International Law. A Treatise. Volume 2 (of 2) / War and Neutrality. Second Edition

§ 363. Apart from intentional violations of neutrality, a neutral can be made responsible only for such acts favouring or damaging a belligerent as he could by due diligence have prevented, and which by culpable negligence he failed to prevent. It is by no means obligatory for a neutral to prevent such acts under all circumstances and conditions. This is in fact impossible, and it becomes more obviously so the larger a neutral State, and the longer its boundary lines. So long as a neutral exercises due diligence for the purpose of preventing such acts, he is not responsible in case they are nevertheless performed. However, the term due diligence has become controversial through the definition proffered by the United States of America in interpreting the Three Rules of Washington, and through the Geneva Court of Arbitration adopting such interpretation.[720] According to this interpretation the due diligence of a neutral must be in proportion to the risks to which either belligerent may be exposed from failure to fulfil the obligations of neutrality on his part. Had this interpretation been generally accepted, the most oppressive obligations would have become incumbent upon neutrals. But no such general acceptance has taken place. The fact is that due diligence in International Law can have no other meaning than it has in Municipal Law. It means such diligence as can reasonably be expected when all the circumstances and conditions of the case are taken into consideration.

Be that as it may, the Second Peace Conference has taken a step which certainly excludes for the future the continuation of the controversy regarding the interpretation of due diligence, for articles 8 and 25 of Convention XIII., instead of stipulating due diligence on the part of neutrals, stipulate the employment of the means at their disposal.

§ 363a. In order to defend themselves against possible violations of their neutral territory, neutrals may lay automatic contact mines off their coasts. If they do this, they must, according to article 4 of Convention VIII., observe the same rules and take the same precautions as are imposed upon belligerents, and as have been expounded above, § 182a. Moreover they must, according to paragraph 2 of article 4 of Convention VIII., give notice in advance to mariners of the place where automatic contact mines have been laid, and this notice must be communicated at once to the Governments through the diplomatic channels.

Convention VIII. is quite as unsatisfactory in its rules concerning mines laid by neutrals as in its rules concerning mines laid by belligerents, and the danger to neutral shipping created by mines laid by neutrals is very great, all the more as the laying of mines by neutrals is not restricted to their maritime belt. For article 4 of Convention VIII. speaks of the laying of contact mines on the part of neutral Powers off their coasts, without limiting the laying within the three-mile wide maritime belt as was proposed at the Second Peace Conference, and as article 6[721] of the Règlementation internationale de l'Usage des Mines sous-marines et torpilles of the Institute of International Law likewise proposes.

IX RIGHT OF ANGARY

Hall, § 278—Lawrence, § 233—Westlake, II. p. 119—Phillimore, III. § 29—Halleck, I. p. 485—Taylor, § 641—Walker, § 69—Bluntschli, § 795A—Heffter, § 150—Bulmerincq in Holtzendorff, IV. pp. 98-103—Geffcken in Holtzendorff, IV. pp. 771-773—Ullmann, § 192—Bonfils, No. 1440—Despagnet, No. 494—Rivier, II. pp. 327-329—Kleen, II. §§ 165 and 230—Perels, § 40—Hautefeuille, III. pp. 416-426—Holland, War, Nos. 139-140—Land Warfare, §§ 507-510—Albrecht, Requisitionen von neutralem Privateigenthum, insbesondere von Schiffen (1912), pp. 24-66.

§ 364. Under the term jus angariae[722] many writers on International Law place the right, often claimed and practised in former times, of a belligerent deficient in vessels to lay an embargo on and seize neutral merchantmen in his harbours, and to compel them and their crews to transport troops, ammunition, and provisions to certain places on payment of freight in advance.[723] This practice arose in the Middle Ages,[724] and was made much use of by Louis XIV. of France. To save the vessels of their subjects from seizure under the right of angary, States began in the seventeenth century to conclude treaties by which they renounced such right with regard to each other's vessels. Thereby the right came into disuse during the eighteenth century. Many writers[725] assert, nevertheless, that it is not obsolete, and might be exercised even to-day. But I doubt whether the Powers would concede to one another the exercise of such a right. The facts that no case happened in the nineteenth century and that International Law with regard to rights and duties of neutrals has become much more developed during the eighteenth and nineteenth centuries, would seem to justify the opinion that such angary is now probably obsolete,[726] although some writers[727] deny this.

