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blockade and is blockaded and the neutrals have ample evidence of the fact.

The proclamations of blockade do not give to the neutrals any guarantees, but only the permit to remain within the blockaded port or ports a certain time under certain conditions.

The object of war being the submission of the enemy, the area of legitimate warfare covering the port in question, military necessity permitting such measures as accord with the laws of war, and it being necessary to spare the person and property of noncombatants as far as the conditions will permit, it is evident that neutrals within belligerent jurisdiction, whether before the expiration of the time allowed for their departure or after that time, may be liable to certain consequences.

Halleck' says:

"States, not parties to a war, have not only the right to remain neutral during its continuance, but to do so conduces greatly to their advantage, as they thereby preserve to their citizens the blessings of peace and commerce. Moreover, the belligerents are interested in maintaining the just rights of neutrals, as the trade and intercourse kept up by them greatly contribute to mitigate the evils of war. It has, therefore, become an established principle of international law that neutrals shall be permitted to carry on their accustomed trade with such restrictions only as are necessary for the security of the established rights of the belligerents." Hall says:

"A neutral individual in belligerent territory must be prepared for the risks of war and can not demand compensation for the loss or damage of property resulting from military operations carried on in a legitimate manner."

In some instances the "belligerents" exercise the socalled right of using or destroying neutral property on the plea of necessity, giving compensation. "This practice is called 'angary' or 'prestation' and is by

'Int. Law, Vol. II, p. 143.

2 Int. Law, 4th ed., p. 743.

NECESSITIES OF WAR GOVERN.

55

most jurists either condemned or regarded with disfavor. An illustration is the sinking, during the FrancoPrussian war of 1870, by the Germans, of several British merchant ships in the Seine to prevent gunboats from going up the river. During the same war the Germans seized in Alsace, for military purposes, certain railway carriages of the Central Swiss Railway and certain Austrian rolling stock, all of which remained in the possession of the Germans for some time." For this the Naval War Code of the United States provides, Article VI:

"If military necessity should require it, neutral vessels found within the limits of belligerent authority may be seized and destroyed or otherwise utilized for military purposes, but in such cases the owners of neutral vessels must be fully recompensed."

It would then appear that the absolute seizure of neutral property for the purpose of using it for carrying on the war would not be allowed except in extreme cases for full recompense.

The case under consideration is one between the condition of absolute immunity from the consequence of war and the condition warranting appropriation for which compensation can be demanded.

Of this position Hall' says:

"As a state possesses jurisdiction, within the limits. which have been indicated, over the persons and property of foreigners found upon its land and waters, the persons and property of neutral individuals in a belligerent state are in principle subjected to such exceptional measures of jurisdiction and to such exceptional taxation and seizure for the use of the state as the existence of hostilities may render necessary, provided that no further burden is placed upon foreigners than is imposed upon subjects.

"So, also, as neutral individuals within an enemy state are subject to the jurisdiction of that enemy, and are so far intimately associated with him that they can not be separated from him for many purposes, they and their property are as a general principle exposed to the

'Int. Law, 4th ed., p. 764.

same extent as noncombatant enemy subjects to the consequences of hostilities."

Of the vessels of the United States in question within the port it may be said: "The general principle that neutral property in belligerent territory shares the liabilities of property belonging to subjects of the state is clear and indisputable; and no objection can be made to its effects upon property which is associated either permanently or for a considerable time with the belligerent territory."

The neutral merchant ships are liable to the consequences of legitimate hostilities.

Conclusions. In reply to the question, "How should the commander act, and on what grounds?”

It would be safe to say that the commander could make no demands upon the belligerent, nor could he make any protest, though he might request delay sufficient to assist in placing the neutral shipping under the flag of the United States in a position as safe as possible considering the military necessity. The commander of the United States war vessel should take the position of trying to aid the vessels of his countrymen by helping them to avoid danger, rather than that of impeding the action of the belligerent within whose port he finds himself.

The belligerent within whose port the vessels of the United States are is bound to regard the safety of neutral vessels in carrying on hostile operations as far as the necessities of war permit.

It is evident that while the obligations of neutrals to belligerents has received much attention, the consideration of belligerent obligations to neutrals has received far less definition than its importance deserves.

SITUATION VI.

Insurgents in state A, with which the United States has full international relations, proclaim and maintain a blockade of a port occupied by state A. The captain of an American merchant ship complains to the commander of an approaching United States war ship that he can not enter port without incurring risk of the penalties for violation of blockade and desires the assistance of the United States war ship in entering the port on the ground that no war exists in state A, and he is therefore entitled by treaty and on general principles to enter this port.

What position should the commander assume?

How far is the commander of the merchant ship correct in his contentions?

SOLUTION.

The commander of the United States war ship should assume the position that, in general, naval officers of the United States will permit no interference with ordinary commerce of the United States, unless they are duly instructed by their Government. (The above position should be considered with reference to the conclusions set forth on page 74.)

The captain of the merchant vessel is correct in his claim in regard to general principles, and most treaties secure commercial freedom.

NOTES ON SITUATION VI.

PREVENTION OF ENTRY OF NEUTRAL COMMERCE BY INSURGENTS.

Definition of blockade.-The simple enumerated clauses of the Declaration of Paris, 1856, of which the fourth is applicable to blockades, viz: "Blockades in order to be binding must be effective; that is to say, maintained by force sufficient really to prevent access to the coast of the enemy," are often quoted as though these

(57)

were principles always applicable. There were prior clauses indicating under what circumstances these laws were applicable as, "Considering: That maritime law in time of war has long been the subject of deplorable disputes; that the uncertainty of the law and of the duties in such a matter give rise to differences of opinion between neutrals and belligerents which may occasion serious difficulties, and even conflicts," etc. These show distinctly that blockade as viewed in this declaration was

a war measure.

In the Naval War College Manual of International Law, page 151, blockade is defined: "A blockade being an operation of war, any government, independent or de facto, whose rights as a belligerent are recognized, can institute it as an exercise of those rights."

Hall' says: " Blockade consists in the interception by a belligerent of access to a territory or a place which is in the possession of his enemy." This implies the three conditions:"

"1. The belligerent must intend to institute it as a distinct and substantive measure of war, and his intention must have in some way been brought to the knowledge of the neutrals affected.

"2. It must have been initiated under sufficient authority.

"3. It must be maintained by a sufficient and properly disposed force."

3

Dahlgren defines blockade as follows:

"The word blockade properly denotes obstructing the passage into or from a place on either element, but is more especially applied to naval forces preventing communication by water. With blockades by land, or ordinary sieges, neutrals have usually little to do."

Walker says:*

"The blockade must have been established under the sanction of sufficient authority. A blockade to be legally binding must be a state measure. It may be a

1 Hall, sec. 257, p. 718.
Ibid, p. 719.

3

Dahlgren, p. 26.

+Science of Int. Law, p. 519.

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