International Law

§ 88. The Amicable Settlement of Disputes

It is now generally admitted that in the settlement of international disputes war should be regarded as a last resort. Other means of amicable settlement should be exhausted before any measures of force are tried. Among these amicable means the most common are diplomatic negotiations, the good offices or friendly mediation of a third state, conferences and congresses, and arbitration.[282]

(a) The settlement of disputes by diplomatic negotiation follows the ordinary course of diplomatic business, whether committed to the regular or to special agents. The larger number of disputed questions are settled by diplomatic negotiation.

(b) In the case of disputes which are not easily settled by diplomatic negotiations, a third state, friendly to the disputants, sometimes offers its good offices as mediator to bring about an agreement. The office of the mediating state is not to judge upon the merits of the disputed question, but to devise a practicable means of settlement of the question in view of the circumstances of the dispute. The tender of good offices is a measure involving the least possible interference in the dispute, and cannot be regarded as other than a friendly act. There is no obligation to accept the tender, and either disputant may decline it without offense. One of the disputants may request the tender of good offices or of mediation. The distinction between good offices and mediation is not always made in practice, though it may be said that good offices extend only to the establishing of bases of negotiations and the commencement of the negotiations. The more direct work of carrying on the negotiations is of the nature of mediation. Either party may at the beginning or at any time refuse the mediator's offices.

(c) The settlement of disputes or of questions liable to give rise to disputes by conferences and congresses is common, and implies a meeting of representatives of the interested parties for consideration of the terms of agreement upon which a question may be adjudicated. In general the conclusions of a congress are more formal and are regarded as having more binding force than those of a conference, though this distinction is not always made. States not directly interested may participate in conferences or congresses, and sometimes as mediators play a leading part.

(d) Arbitration involves an agreement between the disputants to submit their differences to some person or persons by whose decision they will abide. Arbitration has been common from early times. It is now becoming common to insert in treaties clauses providing for arbitration in cases of disagreement upon the interpretation of clauses of the treaty, and to resort more and more to this method of settling disputed international questions.

The parties submitting the question to arbitration usually provide for the naming of the arbitrator or arbitrators, and for the rules and principles in accord with which the decision shall be made.

It is generally admitted that a decision is not binding if it is not in accord with the principles to which the disputants had agreed; if it is flagrantly unjust; if it is equivocal and itself open to dispute; or if the decision is obtained by fraud or force.

Of about thirty cases of arbitration during the nineteenth century, the decision in one case was rejected by both parties to the dispute, and in one case rejected by one of the parties. In several other instances one party has refused to submit to arbitration questions readily lending themselves to such settlement, even though requested by the other party.[283]

§ 89. Non-hostile Redress

Good offices, mediation, and arbitration can only extend to international differences of certain kinds. Such measures are not applicable to all cases of disagreement, nor are such measures always acceptable to both parties. Consequently certain other practices have arisen with the view of obtaining satisfaction by measures short of war. Formerly an individual might be commissioned by a letter of marque and reprisal to obtain satisfaction from a state for injuries which he had suffered. This practice is, however, discontinued,[284] and satisfaction must be obtained through the proper state channels. The means by which satisfaction may be claimed vary, and are usually classed as retorsions, reprisals, of which embargo is an important variety, and pacific blockades.

§ 90. Retorsion

Retorsion is a species of retaliation in kind.[285] Retorsion may not consist in acts precisely identical with those which have given offense, though it is held that the acts should be analogous. The offense in consequence of which measures of retorsion are taken may be an act entirely legitimate and desirable from the point of view of the offending state. Another state may, however, consider the act as discourteous, injurious, discriminating, or unduly severe. In recent years commercial retorsion has become a very important means of retaliation which, bearing heavily upon modern communities, may lead to a speedy settlement of difficulties. The tariff wars of recent years show the effectiveness of commercial retorsion, e.g. the measures in consequence of the tariff disagreements between France and Switzerland in 1892. These measures of retorsion should always be within the bounds of municipal and international law.

