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Some Questions of International Law in the European War

Published online by Cambridge University Press:  04 May 2017

James W. Garner
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Extract

The history of the naval operations of the present war is quite without parallel, not only on account of the large number of enemy merchant vessels that have been destroyed without warning and the consequent loss of life of both neutral and non-combatant persons, but also because of the destruction on a large scale of ships of neutral Powers. According to the press dispatches, about one hundred and fifty neutral merchantmen, American, Danish, Dutch, Greek, Italian, Norwegian, Portuguese, and Swedish, have already been sunk by one or another belligerent—in most cases by German cruisers and submarines. The merchant marines of Denmark, Holland, Norway, and Sweden have been the heaviest sufferers. In a few cases the destruction was the resuit of error due to the alleged inability of the captor to distinguish the markings of the vessel, but in the majority of cases the reason alleged was that the ships were carrying contraband of war. In view of the extensive and unprecedented scale upon which this practice has been resorted to during the present War, the conditions under which the destruction by belligerents of neutral merchant vessels is permissible, if at all, well merit consideration in the light of international law and practice. Mr. Thomas Baty, an English authority of high standing, writing in 1911, thus states the practice of the past:

It is surely very remarkable, that in all the history of war up to the twentieth century not a single instance can be adduced of a neutral ship’s being destroyed on the high seas. Surely it is most significant that despite the utmost temptations and the fiercest stress of conflict, belligerents uniformly and scrupulously abstained from the least interference with neutral vessels, beyond ascertaining their characters and bringing them into port. French, Americans, Spaniards, Dutch, Danes—strict navy men and lax privateers—polished admirals and rough desperadoes—none of them dared send to the bottom a ship wearing the flag of a neutral state.

Type
Research Article
Information
American Journal of International Law , Volume 10 , Issue 1 , January 1916 , pp. 12 - 41
Copyright
Copyright © American Society of International Law 1916

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References

1 Continued from the January, April, July and October (1915) numbers of this Journal.

2 Discussed in the July number of this Journal, pp. 594–626.

3 Senator Nelson of Minnesota in a speech in the Senate on January 20, 1916 (Cong. Record, pp. 1461–1465) stated that the total number of Dutch, Danish, Swedish, and Norwegian merchant ships that had been sunk by submarines, mines and cruisers since the beginning of the war was one hundred and thirty-four. This, of course, did not include the American, Spanish, Portuguese and other neutral ships that have been destroyed. Of the one hundred and thirty-four neutral vessels thus destroyed, one hundred and three, according to Senator Nelson, were sunk by German submarines, and the rest by either German or British mines. Eleven of these were Dutch, fifteen were Danish, twenty-seven were Swedish, and eighty-one were Norwegian. Senator Nelson’s speech contains a list of the ships destroyed, with the date and in most cases their tonnage. According to a statement of the British Admiralty made in July last, German submarines had up to that time destroyed ninetyeight British merchant vessels and “no less than ninety-five neutral merchantmen.” As there are more British than neutral merchantmen plying the seas, it will be seen that the toll taken of neutral shipping has been relatively larger than that taken of the merchant marine of Germany’s chief enemy.

4 Britain and Sea Law, p. 2.

5 Ibid, p. 23.

6 See his own testimony in Service Afloat, p. 535, the truth of which is confirmed by the Solicitor of the United States Navy during the Civil War, Bolles, in the Atlantic Monthly, Vol. 30, p. 50.

7 Six British ships were destroyed in the Seine by the Germans in 1870, but, as Baty adds, (op. cit., p. 24) this was no violation of the law of nations because a neutral vessel venturing into France at the time was subject to the risks of war.

8 There were a few cases of capture of neutral prizes during the war with Spain, but none were destroyed. Cf. Benton, , International Law and Diplomacy of the Spanish American War, pp. 205–209 Google Scholar.

9 Coquet, , La Guerre Italio-Turque, Rev. Gén. de Droit Int. Pub., Vol. 21 (1914), p. 40 Google Scholar.

10 Notably in the cases of the Ikhona and the Tetartos, the latter being destined to a neutral port and, therefore, not liable to capture, because Russia did not recognize the doctrine of continuous voyage.

11 The facts concerning the destruction of neutral prizes by the Russians have been taken from the texts of the prize court decisions in each case, as printed in Hurst and Bray’s Russian and Japanese Prize Cases, Vol. I (1912), and from Takahashi’s International Law Applied to the Russo-Japanese War, pp. 310–33. There is also a summary in Baty’s Britain and Sea Law, pp. 7-21.

12 The full text is printed in Hurst and Bray, op. cit., pp. 311–331.

13 For the texts of the prize regulations of the more important states governing the destruction of neutral prizes, see International Law Situations, 1905, pp. 64–68; 1907, pp. 77ff.

