Hostname: page-component-cd9895bd7-lnqnp Total loading time: 0 Render date: 2024-12-25T07:59:18.010Z Has data issue: false hasContentIssue false
  • English
  • Français

The Hague Convention Respecting the Rights and Duties of Neutral Powers in Naval War1

Published online by Cambridge University Press:  04 May 2017

Charles Cheney Hyde
Get access Rights & Permissions [Opens in a new window]

Extract

The purpose of this convention, as indicated in the preamble, is to harmonize the existing divergent views of states concerning the relations between neutrals and belligerents in the event of naval war, and to anticipate the difficulties to which such divergence may give rise, by framing rules of general application to meet the case where hostilities may have unfortunately broken out.

Type
Research Article
Information
American Journal of International Law , Volume 2 , Issue 3 , July 1908 , pp. 507 - 527
Copyright
Copyright © American Society of International Law 1908 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

1

The text of this convention, with an appended English translation, is contained in the American Journal of International Law, Supplement, II, 202.

References

2 The report of the comité d’examen declares: “ La chose essentielle, c’est que tous sachent a quoi s’en tenir et qu’il n'y ait pas de surprise.” (Report to the Conference, 3.)

3 The convention was the work of a comité d’examen, by whom it was presented to the Third Commission and was, after amendment, reported by that commission to the conference. The comité d’examen was composed of the following members:

President, Count Tornielli (Italy); reporter, Mr. Renault (France); Rear-Admiral Siegel (Germany) ; Rear-Admiral Sperry (United States) ; Commander Burlamaqui (Brazil); Mr. Lou Tseng-Tsiang (China); Mr. Vedel (Denmark); Captain Chacon (Spain); Sir E. Satow (Great Britain); Captain Castiglia (Italy) ; Mr. Tsudsuki (Japan) ; Mr. Hagerup (Norway) ; Lieutenant-Commander Ferraz (Portugal); Mr. Tcharykow (Russia); Mr. de Hammerskjöld (Sweden) ; and Turkhan Pasha (Turkey).

4 Report to the Conference, 3 and 4.

5 Id., 3–4.

6 See Lawrence, Inter. Law, 541; Hershey, Inter. Law and Diplomacy of the Russo-Japanese War, 262, note. Compare award of the arbitrator in the case of the Brig General Armstrong, Moore, Inter. Arbitrations, II, 1092; see also Hall, Inter. Law, 5th ed., 624.

7 See Moore, Inter. Law Dig., VII6, 1092, 1095, 1101.

8 Report to the Conference, 6.

9 Id., 6.

10 See Hershey, Inter. Law of the Russo-Japanese War, 115–119, 121–125; report of M. Fauchille to the Institute of International Law, 1906, Annuaire, XXI, 76.

11 But see Report of Mr. Carpenter, Senate Committee on the Sale of Arms by the Ordnance Department, May 11, 1872, with reference to the right of the United States to sell to the French Government munitions of war during the Franco-Prussian war. S. Rep. 183, 42d Cong., 2d sess. Moore, Inter. Law. Dig., VII, 973–974. Compare Hall, Inter. Law, 5th ed., 598. See also Mr. Day, Secretary of State, to Mr. Hay, ambassador to Great Britain, telegram, June 25, 1898, MS. Inst. Great Britain, XXXII, 680; Mr. Moore, Acting Secretary of State, to Mr. Hay, telegram, June 26, 1898, id., 683; Moore, Inter. Law Dig., VII, 868.

12 Science of Inter. Law, 374.

13 See T. E. Holland, “ Neutral Duties in Maritime War,” Proceedings of the British Academy, II, 2, translated and published in Rev. D. Inter. P. Lég. Comp., 2d series, VII, 359. See also Oppenheim, II, 344; Hershey, Inter. Law and Diplomacy of the Russo-Japanese War, 91–93, 110.