§ 91. Reprisals

Reprisals are acts of a state performed with a view to obtaining redress for injuries. The injuries leading to reprisals may be either to the state or to a citizen, and the acts of reprisal may fall upon the offending state or upon its citizens either in goods or person. The general range of acts of reprisal may be by (1) the seizure and confiscation of public property or private property, and (2) the restraint of intercourse, political, commercial, or general. In extreme cases, acts of violence upon persons belonging to one state, when in a foreign state, have led to similar acts upon the part of the state whose subjects are injured against the subjects of the foreign state. This practice is looked upon with disfavor, though it might be sanctioned by extremest necessity. Acts of retaliation for the sake of revenge are generally discountenanced.

§ 92. Embargo

Embargo consists in the detention of ships and goods which are within the ports of the state resorting to this means of reprisal. It may be (1) civil or pacific embargo, the detention of its own ships, as by the act of the United States Congress in 1807, to avoid risk on account of the Berlin Decree of Napoleon, 1806, and the British Orders in Council, 1807; or (2) hostile, the detention of the goods and ships of another state. It was formerly the custom to detain within the ports of a given state the ships of the state upon which it desired to make reprisals, and if the relations between the states led to war to confiscate such ships. Hostile embargo may now be said to be looked upon with disfavor, and a contrary policy is generally adopted, by which merchant vessels may be allowed a certain time in which to load and depart even after the outbreak of hostilities. The Naval War Code of the United States provides that "Merchant vessels of the enemy, in ports within the jurisdiction of the United States at the outbreak of war, shall be allowed thirty days after war has begun to load their cargoes and depart."[286] By the proclamation of the President of the United States declaring that war with Spain had existed since April 21, 1898, it was also declared that "Spanish merchant vessels, in any ports or places within the United States, shall be allowed till May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places."[287] Spain, by the royal decree of April 23, 1898, declared "A term of five days from the date of the publication of the present royal decree in the Madrid Gazette is allowed to all United States ships anchored in Spanish ports, during which they are at liberty to depart."[288]

§ 93. Pacific Blockade

Pacific blockade is a form of reprisal or constraint which consists in the blockading by one or more states of certain ports of another state without declaring or making war upon that state. In the conduct of such blockades practice has varied greatly. In general, however, the vessels of states not parties to the blockade are not subject to seizure. Such vessels may be visited by a ship of the blockading squadron in order to obtain proof of identity. Whether vessels under foreign flags are liable to other inconveniences or to any penalties is not defined by practice or opinion of text writers. "The Institute of International Law," in 1887, provided that pacific blockade should be effective against the vessels of the blockaded party only. This position seemed to be one which could be generally accepted. From the nature of pacific blockade as a measure short of war, its consequences should be confined only to the parties concerned. The pacific blockade of Greece in 1886 extended only to vessels flying the Greek flag,[289] but the admirals of the Great Powers in the pacific blockade of Crete in 1897 endeavored to establish the right to control other than Greek vessels if they carried merchandise for the Greek troops or for the interior of the island. As no case arose to test the claim, this question cannot be regarded as settled.

The provisions of the pacific blockade of Crete in 1897 were as follows:—

"The blockade will be general for all ships under the Greek flag.

"Ships of the six powers or neutral may enter into the ports occupied by the powers and land their merchandise, but only if it is not for the Greek troops or the interior of the island. These ships may be visited by the ships of the international fleets.

"The limits of the blockade are comprised between 23° 24' and 26° 30' longitude east of Greenwich, and 35° 48' and 34° 45' north latitude."[290]

The Secretary of State of the United States, in acknowledging the receipt of the notification of the action of the powers, said, "I confine myself to taking note of the communication, not conceding the right to make such a blockade as that referred to in your communication, and reserving the consideration of all international rights and of any question which may in any way affect the commerce or interests of the United States."[291] The weight of authority supports the position of the United States.

