(4) A neutral must prevent belligerent men-ofwar admitted to his ports or maritime belt from taking in more provisions and coal than are necessary to bring them safely to the nearest port of their home State, for otherwise he would enable them to cruise on the Open Sea near his maritime belt for the purpose of attacking enemy vessels. And it must be specially observed that it matters not whether the man-of-war concerned intends to buy provisions and coal on land or to take them in from transport vessels which accompany or meet her in neutral waters. (5) A neutral must prevent belligerent men-ofwar admitted into his ports or maritime belt from replenishing with ammunition and armaments, and from adding to their armaments, as otherwise he would indirectly assist them in preparing for hostilities. And it matters not whether the ammunition and armaments are to come from the shore or are to be taken in from transport vessels. (6) A neutral must prevent belligerent men-ofwar admitted into his ports from remaining there longer than is necessary for ordinary and legitimate purposes.1 It cannot be said that the rule adopted in 1862 by Great Britain, and followed by some other maritime States, not to allow a longer stay than twenty-four hours, is a rule of International Law. It is left to the consideration of neutrals to adopt any rule they think fit as long as the admitted men-of-war do not prolong their stay for any other than ordinary and legitimate purposes. But a neutral would certainly violate his duty of impartiality if he were to allow belligerent men-of-war to winter in his ports or to stay there for the 1 See below, § 343. Building and Fitting-out of Vessels for Naval intended Opera. tions. purpose of waiting for other vessels of the fleet or transports. This rule became of considerable importance during the Russo-Japanese War, when the Russian Baltic Fleet was on the way to the Far East. Admiral Rozhdestventsky is said to have stayed in the French territorial waters of Madagascar from December 1904 till March 1905, for the purpose of awaiting and joining there a part of the Baltic Fleet that had set out at a later date. The Press likewise reported a prolonged stay by parts of the Baltic Fleet during April 1905 at Kamranh Bay and Hon-kohe Bay in French Indo-China. Provided the reported facts be true, France would seem to have violated her duty of impartiality by not preventing such an abuse of her neutral ports. § 334. Whereas a neutral is in no1 wise obliged by his duty of impartiality to prevent his subjects from selling armed vessels to the belligerents, such armed vessels being merely contraband of war, it is now getting more and more generally recognised that his duty of impartiality requires him to prevent his subjects from building, fitting out, and arming to order of either belligerent vessels intended to be used as men-of-war or privateers. The difference between selling armed vessels to belligerents on the one hand, and building them to order on the other hand, is usually defined in the following way: An armed ship, being contraband of war, is in no wise different from other kinds of contraband, provided she is not manned in a neutral port so that she can commit hostilities at once after having reached the Open Sea. A subject of a neutral who builds an armed ship, or arms a merchantman not 1 See below, §§ 350 and 397. to order of a belligerent, but intending to sell her to a belligerent, does not differ from a manufacturer of arms intending to sell them to a belligerent. There is nothing to prevent a neutral from allowing his subjects to sell armed vessels, and to deliver them to belligerents, either in a neutral port or in a port of the belligerent. In the case of the "La Santissima Trinidad" (1822), as in that of the "Meteor " 2 (1866), American courts have recognised this.3 1 On the other hand, if a subject of a neutral builds armed ships to order of a belligerent, he prepares the means of naval operations, since the ships on sailing outside the territorial waters of the neutral and taking in a crew and ammunition can at once commit hostilities. Thus, through carrying out the order of the belligerent, the neutral territory concerned has been made the base of naval operations. And as the duty of impartiality includes the obligation of the neutral to prevent either belligerent from making neutral territory the base of military or naval operations, a neutral violates his neutrality by not preventing his subjects from carrying out an order of a belligerent for the building and fitting out of men-of-war. 4 This distinction, although perhaps logically correct, is hair-splitting. It only shows the necessity that neutral States ought to be required to prevent their subjects from supplying arms, ammunition, and the like, to belligerents. But so long as this progress is not made, the above distinction will probably continue to be drawn, in spite of its hair-splitting character. 17 Wheaton, § 340. 3 See Phillimore, III. § 15IB, 2 See Wharton, III. § 396, p. and Hall, § 224. 561. The "Alabama' the Three Rules of ton. § 335. The movement for recognition of the fact that the duty of impartiality requires a neutral to Case, and prevent his subjects from building and fitting out to order of belligerents vessels intended for naval operations, began with the famous case of the “Alabama." It is not necessary to go into all the details of this case. It suffices to say that in 1862, during the American Civil War, the attention of the British Government was drawn by the Government of the United States to the fact that a vessel was built in England to order of the insurgents for warlike purposes. This vessel, afterwards called the " Alabama," left Liverpool in July 1862 unarmed, but was met at the Azores by three other vessels, also coming from England, which supplied her with guns and ammunition, so that she could at once begin to prey upon the merchantmen of the United States. On the conclusion of the Civil War, the United States claimed damages from Great Britain for the losses sustained by her merchant marine through the operations of the "Alabama" and other vessels likewise built in England. Negotiations went on for several years, and finally the parties entered, on May 8, 1871, into the Treaty of Washington 2 for the purpose of having their difference settled by arbitration, five arbitrators to be nominated-one to be chosen by Great Britain, the United States, Brazil, Italy, and Switzerland. The treaty contained three rules, since then known as "The Three Rules of Washington," to be binding upon the arbitrators, namely: 1 See Mountague Bernard, Neutrality of Great Britain during the American Civil War (1870) pp. 338-496; Geffcken, Die Alabama Frage (1872); Pradier Fodéré, La Question de l'Alabama шо? "A neutral Government is bound "First. To use due diligence to prevent the fitting out, arming, or equipping within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or carry on war against a Power with which it is at peace, and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted in whole or in part, within such jurisdiction, to warlike use. "Secondly. Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men. "Thirdly. To exercise due diligence in its waters, and as to all persons within its jurisdiction, to prevent any violations of the foregoing obligations and duties." In consenting that these rules should be binding upon the arbitrators, Great Britain declared expressly that in spite of her consent she maintained that these rules were not recognised rules of International Law at the time when the case of the "Alabama" occurred, and the treaty contains also the stipulation that the parties 66 Agree to observe these rules as between themselves in future, and to bring them to the knowledge of other Maritime Powers, and to invite them to accede to them." The appointed arbitrators met at Geneva in 1871, held thirty-two conferences there, and gave decision 'The award is printed in its full extent in Phillimore, III. § 151, and Wharton, III. § 420A. |