FRENCH POSITION ON SOJOURN.

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bénéfice de l'asile doivent entretenir des relations pacifiques avec tous les navires mouillés dans le même port, et, en particulier, avec les bâtiments appartenant à leurs ennemis; b) Lesdits navires ne peuvent, à l'aide de ressources puisées à terre, augmenter leur matériel de guerre, renforcer leurs équipages, ni faire des enrôlements volontaires, même parmi leurs nationaux; c) Ils doivent s'abstenir de toute enquête sur les forces, l'emplacement ou les ressources de leurs enemis, ne pas appareiller brusquement pour poursuivre ceux qui leur searient signalés, en un mot, s'abstenir de faire du lieu de leur résidence la base d'une opération quelconque contre l'ennemi; de n'employer la force ni la ruse pour recousser les prises faites par l'ennemi, ou pour délivrer des prisonniers de leur nation; 3o. Il ne peut être fourni à un belligérant que les vivres, denrées approvisionnements et moyens de réparations nécessaires à la subsistance de son équipage et à la sécurité de sa navigation; 4°. Lorsque des belligérants ou des navires de commerce des deux parties belligérantes se trouveront ensemble dans un port français, il y aura un intervalle qui ne pourra être moindre de vingtquatre heures entre le départ de tout navire de l'un des belligérants et le départ subséquent de tout bâtiment de l'autre belligérant. Ce délai sera étendu, en cas de besoin, sur l'ordre de l'autorité maritime, autant que cela pourra être necessaire; 5o. il est interdit aux belligérants de seé livrer à aucun acte d'hostilité dans toute l'étendue des eaux territoriales. Si une violation de cette règle venait à votre connaissance, sans que vous ayez pu la prévenir, vous auriez à m'en rendre compte immédiatement, afin que le gouvernement puisse faire entendre, auprès de qui de droit, les protestations et réclamations nécessaires. Il en sera de même si des navires de commerce portant le pavillon français ou celui d'un des États protégés par la France venaient à être molestés dans l'exercice du droit de visite qui appartient aux belligérants.

The above may properly be regarded as setting forth officially the French position.

The latest statement of the French point of view as to the use of neutral waters by belligerents in time of war is given in an article by Charles Dupuis on "Maritime Responsibilities in Time of War." He says:

Whilst any act of war is forbidden in territorial waters, free passage through them is allowed, even to the belligerent war ships, as in time of peace. The area of territorial waters is not absolutely fixed for all states by international law; France admits that this area is one of three sea miles from low-water mark. Sovereign jurisdiction is exercised more strictly in ports. They are not a part of the sea routes; they are only the points of departure and arrival, the necessary intermediaries between sea and land, and, occasionally, an indispensable refuge from the perils of the sea. The riparian state should, in principle, keep its ports open in time of peace; it should always allow

access thereto to ships in time of distress. The neutral state is equally bound to give shelter to belligerent war ships which are prevented by the state of the sea, the damages they have sustained, or their want of provisions, from pursuing their journey; it may, without being bound to do so, give them shelter in any other event. France throws her ports wide open to belligerent war ships; she does not limit the length of their stay; she only limits it to twenty-four hours when they have entered the port with prizes taken from the enemy. War ships which have sought refuge in a neutral port to escape the enemy's pursuit are free to stay or to leave. If the enemy wishes to reduce them to a state of impotence, it is for him to take the necessary measures to make it dangerous for them to leave.

Belligerent war ships which have entered a French port may effect repairs there, or take in stores necessary for navigation or for the subsistence of their crews; they may not, on the other hand, recruit combatants, or provide themselves with arms, munitions, or articles for use in action. Their stay in a neutral port may, therefore, allow them to leave it with fresh means of navigation, but not with any increase of fighting strength. Nevertheless, the enjoyment of facilities of taking in stores or coal might degenerate into an abuse. If a war ship were free to return periodically to the same port in search of articles which, whilst not instruments of warfare, were yet resources indispensable to carrying on her campaign, she would be turning this harbor into an actual base of operations. Continuous resort to the same place with the object of taking in stores, thanks to the resources of the place, is the characteristic of a base of operations-that is to say, of the "point d'appui" for renewing and multiplying the most varied enterprises against the enemy.

Still, in certain cases, a neutral harbor, or a station within neutral waters, might happen to become not a base of operations but the base of a deliberate operation of a hostile character. This would be the case where a ship or squadron claimed the right to lie in wait, within the shelter of neutral waters, for the passage of a hostile force in order to attack it unexpectedly at the limits of such neutral waters. French orders issued in 1904 by the minister of marine forbid any preparation of hostile acts or operations, even of an isolated nature, being made within French waters. (North American Review, August, 1905, vol. 181, p. 182.)

A neutral may properly limit or prohibit the sojourn within its ports of a belligerent vessel which seeks to repair damages caused by war. It may properly admit a vessel seeking to repair damages caused by action of the elements. Such repairs should be confined to making the vessel seaworthy.

A belligerent vessel may take on supplies necessary to reach her nearest home port or some nearer destination,

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She may not, however, take on military stores or ammunition. This may be held to apply, according to the British interpretation, to the restriction of the supply of coal to that which is to be used for the purpose of navigation only and not for action against belligerents or for pursuit of contraband.