The first attempt to establish a blockade without resorting to war was in 1827, when Great Britain, France, and Russia blockaded the coasts of Greece with a view to putting pressure upon the Sultan, its nominal ruler. Since that time there have been pacific blockades varying in nature: blockade of Tagus by France, 1831; New Granada by England, 1836; Mexico by France, 1838; La Plata by France, 1838 to 1840; La Plata by France and England, 1845 to 1848; Greece by England, 1850; Formosa by France, 1884; Greece by Great Britain, Germany, Austria, Italy, and Russia, 1886; Zanzibar by Portugal, 1888; and Crete by Great Britain, Germany, Austria, France, Italy, and Russia, 1897. From these instances it may be deduced (1) that pacific blockade is a legitimate means of constraint short of war, (2) that those states parties to the blockade are bound by its consequences, (3) that as a matter of policy it may be advisable to resort to pacific blockade in order to avoid the more serious resort to war, and (4) that states not parties to the pacific blockade are in no way bound to observe it, though their ships cannot complain because they are required to establish their identity in the ordinary manner.

PART IV

INTERNATIONAL LAW OF WAR

CHAPTER XVI

WAR

§ 94. Definition

Gentilis, one of the earliest writers on the laws of war, defined war in 1588 as "a properly conducted contest of armed public forces."[292] The nature of such contests varied with circumstances, and wars were, accordingly, classified by early writers as public, private, mixed, etc., distinctions that now have little more than historical value.[293] Wars are now sometimes classified as international and civil.

§ 95. Commencement

It is now assumed that peace is the normal relation of states. When these relations become strained it is customary for one or both of the states to indicate this condition by discontinuing some of the means of peaceful intercommunication, or by some act short of war. The withdrawal of a diplomatic representative, an embargo, or any similar action does not mark the commencement of war. War commences with the first act of hostilities, unless a declaration fixes an earlier date, and in case of a declaration subsequent to the first act of hostilities, war dates from the first act. A proclamation of the blockade of Cuban ports preceded the declaration of war between Spain and the United States in 1898.[294] Similarly, hostilities were begun before the declaration of war between China and Japan in 1894.[295] Indeed, few of the wars of the last two centuries have been declared before the outbreak of hostilities, and many have not been declared formally at all. Declaration at the present time is usually but a formal acknowledgment of a well-known fact. In the case of the war in South Africa, early in October, 1899, the government of the Transvaal requested the government of Great Britain to give "an immediate and affirmative answer" not later than 5 P.M. on October 11th to certain questions in the accompanying ultimatum as to settling differences by arbitration, the withdrawal of British troops, etc., stating that if the answer was not satisfactory, it would be regarded as "a formal declaration of war." The government of Great Britain replied that the conditions demanded were such that the government deemed it impossible to discuss them. Hostilities immediately followed.

Civil war naturally is not preceded by a declaration, but exists from the time of the recognition of the belligerency by an outside state, or from the date when the parent state engaged in some act of war against the insurgent party.[296] In the case of the Civil War in the United States, the proclamation of blockade of the Southern ports by President Lincoln was held to be sufficient acknowledgment of a state of war.[297]

§ 96. Declaration

In ancient times wars between states were entered upon with great formality. A herald whose person was inviolate brought the challenge, or formal declaration, which received reply with due formality. At the beginning of the eighteenth century this practice had become unusual, and in the days of Vattel (1714-1767) the theory of the necessity of a formal declaration was set aside. It was, however, maintained that a proclamation or manifesto should be issued for the information of the subjects of the states parties to the war, and for the information of neutrals. The practice is now generally followed, and may be regarded as obligatory.[298] Such action is reasonable in view of the changes which a state of war brings about in the relations of the parties concerned, and of neutrals. The proclamations usually specify the date from which the war begins, and hence have weight in determining the nature of acts prior to the proclamation, as the legal effects of war date from the first act of hostilities if the proclamation does not fix an earlier date. The constitution of a state, written or unwritten, determines in what hands the right to declare war shall rest, e.g. in the United States in Congress.

