Thomas Barclay

“ While the right of war was simply the right of the stronger, there was no room for neutral rights, for, without going back to the time of the ancients, the so-called rights of war and conquest are nothing but survivals of the right of brute strength. ”

“ It is not even easy for the belligerent to observe absolutely the duty of doing no direct injury to neutral territory. A battle may be fought to the very edge of the neutral frontier, and shells may explode in any neutral town within the firing range of modern artillery. The present respect paid by belligerents to territorial waters is a palliative in the case of a seaboard frontier; but even the three-mile limit acknowledged by most countries would permit belligerent vessels with present range of artillery to fire landwards far into neutral territory. ”

“ Another, and, in some respects, more dangerous feature of an inchoate conception of state responsibility is the growing apart, so to speak, of certain British dependencies. The British state, for international purposes, is the British Empire, for domestic purposes it is the United Kingdom. Any limb of the former’s huge body can have interests different from those of the United Kingdom, and involve its responsibility. A significant step towards concentration of liability and control was taken by the Australian colonies in the federation brought about by the Commonwealth Act of 1900. ”

“ International trade and intercourse have become so intricate that war can no longer be waged without causing the most serious loss to neutral nations, which, moreover, suffer from it without any of the possible contingent benefits it may procure for the immediate parties. ”

“ So much is it so, that most great powers have found it necessary for their self-protection to enter into defensive alliances with others, the direct object of which is the preservation of European peace by the threat of making war so gigantic a venture that no state will again embark on it “with a light heart.” ”

“ Art. 7.—A neutral power is not bound to prevent the exportation or transit, for the account of either belligerent, of arms, munitions of war, or, in general, of anything which may be useful to an army or a fleet.
Art. 8.—A neutral government is bound to use the means at its disposal to prevent, within its jurisdiction, the equipping or arming of any vessel, which it has any reasonable suspicion of being destined to act as a cruiser or to join in hostile operations against a power with which it is at peace. ”

“ All neutral private vessels in time of war are liable to visit by belligerent warships on the high seas and in the territorial waters of the belligerents, but not in the territorial waters of neutral states. Neutral public ships are not liable to visit (see above as to neutral public ships, mail ships, and convoy) . Visit and search must be effected at every stage with “as much consideration as possible” (Herr von Bülow, in Reichstag, 19th January 1900) . The visiting officer first examines the ship’s papers. If satisfied that the vessel is not liable to detention, he immediately quits her. ”

“ Provisions and liquors, money, telegraphic materials, such as wire, platinum, sulphuric acid and zinc, porous cups, materials for the construction of a railway, as iron bars, sleepers, &c., coal, timber and so forth: the above-mentioned goods are contraband goods when the destination of the vessel is either the enemy’s fleet at sea or a hostile port, used exclusively or mainly for naval or military equipment. When it is clearly known that, though goods detailed in the above sections 1 and 2 are found on board a vessel, they are merely for her own use, they cannot be deemed contraband goods. ”

“ If the prize is navigating alone, the personnel placed on board is set at liberty.
Art. 24.—If, in spite of notice from the neutral authority, a belligerent ship of war does not leave a port in which it has no right to remain, the neutral power has the right to take such steps as it may think proper to render the ship incapable of going to sea during the continuance of the war, and the commander of the ship must facilitate the taking of such steps. When a belligerent ship is detained by a neutral power, the officers and crew are also detained. ”

“ A vessel is deemed to be aware of the existence of a state of war, or of a declaration of contraband, if she left a neutral port subsequently to the notification to the power to which such port belongs of the outbreak of hostilities or of the declaration of contraband respectively, provided that such notification was made in sufficient time. A vessel is also deemed to be aware of the existence of a state of war if she left an enemy port after the outbreak of hostilities. ”

“ In practice, however, there are still incomplete forms of states which join in the international life of states, paramount states whose relations to subordinate parts of their empire are in a condition of uncertainty, and there is, at any rate, one body carrying on international state intercourse without dominion over any territory at all. Thus, Great Britain, has diplomatic relations, purely formal though they may be, with several of the subordinate states forming the German Empire. Egypt, while legally under the suzerainty of the Porte, is practically a British protectorate. ”

“ Forcible resistance to the legitimate exercise of the right of stoppage, search and capture involves in all cases the condemnation of the vessel. The cargo is liable to the same treatment as the cargo of an enemy vessel. Goods belonging to the master or owner of the vessel are treated as enemy goods.
The consequence of carrying contraband are capture, trial by a belligerent prize court, and possible confiscation of the ship and cargo, or of the cargo alone or of a part of the cargo, according to the facts of the case. ”

“ A neutral merchant ship, travelling under enemy’s convoy, places itself, with the assistance of the belligerent force, beyond the application of the belligerent right of visit and search, and thus commits a breach of neutrality. ”

“ In England, we may say, the notion of state, from the constitutional point of view, is still inchoate, but the play of international intercourse seems to be gradually leading to a clearer conception of the fact that an increasing national responsibility requires a corresponding increase in the power of co-ordinate state control. An instance of its absence is shown by the loose way in which the British Crown has granted governing powers to chartered companies (see Raid) , This uncertainty applies as much to the United States as to Great Britain. ”

“ The only distinction between the right of angary and the right of assimilating private neutral property to private property generally on belligerent soil which seems based on reason is that, whereas private property of neutrals generally which has remained on belligerent soil is sedentary, or, so to speak, domiciled there, neutral vessels are mere visitors with a distinct external domicile. ”

“ Embargoes in anticipation of war have long since fallen into disuse, and it is now customary on the outbreak of war for the belligerents even to grant a respite to the enemy’s trading vessels to leave their ports at the outbreak of war, so that neither ship nor cargo is any longer exposed to embargo. ”

