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Japanese and Russian Regulations.
Japanese Regulations, 1904.-Article XXXIII of the Japanese Regulations Governing Captures at Sea, 1904, is:
A neutral vessel under convoy of a war vessel of her country shall not be visited or searched if the commanding officer of the convoying war vessel presents a declaration signed by himself stating that there is on board the vessel no person, document, or goods that are contraband of war, and that all the ship's papers are perfect, and stating also the last port which the vessel left and her destination. In case of grave suspicion, however, this rule does not apply.
Russian Regulations, 1904.-Russia in 1904 republished the Prize Regulations of March 27, 1895, which provided that
Merchant vessels sailing under military convoy of an allied or neutral power are not subjected to examination, provided the commander of the convoy furnishes a certificate as to the number of vessels being convoyed, their nationality, and the destination of the cargoes, and also as to the fact that there is no contraband of war on the vessels. The stoppage and examination of these vessels is permitted only in the following cases: (1) When the commander of the convoy refuses to give the certificate mentioned; (2) when he declares that one or another vessel does not belong to the number of those sailing under his convoy; and (3) when it becomes evident that a vessel being convoyed is preparing to commit an act constituting a breach of neutrality. (U. S. Foreign Relations, 1904, p. 736.)
The right of convoy of merchant vessels of a neutral by warships of the same flag was generally recognized in practice at the end of the nineteenth century, though Great Britain in theory opposed.
Treaty provisions as to visit.-There are several treaties to which the United States is a party which contain provisions in regard to the visit of vessels under convoy somewhat similar to or exactly identical with the following Brazilian treaty of 1828:
ART. 22. It is further agreed that the stipulations above expressed relative to the visiting and examining of vessels shall apply only to those which sail without convoy; and when said vessel shall be under convoy the verbal declaration of the commander of the convoy, on his word of honor, that the vessels under his protection belong to the nation whose flag he carries,
and when they are bound to an enemy's port that they have no contraband goods on board shall be sufficient. (Treaties and Conventions, 1776-1909, vol. 1, p. 140.)
Treaties with Columbia, 1846 (art. 23), and Italy, 1871 (Art. XIX), contain the same regulation. This regulation corresponds to article 218 of the Italian Mercantile Marine Code.
The treaty with Haiti of 1864, terminated 1905, was somewhat more detailed:
ART. 25. It is expressly agreed by the high contracting parties that the stipulations before mentioned relative to the conduct to be observed on the sea by the cruisers of the belligerent party toward the ships of the neutral party shall be applicable only to ships sailing without a convoy; and when the said ships shall be convoyed, it being the intention of the parties to observe all the regards due to the protection of the flag displayed by public ships, it shall not be lawful to visit them, but the verbal declaration of the commander of the convoy that the ship he convoys belongs to the nation whose flag he carries and that they have no contraband goods on board shall be considered by the respective cruisers as fully sufficient; the two parties reciprocally engaging not to admit under the protection of their convoys ships which shall have on board contraband goods destined to an enemy. (Ibid., p. 928.)
It will be observed that the declaration which the commander of the convoy is usually called upon to make is that the vessels under his escort have no contraband on board. With the modern extension of the possibilities of unneutral service such a declaration might shield a vessel which the visiting commander could properly seize. The articles in these treaties make no mention of blockade.
Treaty provisions as to convoy.-The United States very early made provision by treaty for the use of convoy in time of war. One of the earliest of these treaty agreements was with Sweden in 1783, a provision which is still in force, and is as follows:
ART. 12. Although the vessels of the one and of the other party may navigate freely and with all safety, as is explained in the seventh article, they shall nevertheless be bound at all times, when required, to exhibit as well on the high sea as in port their passports and certificates above mentioned; and not having
contraband merchandise on board for an enemy's port they may freely and without hindrance pursue their voyage to the place of their destination. Nevertheless, the exhibition of papers shall not be demanded of merchant ships under the convoy of vessels of war, but credit shall be given to the word of the officer commanding the convoy. (Ibid., vol. 2, p. 1729.)
Article IV of the treaty with Morocco of 1787 was renewed by the United States in the treaty of September 16, 1836:
ART. IV. A signal, or pass, shall be given to all vessels belonging to both parties, by which they are to be known when they meet at sea; and if the commander of a ship of war of either party shall have other ships under his convoy, the declaration of the commander shall alone be sufficient to exempt any of them from examination. (Ibid., vol. 1, p. 1213.)
Franco-British treaty, 1655.-A treaty between Great Britain and France of November 3, 1655, provided in Article XVI:
All ships of war, meeting any merchant ships of either party, shall protect them, while they keep the same course, against all who shall offer them any violence. (Du Mont. Corps Diplomatique, Tome VI, Pt. II, p. 121.)