By act of the United States Congress of April 25, 1898,[299] it was declared:—

"First, That war be, and the same is hereby, declared to exist, and that war has existed since the twenty-first day of April, Anno Domini eighteen hundred and ninety eight, including said day, between the United States of America and the Kingdom of Spain.

"Second, That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry this Act into effect."[300]

§ 97. Object

The object of war may be considered from two points of view, the political and the military. International law cannot determine the limits of just objects for which a state may engage in war. Politically the objects have covered a wide range, though there is a growing tendency to limit the number of objects for which a state may go to war. It is generally held that self-preservation is a proper object, but as each state must decide for itself what threatens its existence and well-being, even this object may be very broadly interpreted. History shows that it has not been difficult from the political point of view to find an object of war when the inclination was present in the state. The nominal are often not the real objects, and the changing conditions during the progress of the war may make the final objects quite different from the initial objects. The simple cost of carrying on hostilities sometimes changes the conditions upon which peace can be made. The classification of causes and objects formerly made have little weight in determining whether a state will enter upon war. The questions of policy and conformity to current standards are the main ones at the present time.

The object of war in the military sense "is a renewed state of peace,"[301] or as stated in the English manual, "to procure the complete submission of the enemy at the earliest possible period with the least possible expenditure of men and money." The "Institute of International Law," Oxford session of 1880, gave as a general principle that the only legitimate end that a state may have in war is to weaken the military strength of the enemy.[302]

§ 98. General Effects

The general and immediate effects of war are:—

(a) To suspend all non-hostile intercourse between the states parties to the war.

(b) To suspend the ordinary non-hostile intercourse between the citizens of the states parties to the war.

(c) To introduce new principles in the intercourse of the states parties to the war with third states. These impose new duties upon neutrals and allies.

(d) To abrogate or suspend certain treaties:—

(1) To abrogate those treaties which can have force only in time of peace, e.g. of amity, commerce, navigation, etc.

(2) To suspend those treaties which are permanent and naturally revive at the end of the war, e.g. of boundaries, public debts, etc.

(3) To bring into operation treaties concerning the conduct of hostilities.

The fuller consideration of the effects of war upon general relations will be found in the succeeding chapters.

CHAPTER XVII

STATUS OF PERSONS IN WAR

§ 99. Persons affected by War

(a) By the strict theory of war "the subjects of enemy states are enemies."[303] The treatment of the subjects of enemy states is not, however, determined by the allegiance alone, but in part by conduct and in part by domicile of the subject.

(b) The subjects of neutral states are affected by their relations to the hostile states as established by their own government, as determined by their conduct, and as determined by their domicile.

(c) By conduct persons are divided into combatants and non-combatants, according as they do or do not participate in the hostilities. The status of such persons may be further modified by domicile or by political allegiance.

§ 100. Combatants

Combatants in the full sense are the regularly authorized military and naval forces of the states. They are liable to the risks and entitled to the immunities of warfare, and if captured become prisoners of war.

(a) The status of combatants is also allowed to two classes which engage in defensive hostilities:—

(1) The officers and crew of a merchant vessel which defends itself by force are liable to capture as prisoners of war.

(2) With regard to levies en masse much difference of opinion exists. Article 10 of the Declaration of Brussels, 1874, was adopted at the Hague Conference in 1899, and may be considered as representing a generally accepted position, namely, "The population of a non-occupied territory, who, on the approach of the enemy, of their own accord take up arms to resist the invading troops, without having had time to organize themselves in conformity with Article 9 [providing for responsible leader, uniform, etc.], shall be considered as belligerents, if they respect the laws and customs of war."[304]

(b) The status of combatants is not allowable for those who, without state authorization, engage in aggressive hostilities.

(1) When in the time of war the officers and crew of a merchant vessel attack another merchant vessel, they are liable to punishment according to the nature of their acts, and the state to which they owe allegiance is only indirectly responsible, nor can they claim its protection.

(2) When bands of men without state authorization and control, such as guerrilla troops or private persons, engage in offensive hostilities, they are liable to the same treatment as above mentioned.

