Asylum to Naval

Distress.

Exterritoriality of Menof-War during Asylum.

belligerent men-of-war to the ports of the Bahama Islands, the case of stress of weather excepted.

That, although a neutral is not prevented from granting asylum to belligerent men-of-war, they can be allowed to remain for a short time only in neutral ports will be remembered. For it was stated above in § 333 (6) that his duty of impartiality must prevent a neutral from allowing belligerent men-of-war to be stationed in neutral ports.

§ 344. To the rule that a neutral need not admit men-of-war of the belligerents to neutral ports there is no exception in strict law. However, there is an international usage that belligerent men-of-war in distress should never be prevented from making for the nearest port. In accordance with this usage vessels in distress have always been allowed entry even to such neutral ports as were totally closed to belligerent men-of-war. There are even instances known of belligerent men-of-war in distress having asked for and been granted asylum by the enemy in an enemy port.

§ 345. The exterritoriality, which according to a universally recognised rule of International Law menof-war must enjoy in foreign ports, obtains even in time of war during their stay in neutral ports. Therefore, prisoners of war on board do not become free by coming into the neutral territory 3 as long as they are not on shore, nor do prizes brought into neutral ports by belligerents. On the other hand, belligerent men-of-war are expected to comply with all orders which the neutral makes for the purpose of preventing them from making his ports the base of their operations of war, as, for instance, with the order 2 See above, vol. I. § 450.

See above, § 189.

3 See above, § 337.

not to leave the ports at the same time as vessels of the other belligerent. And if they do not comply voluntarily, they can be made to do it through application of force, for a neutral has the duty to prevent by all means at hand the abuse of the asylum granted.

In case see below, § 347 (3 and 4)-a vessel is granted an asylum for the whole time of the war, and is, therefore, dismantled, she loses the character of a man-of-war, no longer enjoys the privilege of exterritoriality—see above, vol. I. § 450-due to menof-war in foreign waters, and prisoners on board become free, although they must be detained by the neutral concerned.

to Men

Asylum.

§ 346. A belligerent man-of-war, to which asylum Facilities is granted in a neutral port, is not only not disarmed of-War and detained, but facilities may even be rendered to during her as regards slight repairs, and the supply of provisions and coal. However, a neutral may only allow small repairs of the vessel herself and not of her armaments; for he would render assistance to one of the belligerents, to the detriment of the other, if he were to allow the damaged armaments of a belligerent man-of-war to be repaired in a neutral port. And, further, a neutral may only allow such an amount of provisions and coal to a belligerent man-of-war in neutral ports as is necessary for her safe navigation to the nearest port of her home. State; for, if he did otherwise, he would allow the belligerent to use the neutral ports as a base for operations of war. And, lastly, a neutral may allow a belligerent man-of-war in neutral ports to enrol only so small a number of sailors as is necessary to navigate her safely to the nearest port of her home State.3

2

1 See above, § 333 (5), and below, § 347 (3).

2 See above, § 333 (4).

a See above, §§ 330 and 333 (3).

Abuse of

Aslyum to

be prohibited.

§ 347. It would be easy for belligerent men-ofwar to which asylum is granted in neutral ports to abuse it if the neutrals were not required to prohibit such abuse.

(1) A belligerent man-of-war may first abuse asylum by ascertaining whether and what kind of enemy vessels are in the same neutral port, accompanying them when they leave, and attacking them immediately they reach the Open Sea. To prevent such abuse, several neutral States in the eighteenth century made an arrangement that, if belligerent men-of-war or privateers met with enemy vessels in the same neutral port, they were not to be allowed to leave together, but an interval of twenty-four hours must elapse between the sailing of the vessels. During the nineteenth century the socalled twenty-four hours' rule has been enforced by the majority of States. As International Law stands at present, and as the duty of impartiality incumbent upon neutrals is now looked upon, a neutral would certainly be considered to have violated this duty if he regularly allowed the simultaneous sailing of belligerent men-of-war and enemy vessels from his ports, with the consequence that the latter are captured by the former as soon as they reach the Open Sea. On the other hand, however, it cannot be asserted that the twenty-four hours' rule is a rule of International Law, and that every neutral has to enforce it. For nothing prevents a neutral from making other arrangements for the purpose of avoiding an abuse of asylum on the part of belligerent men-of-war; for instance, making the commanders promise not to attack any enemy vessels starting simultaneously with themselves.1