14 The Japanese regulations are printed in Takahashi, pp. 778–789.

15 See the list of vessels destroyed and captured during the Russo-Japanese War in Takahashi, pp. 75–283.

16 Snow, Cases on International Law, p. 577.

17 See the text of the convention and the instructions in the Rev. Gén. de Droit Int. Pub., Jan.-June, 1915, pp. 35–38.

18 See, ibid., pp. 23–35, for the text of the French decrees.

19 Huberich, , The Prize Code of the German Empire as in Force July 1, 1915, p. 66 Google Scholar.

20 Holland, Letters on War and Neutrality, p. 161; Baty, Britain and Sea Law, p. 10; and International Law Situations, 1907, p. 82, and 1911, p. 57.

21 The text of the note may be found in International Law Situations, 1905, p. 74.

22 The text of his letter is printed in his Letters on War and Neutrality, p. 168. Professor Holland’s position was strongly attacked by Thomas Gibson Bowles in several letters to the Times.

23 Neutral Duties in Maritime War, Proceedings of the British Academy, Vol. II, pp. 12–13, quoted by Moore, Digest, VII, 520.

24 War and Neutrality in the East, p. 255. Lawrence maintains that a “broad line of distinction” must be drawn between the destruction of enemy property and the destruction of neutral property; in the latter case the owners have a right to insist that an adjudication upon their claims shall precede any further dealings with it and that it is far better for a captor to release a neutral ship or goods than to risk personal loss and international complications by destroying innocent property. Principles of International Law, 4th ed., p. 484. This distinction is obviously well founded, both upon grounds of justice and public policy, but unfortunately most prize codes do not expressly recognize it. Cf. also, Wilson on International Law, p. 413.

25 Britain and Sea Law, pp. 20, 24. Elsewhere Baty has proposed the rule that “in no case is it permissible to sink or otherwise destroy a neutral prize; but absolute contraband may be removed to another vessel or jettisoned in case of necessity” (Law Magazine, 1906)—a rule which might well be adopted as a part of the law of the sea. In an article entitled La Destruction des Prises Neuires in the Rev. de Droit Int., 2d ser., Vol. 8, p. 434 (1906), Baty maintains that the recent practice of destroying neutral prizes has been introduced without authority. The fact, he says, that “no neutral prize has ever been sunk in modern wars because of the impossibility of taking it in is proof convincing.” To admit such a right is to make naval commanders the judges in such matters. Valin (Traité des Prises Maritimes), who is sometimes cited as authority for the practice, he says, never professed such an opinion; indeed none of the authors, such as Cussy, Reddie or Wheaton, who have treated the subject of capture, ever said a word in favor of it.

26 International Law, 5th ed., p. 735.

27 International Law, Vol. Ill, p. 432.

28 See his edition of Wheaton, Sec. 359e.

29 Commerce in War, p. 531.

30 Law of Private Property in War on Land and Sea, p. 112. See also his Declaration of London, p. 21.

31 Dodson’s Admiralty Reports, Vol. II, p. 381.

32 Baty, Britain and Sea Law, p. 3. For a full discussion of these cases, see Smith, and Sibley, , Int. Law as Interpreted and Applied During the Russo-Japanese War, pp. 164–169 Google Scholar.

33 The Leucade (1855), Spink’s Prize Cases, p. 221.

34 Britain and Sea Law, p. 5.

35 Lois et Usages de la Neutralité, t. II, p. 532.

36 Droit International Codifié, Sec. 672. Bluntschli does not even recognize the right to destroy enemy prizes. The difficulty of finding a port into which a prize may be taken offers no justification, he says, for destruction.

37 Cited by Huberich in an article on The Destruction of Neutral Prizes, in the Illinois Law Review, for May, 1915.

38 De la Propriete Privée Enemie Sous Pavilion Enemie, p. 302.

39 Le Droit des Neutres Sur Mer (1876), p. 348.

40 Droit Int. Public, Sec. 1415. There is some uncertainty as to the opinions of Boeck, Gessner and Bonfils, as they do not distinguish clearly between the destruction of enemy prizes and neutral prizes. It may at least be said, however, that they do not expressly recognize the right to destroy neutral ships.

41 International Public Law, p. 573. “It is generally agreed,” says Taylor, “that a neutral prize should never be burned.” He is, of course, in error as to such general agreement.

42 International Law, Sec. 184. “The right to destroy,” he says, “is barbarous, and ought to disappear from the law of nations,” and he makes no distinction between enemy and neutral prizes.