§ 365. In contradistinction to this probably obsolete right to compel neutral ships and their crews to render certain services, the modern right of angary consists in the right of belligerents to make use of, or destroy in case of necessity, for the purpose of offence and defence, neutral property on their own or on enemy territory or on the Open Sea. In case property of subjects of neutral States is vested with enemy character,[728] it is not neutral property in the strict sense of the term neutral, and all rules respecting appropriation, utilisation, and destruction of enemy property obviously apply to it. The object of the right of angary is such property of subjects of neutral States as retains its neutral character from its temporary position on belligerent territory and which therefore is not vested with enemy character. All sorts of neutral property, whether it consists of vessels or other[729] means of transport, or arms, ammunition, provisions, or other personal property, may be the object of the right of angary, provided the articles concerned are serviceable to military ends and wants. The conditions under which the right may be exercised are the same as those under which private enemy property may be utilised or destroyed, but in every case the neutral owner must be fully indemnified.[730]

A remarkable case[731] happened in 1871 during the Franco-German War. The Germans seized some British coal-vessels lying in the river Seine at Duclair, and sank them for the purpose of preventing French gunboats from running up the river. On the intervention of the British Government, Count Bismarck refused to recognise the duty of Germany to indemnify the owners of the vessels sunk, although he agreed to pay indemnities.

However, it may safely be maintained that a duty to pay indemnities for any damage done by exercising the right of angary must nowadays be recognised. Article 53 of the Hague Regulations stipulates the payment of indemnities for the seizure and utilisation of all appliances adapted to the transport of persons or goods which are the private property of inhabitants of occupied enemy territory, and article 52 of the Hague Regulations stipulates payment for requisitions; if, thus, the immunity from confiscation of private property of inhabitants is recognised, all the more must that of private neutral property temporarily on occupied enemy territory be recognised also.

§ 366. A special case of the right of angary has found recognition by article 19 of Convention V. of the Second Peace Conference enacting that railway material coming from the territory of a neutral Power, whether belonging to the neutral State or to companies or private persons, shall not be requisitioned or utilised by a belligerent, except in the case of and to the extent required by absolute necessity, that it shall as soon as possible be sent back to the country of origin, and that compensation shall be paid for its use.[732] But it must be mentioned that article 19 gives a right to a neutral Power, whose railway material has been requisitioned by a belligerent, to retain and make use of, to a corresponding extent, railway material coming from the territory of the belligerent concerned.

§ 367. Whatever the extent of the right of angary may be, it does not derive from the law of neutrality. The correlative duty of a belligerent to indemnify the neutral owner of property appropriated or destroyed by the exercise of the right of angary does indeed derive from the law of neutrality. But the right of angary itself is rather a right deriving from the law of war. As a rule this law gives, under certain circumstances and conditions, the right to a belligerent to seize, make use of, or destroy private property of inhabitants only of occupied enemy territory, but under other circumstances and conditions, and very exceptionally, it likewise gives a belligerent the right to seize, use, or destroy such neutral property as is temporarily on occupied enemy territory.

