right to interfere with the inoffensive user of territorial waters in the following terms : "Art. V. All ships without distinction have the right of inoffensive passage through territorial waters, subject to the belligerent right to regulate, and, for purposes of defence, to bar the passage through the said waters for every ship, and, subject to the right of neutrals, to regulate the passage through the said waters for ships of war of all nationalities. "Art. VII. Ships passing through territorial waters must conform to the special rules laid down by the adjacent State, in the interest and for the security of navigation and for the police of the sea. 1 These rules in 1805 were also adopted by the International Law Association. (3) It follows from the right of self-preservation that a State may take measures for purposes of defence which would not be equally justified if taken for purposes of attack. Certain acts, however, are absolutely forbidden to both belligerents. The use of floating mines has not yet been added to these: and when the question of their permissibility arises, it will have to be considered (a) whether floating mines can be laid down in any part of the territorial waters of a belligerent State from which neutral ships are not either de facto or by other effective notice excluded; (b) whether only certain kinds of floating mines, which are not liable to become detached and to explode on merely coming into contact with any vessel, may be used; (c) whether for purposes of attack or blockade they may be used at all. The question of whether a belligerent State may on the outbreak of war suspend the user of its territorial waters does not arise, the defending State being sole judge of what is necessary for its safety. As regards the question of humanity, the Hague Conference of 1899 laid down a number of rules, and reserved others for later examination, with a view to attenuating the horrors of war. No horror, yet devised, seems quite equal to that of the destruction of a ship by a floating mine, especially at a distance from the seat of hostilities, as when the mine has broken from its moorings and drifted to a situation where its existence is quite unwarranted. The same indignation which was shown for dumdum bullets and shells giving out asphyxiating gases would also be justified even within the war area against floating mines, mines, which during the Russo-Japanese war destroyed as many as nine vessels, including three battleships, with all the attendant horrors of being blown up without the slightest warning or other possible preparation, or means of life VIII IMMUNITY OF PRIVATE PROPERTY AT Ar The Hague Conference, 1899, the United States delegates, in accordance with specific instructions from their Government, presented the following proposition: "The private property of all citizens or subjects of the signatory Powers, with the exception of contraband of war, shall be exempt from capture or seizure on the high seas or elsewhere by the armed vessels or the military forces of any of the said signatory Powers. But nothing herein contained shall extend exemption from seizure to vessels and their cargoes which may attempt to enter a port blockaded by the naval forces of any of the said Powers." This proposition represents a traditional policy of the United States. As long ago as 1783, Benjamin Franklin, in the course of treaty negotiations with Great Britain, expressed himself as follows: "It is for the interest of humanity in general that the occasions of war and the inducements to it should be diminished. If rapine is abolished, one of the encouragements to war is taken away, and peace therefore more likely to continue and be lasting. The practice of robbing merchants on the high scas, a remnant of the ancient piracy, though it may be accidentally beneficial to particular persons, is far from being profitable to all engaged in it, or to the nation that authorises it." He also suggested the following article for the treaty then under discussion :— "That if war shall arise between Great Britain and the United States, which God forbid . . . all merchants or traders with their unarmed vessels employed in commerce, exchanging the products of different places, and thereby rendering the necessaries, conveniences, and comforts of life more easy to obtain, and more general, shall be allowed to pass freely unmolested; and that neither of the Powers shall grant or issue any commission to any private armed vessel, empowering them to take or destroy such trading ships or interrupt such commerce." This provision was not adopted.1 1 "How much better it would have been for Great Britain," observed Mr. C. H. Butler in an address on the subject at the Buffalo meeting of the International Law Association in 1899, "to have accepted this article was demonstrated less than thirty years afterwards, when, during the War of 1812, the Power whose offer to waive that belligerent right of naval warfare had been refused, swept down upon British commerce all over the world, and in less than thirty months captured or destroyed more than twenty-five hundred vessels, which with their cargoes amounted in value to millions of pounds sterling.' In his message of December 1854, President Pierce referred to then pending suggestions on the subject in the following terms: "The proposal to surrender the right to employ privateers is professedly founded upon the principle that private property of unoffending noncombatants, though enemies, should be exempt from the ravages of war; but the proposed surrender goes but little way in carrying out that principle, which equally requires that such private property should not be seized or molested by national ships of war. Should the leading Powers of Europe concur in proposing, as a rule of international law, to exempt private property upon the ocean from seizure by public armed cruisers as well as by privateers, the United States will readily meet them upon that broad ground." of war by peaceful trade and commerce. It is true, we may suffer in such cases less than other communities, but all nations are damaged more or less by the state of uneasiness and apprehension into which an outbreak of hostilities throws the entire commercial world. "It should be our object, therefore, to minimise, so far as practicable, this inevitable loss and disturbance. This purpose can probably best be accomplished by an international agreement to regard all private property at sea as exempt from capture or destruction by the forces of belligerent Powers. The United States Government has for many years advocated this humane and beneficent principle, and is now in a position to recommend it to other Powers without the imputation of selfish motives. I therefore suggest for your consideration that the Executive be authorised to correspond with the Governments of the principal maritime Powers, with a view of incorporating into the permanent law of civilised nations the principle of the exemption of all private property at sea, not contraband of war, from capture or destruction by belligerent Powers." Resolutions were introduced in both Houses of Congress endorsing this recommendation. The shortness of the session, however, prevented final action on the resolutions, "but the sentiment which was developed was overwhelming in favour of adopting the rule of exemption, under proper restrictions as to contraband and blockade. Congress at the same session passed the Naval Personal Bill, which abolished prize money, thus removing one of the strongest incentives for capture of private property, and eliminating all questions as to the rights of seamen and officers." 1 1 Putler, op. cit. The subject, it is seen, has been consistently kept in the foreground by successive Presidents, and it has repeatedly been brought to the notice of foreign Governments; but owing chiefly to the unwillingness of Great Britain to countenance change in the existing practice, acquiescence on the part of other Governments has remained until now without effect. This brings us down to the proposition made in 1899 by the American delegates at The Hague Conference, which ruled it beyond the scope of its deliberations. The proposition is not clear. The words "or seizure" in the phrase "exempt from capture or seizure," which, by the way, are borrowed from the Italo-American Treaty of 1871, do not tally with the reservation as to contraband. Seizure may be indispensable to ascertain whether the arrested vessel has contraband on board or not. |