(3) Spies are those who, acting secretly or under false pretenses, collect or seek to collect information in the districts occupied by the enemy, with the intention of communicating it to the opposing force.[305] Such agents are not forbidden, but are liable to such treatment as the laws of the capturing army may prescribe. This may be death by hanging. The office of spy is not necessarily dishonorable.

§ 101. Non-combatants

Non-combatants include those who do not participate in the hostilities. In practice this status is generally conceded to women, children, clergy, scientists, artists, professional men, laborers, etc., who make no resistance, whether subjects of the state or not. These are, of course, liable to the hardships consequent upon war.

(a) When the armed forces of one state obtain authority over territory previously occupied by the other state, the non-combatant population is free from all violence or constraint other than that required by military necessity. They are liable, however, to the burdens imposed by civilized warfare.

(b) Subjects of one of the belligerent states sojourning within the jurisdiction of the other were in early times detained as prisoners. While Grotius (1625) allows this on the ground of weakening the forces of the enemy,[306] and while Ayala had earlier (1597) sanctioned it,[307] Bynkershoek, writing in 1737, mentions it as a right seldom used. The detention of English tourists by Napoleon in 1803 was not in accord with modern usage. During the eighteenth century, the custom was to secure, by treaty stipulation, a fixed time after the outbreak of hostilities during which enemy subjects might withdraw. While similar provisions are inserted in many treaties of the nineteenth century, the practice may be said to be so well established that, in absence of treaty stipulations, a reasonable time would be allowed for withdrawal. A large number of treaties of the nineteenth century have provisions to the effect of Article XXVI. of the treaty between the United States and Great Britain of 1795: "The merchants and others of each of the two nations residing in the dominions of the other shall have the privilege of remaining and continuing their trade, so long as they live peaceably and commit no offense against the laws; and in case their conduct should render them suspected, and their respective Governments should think proper to order them to remove, the term of twelve months from the publication of the order shall be allowed them for that purpose, to remove with their families, effects, and property." This custom of allowing enemy subjects to remain during good behavior has become common, but can hardly be called a rule of international law. Persons thus allowed to remain are generally treated as neutrals, though in the case of Alcinous v. Nigreu[308] it was held that an enemy subject, residing in England without a license, could not maintain an action for breach of contract, though the contract which had been entered into before the war was valid and might be enforced when peace was restored.

CHAPTER XVIII

STATUS OF PROPERTY ON LAND

§ 102. Public Property of the Enemy

Formerly the public property of the enemy, whatever its nature, was regarded as hostile, and liable to seizure. Practice of modern times has gradually become less extreme, and the attitude of the powers in restoring the works of art which Napoleon had brought to Paris shows the sentiment early in the nineteenth century. The practice in regard to public property of the enemy has now become fairly defined.

The public property of one belligerent state within the territory of the other at the outbreak of war, if real property, may be administered during the war for the benefit of the local state; if movable, it is liable to confiscation. Works of art, scientific and educational property, and the like are, however, exempt.[309] The Treaty of Aug. 20, 1890, between Great Britain and France, exempts public vessels employed in the postal service.

In case one belligerent by military occupation acquires authority over territory formerly within the jurisdiction of the other, the rules of the Hague Conference of 1899 provide as follows:—

"Art. 53. An army of occupation can only take possession of the cash, funds, and property liable to requisition belonging strictly to the State, depots of arms, means of transport, stores and supplies, and generally, all movable property of the State which may be used for military operations.

"Railway plant, land telegraphs, telephones, steamers, and other ships, apart from cases governed by maritime law, as well as depots of arms and, generally, all kinds of war material, even though belonging to Companies or to private persons, are likewise material which may serve for military operations, but they must be restored at the conclusion of peace, and indemnities paid for them."

"Art. 55. The occupying state shall only be regarded as administrator and usufructuary of public buildings, real property, forests, and agricultural works belonging to the hostile State, and situated in the occupied country. It must protect the capital of these properties, and administer it according to the rules of trusteeship.

