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the blockading Powers. Their position was somewhat similar with respect to the results to that of neutral persons who are caught in a beleaguered city and yet, for physical reasons are unable to free themselves from the besiegers' lines.
Under the novel circumstances described it was inevitable that new practices should develop as to visit and search, and the seizure of neutral shipping and goods destined for the beleaguered areas. Not only had the growth in the size of steamships necessitated in many instances that a vessel be conducted long distances out of its course to calm water to enable it to be visited, but the cargoes which these enlarged vessels bore were of such immense volume and bulk that they could not be thoroughly searched at sea however long the vessel might be detained. Loaded by expert stevedore crews at wharves equipped with special machinery, and with scientific regard to the character and placing of the various components of the cargo, obviously their cargoes could not be displaced with the means available at sea; consequently they could not be thoroughly searched. And even had it been possible to search the cargoes, an amount of time would have been required that was prohibitive of search in view of the ever present danger from hostile submarines. Inevitably, therefore, Great Britain, or the leading maritime belligerent, soon instituted the practice of taking neutral ships into British ports and there detaining them for the purpose of searching for contraband.
In December, 1914, the State Department of the United States, admitting readily the full right of a belligerent to visit and search on the high seas the vessels of American citizens or other neutral vessels carrying American goods, and to detain them, when there was sufficient evidence to justify a belief that contraband articles were in their cargoes, protested against the new British practice. Great Britain responded that the undoubted right to visit and search would become a nullity if the old methods were pursued, and, undeterred, continued her course with respect to neutral shipping throughout the
On March 1, 1915, the State Department was informed by the British Embassy at Washington that by reason of alleged illegal practices on the part of Germany, her opponents were driven to frame retaliatory measures in order to prevent commodities of any kind from reaching or leaving that country. It was declared that these measures would be enforced by the British and French Governments without risk to neutral ships or to neutral or non-combatant life, and that Great Britain and France would, therefore, hold themselves free to detain and take into port neutral ships carrying goods of presumed enemy destination, ownership or origin. On March 11 and March 13, 1915, Great Britain and France issued an Order in Council and a Presidential Decree, respectively, putting into effect the announced policy.
The State Department promptly protested against the enforcement of the British Order in Council of March 11, 1915, declaring that it would constitute, were its provisions to be actually carried into effect as they stood, a practical assertion of unlimited belligerent rights over neutral commerce within the whole European area, and an almost unqualified denial of the sovereign rights of the nations then at peace. “A nation's sovereignty over its own ships and citizens under its own flag on the high seas,” unlimited in time of peace, was said by the Secretary of State to suffer no diminution in time of war, except in so far as the practice and consent of civilized nations had limited it by the recognition of certain clearly determined rights, which it was conceded that a belligerent might exercise, such as the rights of visit and search, and capture, and from this position the United States has never receded. The novelty of the practices of the Allies which have been described will appear very readily if it be attempted to bring them within the established rights of belligerents at international law with respect to the appropriation of neutral goods.
Many seizures by the Allies were made without any reasonable ground for a presumption that the property taken was of an unneutral character. The seizures cannot be said to have been made in the exercise of the old and more or less obsolete right of angary (jus angariae) which has never been held to apply to neutral shipping except when the vessels appropriated by a belligerent to its uses were in the territorial waters of the belligerent at the time they were impressed. Even according to those authorities which hold that the right of angary still exists as a belligerent right, the neutral property that is liable to seizure thereunder, either for use or destruction, must be temporarily at least within the territory of one of the belligerents, and the use or destruction thereof must be impelled by necessity.
In 1863 an Act of Congress provided that the Secretary of the Navy and the Secretary of War might requisition any captured neutral vessel, arms, or munitions of war or other material for the use of the Government, before adjudication by a prize court, or afterwards. Great Britain protested against the provisions of this act at the time it was passed, and the Attorney General of the United States held that there was no warrant for it in international law. In The Zamora, the Judiciary Committee of the Privy Council of Great Britain also condemned the act of 1863, and held that the right to requisition neutral ships and their cargoes only exists when they have been captured and brought into a prize court for adjudication, and when the property to be taken is urgently required for use in connection with the defense of the realm, the prosecution of the war or other matters involving national security. Furthermore, it was expressly declared that it was for the court, and not the executive of the belligerent state to decide whether the right can be lawfully exercised in a particular case, and that in the absence of a real or bona fide question in prize no application for the requisition of neutral goods before condemnation would be entertained by the court else seizures known to be unwarrantable by law and, therefore, not captures at all, would be encouraged as a means by which a belligerent might obtain useful property. By reason of the fact that the novel practices described, and many others, were adopted by the belligerents during the late war, one often hears it said by members of the legal profession as well as by laymen that today there is no international law. If this statement be analyzed it will be seen to be about the equivalent of a statement that because certain elements of a frontier population invariably are able during the early period of settlement to run things pretty much their own way in the absence of representatives of the law in sufficient force to control them, there is no municipal law. But, after the centuries of toil and suffering which the ever-enlightening mind of mankind has devoted to the establishment of order, are we to admit that whenever, by reason of local conditions it becomes possible and advantageous to ignore the law as it has existed, we may do so with impunity?
