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suffers no further penalty than loss of time, freight, and expenses. In the case of transport of dispatches or belligerent persons the dispatches are of course seized, the persons become prisoners of war, and the ship is confiscated. The different treatment of the ship in the two cases corresponds to the different character of the acts of its owner. For simple carriage of contraband the carrier lies under no presumption of enmity towards the belligerent, and his loss of freight, etc., is a sensible deterrent from the forbidden traffic; when he enters the service of the enemy seizure of the transported objects is not likely to affect his earnings, while at the same time he has so acted as fully to justify the employment towards him of greater severity. (Hall, International Law, 5th ed., p. 678.)
Halleck (International Law, 3d ed., Baker, Vol. II, Ch. XXV) says of a place blockaded in distinction from a place besieged:
But there is an important distinction, with respect to neutral commerce, between a maritime blockade and military siege. The object of a blockade is solely to distress the enemy, intercepting his commerce with neutral states. It does not, generally, look to the surrender or reduction of the blockaded port, nor does it necessarily imply the commission of hostilities against the inhabitants of the place. The object of a military siege is, on the other hand, to reduce the place, by capitulation or otherwise, into the possession of the besiegers. It is by the direct application of force that this object is sought to be attained, and it is only by forcible resistance that it can be defeated. Hence every besieged place is for the time a military post, for even when it is not defended by the military garrison its inhabitants are converted into soldiers by the necessity of self-defense. This distinction is not merely nominal, but, as will be shown hereafter, leads to important consequences in determining the rights of neutral commerce and in deciding questions of capture.
It might be inferred by parity of reasoning that when a port is under a military siege neutral commerce might still be lawfully carried on by sea, through channels of communication which could not be obstructed by the forces of the besieging army. But such inference would not be strictly correct, for the difference between a blockade and a siege, in their character and object, have led to a difference in the rules applicable in the two cases to neutral commerce. Although the legal effects of a siege on land that is purely a military investment of a naval or commercial port may not be an entire prohibition of neutral commerce, yet it does not leave the ordinary communications by sea open and unrestricted, as a purely maritime blockade leaves the interior communications by land. The primary object of a blockade is, as we have already said, to prohibit commerce; but the primary object of a siege is the reduction of the place. All
SUBMARINE AND WIRELESS TELEGRAPH.
writers on international law impose upon neutrals the duty of not interfering with this object. To supply the inhabitants of a place besieged with anything required for immediate use, such as provisions and clothing, might be giving them aid to prolong their resistance. It is, therefore, a clear departure from neutral duty to furnish supplies, even of possible utility, to a port in a state of siege, although communication by sea may be open. It would be a direct interference in the war, tending to the relief of one belligerent and to the prejudice of the other; and such supplies are justly deemed contraband of war, to the same extent as if destined to the immediate use of the army or navy of the enemy. Hence, although the prohibition of neutral commerce with a port besieged be not entire, yet it will extend to all supplies of even possible utility in prolonging the siege.
From the discussion thus far it is evident that the forms of unneutral service which have been hitherto most common are
1. Carriage of enemy dispatches r correspondence.
In recent wars, auxiliary coal, repair, supply, cable ships and the like have become of great value. Neutrals may easily engage in such service, and it would be very difficult to extend the doctrine of contraband or of blockade so as to cover their action.
While it might be possible to extend the doctrine of contraband to cover the carriage of certain enemy persons and dispatches, it would be very difficult to extend it so as to cover the service which might be rendered to the enemy by a submarine cable or by the wireless telegraph. Of the use of the submarine cable Capt. C. H. Stockton, U.S. Navy, says:
Besides the contraband character of the material of a telegraph cable, in use or en route, as an essential element of belligerent communication which renders it liable to seizure anywhere out of neutral territory, there is another phase of this question, and that is in regard to the nature of the service afforded by such a communication by a neutral proprietor to a belligerent.