Article XXVIII of the treaty between Great Britain and the States-General of July 31, 1667, was to the same effect.
Obsolete clause of Swedish treaty.-A separate article of the treaty of 1783 between the United States and Sweden which was not renewed in 1816 and 1825, when other portions of that treaty were renewed, provided as follows:
ART. III. If, in any future war at sea, the contracting powers resolve to remain neuter, and as such to observe the strictest neutrality, then it is agreed that if the merchant ships of either party should happen to be in a part of the sea where the ships of war of the same nation are not stationed, or if they are met on the high sea, without being able to have recourse to their own convoys, in that case the commander of the ships of war of the other party, if required, shall, in good faith and sincerity, give them all necessary assistance; and in such case the ships of war and frigates of either of the powers shall protect and support the merchant ships of the other: Provided, nevertheless, That the ships claiming the assistance are not engaged in any illicit commerce contrary to the principle of the neutrality.
Treaty with Prussia.-Article 22 of the treaty of 1785 between the United States and Prussia was practically identical with the similarly numbered article of the treaty of 1799. The treaty of 1785 expired by its own limitations in 1796. The treaty of 1799 expired by its own limitations in 1810. The provisions of article 22 were, however, among those revived by article 12 of the treaty of 1828, which was to be terminated only by regular notification. This article 22, which had been thus continued since 1785, appears in the Compilation of Treaties in Force, 1904, as follows:
When the contracting parties shall have a common enemy, or shall both be neutral, the vessels of war of each shall upon all occasions take under their protection the vessels of the other going the same course, and shall defend such vessels, as long as they hold the same course, against all force and violence in the same manner as they ought to protect and defend vessels belonging to the party of which they are. (Treaties in Force, 1904, pp. 641-642; Treaties and Conventions, 1776-1909, vol. 2, p. 1493.)
Article 14 of the treaty of 1785 with Prussia was renewed, with explanations in the treaty of 1799, and revived by the treaty of 1828.
ART. XIV. To insure to the vessels of the two contracting parties the advantage of being readily and certainly known in time of war, it is agreed that they shall be provided with the sea letters and documents hereafter specified.
1. A passport; expressing the name, the property, and the burthen of the vessel, as also the name and dwelling of the master, which passport shall be made out in good and due form, shall be renewed as often as the vessel shall return into port, and shall be exhibited when soever required, as well in the open sea as in port. But if the vessel be under convoy of one or more vessels of war belonging to the neutral party the simple declaration of the officer commanding the convoy that the said vessel belongs to the party of which he is shall be considered as establishing the fact and shall relieve both parties from the trouble of further examination. (Treaties in Force, p. 638; Treaties and Conventions, 1776-1909, vol. 2, p. 1491.)
Treaties in time of war.-While it is often held that war terminates treaties between belligerents, this is evidently not the fact, as many treaties are merely suspended by the existence of war. These revive on the reestablishment of peace. Many conventions have been
Treaties in Time of War.
negotiated in recent years which would become operative only in case of war between the contracting States and which are designed to meet such contingencies, as in the Hague Convention with respect to the Laws and Customs of War on Land
intended to serve as a general rule of conduct for the belligerents in their relations with each other and with the inhabitants.
There are other treaties and conventions in which the contracting powers make agreements which shall become operative when one of the parties is neutral and the other a belligerent, as the Hague Convention concerning the Rights and Duties of Neutral Powers in Naval War.
Ordinarily, however, the relations of a State, which is not a party to the war, to another State which is not a party to the war, are not changed by the existence of war between other States. As regards one another, they in general assume no new obligations or liabilities because of war foreign to both. New obligations may of course be assumed by conventional agreements, treaty or other.
When a State actually ceases to exist, the treaties by which it was bound are no longer effective. When Madagascar lost its separate entity and was absorbed by France in 1896, the United States and Great Britain readily admitted that their treaties with Madagascar were no longer binding. Similarly, when Hanover was incorporated in the Prussian Kingdom in 1866, treaties with Hanover were regarded as terminated. The complete extinction of a State will extinguish, so far as it is concerned, the treaties to which it is a party.
Renunciation of treaty rights with Tunis.-By a treaty of 1797 the United States and Tunis agreed
ART. V. If the corsairs of Tunis shall meet at sea with ships of war of the United States having under their escort merchant vessels of their nation, they shall not be searched or molested; and in such case the commanders shall be believed upon their word to exempt their ships from being visited and to avoid quarantine. The American ships of war shall act in like manner toward merchant vessels escorted by the corsairs of Tunis. (Treaties and Conventions, 1776-1909, vol. 2, p. 1795.)