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While states X and Y are at war a port of X is blockaded by Y. There are merchant vessels and a war vessel of the United States in the port. The authorities of state X set adrift rafts loaded with explosives in the hope that they will come in contact with and destroy vessels of the blockading squadron. The captains of the United States merchant vessels request the commander of the war vessel of the United States to protest against this action as contrary to international law and as unnecessarily endangering neutral shipping.
How should the commander act and on what grounds?
The commander of the ship of war of the United States should inform the captains of the merchant vessels that he cannot protest against necessary acts of war which clearly are aimed at the enemy.
He might, however, request of the authorities of the port an opportunity for the United States merchant vessels to remove to a point of greater safety provided the necessities of the war would allow.
A belligerent is bound by the necessities of war, and should, so far as such necessities permit, guard from danger neutrals by courtesy within the port, but can not be expected to use greater care in this respect than in regard to shipping flying its own national flag.
NOTES ON SITUATION V.
Methods used in war between Chile and Peru.-During the war between Chile and Peru there were varying rumors that questionable methods were employed by the belligerents in carrying on the war. Of one of these Mr. Evarts, writing under date of January 25, 1881, says: "This report is that the Peruvians have made use, during the present war with Chile, of 'boats containing explosive materials' which have 'in some instances been (49)
set adrift on the chance of their being fallen in with by some of the Chilean blockading squadron.' How far the case of the launch to which you refer in your No. 183 (the Loa), which was loaded with concealed dynamite, comes within the description of cases mentioned the Department has not the requisite data to determine. It is sufficiently obvious that this practice must be fraught with danger to neutral vessels entitled to protection under the law of nations, and that in case American vessels are injured thereby this Government can do no less than hold the government of Peru responsible for any damage which may be thus occasioned.
"There is no disposition on the part of this Government to act in anywise nor in any spirit which may be construed as unnecessarily critical of the methods whereby Peru seeks to protect her life or territory against any enemy whatsoever, but it will appear, I think, to the high sense of propriety which has in times past distinguished the councils of the Peruvian Government, and which without doubt still abides therein, that in case it is ascertained that means and ways so dangerous to neutrals as those adverted to have been for any reason suffered to be adopted by her forces, or any part of them, they should be at once checked, not only for the benefit of Peru, but in the interest of a wise and chivalrous warfare, which should constantly afford to neutral powers the highest possible consideration.""
Mr. Christiancy, replying to this communication on March 8, 1881, said:
"I will say that there never has been any real danger to neutral vessels from the cause mentioned, so far as I know or have been informed. But three instances have occurred during the war (so far as I have ever heard) which could by any possible latitude of construction. come within the grounds of complaint mentioned. No complaint was ever made or suggested to me on behalf of any merchant vessel of the United States, nor any of our naval vessels on this score."
This case did not, therefore, become a precedent.
1 For. Rel., 1881, p. 857.
METHODS USED BY CHINESE.
Methods used during the Franco-Chinese difficulties. On July 2, 1886, Mr. Bayard, writing to Mr. Denby, at the time of the Franco-Chinese difficulties, said in regard to obstructions to neutral shipping:
"It is unquestionable that a belligerent may, during war, place obstructions in the channel of a belligerent port, for the purpose of excluding vessels of the other belligerent which seek the port either as hostile cruisers or as blockade runners. This was done by the Dutch when attacked by Spain in the time of Philip II; by England when attacked by the Dutch in the time of Charles II; by the United States when attacked by Great Britain in the Revolutionary war and in the war of 1812; by the United States during the late civil war; by Russia at the siege of Sebastopol, and by Germany during the Franco-German war of 1870."1
The commander in chief of the military district of Odessa, in April, 1877, declared that passage of harbors in that region would be allowed only under strict regulations, as they were barred by mines.
The introduction of obstacles, whether by sinking of stones, vessels, or other materials in harbors has been of not infrequent occurrence. This has often met with protest from neutrals, but even where the obstacles were most serious the protests have not been heeded to the extent of discontinuing undertakings which were distinctly aimed at the enemy, and which would take effect within the belligerent jurisdiction. In the case of the obstructions in the Canton River in 1884, though the United States had a treaty provision allowing freedom of entrance even in war, the Secretary of State only went so far as to say:
"Even, however, under the favorable modification, the leaving of a 150-foot channel, the obstruction to the channel at Canton and Whampoa can only be tolerated as a temporary measure, to be removed as soon as the special occasion therefor shall have passed, and under no circumstances to be admitted as a precedent for setting obstacles to open navigation at the treaty ports in
1 For. Rel., 1886, p. 95.
time of peace under pretext of being intended for ultimate strategic defense in contingency of future war.'
Mr. Frelinghuysen, in a telegram to Mr. Young, January 22, 1884, said:
"No protest can be made against China for taking such steps for its defense as it may deem necessary."
Rivier allows the obstruction of. harbors against blockading forces under the necessities of war, actual or imminent.
General principles.—As a general principle neutrals have a right to carry on commerce in the time of war. According to Bonfils the problem then becomes one of "taking into consideration the respective rights of belligerents to place their opponent beyond the power of resistance, but respecting the liberty and independence of the neutral in doing this; rights of the neutrals to maintain with each of the belligerents free commercial relations, without injury to the opponent of either."
It is admitted, in theory and in practice, that a belligerent may use submarine boats, mines, torpedoes, and may place obstructions in the channel "for the purpose of excluding the vessels of the other belligerent" from a harbor.
In recent wars some time has been allowed for ships to load and depart from blockaded ports when they chance to find themselves in such ports at the proclamation of hostilities. This time varies. In the recent Spanish-American war Spain, in royal decree of April 23, 1898, Article II, said:
"A term of five days from the date of the publication of the present royal decree in the Madrid Gazette is allowed to all United States ships anchored in Spanish ports, during which they are at liberty to depart."
The proclamation of the United States, of April 22, 1898, said:
"Neutral vessels lying in any of said ports (those proclaimed blockaded) at the time of the establishment of such blockade will be allowed thirty days to issue therefrom."
1 For. Rel., 1884, Frelinghuysen to Young, April 18, 1884.
LIABILITIES OF NEUTRAL VESSELS.
Neither of these declarations put the belligerents under any obligations toward such vessels if they remain a longer time in the blockaded port.
It is properly held that vessels that remain in port after the time specified for their departure or enter the port after knowledge of hostilities are not entitled to special protection. Such vessels would not be in the port ordinarily without the hope of an exceptional reward for the unusual risks, and this being the case the belligerent is not bound to guard them against such risks as they may incur by coming within the field where the belligerent is carrying on legitimate hostilities made necessary by the exigencies of war. The presence of neutral shipping within a port which is duly blockaded in the time of war will not prevent a belligerent from pursuing the general objects of war.
Article I of the Naval War Code of the United States states that: "The general object of war is to procure the complete submission of the enemy at the earliest possible period, with the least expenditure of life and property," and of the objects of maritime war "to aid and assist military operations on land, and to protect and defend the national territory, property, and sea-borne commerce."
Article II provides that: "The area of maritime warfare comprises the high seas or other waters that are under no jurisdiction, and the territorial waters of the belligerents."
Article III provides that: "Military necessity permits measures that are indispensable for securing the ends of the war and that are in accordance with modern laws and usages of war."
It does not permit wanton devastation, the use of poison, or the doing of any hostile act that would make the return to peace unnecessarily difficult.
Noncombatants are to be spared in person and property during hostilities, as much as the necessities of war and the conduct of such noncombatants will permit.
In the case under consideration there is no doubt that the elements necessary for a state of blockade are present. There is a state of war, the place is susceptible of