1 The above Articles introduce an innovation in international law. Before the Convention was established it was a well recognised rule that officers and crews of whatever nationality who were found on captured enemy merchant vessels were prisoners of war. From time to time, however, opinions to the contrary were advanced. Thus, during the Franco-German war, 1870, Count Bismarck maintained that the treatment by the French of the crews of merchant vessels as prisoners of war was not in conformity with international usage. He cited against the French contention the decree of Berlin, November 18, 1806, in which Napoleon assigned as a reason for the establishment of the continental blockade that England rejected the law of nations as generally practised, and took as prisoners of war "les équipages des vaisseaux de commerce et des navires marchands." However this may be, the practice of the French in 1870 and of the British earlier was more in accordance with general usage than that claimed by Bismarck. The rule was justified on the ground that the services of such men might at any time be enlisted by the enemy for his transports, or supply ships, or even for his fighting navy (k). Now a distinction is drawn in maritime war between duly enrolled combatants and non-combatants, by analogy with that long recognised in land warfare. The immunity conferred by the new regulations would, of course, be forfeited if the merchantmen depart from their innocent character, engage in hostilities, or offer resistance to an enemy cruiser. MARITIME CAPTURE AND ENEMY The progress of civilization has slowly, but constantly, tended (in theory) to soften the extreme severity of the operations of war by land; but it still remains unrelaxed in respect of maritime warfare, in which the private property of the enemy taken at sea or afloat in port, is liable to capture and confiscation, subject, however, to the already mentioned exemptions relative to enemy merchant vessels on the outbreak of war, hospital ships, fishing vessels, cartel ships, &c., and to the exemption introduced by the Declaration of Paris. This inequality in the operation of the laws of war, by land and by sea, was justified by alleging the former usage of considering private property when captured in cities taken by storm, as booty; that taken on and the fact that contributions are levied upon territories occupied by a hostile army, in lieu of a general confiscation of the property Distinction between private property taken at sea and land. (k) Cf. Heffter, Le droit int. de l'Europe (1883), note by Geffcken to § 126, p. 289. belonging to the inhabitants; and that the object of wars by land being conquest, or the acquisition of territory to be exchanged as an equivalent for other territory lost, the regard of the victor for those who are to be or have been his subjects, naturally restrains him from the exercise of his extreme rights in this particular; whereas, the object of maritime wars is the destruction of the enemy's commerce and navigation, the sources and sinews of his naval power-which object can only be attained by the capture and confiscation of private property. The strictness of the rule subjecting the enemy's property on Enemy's the high seas to confiscation was somewhat modified by the De- goods under a neutral flag. claration of Paris, 1856, which provides, in its second Article, that "the neutral flag covers enemy's goods, with the exception of contraband of war" (l). Almost all civilized Powers are parties to this Declaration. At the time of the Spanish-American war, 1898, neither Spain nor the United States had acceded to it; but a Royal Decree, issued by the Queen Regent of Spain, declared that her Government, "guided by the principles of international law, intends to observe" the second Article of the Declaration of Paris, and the President of the United States issued a proclamation to the same effect (m). At the second Hague Conference, 1907, Spain formally notified her adhesion to the Declaration. The indiscriminate seizure of private property on land would Capture of private procause the most terrible hardship, without conferring any corperty on the responding advantage on the invader. It cannot be effected without in some measure relaxing military discipline, and is sure to be accompanied by violence and outrage. On the other hand, the capture of merchant vessels is usually a bloodless act, most merchant vessels being incapable of resisting a ship of war. Again, property on land consists of endless varieties, much of it being absolutely useless for any hostile purpose, while property at sea is almost always purely merchandise, and thus is part of the enemy's strength. It is, moreover, embarked voluntarily, and with a knowledge of the risk incurred, and its loss can be covered by insurance (n). An invader on land can levy contributions or a war indemnity from a vanquished country, he can occupy part of its territory and appropriate its rates and taxes, and by these and other methods, he can enfeeble the enemy and terminate the war. (1) Cf. infra, pp. 702 seq., as to the maxims "free ships free goods," and enemy ships enemy goods," and the liability of neutral commerce in time of war. (m) Hertslet, Map of Europe, vol. ii. p. 1282. Commercial Treaties, xxi. pp. 836, 1075. (n) Cf. Wheaton, ed. Dana, n. 171. high seas. But in a maritime war, a belligerent has none of these resources, and his main instrument of coercion is crippling the enemy's commerce (o). If war at sea were to be restricted to the naval forces, a country possessing a powerful fleet would have very little advantage over a country with a small fleet or with none at all. If the enemy kept his ships of war in port, a powerful fleet, being unable to operate against commerce, would have little or no occupation (p). The United States proposed to add to the Declaration of Paris a clause exempting all private property on the high seas from seizure by public armed vessels of the other belligerent, except it be contraband; but this proposal was not acceded to (g). Nor does it seem likely, for the reasons stated above, that maritime nations will forgo their rights in this respect. On the other hand, the enormous extension of railways, the increase of the practice of marine insurance, and the dependence of the greatest naval Power in the world upon an ocean-borne food supply, have deprived many of the older arguments in favour of the retention of the