"Art. 56. The property of municipalities, that of religious, charitable, and educational institutions, and those of arts and science, even when State property, shall be treated as private property.

"All seizure, destruction of, or intentional damage done to such institutions, to historical monuments, works of art or science, is prohibited, and should he made the subject of civil and criminal proceedings."[310]

§ 103. Real Property of Enemy Subjects

The real property of the subject of one belligerent situated within the territory of the other belligerent was in early times appropriated by the state, later practice administered it during the war, for the benefit of the state; but at present it is treated as the real property of any non-hostile foreigner.

It is generally conceded that real property of the subjects of either state is unaffected by hostile occupation by the forces of the other state, except so far as the necessities of warfare may require.[311]

§ 104. Personal Property of Enemy Subjects

The movable property of the subject of one of the belligerent states in the territory of the other belligerent state was until comparatively recent times appropriated. In the case of Brown v. United States,[312] in 1814, the Supreme Court held that the "existence of war gave the right to confiscate, yet did not of itself and without more, operate as a confiscation of the property of an enemy," though it further held that the court could not condemn such property unless there was a legislative act authorizing the confiscation. Many modern treaties provide that in case of war between the parties to the treaties subjects of each state may remain in the other, "and shall be respected and maintained in the full and undisturbed enjoyment of their personal liberty and property so long as they conduct themselves peaceably and properly, and commit no offense against the laws."[313] The most recent practice has been to exempt personal property of the subject of one belligerent state from all molestation, even though it was within the territory of the other at the outbreak of war. Of course, such property is liable to the taxes, etc., imposed upon others not enemy subjects.

In case of hostile occupation, the Hague Conference of 1899 summarized the rules as follows:—

"Art. 46. Private property cannot be confiscated.

"Art. 47. Pillage is formally prohibited.

"Art. 48. If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for the benefit of the State, he shall do it, so far as possible, in accordance with the rules in existence and the assessment in force....

"Art. 49. If ... the occupant levies other money taxes in the occupied territory, this can only be for military necessities or the administration of such territory."

Articles 50, 51, 52, provide that burdens due to military occupation shall be as equable as possible, and that payment shall be made for contributions.[314]

The practice now is to exempt private property so far as possible from the consequences of hostile occupation, and to take it only on the ground of reasonable military necessity.[315]

With regard to one particular form of property, modern commercial relations as influenced by state credit have been more powerful than theory or country. The stock in the public debt held by an enemy subject is wholly exempt from seizure or sequestration, and practice even demands that interest must be paid to enemy subjects during the continuance of the war.[316]

In case of belligerent occupation, contributions, requisitions, and other methods are sometimes resorted to in supplying military needs.

Contributions are money exactions in excess of taxes.[317] Contributions should be levied only by the general-in-chief.

Requisitions consist in payment in kind of such articles as are of use for the occupying forces, as food, clothes, horses, boats, compulsory labor, etc. Requisitions may be levied by subordinate commanders when there is immediate need, otherwise by superior officers. Such requisitions should not be in excess of need or of the resources of the region.

Receipts for the value of both contributions and requisitions should be given, in order that subsequent impositions may not be made without due knowledge, and in order that the sufferers may obtain due reparation from their own state on the conclusion of peace.

In naval warfare "reasonable requisitions for provisions and supplies essential at the time"[318] is allowed. Such requisitions may be enforced by bombardment if necessary. Contributions, however, cannot be exacted unless after actual and complete belligerent occupation, as by land forces. Contributions in the form of ransom to escape bombardment cannot be levied, as in such cases occupation is not a fact.[319]

Foraging is resorted to in cases where lack of time makes it inconvenient to obtain supplies by the usual process of requisition, and consists in the actual taking of provisions for men and animals by the troops themselves.

Booty commonly applies to military supplies seized from the enemy. In a more general sense it applies to all property of the enemy which is susceptible of appropriation. Such property passes to the state of the captor, and its disposition should be determined by that state.