14 On the wrongfulness of such traffic Professor Moore, in the course of an instructive commentary, says in part:

“ The acts which individuals are forbidden to commit and the acts which neutral governments are obliged to prevent are by no means the same; precisely as the acts which the neutral government is obliged to prevent and the acts which it is forbidden to commit are by no means the same. The supply of materials of war, such as arms and ammunition, to either party to an armed conflict, although neutral governments are not obliged to prevent it, constitutes on then part of the individuals who engage in it a participation in hostilities, and as such is confessedly an unneutral act. Should the government of the individual itself supply such articles it would clearly depart from its position of neutrality. The private citizen undertakes the business at his own risk, and against this risk his government can not assure him protection without making itself a party to his unneutral act.” (Inter. Law Dig., VII, 748–752, citing Heffter, Bergson’s ed. by Geffcken (1883), 384; Kent, Inter. Law, 2d ed., by Abdy, 330; Woolsey, Inter. Law, sees. 193, 194; Manning, Law of Nations, Amos’s ed., 352; Creasy, First Platform of Inter. Law, 604; Holland, Studies in Inter. Law, 124–125; Baker’s First Steps in Inter. Law, 281; Washington’s Neutrality Proclamation of April 22, 1793, Am. State Papers, For. Rel., I, 140; President Grant’s Neutrality Proclamation, Aug. 22, 1870, Wharton’s Inter. Law Dig., III , 607–608; Brazilian circular, April 29, 1898, Proclamations and Decrees during the War with Spain; Great Britain’s Proclamation of April 23, 1898; British Proclamations, 31, 35.) See also “Observations on the Law of Contraband of War, by Hon. Charles B. Elliott, 24th report, Proceedings of International Law Association, 1907, 118, 135–138.

15 Rivier, Principes du Droit des Gens, II , 408, cited in Moore, Inter. Law Dig., VII, 1070, note d. For text of the Washington Rules, see Moore, Inter. Law Dig., VII, 1059.

16 Concerning the measure of exertion imposed by the Washington Rules, see Moore’s Inter. Law Dig., VII, 1073–1074; also Moore, Inter. Arbitrations, I, 670–678.

17 That the Washington Rules needed revision was clearly appreciated by the Institute of International Law. The revision, however, which that eminent body adopted at its meeting at The Hague in 1875 has not escaped criticism. For the text of the revision, see Annuaire, I, 139. An English translation is contained in Moore’s Inter. Law Dig., VII, 1071, note.

18 Dana’s Wheaton, 563, note.

19 Compare the Santissima Trinidad, 7 Wheat., 283; United States v. Quincy, 6 Peters, 445; United States v. The Meteor, 3 American Law Review, 173, sc. Scott’s Cases, 711. See also Revised Statutes, sees. 5283, 5284.

Said the Geneva Tribunal: “ The ‘ due diligence ’ referred to in the first and third of the said rules ought to be exercised by neutral governments in exact proportion to the risks to which either of the belligerents may be exposed, from a failure to fulfill the obligations of neutrality on their part.” (Moore, Inter. Law Dig., VII, 1060.)

20 Report to the Conference, 8. Note the attitude of Great Britain at the outbreak of the Spanish-American war, forbidding the further construction and departure from England of a cruiser and torpedo boat, respectively, then building in that country, and purchased by the United States from Brazil prior to the commencement of hostilities. Moore, Inter. Law Big., VII, 861–862, and documents there cited.

21 Report to the Conference, 10.

22 Id., 10. See U. S. For. Rel., 1898, 968–970, with reference to the terms of permission given by Great Britain during the Spanish-American war for the passage of four United States revenue cutters from the Great Lakes through Canadian canals to the Atlantic coast of the United States.

23 See sec. 2, par. 6, Danish Neutrality Proclamation, April 27, 1904, For. Rel., 1904, 21, 22.

24 See Rivier, II, 388–391; Oppenheim, Inter. Law, II, 382; Le Moine, Precis De Droit Maritime International, 167.

In the course of a paper by Prof. George Grafton Wilson, read before the American Political Science Association, Chicago, Dec. 28–30, 1904, that careful writer referred to “201 pilotage by a neutral of an enemy vessel” as a form of unneutral service.

25 Report to the Conference, 11–16.

26 Report to the Conference, 14.

27 Naval War College, Inter. Law Situations, 1904, 79–93. There are there collected neutrality proclamations of various maritime states which employed the 24-hour rule at the time of the Spanish American war.

See also neutrality proclamations of the United States and certain other powers during the Russo-Japanese war. U. S. For. Rel., 1904, 14–35.

See also Rules Adopted by the Institute of International Law at The Hague in 1898, Annuaire, XVII, 285.

28 Naval War College, Inter. Law Situations, 1905, 154, 170.

29 Note the treatment accorded the U. S. S. Monooacy by China during the Spanish-American war. That vessel was an antiquated ship of light draft employed in Chinese waters for the protection of American citizens. It was permitted to remain in China. See Moore, Inter. Law Dig., VII, 991, citing Mr. Day, Secretary of State, to Mr. Denby, minister to China, No. 1593, June 7, 1898, MS. Inst. China, V, 566.

Concerning the case of a Russian vessel about to sail on a scientific expedition after coaling at a Norwegian port during the Russo-Japanese war, see Takahashi, Inter. Law Applied to the Russo-Japanese War, 353.

30 It will be remembered that this number of Russian men-of-war, under Admiral Enquist, sought asylum at Manila in June, 1905. See Moore, Inter. Law Dig., VII, 992.