“ A neutral state in its corporate capacity, we have seen, must abstain from acts which can be of assistance to either belligerent, and it is bound to exercise reasonable diligence to prevent its territory being used as a base for belligerent operations. The duties of a neutral state as a state go no further. Commercial acts of its citizens, even the export Contraband. of arms and munitions of war to a belligerent country, do not, in the present state of international usage, so long as both belligerents are free to profit by such acts alike, involve liability on the part of the neutral state. ”

“ Under the Merchant Shipping Act 1876 the board are open to detain any ship which, from its unsafe and unseaworthy condition, is a serious danger to human life.” “Most persons would suppose that the officials of the board of trade, so long as they—bona fide and without malice or corrupt motive—endeavour to carry out the provisions of the statute, would be safe from action at the hands of a shipowner. ”

“ Insurgents are not as such excluded from recognition as belligerents, and, even where not recognized as belligerents by the government against which they have rebelled, they may be so recognized by a neutral state, as in the case of the American Civil War, when the Southern states were recognized as belligerents by Great Britain, though regarded as rebels by the Northern states. ”

“ The governments engage not to use these ships for any military purpose.
These ships must not in any way hamper the movements of the combatants.
During and after an engagement they will act at their own risk and peril.
The belligerents will have the right to control and visit them; they can refuse to help them, order them off, make them take a certain course, and put a commissioner on board; they can even detain them, if important circumstances require it.
As far as possible the belligerents shall inscribe in the sailing papers of the hospital-ships the orders they give them. ”

“ It was the great commercial communities, the Hansa in the north and Venice and the Mediterranean maritime republics in the south, which were first able to insist on some sort of regulation of the usages of war for their own protection. With the growth of intercourse among nations a further advance was made, by treaty stipulations entered into in time of peace, to provide rules for their guidance in the event of war, but it is only in our own time that the idea of a substantive neutral right has obtained recognition. ”

“ The inconvenience to the intercourse of neutral citizens is still greater. Their ships are liable to be taken out of their course, and their cargoes to be discharged to the bottom of the hold in search of articles which are contraband according to circumstances over which they have no control; and they may be confiscated without recourse by judges appointed by one of the interested parties. Even their whole trade with specific ports of the one belligerent may be stopped by the ships of the other belligerent Without indemnity. ”

“ It is, nevertheless, conceivable that, under pressure of military necessity, or on account of an overwhelming interest, a powerful belligerent state would cross the territory of a weak neutral state and leave the consequences to diplomacy. ”

“ Good offices, properly speaking, are a mild form of mediation or tentative mediation, i.e. mediation before it has been accepted by the parties. Article 3 of the Hague Convention anew; for the pacific settlement of international disputes of October 18, 1907, however, provides that “powers, strangers to the dispute, have the right to offer Right of offering good offices
and mediation. good offices or mediation, even during the course of hostilities,” and that “the exercise of this right can never be regarded by one or other of the parties in conflict as an unfriendly act.” ”

“ By a circular note of the 17th of February 1903, the Swiss government invited all the states which had signed or adhered to the Geneva Convention to send representatives to a conference to be held at Geneva in the following September. Some governments did not accept the invitation in time and the conference had to be postponed. At the beginning of 1904, there being no apparent obstacle, the Swiss government again invited the powers to send delegates to a conference in the following May. Meanwhile war broke out between Russia and Japan and there was again an adjournment. ”

“ The classing of coal as conditional contraband has given rise to much controversy. Great Britain has consistently held it to be so. During the war of 1870 the French and German warships were only allowed to take at English ports enough to return to a French or German port respectively. In 1885, during the Franco-Chinese campaign, after protest Coal. by the Chinese government, Great Britain applied the same rule at Hong-Kong and Singapore. During the Spanish-American War neither belligerent seems to have treated coal as contraband. ”

“ At the Hague Conference of 1899 the position of irregular combatants was one of the subjects dealt with, and the rules there adopted were reaffirmed at the Conference of 1907. They provide that irregular bands in order to enjoy recognition as belligerent forces shall (a) have at their head a person responsible for his subordinates, (b) wear some fixed distinctive badge recognizable at a distance, (c) carry arms openly, and (d) conform in their operations to the laws and customs of war. ”

“ Trade between neutrals has a prima facie right to go on, in spite of war, without molestation. But if the ultimate destination of goods, though shipped first to a neutral port, Continuous voyages. is enemy’s territory, then, according to the doctrine of “continuous voyages,” the goods may be treated as if they had been shipped to the enemy’s territory direct. ”

“ A belligerent cannot be allowed to cross the neutral frontier or carry on war operations in neutral waters, without the sameEnforcement of respect for neutral territory. right being granted to the other belligerent. Pursuit of one force by the other would amount, to waging war on the neutral territory. It is agreed among nations that the avoidance of such a contingency is in the interest of them all. During the Franco-German War both France and Germany, as belligerents, and Belgium and England, as neutrals, rigorously observed their duties and enforced their rights, and no difficulty occurred. ”

“ All hospital-ships shall make themselves known by hoisting, together with their national flag, the white flag with a red cross provided by the Geneva Convention, and, in addition, if they belong to a neutral State, by hoisting on the mainmast the national flag of the belligerent under whose direction they are placed. ”

“ In recent times it has certainly become possible for states to exercise a more effective control than formerly over these acts; but at the present moment, though a much greater latitude is left to neutral subjects and citizens than is consistent with the idea of strict neutrality, there is no movement to alter the usages to the disadvantage of neutral interests. That the Geneva Arbitral Tribunal found in favour of the United States in the “Alabama” case in no way implied that International Law had undergone any change. ”