1 See above, § 333 (2), and Hall, § 231, p. 651.

(2) Asylum may, secondly, be abused for the purpose of waiting for other vessels of the same fleet, of wintering in a port, and the like. It seems to be beyond doubt that neutrals must prohibit this abuse by ordering such belligerent men-of-war to leave the neutral ports. Several maritime States, following the example started by Great Britain in 1862,1 adopted the rule not to allow a belligerent man-of-war to stay in their neutral ports for longer than twenty-four hours,2 except in the case of stress of weather and the like. Other States, such as France, do not object to a more prolonged stay of belligerent men-of-war in their ports, but they ought certainly not to allow them to abuse the asylum.

(3) Asylum may, thirdly, be abused for the purpose of repairing a belligerent man-of-war which has become unseaworthy. Although-as was stated above in § 346-small repairs are allowed, a neutral would violate his duty of impartiality by allowing repairs making good the unseaworthiness of belligerent man-of-war. During the Russo-Japanese War this was generally recognised, and the Russian men-of-war "Askold" and "Grossovoi" in Shanghai, the "Diana" in Saigon, and the "Lena" in San Francisco had therefore to be disarmed and detained. The crews of these vessels had likewise to be detained for the time of the war.

(4) Asylum may, lastly, be abused for the purpose of escaping from attack and capture. Neutral territorial waters are in fact an asylum for men-ofwar which are pursued by the enemy, but, since nowadays a right of pursuit into neutral waters, as asserted by Bynkershoek,3 is no longer recognised,

1 See Hall, § 231, p. 653. 2 See above, § 333 (6).

3 Quaest. jur. publ. I. c. 8. See also above, § 288, p. 306.

66

it would be an abuse of asylum if the escaped vessel could make a prolonged stay in the neutral waters. A neutral who would allow such abuse of asylum would violate his duty of impartiality, for he would assist one of the belligerents to the disadvantage of the other. Therefore, when after the battle off Port Arthur in August 1904 the Russian battleship Cesarewitch," the cruiser Novik," and three destroyers escaped, and took refuge in the German port of Tsing-Tau in Kiao-Chau, the "Novik," which was uninjured, had to leave the port after a few hours, whereas the other vessels, which were too damaged to leave the port, were disarmed and, together with their crews, detained till the conclusion of peace. And when, at the end of May 1905, after the battle of Tsu Shima, three injured Russian men-of-war, the "Aurora," "Oleg," and "Jemchug," escaped into the harbour of Manila, the United States of America ordered them to be disarmed and, together with their crews, to be detained during the

war.

1 It was only during the RussoJapanese War in 1904 that this was generally recognised. Up to that event it was still a controverted question whether a neutral is obliged either to dismiss or to disarm and detain such men-ofwar as had fled into his ports for the purpose of escaping attack and capture. See Hall, § 231, p. 651, and Perels, § 39, p. 213, in contradistinction to Fiore, III. No. 1578. The "Règlement sur le régime légal des navires et de leurs équipages dans les ports étrangers," adopted by the Institute of International Law in 1898 at its meeting at the Hague-see Annuaire, XVII. (1898), p. 273answers (article 42) the question in the affirmative.

2 This case marks the difference between the duties of neutrals as regards asylum to land and naval forces. Whereas land forces crossing neutral frontiers must either be at once repulsed or retained, men-of-war can be granted the right to stay for some limited time within neutral harbours and to leave afterwards unhindered; see above, § 342. The supply of a small quantity of coal to the "Novik” in Tsing-Tau was criticised by writers in the Press, but unjustly. For see above, § 346-a neutral can allow a belligerent man-of-war in his port to take in so much coal as is necessary to navigate her to her nearest home port.