CHAPTER III BLOCKADE

I CONCEPTION OF BLOCKADE

Grotius, III. c. 1, § 5—Bynkershoek, Quaest. jur. publ. I. c. 2-15—Vattel, III. § 117—Hall, §§ 233, 237-266—Lawrence, §§ 246-252—Westlake, II. pp. 228-239—Maine, pp. 107-109—Manning, pp. 400-412—Phillimore, III. §§ 285-321—Twiss, II. §§ 98-120—Halleck, II. pp. 182-213—Taylor, §§ 674-684—Walker, §§ 76-82—Wharton, III. §§ 359-365—Moore, VII. §§ 1266-1286—Wheaton, §§ 509-523—Bluntschli, §§ 827-840—Heffter, §§ 154-157—Geffcken in Holtzendorff, IV. pp. 738-771—Ullmann, § 182—Bonfils, Nos. 1608-1659—Despagnet, Nos. 620-640—Pradier-Fodéré, VI. Nos. 2676-2679, and VIII. Nos. 3109-3152—Nys, III. pp. 224-244, 693-694—Rivier, II. pp. 288-298—Calvo, V. §§ 2827-2908—Fiore, III. Nos. 1606-1629—Martens, II. § 124—Pillet, pp. 129-144—Kleen, I. §§ 124-139—Ortolan, II. pp. 292-336—Hautefeuille, II. pp. 189-288—Gessner, pp. 145-227—Perels, §§ 48-51—Testa, pp. 221-229—Dupuis, Nos. 159-198, and Guerre, Nos. 113-136—Boeck, Nos. 670-726—Holland, Prize Law, §§ 106-140—U.S. Naval War Code, articles 37-43—Bernsten, § 10—Nippold, II. § 32—Bargrave Deane, The Law of Blockade (1870)—Fauchille, Du blocus maritime (1882)—Carnazza-Amari, Del blocco maritimo (1897)—Frémont, De la saisie des navires en cas de blocus (1899)—Guynot-Boissière, Du blocus maritime (1899)—§§ 35-44 of the "Règlement international des prises maritimes" (Annuaire, IX. 1887, p. 218), adopted by the Institute of International Law—Atherley-Jones, Commerce in War (1906) pp. 92-252—Söderquist, Le Blocus Maritime (1908)—Hansemann, Die Lehre von der einheitlichen Reise im Rechte der Blockade und Kriegskonterbande (1910)—Güldenagel, Verfolgung und Rechtsfolgen des Blockadebruches (1911)—Hirschmann, Das internationale Prisenrecht (1912) §§ 17-23—Kennedy in The Journal of the Society of Comparative Legislation, New Series, IX. (1908), pp. 239-251—Myers in A.J. IV. pp. 571-595—General Report presented to the Naval Conference of London by its Drafting Committee, articles 1-21.

§ 368. Blockade is the blocking by men-of-war[733] of the approach to the enemy coast or a part of it for the purpose of preventing ingress and egress of vessels of all nations. Blockade must not be confounded with siege, although it may take place concurrently with siege. Whereas siege aims at the capture of the besieged place, blockade endeavours merely to intercept all intercourse, and especially commercial intercourse, by sea between the coast and the world at large. Although blockade is, as shown above in §§ 173 and 174, a means of warfare against the enemy, it concerns neutrals as well, because the ingress and egress of neutral vessels are thereby interdicted and may be punished.

Blockade in the modern sense of the term is an institution which could not develop until neutrality was in some form a recognised institution of the Law of Nations, and until the freedom of neutral commerce was in some form guaranteed. The institution of blockade dates from the sixteenth century,[734] but it has taken several hundred years for the institution to reach its present condition, since, until the beginning of the nineteenth century, belligerents frequently made use of so-called paper blockades, which are no longer valid, a blockade now being binding only if effective.

It is on account of the practical importance of blockade for the interests of neutrals that the matter is more conveniently treated with neutrality than with war. And it must be noted that blockade as a means of warfare must not be confounded with so-called pacific blockade, which is a means of compulsive settlement of State differences.

Apart from the stipulation of the Declaration of Paris that a blockade to be binding must be effective, no conventional rules concerning blockade were in existence until the Declaration of London, nor was the practice of the States governed by common rules covering all the points concerned. But articles 1-21 of the Declaration of London now offer a code of the law of blockade and will, should this Declaration be ratified, in time produce a common practice of all maritime States.

§ 369. A blockade is termed strategic if it forms part of other military operations directed against the coast which is blockaded, or if it be declared in order to cut off supply to enemy forces on shore. In contradistinction to blockade strategic, one speaks of a commercial blockade, when a blockade is declared simply in order to cut off the coast from intercourse with the outside world, although no military operations take place on shore. That blockades commercial are, according to the present rules of International Law, as legitimate as blockades strategic, is not generally denied. But several writers[735] maintain that blockades purely commercial ought to be abolished as not in accordance with the guaranteed freedom of neutral commerce during war.

§ 370. A blockade is really in being when vessels of all nations are interdicted and prevented from ingress or egress. Blockade as a means of warfare is admissible only in the form of a universal blockade, that is—as article 5 of the Declaration of London stipulates—it "must be applied impartially to the vessels of all nations." If the blockading belligerent were to allow the ingress or egress of vessels of one nation, no blockade would exist.[736]

On the other hand, provided a blockade is universal, a special licence of ingress or egress may be given to a special vessel and for a particular purpose,[737] and men-of-war of all neutral nations may be allowed to pass to and fro unhindered.[738] Thus, when during the American Civil War the Federal Government blockaded the coast of the Confederate States, neutral men-of-war were not prevented from ingress and egress. But it must be specially observed that a belligerent has a right to prevent neutral men-of-war from passing through the line of blockade, and it is entirely within his discretion whether or not he will admit or exclude them; nor is he compelled to admit them all, even though he has admitted one or more of them.

