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"LAWLESS" may mean without law; it also may mean violative of law. Maritime warfare as conducted by the belligerents during the World War illustrated both definitions. If anything was clear at the end of the war, it was the necessity of arriving at some agreement upon international law of the sea before the next war should break out. Yet twenty years went by, and no agreement was reached (or even attempted) upon most of the controversial questions which had arisen between the neutrals and the belligerents.[i] The same questions are now recurring in the present war. And it is proof of the sheer stupidity of the alleged statesmen of the world that no one can today say what is accepted law of the sea.
Prior to the World War, attempts had been made in the Hague Conventions of 1907 and in the Declaration of London of 1909 to reach some agreement on modernized rules to govern such warfare. When war came, however, none of the belligerents considered themselves bound by these rules. A new system of warfare was devised by them, based primarily on the policy of starving civilian populations by declaring every article to be contraband, by regulating neutral exports as well as imports (tantamount to a practical blockade of neutral ports), as well as by destroying neutral property and lives on the high seas. All the belligerents engaged in practices previously unrecognized by international law, under a doctrine which was the negation of all law -- the doctrine of retaliation. Violation of law by one belligerent was deemed to justify further violation by its opponents, and this in turn gave rise to still further violation -- utterly regardless of the serious injury to neutrals and infringement of their rights. When neutrals challenged such unlawful action the belligerents paid no attention, except to contend that self-defense justified all violations of rights.
This, as has been said, was simply "the law of the jungle." It is the law which the belligerents in the present war are again applying. Each, so far as concerns neutrals on the sea, is now taking any action which it considers its own interest demands -- the only difference between the parties at war being that Great Britain and France have not yet destroyed neutral lives in pursuit of their illegal war measures, while Germany today, as in the World War, acts without regard to neutral lives if her interests so seem to demand.
In such circumstances it is difficult to understand why no better attempt was made during the interval of comparative peace between 1919 and 1939 to restore to the world some accepted international law of maritime warfare by holding some general Conference and adopting some general Convention better defining neutral and belligerent rights and establishing methods of enforcement. Certainly, the United States had a peculiar interest in securing such a Convention; for by an exchange of notes on May 19, 1927, between Secretary of State Kellogg and the British Foreign Office, we had foolishly, though deliberately, waived and abandoned our right to determine through international arbitration the validity of our claims against Great Britain for violations of law from 1914 to 1917. Moreover, the institution of the League of Nations did not abolish war, or neutrality (despite President Wilson's thought to the contrary); and even had the League existed in effective operation, wars were still possible in which there might be belligerents and neutrals. Hence there was still need for the establishment of definite international rules of maritime warfare.
The foolish neglect by the United States and other nations to seek to arrive at some such Convention during the past twenty years is certainly an illustration of the lack of common sense as well as of vision in the men in control.[ii] It is the more deplorable since it may be admitted that old rules of international law may well have needed modification by international agreement (though not by the independent action of individual nations), and that in many ways they should have been newly adapted to meet altered conditions arising from the development of the radio, the aeroplane, and the submarine, and from the new relations between governments and private property growing out of the creation of socialized and regimented peoples. But while the law should, in general, go forward, it may be wise in some instances for it to go backward. Who can doubt that, before lasting peace can be restored or before friendly feelings can be maintained, nations must abandon the right to indulge in the barbarities of the twentieth century, such as starving and bombing civilians on land and bombing innocent passengers and crews on the sea, and must return to the more civilized methods of the eighteenth and nineteenth centuries? Then, at least, food was not contraband, except when destined for the military forces; blockades could be enforced only against enemy ports and not against neutral trade in general; and nations did not launch their attacks against noncombatants. Today's inhuman methods of warfare will leave memories which will last indelibly after a peace, intensify desires for revenge, and so promote future wars.
It may well be that if "command of the sea" is to continue to mean starvation of civilian populations, and if "command of the air" is to mean bombing of civilians on land and sea, there can be no lasting peace. In those circumstances the world cannot hope to be better off until such command of the sea or of the air shall have been shared among several nations, and not permitted to one alone. It may well be, also, that the whole basis of neutral and belligerent rights and duties needs reconsideration. If nations are to continue to launch invasions, institute blockades, and carry on actual warfare without admitting or proclaiming either war or a state of war; or if a nation may be an ally of one belligerent and at the same time a neutral as to the other belligerents; or if a nation may proclaim itself "a non-belligerent but not a neutral" -- then the terms "belligerent" and "neutral" have, in fact, lost all meaning and all relation to actualities, and an attempt to apply to them old doctrines of the law of neutrality becomes senseless.