CHAPTER XIX

STATUS OF PROPERTY AT SEA

§ 105. Vessels

Vessels may be classed as public, belonging to the state, and private, belonging to citizens of the state.

(a) Public vessels of a belligerent are liable to capture in any port or sea except in territorial waters of a neutral. The following public vessels are, however, exempt from capture unless they perform some hostile act:—

(1) Cartel ships commissioned for the exchange of prisoners.

(2) Vessels engaged exclusively in non-hostile scientific work and in exploration.[320]

(3) Hospital ships, properly designated and engaged exclusively in the care of the sick and wounded.

(b) Private vessels of the enemy are liable to capture in any port or sea except in territorial waters of a neutral. The following private vessels are, however, exempt from capture unless they perform some hostile act:—

(1) Cartel ships.

(2) Vessels engaged in explorations and scientific work.

(3) Hospital ships.

(4) Small coast fishing vessels. This exemption is not allowed to deep sea fishing vessels.[321]

(5) Vessels of one of the belligerents in the ports of the other at the outbreak of hostilities are usually allowed a specified time in which to take cargo and depart. In the war between the United States and Spain, 1898, Spanish vessels were allowed thirty days in which to depart and were to be exempt on homeward voyage. Vessels sailing from Spain for the United States ports before the declaration of war were to be allowed to continue their voyages.[322] Spain allowed vessels of the United States five days in which to depart.[323] It did not prohibit the capture of such ships after departure. No provision was made for vessels sailing from the United States for Spanish ports before the declaration of war.

In the Prize Law of Japan, 1898, the following exemptions of enemy's vessels are made:—

"(1) Boats engaged in coast fisheries.

"(2) Ships engaged exclusively on a voyage of scientific discovery, philanthropy, or religious mission.

"(3) Vessels actually engaged in cartel service, and this even when they actually have prisoners on board.

"(4) Boats belonging to lighthouses."[324]

§ 106. Goods

In general all public goods found upon the seas outside of neutral jurisdiction are liable to capture. Works of art, historical and scientific collections are sometimes held to be exempt, and probably would not be captured.

Private hostile property at sea and not under the flag of a neutral is liable to capture unless such property consist of vessels, etc., exempt under § 105, (b).

Contraband of war under any flag, outside of neutral territory, and destined for the enemy, is liable to capture.

Neutral goods in the act of violating an established blockade may be captured.

Previous to the Treaty of Paris in 1856 great diversity in the treatment of maritime commerce prevailed. This treaty provided that:—

"The neutral flag covers enemy's goods, with the exception of contraband of war," and

"Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag."[325]

Nearly all the important states of the world acceded to these provisions except the United States and Spain, and both of these powers formally proclaimed that they would observe these provisions in the war of 1898.[326]

§ 107. Submarine Telegraphic Cables

The position of submarine telegraphic cables has in recent years become of great importance. Such a cable easily becomes an instrument of value in the carrying on the operations of war. A convention of representatives of the important states of the world met at Paris in 1884, and agreed upon rules for the protection of submarine cables.[327] Article XV. of this convention announces that, "It is understood that the stipulations of this convention shall in no wise affect the liberty of action of belligerents." The principles recognized in war seem to accord with Article 5 of the Naval War Code of the United States, which provides that:—

"The following rules are to be followed with regard to submarine telegraphic cables in time of war irrespective of their ownership:—

"(a) Submarine telegraphic cables between points in the territory of an enemy, or between the territory of the United States and that of an enemy, are subject to such treatment as the necessities of war may require.

"(b) Submarine telegraphic cables between the territory of an enemy and neutral territory may be interrupted within the territorial jurisdiction of the enemy.

"(c) Submarine telegraphic cables between two neutral territories shall be held inviolable and free from interruption."[328]

There is reason to believe that a submarine cable connecting the enemy's country with a neutral country is liable to such censorship as will render it neutral; and if this cannot be secured, it is liable to interruption outside of neutral jurisdiction, otherwise it might become a most dangerous organ of unneutral service.[329]

CHAPTER XX[330]

CONDUCT OF HOSTILITIES