§ 371. As a rule a blockade is declared for the purpose of preventing ingress as well as egress. But sometimes only ingress or only egress is prevented. In such cases one speaks of "Blockade inwards" and of "Blockade outwards" respectively. Thus the blockade of the mouth of the Danube declared by the Allies in 1854 during the Crimean War was a "blockade inwards," since the only purpose was to prevent supply reaching the Russian Army from the sea.[739]

§ 372. In former times it was sometimes asserted that only ports, or even only fortified[740] ports, could be blockaded, but the practice of the States has always shown that single ports and portions of an enemy coast as well as the whole of the enemy coast may be blockaded. Thus during the American Civil War the whole of the coast of the Confederate States to the extent of about 2500 nautical miles was blockaded. And attention must be drawn to the fact, that such ports of a belligerent as are in the hands of the enemy may be the object of a blockade. Thus during the Franco-German War the French blockaded[741] their own ports of Rouen, Dieppe, and Fécamp, which were occupied by the Germans. Article 1 of the Declaration of London indirectly sanctions the practice of the States by enacting that "a blockade must not extend beyond the ports and coasts belonging to or occupied by the enemy."

§ 373. It is a moot question whether the mouth of a so-called international river may be the object of a blockade, in case the riparian States are not all belligerents. Thus, when in 1854, during the Crimean War, the allied fleets of Great Britain and France blockaded the mouth of the Danube, Bavaria and Württemberg, which remained neutral, protested. When in 1870 the French blockaded the whole of the German coast of the North Sea, they exempted the mouth of the river Ems, because it runs partly through Holland. And when in 1863, during the blockade of the coast of the Confederate States, the Federal cruiser Vanderbilt captured the British vessel Peterhoff[742] destined for Matamaros, on the Mexican shore of the Rio Grande, the American Courts released the vessel on the ground that trade with Mexico, which was neutral, could not be prohibited.

The Declaration of London would seem to settle the controversy only as regards one point. By enacting that "the blockading forces must not bar access to neutral ports or coasts," article 18 certainly prohibits the blockade of the whole mouth of a boundary river between a neutral and a belligerent State, as, for instance, the River Rio Grande in case of war with the United States of America, provided Mexico remained neutral. But no provision is made for the case of the blockade of the mouths of rivers, such as the Danube or the Rhine, for example, which pass through several States between their sources and their mouths at the sea coast, if one or more upper riparian States remain neutral.

§ 374. The question has been raised in what way blockade, which vests a belligerent with a certain jurisdiction over neutral vessels and which has detrimental consequences for neutral trade, could be justified.[743] Several writers, following Hautefeuille,[744] maintain that the establishment of a blockade by a belligerent stationing a number of men-of-war so as to block the approach to the coast includes conquest of that part of the sea, and that such conquest justifies a belligerent in prohibiting ingress and egress of vessels of all nations. In contradistinction to this artificial construction of a conquest of a part of the sea, some writers[745] try to justify blockade by the necessity of war. I think, however, no special justification of blockade is necessary at all. The fact is that the detrimental consequences of blockade to neutrals stand in the same category as the many other detrimental consequences of war to neutrals. Neither the one nor the other need be specially justified. A blockade interferes indeed with the recognised principle of the freedom of the sea, and, further, with the recognised freedom of neutral commerce. But all three have developed together, and when the freedom of the sea in time of peace and war, and, further, when the freedom of neutral commerce became generally recognised, the exceptional restrictions of blockade became at the same time recognised as legitimate.

II ESTABLISHMENT OF BLOCKADE

See the literature quoted above at the commencement of § 368.