31 Report to the Conference, 18.

32 Id., 18–19.

33 Report to the Conference, 20.

34 Such was the position of the United States during the Russo-Japanese war. With respect to the squadron of Admiral Enquist which arrived at Manila early in June, 1905, the Secretary of War, at the direction of the President, telegraphed the Governor of the Philippine Islands on June 5, as follows: “Advise Russian Admiral that as his ships are suffering from damages due to battle, and our policy is to restrict all operations of belligerents in neutral ports, the President can not consent to any repairs unless the ships are interned at Manila until the close of hostilities.” (Naval War College, Situations in Inter. Law, 1905, 168.) See also Moore, Inter. Law Dig., VII, 992–995, and documents there cited.

35 With reference to the Russian cruiser Lena, which arrived at San Francisco Sept. 13, 1904, Mr. Adee, Acting Secretary of State, advised the Russian Ambassador Sept. 14, 1904, in part as follows: “ If repaired, only such bare repairs can be allowed as may be necessary for seaworthiness and for taking her back to nearest home port, and even such repairs can be permitted only on condition that they do not prove too extensive.” (U. S. For. Rel., 1904, 785–786.) In view of the formal application of the captain of the vessel to make needed repairs, which included new boilers, and the reconstruction of the engines, and which would require several months for their completion, the vessel was interned by the United States. U. S. For. Rel., 785–790; Moore, Inter. Law Dig., VII, 999–1000.

Note attitude of Japan with respect to Russian war ships at Shanghai, Aug. 1904. Takahashi, Inter. Law Applied to the Russo-Japanese War, 418–436; also, U. S. For. Rel., 1904, 426.

See also Naval War College, Situations in Inter. Law, 1905, 160–170.

36 Report to the Conference, 21.

37 At the meetings of the comité Sept. 11 and 12, 1907, Admiral Siegel called attention to the difficulty of testing the amount of coal to be shipped by that which suffices to take a vessel to its nearest home port. He said that in each case a series of questions was presented; that it was necessary to ascertain, for example, what was the nearest port, the distance thereto, the speed by which the voyage could be made most economically, as well as the quality of coal to be supplied. He contended, in brief, that the quantity of fuel to be given would change in different situations, and that the neutral would always be obliged to assume the responsibility of determining the number of tons of fuel which the war ship ought to receive. (Proceedings of Comité, Sept. 11 and 12, pp. 15–16.)

38 Sir Ernest Satow, on the other hand, contended that the neutral had no right to assist the belligerent to reach his adversary; that the sole reason why such war ship should be given coal was to prevent the vessel from becoming helpless on the high seas; that it should, therefore, be furnished with coal sufficient to enable it to preserve its existence; that such was the origin of the rule of testing the amount by the distance to the nearest home port, a rule accepted in practice by almost all states which had formulated regulations on the subject. (Proceedings of the Comité, Sept. 11 and 12, p. 14.)

39 Report to the Conference, 22.

40 Neutral Duties in Maritime War, Proceedings of the British Academy, II, 6; Moore, Inter. Law Dig., VII, 947.

On the topic “ What regulations should be made in regard to the supply of fuel or oil to belligerent vessels in neutral ports?” the United States Naval War College in 1906 concluded, after its usual careful examination of “opinions, precedents, practice, and the aims of a regulation,” that “ the supply of fuel or oil within a neutral port to vessels in belligerent service in no case shall exceed what is necessary to make the total amount on board sufficient to reach the nearest unblockaded port of the belligerent vessel’s own state or some nearer named destination.

“ The supply may be subject to such other regulation as the neutral may deem expedient.” (Naval War College, Inter. Law Topics, 1906, 66–87.)

41 Compare note of Mr. Wheaton, minister to Prussia, to Mr. Upshur, Secretary of State, No. 233, Aug. 23, 1843, H. Ex. Doc. 264, 28th Cong., 1st sess., 4, 6. Moore, Inter. Law Dig., VII, 982. See Cushing, Atty.-Gen., 7 Opinions, 122.

42 See note of the Reporter in L’Invincible, 1 Wheat. 238, 244; The Estrella, 4 Wheat. 298, 308–309; The Santissima Trinidad, 7 Wheat. 283, 350–352.

43 Report to the Conference, 26.

44 Id., 26.

45 See Oppenheim, Inter. Law, II, 350.

46 Report to the Conference, 28.

47 Id., 29.

48 The remaining articles (29 to 33) relate solely to the details of ratification, coming into force, denunciation of, and adhesion to the convention, and to the functions to be exercised by the Netherlands Ministry for Foreign Affairs in that connection. For that reason the text is not quoted.