This service is in the nature of both an evasion of a blockade and, what has been termed of late years, of unneutral service. It does not matter in this phase whether the cable be privately or state owned, so far as the technical offense is concerned, though the gravity and consequences are naturally much more rerious in the latter case. Let us take, as an instance, the case of a blocked or besieged port, as Habana or Santiago were during the late hostilities. The communication of information or of dispatches, or of means of assistance which can be made by such means, is an unneutral service, and would resemble also the violation of blockade by a neutral vessel carrying dispatches, the capture of which on the high seas outside of territorial jurisdiction would be a justifiable and indisputable act of war.
Extend this to a country or port not blockaded or besieged, and you would yet find the cable owned, let us presume, by a neutral, the means of performing the most unneutral kind of service, of a nature which, done by a ship, would most properly cause its seizure, condemnation, or destruction by the offended belligerent. (Proceedings U. S. Naval Institute, Vol. XXIV, 3, p. 453.)
Pilotage by a neutral of an enemy vessel, the repetition of signals for the benefit of the enemy by any means, “to supply the inhabitants of a place besieged with anything required for immediate use” (Halleck, International Law; Baker, Vol. II, Chap. XXV), and many other acts, the number of which will continually increase with the development of means of communication, and transmission must be provided against by something beyond the laws of contraband and of blockade.
British Manual.--Chapter VII of the British Manual of Naval Prize Law is upon “Neutral vessels, acting in the service of the enemy." Holland makes the note on this title of the chapter that
Vessels engaged in the carriage for the enemy of military persons or dispatches have sometimes been described as engaged in the carriage of “Contraband.” See the note to Friendship, 6 Rob., 420. It is conceived that this use of the term is misleading.
The regulations of this chapter are as follows:
ACTING AS A TRANSPORT.
88. A Commander should detain any Neutral Vessel which is being actually used as a transport for the carriage of soldiers or sailors by the Enemy.
89. The Vessel should be detained, although she may have on board only a small number of Enemy Officers, or even of Civil Officials sent out on the public service of the Enemy, and at the public expense.
90. The carriage of Ambassadors from the Enemy to a Neutral State, or from a Neutral State to the Enemy, is not forbidden to a Neutral Vessel for the detention of which such carriage is therefore no cause.
EXCUSES TO BE DISREGARDED.
91. It will be no excuse for carrying Enemy Military Persons that the Master is ignorant of their character.
92. It will be no excuse that he was compelled to carry such Persons by Duress of the Enemy.
LIABILITY OF VESSEL, WHEN IT BEGINS, WHEN IT ENDS.
93. A Vessel which carrys Enemy Military Persons becomes liable to detention from the moment of quitting Port with the Persons on board and continues to be so liable until she has deposited them. After depositing them the Vessel ceases to be liable.
PERSONS NOT TO BE REMOVED.
94. The Commander will not be justified in taking out of a Vessel any Enemy Persons he may have found on board and then allowing the Vessel to proceed; his duty is to detain the Vessel and send her in for Adjudication, together with the Persons on board.
95. The penalty for carrying Enemy Military Persons is the confiscation of the Vessel and of such part of the Cargo as belongs to her Owner.
Conclusion.-Such acts, as mentioned in the British Manual, and many others, are in the nature of unneutral service. Under some title—and “unneutral service" seems better than any thus far proposed—these acts must be recognized as in a distinct category. Their nature is hostile, because such service should primarily be performed by belligerent agents and agencies. The neutral agent in undertaking the act identifies himself with the belligerent to an extent which makes him liable to the treatment accorded to the belligerent. He is therefore liable to capture as an enemy, and his goods are liable to the treatment accorded to the enemy under similar conditions. The agent may be made a prisoner of war, and the agency may be seized, confiscated, or, in certain instances, so treated as to render it incapable of further rendering unneutral service.
The clear recognition of this category of unneutral service which is gradually manifest will in a measure remove the confusion resulting from certain forced interpretations of principles of international law. Such principles, as those of contraband and blockade, were formulated at a period when modern ideas of neutrality were unknown and when such ideas, if advocated, would perhaps have been regarded as entirely visionary. Acts which differ in nature, in intent, and in penalty, as do acts involving contraband or blockade from those involving unneutral service, should no longer be confused. The category of “unneutral 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.