(c) Of entrance and sojourn to escape capture and of entrance and sojourn when defeated and damaged by the enemy?

Situation V, considered by this Naval War College in the summer of 1904, bore upon this subject. The situation as proposed was as follows:

While war exists between the United States and State X a number of the war vessels of State X are pursued by a United States fleet and seek refuge in a port of State Y, a neutral. The commander of the United States fleet, after waiting outside the port for twenty-four hours, protests to the authorities of State Y, claiming that as the vessels of the enemy have entered the neutral port to escape his fleet they may not justly be sheltered longer.

(a) Is the position taken by the United States commander correct?

(b) What should the authorities of State Y do?

The conclusion was as follows:

(a) From the point of view of both theory and practice it would seem that the United States commander, under the circumstances as stated in the situation, would be justified in claiming that belligerent vessels entering and remaining in the neutral port in order to escape capture by his vessels, should be interned for the remaining period of the war.

(b) The authorities of State Y would also be under obligations to intern the vessels of State X thus seeking neutral protection.

Speaking of asylum to naval forces, Hall says:

Marine warfare so far differs from hostilities on land that the forces of a belligerent may enter neutral territory without being under stress from their enemy. Partly as a consequence of the habit of freely admitting foreign public ships of war belonging to friendly powers to the ports of a State as a matter of courtesy, partly because of the inevitable conditions of navigation, it is not the custom to apply the same rigor of precaution to naval as to military forces. A vessel of war may enter and stay in a neutral harbor without special reasons; she is not disarmed on taking refuge after defeat; she may obtain such repair as will enable her to continue her voyage in safety; she may take in such provisions as she needs, and, if a steamer, she may fill up

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with enough coal to enable her to reach the nearest port of her own country; nor is there anything to prevent her from enjoying the security of neutral waters for so long as may seem good to her. To disable a vessel, or to render her permanently immovable, is to assist her enemy; to put her in a condition to undertake offensive operations is to aid her country in its war. The principle is obvious; its application is susceptible of much variation; and in the treatment of ships, as in all other matters in which the neutral holds his delicate scale between two belligerents, a tendency toward the enforcement of a harsher rule becomes more defined with each successive war. (International Law, 5th ed., p. 626.)

The tendency toward the establishment of a definite rule has certainly become evident. The practice of dismantling and internment has been clearly established during the Russo-Japanese war.

The first instance was a subject of much discussion. The Russian vessel Mandjur, which entered the port of Shanghai about the middle of February in 1904, was, after considerable exchange of notes, interned to the satisfaction of Japan at the end of March. Parts of the machinery were removed and the vessel was disarmed. In August, 1904, the Russian vessels Askold and Grosvoi, which had sought refuge in the same port, were dismantled and the crew interned. About the same time the Tsarevitch and some smaller vessels sought refuge in the German jurisdiction at Kiaochow. These vessels were similarly treated. The Russian cruiser Diana, which had escaped in the same battle, sought refuge in the French port of Saigon, and was dismantled and the crew interned on September 10, 1904.

The transport Lena, arriving at San Francisco on September 13, 1904, was likewise interned. The negotiations. between the United States and Russia in regard to the conditions of the internment of the Lena are set forth in the following correspondence:

Count Cassini to Mr. Adee.

[Telegram.-Translation.]

RUSSIAN EMBASSY,

Bar Harbor, Me., September 13, 1904.

Our consul at San Francisco informs me that the Russian transport Lena has entered that port, the condition of her boilers and other

CORRESPONDENCE CONCERNING THE LENA.

163

damages not permitting her to continue her voyage. Under these circumstances I doubt not that the Lena will receive from the authorities of San Francisco, and in conformity with the prescriptions of international law to which a vessel in her condition is entitled, all aid compatible with the neutrality proclaimed by the Federal Government.

I am sending Mr. Hansen to Washington to see you, and come to an understanding with you.

Mr. Adee to Count Cassini.

[Telegram.]

CASSINI.

DEPARTMENT OF STATE, Washington, September 13, 1904.

The matter of the Lena at San Francisco is having the instant attention of this Department. Precise information is being sought as to the condition of the boilers, machinery, and hull of the ship and the extent and duration of the repairs needed to enable her to put to sea. It appears, so far, that very extensive repairs are asked, amounting to virtual renovation. ALVEY A. ADEE,

Mr. Adee to Count Cassini.

[Telegram.]

Acting Secretary.

war.

DEPARTMENT OF STATE, Washington, September 14, 1904.

Referring to my telegram of yesterday, I have the honor to advise you that the President feels constrained to reach an immediate solution of the question whether the Lena shall be repaired immediately so as to put to sea or be disarmed and laid up until the close of the 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 to be too extensive. If disarmed, she will be laid up at the Mare Island Navy-Yard. Inspection made by United States officers at San Francisco discloses that the repairs asked for include complete outfit of new boilers and reconstruction of engines, consuming at least four or five months, or, according to the captain's estimate, eight months, and amounting to renovation of the vessel. This can not be allowed with due regard to neutrality. An immediate answer is desired, as the matter is urgent. A decision between the two alternatives should be made, so that this Government may close the incident not later than to-morrow,

ALVEY A. ADEE, Acting Secretary of State,