43 Cited by Baty (Britain and Sea Law, pp. 5–6), who calls attention to a treatise on captures written in 1815 by Wheaton, and based on the researches of Story, yet Wheaton “did not so much as advert to the possibility of destroying neutral prizes. The practice was utterly unknown and incredible to him.” In his Elements of International Law, Wheaton discusses at length the disposition of prizes, but says nothing of the right to destroy either enemy or neutral prizes.

44 International Law, Vol. II, p. 471, n. 2. Calvo, Sec. 3019, states that, as a general rule, a neutral prize may not be destroyed, but that it is permissible in exceptional circumstances, as, for example, in case of “imperious military necessity” or force majeure resulting from pursuit of the enemy or inability to spare a prize See Martens, Traité de Droit Int., Vol. III, p. 298, and Perels, Manuel de Droit Maritime (French trans, by Arendt), p. 334; and Dupuis, Le Droit de la Guerre Maritime d’aprés les Confs. de la Haye, etc., p. 368, to the same effect.

45 Principes du droit des Gens, Vol. II, p. 350.

46 International Law, Vol. II, p. 309.

47 Digest of Int. Law, Vol. 7, p. 523.

48 Edition of Wheaton, p. 485. Cf. also, Wilson, International Law, p. 413, who admits that a neutral vessel may be sunk in exceptional cases, though great caution, he adds, should be taken before destroying it.

49 United States Foreign Relations, 1904, p. 333.

50 Ibid., p. 734.

51 Ibid., p. 337.

52 The matter had been already considered by the Institute of International Law at its meeting at Turin in 1882, and the prize règlement which it adopted recognized the right to destroy prizes in certain exceptional cases. No distinction was made between neutral and enemy prizes and apparently none was intended to be made. There was some opposition, especially by the English members, to the règlement because of the failure to recognize this distinction, and at the session of 1883 the règlement was amended and the right to destroy was expressly limited to enemy prizes. The manual of maritime war adopted by the Institute at its Oxford meeting in 1913 (Art. 139) recognizes the right to destroy enemy vessels, but nothing is said in regard to the right to destroy neutral prizes (see the Annuaire of the Institute, Vol. 26, p. 348).

53 Deuxième Conférence International de la Paix, actes et documents, p. 1134.

54 Ibid., pp. 903–907.

55 Ibid., p. 1050.

56 Deuxième Conférence International de la Paix, actes et documents, p. 900.

57 Ibid., pp. 991–992.

58 Ibid., pp. 992–993.

59 Ibid., p. 903.

60 The proceedings of the Second Hague Conference in respect to the destruction of prizes are reviewed and analyzed by Dupuis in Le Droit de la Guerre Maritime d’après Les Conférences de la Haye et de Londres, pp. 372–382; and Lémonon, La Seconde Conférence de la Paix, pp. 685–694. The memoranda submitted to the Conference are analyzed in International Law Situations for 1911, pp. 61–68.

61 Proceedings of the International Naval Conference, House of Commons Sessional Papers, Misc. No. 4, Vol. 54 (1909), p. 28.

62 Ibid., No. 5, p. 38.

63 Ibid., p. 6.

64 Ibid., pp. 8–16.

65 Ibid., p. 21.

66 Proceedings of the International Naval Conference, House of Commons Sessional Papers, Misc. No. 4, Vol. 54 (1909), p. 30.

67 The memorandums of the several delegations are analyzed by Dupuis, op. cit., pp. 383 ff. See also, Int. Law. Sits., 1911, pp. 73–77.

68 See the letter of the British delegates to Lord Desart, March 1, 1909, House of Commons Sessional Papers, Misc., No. 4 (1909), p. 98.

69 See the analysis and comment in Bentwich, The Declaration of London, pp. 94–95.

70 See the note of the German Minister for Foreign Affairs to the American Ambassador at Berlin, of June 1, 1915. The chief officer of the Gulflight in a sworn statement filed with the Department of State, declared that the ship was flying a large American ensign six by ten feet in size at the time it was torpedoed.

71 Communication of Herr von Jagow to Mr. Gerard, June 1, 1915.

72 Memorandum of the German Foreign Office delivered to Mr. Gerard, July 12, 1915.

73 On the 8th of April, 1915, a German submarine torpedoed the steamer Harplyce, which flew the flag of the American Relief Commission, and which had painted on its Hides in large letters the words Commisson du Secours beige. It bore a safe conduct furnished by the German minister at The Hague. But the commander of the submarine did not take the trouble to verify the character of the ship and sank it. Fifteen persons on board lost their lives. Perrinjaquet, , La Guerre Européenne, Rev. Gén. de Droit Int. Pub., Jan.–June, 1915, p. 207 Google Scholar.

74 Digest of International Law, Vol. 7, p. 527.