A summary of some of the controversial questions which arose in the World War and which still remain unsettled will clearly illustrate the necessity for an international conference, when the present war ends, to reform at least the law of maritime warfare. The previous mistake must not be repeated. Looking forward to such a discussion, we should understand that to none of the following questions could any answer at present be given which would be recognized or accepted as international law by all those now engaged in hostilities in the world. Whether or not in the future the law should be settled in accordance with the views of the United States and other neutrals, it should at least be settled.
1. What is the right of a belligerent to sow mines and to constitute "war zones" or "danger areas" on the high seas? The use of submarine mines in the Russo-Japanese War of 1904-05 attracted the attention of the world to the danger of such methods of warfare and aroused complaints from neutrals. Restriction of mines became the subject of a long but inconclusive discussion at the Hague Conference of 1907, resulting in a Convention (No. VIII) containing a timid and inadequate compromise, which forbade unanchored mines unless they became harmless one hour after getting out of control, and which forbade anchored mines off the coast and ports of an enemy "with the sole object of intercepting commercial shipping," but which neither authorized nor forbade expressly the planting of mines on the high seas. This Convention was not in force in the World War, and neutrals were entitled to all the protection of their commerce which they possessed under the law as formerly prevailing.
It is exceedingly desirable that we should now recognize that if the United States and other neutral nations had, at the very outset, joined in vigorous and effective protest against the initial steps in the illegal use of mines by all belligerents in the World War, and if they had followed up such protest by some effective action, it is highly probable that the subsequent extraordinary extension of illegal mine warfare might have been avoided. The actual development of the situation, therefore, deserves more consideration here than has ordinarily been given to it; for Americans in the World War turned so much of their attention to the submarines that they lost sight of the mines. These have now proved the more dangerous of the two weapons.
The steps in the progress of mining operations in 1914 and 1915 were as follows. On August 7, 1914, Germany notified all neutral nations that ports "which may serve as bases for the hostile forces" were to be blockaded with mines. On August 11, the British Embassy notified the State Department that "the Germans are scattering contact mines indiscriminately about the North Sea in the open sea" and that the British Admiralty "must hold themselves fully at liberty to adopt similar measures in self defence." Secretary of State Bryan replied, August 13, that if the mines referred to were floating mines, they were in violation of the Hague Convention, and he expressed "the earnest and confident" hope that Great Britain would not adopt as a defensive measure a similar course violative of the Convention. Very regrettably, no actual protest was at that time sent to either country by the United States. On September 10, the German Ambassador Bernstorff notified us that assertions from England that the North Sea was infested with German mines were incorrect. On October 2, Great Britain notified us that it had found it necessary "on military grounds . . . to adopt countermeasures" and had authorized a mine-laying policy in a certain "danger-area" which it would be dangerous for ships to cross; and on November 3, it gave notice that "the whole of the North Sea must be considered a military area," thus closing a stretch of open sea about 500 miles in length. This action, for which no justification existed in international law (except on the doubtful ground of reprisal or retaliation), and which was followed by similar action by the other belligerents, aroused strong opposition in The Netherlands and in the Scandinavian countries. Norway filed a protest with Great Britain and expressed to the United States a hope for its support. It was highly unfortunate that Secretary of State Bryan replied, November 10, that "this Government does not see its way at the present time to joining other Governments in protesting to the British Government."
On November 7, 1914, Germany replied to the British charges and contended that there was no established practice in international law as to the distance at which mines could be laid off the coast. It stated that its mines had been laid with all possible precautions and that when on August 7 it had duly notified all neutral Powers that the trade routes to English ports would be closed by mines it was relieved of all further responsibility. On February 4, 1915, Germany, in retaliation for the British North Sea Order, declared "all the waters surrounding Great Britain and Ireland including the entire English Channel as an area of war;" it stated that it intended to make the most extensive use of mines in all parts of the war area, and to indulge in unlimited submarine warfare. Protests were made by The Netherlands, Scandinavia, Italy and other neutral Powers. It was to this action of Germany that the United States replied in its "strict accountability" Note of February 10, 1915. But the Note was directed almost entirely to the issue of submarine warfare, and it made no specific challenge of the right of Germany to lay mines or to constitute the "war area." Furthermore, it was not until its Note of February 19, 1917, that the United States made any specific challenge as to the right of Great Britain to sow mines in the "danger areas," or to appropriate "certain portions of the high seas for military operations, to the exclusion of the use of the hostile area as a common highway of commerce," to the peril of all neutrals. To French and Italian mine-laying the United States made no protest. The United States after its entry in the war took part in the North Sea mine barrage.