84 Lloyd's Prize Cases, 62 (1916).
The question answers itself. But while it is absurd to contend that violations of law do away with the law, whether a law will continue to be enforced is another question. As a general proposition it may be stated that no law that is not based upon reason will long continue to be respected, and when not held in respect its enforcement or attempted enforcement will lead to its repeal.
The situation today is that the law is well established but it is being ignored, and in its present form will probably continue to be ignored.
Although for political reasons full reparation may be made for every violation of the law of which England and France were guilty during the late war, in view of their experiences, and especially those of Great Britain, it is not likely that they will ever again observe the old rules. This being so, it is a matter of grave concern to amend the existing law in such way as to render the same acceptable to all the powers who must be relied upon to enforce the law of nations. Else in fact there will be no international law worthy of the name. Nothing is more essential to the sanctity of any code of law than that dead letters be removed from the statute book. If it be that merchant vessels cannot be searched effectively on the high seas let the fact be admitted and the law be amended accordingly.
The right of visit and search as it now exists is in no sense exercisable in diminishment of the sovereignty of neutral states whose merchant vessels on the high seas are subject to visit, search and capture, but is derived from the sovereignty of the belligerent state exercising the right. In other words, while the right of exclusive jurisdiction over its merchant vessels on the high seas and the persons thereon, is a sovereign right in a neutral state, it is also a sovereign right in a belligerent state to determine whether a merchant vessel on the high seas is within the exclusive jurisdiction of the neutral state whose protection is claimed by the vessel to be searched. Thus, it is seen that in submitting to the visitation and search of its merchant vessels on the high seas a neutral cannot be said to yield anything out of its own sovereignty to the belligerent. Why then, if conditions have so changed as to make it impracticable to exercise these rights in the old way, should they not be exercised in some practical new way?
be impracticable. Access to prize courts would be most difficult with respect to some river craft, unless tribunals could be set up ad hoc. To take an extreme case, a European army operating on an American river could not possibly take small river craft, which it might seize, into a port where there is a prize court. The procedure in prize courts has been built up with reference to vessels which can navigate the high seas, 70 and some changes would be needed to make it adequate for the condemnation of river craft.
Mere analysis of our existing formal conceptions will not solve the problem. The line will be drawn, with reference to specific inclusions and exclusions, as considerations of policy or convenience at the time dictate. During the past century there was a clear tendency toward relieving the owners of private property of many of the burdens of warfare. In the law of warfare on land this tendency has gone very far, and it finds some expression as to river boats in Article 53 of the regulations annexed to the Hague Convention. Since the Brussels Conference of 1874 concerning the customs of war on land, the current of opinion seems to have supported the more lenient treatment of river vessels accorded by the law of warfare on land. Effectiveness in the conduct of land operations would seldom be diminished if land law rather than maritime law were applied to the capture of river boats.
A simple case for applying land law would be that of the seizure by an invading or occupying land force of a non-ocean-going vessel on an inland waterway or in an inland port. On the other hand, a simple case for applying maritime law would be that of the seizure of an ocean-going vessel by naval forces on an inland waterway open to maritime navigation. To cases between these two extremes, the application of the one or the other law cannot be forecast with certainty.
If the distinction will not often be of great importance, it ought nevertheless to be kept in mind by the draftsmen of any future conventions on the laws and customs of war on land or at sea.
70 E.g., the law as to “Custody of the Res," on which see Tiverton, Prize Law (London, 1914), p. 65 f.
THE RIGHTS OF VISIT AND SEARCH, CAPTURE, ANGARY AND
BY JENNINGS C. WISE
That the laws of nations with respect to the right of visit and search, and the right of capture were well defined and established in 1914 can not be doubted. The best proof that there were such laws in force is the fact that there was not in the sisterhood of nations a single enlightened state whose prize courts had not undertaken to interpret and administer them, and to award damages for their violation. The interpretations of these courts may have varied, just as the interpretations of statutory law vary among the municipal courts of the same state, but there were, nevertheless, such laws, and they were interpreted. Furthermore, it would appear that by the courts of Great Britain and the United States in particular, they were interpreted and administered with as high a degree of uniformity as the same law is ordinarily interpreted and administered by the courts of two or more different states of the American Union.
From the British and American decisions prior to 1914 it appears that the rights of visit and search, and of capture are deemed to be inherent to the status of belligerency. But they are in no sense the equivalent of an indiscriminate right to seize, harry, or interfere with neutral commerce. Of the two rights mentioned the right of capture is necessarily the greater
It is much misunderstood, which readily appears from the fact that even the courts and the text writers constantly speak of unlawful captures when there can be no such thing.
No belligerent has the right to seize a neutral ship unless it is believed that the vessel is engaged in some unneutral service, or that the cargo, by reason of its character or destination will, if unmolested, be of direct aid to the enemy in the prosecution of the war.
An examination of the authorities will show, however, that a mere belief that a ship is liable to capture is not sufficient. The belief must be founded upon evidence sufficient to justify the same. Oppenheim clearly states the law as follows:
According to customary, rules of International Law, adopted also in the unratified Declaration of London, a neutral vessel may be captured if visit or search establishes the fact, or arouses grave suspicion, that she is rendering unneutral service to the enemy.
1 Sec. 411, Vol. II, page 596.