?

SOLUTION.

Under the strict law such use of mines is not prohibited. It would seem, however, that mines should not be used for the maintenance of a commercial blockade and that neutrals would have good cause to protest against such use, which protest a belligerent should heed.

NOTES ON SITUATION V.

Effective blockade.-According to the Declaration of Paris, 1856, to which most States acceded "blockades, in order to be binding, must be effective; that is to say, maintained by a force sufficient to prevent access to the coast of the enemy." This principle has been so generally recognized as to be little questioned. The words "sufficient force" have received varied interpretations. It is not certain just what constitutes a "sufficient force," nor of what character such force must be. Sir Alexander

Cockburn, in the case of Geipel v. Smith, said:

In the eye of the law a blockade is effective if the enemies' ships are in such numbers and position as to render the running of the blockade a matter of danger, although some vessels may succeed in getting through. (Law Reports, 7 Queen's Bench, 404.)

98

The definition of blockade, according to the armed neutralities of 1780 and 1800, spoke of its maintenance by vessels. The Declaration of Paris of 1856, however, mentions "a sufficient force" not defining the nature of the force.

Treaty provisions.-Article 13 of the treaty between the United States and Italy of 1871 contains the statement that those States

Being desirous of removing every uncertainty which may hitherto have arisen respecting that which upon principles of fairness and justice ought to constitute a legal blockade, they hereby expressly declare that such places only shall be considered blockaded as shall be actually invested by naval forces capable of preventing the entry of neutrals, and so stationed as to create an evident danger on their part to attempt it.

There may in some cases be a doubt as to what might properly constitute "naval forces capable of preventing entry of neutrals." Some maintain that there may be question of the propriety of the use of mines for such purpose; others regard mines as legitimate as any form of naval warfare, whether for blockade or other service.

Opinion of court. In the case of the Circassian in 1864, Mr. Justice Chase said, in regard to blockade:

It may be made effectual by batteries ashore as well as by ships afloat. In the case of an inland port, the most effective blockade would be maintained by batteries commanding the river or inlet by which it may be approached, supported by a naval force sufficient to warn off innocent and capture offending vessels, attempting to enter. (2 Wallace, U. S. Supreme Court Reports, p. 135.)

Obstructions in aid of blockade, stone. Speaking in 1862 of the stone placed in Charleston Harbor to aid in maintaining the blockade and of the opposition raised by some European States to this method, Secretary Seward in a letter to Minister Dayton, at Paris, said:

remove.

* *

*

Hitherto such obstructions have been regarded as an ordinary military appliance of war. No American ever conceived that the human hand could place obstructions in a river which the same hand could not We were, therefore, surprised, and even incredulous, when we saw that the placing of obstructions in the channels leading to Charleston was, in Europe, regarded as an act of peculiar and ruthless severity. (U. S. Diplomatic Correspondence, 1862, p. 316.)

In a letter two days earlier to Mr. Adams, Mr. Seward said:

I am not prepared to recognize the right of other nations to object to the measure of placing artificial obstructions in the channels of rivers leading to ports which have been seized by the insurgents in their attempt to overthrow this Government. I am, nevertheless, desirous that the exaggerations on that subject which have been indulged abroad may be corrected. I have, therefore, applied to the Navy Department for information, and I have now to inform you that between the channels leading to the harbor of Charleston which have been so obstructed there still remain two other channels, neither of which has been so obstructed, and in which there has been no design to place any artificial obstructions. These are the Swash channel and a part of the so-called Maffit's channel. These two latter channels are guarded, and passage through them prevented only by the blockading naval forces. (Ibid., p. 36.)

In 1884 certain Chinese harbors were in part blocked by stone. In a communication to the Secretary of State at this time the United States minister to China says:

On the 10th of January I was informed by the British minister, Sir Harry Parkes, and the German chargé d'affaires, Count Tattenbach, that dispatches had been received from their consuls at Canton saying that the Chinese authorities were preparing to obstruct the water approaches to Canton, and that the effect of these obstructions would be to imperil, if not to prevent, navigation. The German consul reported that Whampoa would be "totally blocked."

*

*

* The

I telegraphed Mr. Consul Seymour for information, and his reply I inclose. Mr. Seymour, as you will observe, said that there would be "serious obstructions without equivalent benefits." United States during the rebellion saw fit to obstruct the channels in Charleston Harbor by sinking ships laden with stone to secure an effective blockade. Germany during her latest war with France protected her Baltic ports with torpedoes. I should have felt some embarrassment in seeking to persuade the yamen that what Germany and the United States regarded as honorable warfare could not be permitted to them. (U. S. Foreign Relations, 1884, p. 66.)

A later dispatch, No. 267, from Secretary Frelinghuysen says:

Even, however, under this favorable modification (the opening of channels 100 to 150 feet in width) the obstruction to the channel at Canton and Whampoa can only be tolerated as a temporary measure, to be removed as soon as the special occasion therefor shall have passed, and under no circumstances to be admitted as a precedent for setting

« ПретходнаНастави »