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four hours' limit must be strictly enforced; that necessary supplies and coal must be taken on within that time, these instructions being consistent with those of June 5, stating that as the Russian admiral's ships were suffering from damages due to battle the American policy was to restrict all operations of belligerents at neutral ports-—in other words, that time should not be given for repairs of damages suffered in battle.
Commander Von Uslar, of the German navy, thinks that the United States exceeded its measure of duty in the treatment of Admiral Enquist's squadron in the Philippines.
The old rules of neutrality do not restrict the stay of the ships of belligerents in any respect more than in times of peace. They permit all articles of equipment to be supplied, and any repairs to be made that do not immediately contribute to enhance the fighting capabilities. The new principle advanced by England in 1861, and accepted first by the United States and later by many other countries, limits the duration of the stay to twenty-four hours, and permits sufficient coal to be taken on board to enable the vessel to reach the nearest port of her own country or some nearer destination and repairs to restore seaworthiness.
It can not be denied that the new rules, even if the old principle remains in force, are better adapted to certain cases of neutrality. A compromise between the two, therefore, will best suit the actual conditions created by war, if the French rules are applied in the case of ports and waters which are at a distance from the sphere of operation of the hostile fleets and the English remain valid for ports and waters within or near the sphere of operations. The neutrals must have the right but be under no obligation to close completely certain ports and bays. The difficulty of this distinction lies in the conception of the sphere of operations. It will have to be taken to mean that portion of the sea on which the opposing forces permanently maneuver for the purpose of warlike operations. Ships which directly seek refuge from the enemy in neutral waters, and prizes, would have to be treated without regard to the distance from the chief theater of war.
The extent and duration of the repairs necessary to restore seaworthiness must be fixed by the neutral government. The latter must make no distinction between damages sustained on the voyage or by the action of the enemy's guns, as it would act in the interests of the other belligerent if it made the repairs dependent on this distinction. The action of the United States Government toward the ships of Admiral Enquist undoubtedly exceeded the measure of duty. The German Government also did more at Tsingtau than duty demanded. Ships which do not leave the ports and waters after the expiry of the fixed term render themselves liable to disarmament. (North American Review, Aug., 1905, vol. 181, p. 188.)
Conclusion.—The precedents of the Russo-Japanese war have led to the definite acknowledgment of the correctness of the doctrine of internment by neutral states of belligerent vessels seeking refuge from the force of the enemy in neutral ports. This principle has been acknowledged or definitely acted upon by China, France, Great Britain, Germany, Japan, United States, and Russia. These include nearly all the states with considerable navies. Rarely has any principle received such general recognition within so short a period.
It may be safely said that the entrance and sojourn for a period of more than twenty-four hours in a neutral port will render a belligerent vessel which is pursued by the enemy or damaged in battle liable to internment.
As a neutral has full jurisdiction over his own ports and as entry of the ports is a privilege granted to foreign war ships, the neutral has full rights to enforce by any means within his power the regulations which may have been prescribed for entrance and sojourn within his ports.
Is there sufficient ground for the recognition of certain acts as a distinct class under some such name as “unneutral service?”
The category of “un neutral service,” which has been admitted in decisions of the courts, explained in the works of the text writers, described in proclamations, and distinguished in practice, deserves and should receive full and explicit recognition.
DISCUSSION AND NOTES."
Development of doctrine of neutrality. It is now generally admitted that the rights and duties of neutrals in time of war are correlative. It was formerly claimed that the denial or grant of the same privileges to both belligerents constituted neutrality. Such a doctrine of neutrality might make it possible for a state to deny all the privileges which the first party to the war would especially need and which the second might not need, and to grant those privileges which the second might need and which the first might not need. It was seen that such a position was not neutral in fact, if sometimes so called. Gradually a more equitable view has come to prevail. Neutrality is at present held to demand “an entire absence of participation, direct or indirect, however impartial it may be.”
The state is responsible for the observance of neutrality within its sphere of competence. The state is responsible for its own action or failure to act where its jurisdiction can reasonably be exercised. The neutral state can not be
a A part of the following discussion appeared in the proceedings of the American Political Science Association, 1904, “Unneutral Service," George Grafton Wilson, p. 68.
required to assume the burdens of prosecuting the war, however. If certain articles are declared contraband of war, the belligerent making the declaration can not claim that the neutral state is under obligation to prevent its merchants from shipping such articles from neutral ports in the way of ordinary trade. To demand that the neutral prevent the sale of many articles included within the lists of contraband would be to put the burden of enforcing a belligerent's declaration upon the neutral, and this at the expense of the neutral's trade.
Neutrality is, however, binding not merely upon the state, but also upon the citizens of the neutral state. The state is responsible for its own direct or indirect participation in any violation of neutrality, as in the case where it allows its ports to be a place for the fitting out of hostile expeditions. It is not, however, responsible for the action of each of its citizens, nor can it be. The citizen is ordinarily informed by declaration of neutrality of the position which the state proposes to assume and the citizen is liable to certain consequences for violation of the provisions of the declaration.
As regards the citizen of the neutral state, the declaration usually makes known:
1. That the citizen himself will become liable to certain penalties which the neutral government may inflict in case he performs certain acts within the jurisdiction of the neutral state which may lay the state open to claims of indemnity because of failure to observe neutrality, e. g., if within the jurisdiction of the neutral state he fits out an hostile expedition or accepts and exercises a commission from the belligerent.
2. That the citizen's property will become liable to certain treatment by the enemy if he undertakes certain acts, e. g., carriage of contraband to the belligerent, or violation of the blockade, when the goods or both goods and vessel may be seized by the belligerent.
The penalty for the acts of the first class falls upon the person of the guilty neutral, and if found guilty within its jurisdiction the penalty is imposed by his own state. The penalty for acts of the second class falls upon the
DISTINGUISHED FROM CONTRABAND.
goods, or goods and vessel, and is inflicted by the belligerent. In this latter case the neutral person is not regarded as guilty of offense and is not made a prisoner of war.
There is a third class of acts which partake somewhat the nature of the acts of the first class which are forbidden and penalized by the neutral state. These are often committed beyond the jurisdiction and responsibility of the neutral state, and when undertaken by the neutral citizen do not involve the neutral state in liability unless the state is in some way a party to the acts.
Various attempts have been made to bring these acts under one of the first two classes mentioned above. Attempts also have been made to assimilate the acts to the carriage of contraband or violation of blockade. Some of the acts have been considered analogous to contraband. The acts of this third class differ very widely, however, in nature, intent, and penalty, from the carriage of contraband or violation of blockade. The nature of the carriage of contraband is commercial, the intent is to obtain exceptional profits because of the special demands of the state at war, and the penalty is the confiscation of the contraband goods. Thus considered, the idea of contraband becomes reasonably clear, though the applications of the principles underlying the doctrine of contraband may not always be easy in concrete instances. It is natural that the attempt should be made to include the forms of service which the neutral should not undertake under the laws of contraband, because the idea of contraband was clear long before there was any clear idea of neutrality. Grotius, in 1625, makes an excellent classification of contraband, upon which little improvement has been made. His conception of neutrality is, however, very far from the modern idea. Indeed, the current ideas of 'neutrality have for the most part developed within one hundred years. Many writers did not fully comprehend this development and tried to extend the old nomenclature of contraband and blockade to cover new conditions possessing characteristics which did not admit such classification. It would be a difficult problem so to extend the proper doctrine of contraband as to cover