The question of the legality of mines on the high seas, affecting neutral lives and commerce, remained unsettled at the close of the war and has remained so ever since.
2. What is the right of belligerents in aërial attack? There were but few bombings of ships during the World War, and no controversy arose over them. It was certain, however, that with the speedy and intensive development of the aeroplane, aërial bombing would become the most serious and the most potent form of attack in the next war. In January 1919, in an article entitled "Winged Warfare and the League of Nations," I wrote: "Now, however, the most urgent question is . . . what measures shall be framed to deal with still newer weapons now developing -- the airplane, the aërial torpedo? . . . These new weapons must inevitably produce a fundamental change in the methods and conditions of future warfare. Yet little attention has thus far been paid in public discussion to their possible effect upon the International problems now to be settled and upon the future relations of the World." In 1922, Professor Charles Cheney Hyde wrote that aircraft was likely to prove "the most terrible and the most effective means" in offensive operations. In 1926, James M. Spaight, an English writer, in his "Aircraft and Commerce of War," said that through aërial warfare "the conditions of 1915-1918 may be reproduced in an aggravated form. The position of neutral commerce will indeed be well nigh intolerable." Yet, the nations of the world entered into no agreement between 1919 and 1939 to settle the status of this terrible weapon. A Commission of Jurists met at the Hague in 1923 (composed of delegates from the United States, Great Britain, France, Italy, The Netherlands and Japan) to discuss proposed rules; but no action followed. The League of Nations Conference for the Reduction and Limitation of Armaments in 1932-34 discussed plans to abolish bombing planes, as proposed by President Hoover and (with exceptions) by Great Britain; but it took no action. And so the present war came, with no accepted regulation of these barbarous weapons, for attack either on sea or on land.
3. What are the rights of belligerents in submarine attack? The chief subject of controversy during the World War arose, of course, out of the use of unlawful and inhumane methods by German submarines in attacking merchant ships without warning and in failing to provide safety for crews and passengers. It has since been hoped that the provisions of Article 22 of the London Naval Treaty of 1930 had settled this question by accepting "as established rules of International Law" that "in their action with regard to merchant ships, submarines must conform to the rules of International Law to which surface vessels are subject." There were further detailed provisions as to manner of placing passengers and crew in safety. This article under the Procès Verbal of 1936 is in force between the United States, Great Britain, France, Italy, Japan and the British Dominions, and has since been adhered to by Germany, Poland, Russia, The Netherlands, the Scandinavian States and by other countries. It has clearly been violated by Germany in the present war in attacks both on belligerent and neutral merchantmen.
4. What is the status of armed merchantmen? This was the subject of much serious consideration by the United States from 1914 to 1917. The general proposition that international law recognized the right of a merchantman of a belligerent country to arm solely for defense without acquiring the character of a ship of war could not be denied. But the changed conditions brought about by the introduction of the submarine as a lawful weapon when used in conformity with the rules applying to surface vessels made unanswerable the view set forth by Secretary of State Lansing in his identic note of January 18, 1916, proposing a modus vivendi:
The placing of guns on merchantmen at the present day of submarine warfare can be explained only on the ground of a purpose to render merchantmen superior in force to submarines and to prevent warning and visit and search by them. Any armament, therefore, on a merchant vessel would seem to have the character of an offensive armament . . . and in view of the . . . defensive weakness of undersea craft should be held to be an auxiliary cruiser and so treated by a neutral as well as by a belligerent government.
It had not been until the preceding December 30 that Lansing had learned (from a letter from Ambassador Gerard dated December 10) the nature of the secret and confidential instructions of the British Admiralty issued on February 10, 1915, to British merchant vessels. These, together with instructions issued on February 25 and May 7, 1915 (transmitted to our Government by Germany in a note of February 10, 1916) had been found by German naval forces on board the captured British steamer Woodfield. From them it appeared that British merchantmen were directed to fire on a submarine on sight without giving it a chance to warn of a search; and later facts showed that such merchantmen were either directed to ram submarines on sight or adopted that custom. Since the proposed modus vivendi was not accepted by Great Britain or France, the United States continued to be guided by the rules of international law accepted at that time and to admit into its ports defensively armed merchant vessels -- even though, as a practical matter, the alleged defensive armament was, in fact, quite capable of offense, and unquestionably was so used in some cases. The Netherlands forbade admission of such vessels to its ports.[iii]
After the World War, the Convention on Maritime Neutrality signed at Havana in 1928 provided that armed merchantmen in neutral ports should be subject to the provisions relative to ships of war; but the United States Senate did not ratify this clause, and the recent Declaration of Panama of the American Republics, signed on October 3, 1939, apparently is in disagreement with the Havana provision.