claim to capture private property at sea of their force, while at the same time it has inclined many persons in Great Britain, more especially those interested in shipping, to look favourably on a proposed abandonment of the claim. A nation which could blockade and harass its enemy's coasts, cut him off from his colonies, interdict the transport of his troops by water, and dominate by the guns of its fleet many most important strategical positions, would remain no mean ally and no contemptible foc, even apart from the power, as illustrated in Egypt in 1881, and in the South African war (1900), of making its base of operations wherever ships can float, and of transporting its armies to whatever striking point was required. The preponderating importance of the commerce of Great Britain, and the protection. afforded under the neutral flag by the Declaration of Paris, also materially affect the consideration of this question as a matter of policy (r). It may be answered, again, that French predominance on the sea in 1870-71, as against Germany, was undisputed, but little harm was inflicted on German commerce; and the depredations of the Alabama, so often cited by the other side, were mainly possible because British ports all over the world, and British coaling stations all over the world, were open to her for refuge, for coaling, as a base of operations, and even to refit. (0) Ortolan, Diplomatie de la Mer, liv. iii. ch. ii. (p) Field, Int. Code (2nd ed.), P. 527. (q) Halleck, ch. xx. § 3. (r) Maine, Int. Law, lect. VI.; Heffter, Geffcken, note 2, § 139; Lawrence, Essays on some disputed Questions in modern International Law (1885), vii. The United States gave expression to the principle of exemption of private property at sea from capture, for which it has long contended, in its treaty with Italy of 26th February, 1871. The maritime code of the latter country enunciates the same principle, on the condition of reciprocity. In the Austro-Prussian war of 1866, the principle of inviolability was adhered to by both parties. Germany proclaimed the same principle in 1870. The minister of the United States was instructed to express the gratification of his Government; but the position of Prussia, though consistent with former policy, was no sacrifice of Prussian interests. The proclamation was not conditional upon reciprocity; but France captured German trading ships, and the Germans abandoned their proclamation in January, 1871 (s). The majority of European jurists have condemned the practice. Thus the Institute of International Law has on more than one occasion (e.g., in 1875 and in 1882) passed resolutions in favour of the inviolability of private property. At the first Hague Conference, 1899, the delegates of the United States submitted a proposal to the same effect, but the Conference then considered the question to be beyond its competence, though it expressed a wish-the fifth vau of its Final Act-that the Conference of 1907 should take up the subject. However, at the second Hague Conference the proposal to confer immunity of innocent enemy property from maritime capture received twenty-one votes in the affirmative and eleven in the negative, whilst twelve States did not vote. The opponents included some of the great maritime Powers, e.g., Great Britain, France, Russia, Japan, so that the proposal (so strenuously backed by the United States) was considered to have failed (†). At the London Naval Conference (1908-1909), attended by the Enemy leading maritime Powers of the world, the question of enemy character. character was discussed; but owing to the lack of unanimous opinion among the representatives, only a few general ruleswhich are obviously inadequate were arrived at, and embodied in the Declaration of London. This Declaration was not ratified by all the parties; so that it could not in every particular-that is, beyond the well-established customary law of nations-be considered as binding. During the Great War of 1914-1915 it was subjected to many modifications at the hands of the belligerents; (8) See Heffter, Geffcken, § 139, note 2 G, for an able consideration of the whole question. (t) As to the capture of private property at sea, see further, Cobbett, Cases, vol. ii. (1913), pp. 134 seq., and the references there cited. Test of the flag. and where such specific modifications were not announced, the provisions of the Declaration were presumed to have been accepted. However, the rules of the Declaration of London are still of importance, whether in regard to the question of enemy character or in regard to the other subjects it deals with, because, in the first place, most of the provisions laid down are nothing more than a deliberately written expression of old-established principles, and, in the second place, the others represent the consensus of modern international opinion. "Subject to the provisions respecting transfer to another flag (u) the neutral or enemy character of a vessel is determined by the flag which she is entitled to fly. The case where a neutral vessel is engaged in a trade which is closed in time of peace, remains outside the scope of, and is in no wise affected by, this rule" (x). The official report on the Declaration of London (of the contents of which it is regarded as the authoritative interpretation) observes in reference to this provision: "Article 57 safeguards the provisions respecting transfer to another flag, as to which it is sufficient to refer to Articles 55 and 56 (y); a vessel may well have the right to fly a neutral flag, from the point of view of the law of the country to which she claims to belong, but may be regarded as an enemy vessel by a belligerent, because the transfer in virtue of which she has hoisted the neutral flag, is annulled by Article 55 or by Article 56" (z). "The neutral or enemy character of goods found on board an enemy vessel is determined by the neutral or enemy character of the owner" (a). The difficulty of this Article is found in the fact that the enemy character of the owner was not determined by the Declaration; nor has it been determined by any other international Convention. It has already been pointed out that in this respect the competing tests of hostile ownership are nationality on the one hand, and trade or war domicile on the other. The former criterion has usually been applied in France (b), Germany, Austria, Italy, Russia (c): the latter has regularly been applied in Great Britain |