Many private vessels may easily be adapted for use in war. It would hardly seem reasonable to allow such a vessel to return to a home port where it might be seized or turned over for war use. Such a vessel belonging to one belligerent and being within the jurisdiction of the other is liable to such reasonable treatment as the belligerent having authority over the vessel may determine, provided it is not contrary to the principles of international law. Certainly such a vessel should not be allowed to depart to strengthen the war resources of the enemy. It would be reasonable to detain such a vessel if its innocent use could not be guaranteed.

As it is not the purpose to interfere with commerce but merely to guard against the increase of the war resources of the enemy, it would be sufficient to bring about an agreement which would guarantee the belligerent in whose ports the vessel may be against any war use of the vessel if it should be allowed to depart. A guaranty of this kind would not interfere with commerce and would give to the belligerent desirous of extending liberal treatment to his opponent security against the abuse of his liberality. To bring about fair treatment of merchant vessels of one belligerent by the authorities of the other belligerent and at the same time to prevent the use of such vessels for hostile purposes the following regulations are suggested:

Conclusion.-1. Each state entering upon a war shall announce a date before which enemy vessels bound for or within its ports at the outbreak of war shall under ordinary conditions be allowed to enter, to discharge cargo, to load cargo and to depart, without liability to capture while sailing directly to a permitted destination. If one belligerent state allows a shorter period than the other, the other state may, as a matter of right, reduce its period to correspond therewith.

2. Each belligerent state may make such regulations in regard to sojourn, conduct, cargo, destination, and movements after departure of the innocent enemy vessels as may be deemed necessary to protect its military interests.

65

3. A private vessel suitable for warlike use, belonging to one belligerent and bound for or within ports of the other belligerent at the outbreak of war, is liable to be detained unless the government of the vessel's flag makes a satisfactory agreement that it shall not be put to any warlike use, in which case it may be accorded the same treatment as innocent enemy vessels.

18949-5

TOPIC IV.

What regulations should be made in regard to the supplying of fuel or oil to belligerent vessels in neutral ports?

CONCLUSION.

The supply of fuel or oil within a neutral port to vessels in belligerent service in no case shall exceed what is necessary to make the total amount on board sufficient to reach the nearest unblockaded port of the belligerent vessel's own state or some nearer named destination.

The supply may be subject to such other regulations as the neutral may deem expedient.

DISCUSSION AND NOTES.

Early ideas of neutral obligations.-Grotius, writing in 1625, in his brief reference to neutrality, lays down the principle that

*

*

*

It is the duty of those who have no part in the war to do nothing which may favor the party having an unjust cause, or which may hinder the action of the one waging a just war, and in a case of doubt to treat both belligerents alike, in permitting transit, in furnishing provisions to the troops, in refraining from assisting the besieged. (De Jure Belli ac Pacis, Lib. III, C. XVI, iii, 1.)

Gustavus Adolphus said to George Frederick, Elector of Brandenburg:

What sort of a thing is that-neutrality? I do not understand it. There is no such thing.

This shows only the beginning of the idea of neutrality, which was hardly regarded as a theoretical possibility in the seventeenth century. Gradually the idea became clear. In 1737 Bynkershoek gave the clue to the correct principle when he departed from the idea of impartiality and enunciated the principle of absence of participation by the neutral in the hostilities. He said:

I call those non hostes who are of neither party.

In 1793 the attempt of M. Genêt to fit out privateers in the United States, supposed to be neutral in the war between France and Great Britain, showed the United States the folly of a treaty which might place the state in a doubtful position in time of war.

Neutrality in the sense in which it is now understood is largely a doctrine of the nineteenth century, and many of the ideas now commonly advanced date from about the middle of that century. Ortolan, writing at about this time, says:

In default of treaty stipulations neutral ports and waters are an asylum open to the ships of the belligerent, especially if they appear in limited numbers; they are admitted to procure necessary provisions, and to make repairs which are essential to enable them again to put to sea and resume the operations of war, without any violations of its duties on the part of the neutral state.

Growing recognition of neutral obligations.-The declaration of Paris of 1856 did not clear up such points as are involved in supplying fuel to a belligerent vessel in a neutral port. Gradually circumstances, particularly the introduction of steam vessels, forced neutral states to make regulations in regard to the use of their ports by belligerent vessels. Neutral states had come to recognize that they had the right of control over belligerent vessels in their ports, and if they had the right they were beginning to realize that it carried a corresponding obligation. During the civil war in the United States the foreign nations began to emphasize the rule of twenty-four hour sojourn for belligerent ships in neutral ports. The proclamation of President Grant during the Franco-Prussian war in 1870 speaks of the "respective rights and obligations of the belligerent parties and of the citizens of the United States," and of the possibility "that armed cruisers of the belligerents may be tempted to abuse the hospitality accorded to them in the ports" of the United States. It then prescribes with much detail what may not be done by a belligerent vessel in United States ports. (This proclamation and references to precedents and opinions may be found in International Law Situations, Naval War College, 1904, pp. 63-78.) The decision and award on the

Alabama claims still further defined neutral rights and obligations. After citing decisions, etc., in regard to control of belligerent vessels in neutral ports, it is said in the Discussions of International Law Situations in 1904 that

Thus it is seen that the decision of the courts, proclamations, domestic laws, and regulations alike agree upon the growing tendency to prescribe more and more definitely the exact range of action which may be permitted to a belligerent war vessel in a neutral port. In no case is there a doubt that the neutral state has a right to make regulations upon this subject. The proclamations of neutrality issued in recent wars also show a tendency to become explicit in outlining belligerent rights in neutral ports. This has been particularly the case since the civil war in the United States and the adjustment of the Alabama claims. (P. 71.)

In the first year of the United States civil war the tendency was toward a somewhat liberal policy in regard to the supply of coal. In 1862, however, Lord John Russell limited the amount of coal to be supplied to belligerent vessels in British ports to so much only "as may be sufficient to carry such vessel to the nearest port of her own country, or to some nearer destination." The British proclamations of 1870, 1885, and 1898 were in the same words. That of February 10, 1904, made the last clause to read "or to some nearer named neutral destination."

In the case of the Burton and Pinkerton (Court of Exchequer, June 4, 1867, 2 Law Reports, 340) the headnote states that

To serve on board a vessel used as a storeship in aid of a belligerent, the fitting out of which to be so used is an offense within the 59 Geo. 3, c. 69, is a serving on board a vessel for a warlike purpose in aid of a foreign state within s. 2 of that act.

The United States proclamation of 1870 stated that the authorities were to require belligerent vessels to put to sea "as soon as possible after the expiration of such period of twenty-four hours, without permitting her to take in supplies beyond what may be necessary for her immediate use." The same words were used in the proclamation of February 11, 1904.