§ 375. A declaration of blockade being "a high[746] act of sovereignty" and having far-reaching consequences upon neutral trade, it is generally recognised not to be in the discretion of a commander of a naval force to establish blockade without the authority of his Government. Article 9 of the Declaration of London precisely enacts that "a Declaration of blockade is made by the blockading Power or by the naval authorities acting in its name." The authority of his Government to establish a blockade can be granted to a commander of a naval force purposely for a particular blockade, the Government ordering the commander of a squadron to blockade a certain port or coast. Or a Government can expressly delegate its power to blockade to a commander for use at his discretion. And if operations of war take place at great distance[747] from the seat of Government and a commander finds it necessary to establish a blockade, the latter can become valid through his Government giving its immediate consent after being informed of the act of the commander. And, further, the powers vested in the hands of the supreme commander of a fleet are supposed to include the authority to establish a blockade in case he finds it necessary, provided that his Government acquiesces as soon as it is informed of the establishment of the blockade.[748]

§ 376. A blockade is not in being ipso facto by the outbreak of war. And even the actual blocking of the approach to an enemy coast by belligerent men-of-war need not by itself mean that the ingress and egress of neutral vessels are to be prohibited, since it can take place for the purpose of preventing the egress and ingress of enemy vessels only. Continental writers, therefore, have always considered notification to be essential for the establishment of a blockade. English, American, and Japanese writers, however, have not hitherto held notification to be essential, although they considered knowledge on the part of a neutral vessel of an existing blockade to be necessary for her condemnation for breach of blockade.[749]

But although Continental writers have always held notification to be essential for the establishment of blockade, they differed with regard to the kind of notification that is necessary. Some writers[750] maintained that three different notifications must take place—namely, first, a local notification to the authorities of the blockaded ports or coast; secondly, a diplomatic or general notification to all maritime neutral States by the blockading belligerent; and, thirdly, a special notification to every approaching neutral vessel. Other writers[751] considered only diplomatic and special notification essential. Others again[752] maintained that special notification to every approaching neutral vessel is alone required, although they recommended diplomatic notification as a matter of courtesy.

As regards the practice of States, it has always been usual for the commander who established a blockade to send a notification of the blockade to the authorities of the blockaded ports or coast and the foreign consuls there. It has, further, always been usual for the blockading Government to notify the fact diplomatically to all neutral maritime States. And some States, as France and Italy, have always ordered their blockading men-of-war to board every approaching neutral vessel and notify her of the establishment of the blockade. But Great Britain, the United States of America, and Japan did not formerly consider notification to be essential for the institution of a blockade. They held the simple fact that the approach was blocked, and egress and ingress of neutral vessels actually prevented, to be sufficient to make the existence of a blockade known, and when no diplomatic notification had taken place, they did not seize a vessel for breach of blockade whose master had no actual notice of the existence of the blockade. English,[753] American,[754] and Japanese[755] practice, accordingly, made a distinction between a so-called de facto blockade on the one hand, and, on the other, a notified blockade.

The Declaration of London, when ratified, will create a common practice, for articles 8 to 12 represent an agreement of the Powers on the following points:—

(1) There must be a declaration as well as a notification in order to make a blockade binding (article 8). If there is either no proper declaration or no proper notification, the blockade is not binding.

(2) A declaration of blockade is made either by the blockading Power or by the naval authorities acting in its name. The declaration of blockade must specify (a) the date when the blockade begins; (b) the geographical limits of the coastline under blockade; and (c) the period within which neutral vessels may come out (article 9). If the commencement of the blockade or its geographical limits are given inaccurately in the declaration, or if no mention is made of the period within which neutral vessels may come out, or if this period is given inaccurately, the declaration is void, and a new declaration is necessary in order to make the blockade binding (article 10).

(3) Notification of the declaration of blockade must at once be made. Two notifications are necessary (article 11):—

The first notification must be made by the Government of the blockading fleet to all neutral Governments either through the diplomatic channel, or otherwise, for instance by telegraph. The purpose of this notification is to enable neutral Governments to inform merchantmen sailing under their flag of the establishment of a blockade.

The second notification must be made to the local authorities by the officer commanding the blockading force; these authorities have on their part to notify, as soon as possible, the foreign consuls at the blockaded port or coastline. The purpose of this notification is to enable neutral merchantmen in the blockaded port or ports to receive knowledge of the establishment of the blockade and to prepare themselves to leave the port within the period specified in the declaration of blockade.

(4) The rules as to declaration and notification of blockade apply to cases where the limits of a blockade have been extended, or where a blockade is re-established after having been raised (article 12).