5. What is the right of a belligerent vessel to fly the flag of a neutral country? In the World War the practice of belligerent merchant-ships to use a neutral flag became a serious source of danger to neutral vessels, especially in view of German methods of submarine warfare. Great Britain announced officially, however, on February 8, 1915, that "the use of the neutral flag is with certain limitations well-established in practice as a ruse de guerre," and involved no breach of international law. Secretary of State Bryan wrote Ambassador Page, February 10, 1915, that "the formal declaration of such a policy of general misuse of a neutral's flag jeopardizes the vessels of the neutral . . . by raising the presumption that they are of belligerent nationality regardless of the flag which they may carry," as to which our Government felt "grave concern." At the same time, he notified Germany that the British practice did not justify the submarine system of attack without warning. On February 15, 1915, The Netherlands protested to Great Britain that the use of a state's flag without its consent was an abuse, the seriousness of which could not be overlooked, and it asked for discontinuance of the practice. Sweden also declared that the tolerance accorded in the past to isolated incidents in a war was no longer possible "since it has become a question of systematic and premeditated misuse." The British Government, nevertheless, continued to maintain the right to use neutral flags and to disguise its vessels so as to resemble neutrals.
6. What is the right of a belligerent to divert neutral vessels into its ports for purposes of search? In the World War, Great Britain, France, Germany, and Italy all adopted the practice of directing or conducting vessels off their course and into belligerent ports for examination of cargo. They justified their action on the ground of the changed conditions of maritime traffic. As early as November 7 and December 26, 1914, the United States notified Great Britain that it "cannot without protest permit American ships or American cargoes to be taken into British ports and there detained for the purpose of searching generally for evidence of contraband, or upon presumptions created by special municipal enactments which are clearly at variance with international law and practice." Great Britain refused to admit that the protest was justified. An Order in Council of March 11, 1915, directed that all ships carrying goods of presumed enemy destination, ownership, or origin, should be detained and brought into British ports. The United States again in 1915, Sweden in 1915, and The Netherlands in 1917, denied the legality of such action. They further contended that this violation of law not only resulted in heavy damage to ship and cargo owners by reasons of the delays and increased costs of the voyage, but also had a serious deterrent effect on trade, for which damage no remedy could be had in British, French, or German Prize Courts. Neither the United States nor other neutrals have made any effort in the past twenty years to obtain some international agreement to abate this interference with trade. The present war therefore has witnessed a repetition of the former unjustifiable practices of belligerents; and Germany now apparently maintains a right to sink neutral ships en route to the so-called "contraband control bases" of Great Britain and France, thus retaliating with another wholly unlawful practice.
7. What is the right of a belligerent to prevent exports or imports of goods of enemy destination, ownership, or origin, in the absence of an actual legal blockade? On March 11, 1915, Great Britain issued an Order in Council providing for the detention or seizure of ships carrying goods destined for Germany or having origin or ownership there. Secretary of State Bryan had already instructed Ambassador Page to state that such a course of action would be "unknown to international law," and that "under the rules governing enemy exports only goods owned by enemy subjects in enemy bottoms are subject to seizure and condemnation." And on March 30, he notified Great Britain that the Order was in total violation of international law. On July 15, 1915, Secretary of State Lansing instructed Ambassador Page to state the American position regarding the seizure of American-owned goods on the American ship Neches, sailing from Rotterdam. The goods were destined to the United States but had originated partly in Germany. Ambassador Page was told "to inform the Foreign Office courteously, but plainly, that the legality of this seizure cannot be admitted, and that in the view of this Government it violates the right of the citizens of one neutral to trade with those of another, as well as with those of belligerents, except in contraband or in violation of a legal blockade of an enemy seaport." Great Britain did not reply to either protest until July 23, 1915, when it again asserted the right to intercept commerce from and to Germany even through neutral ports. On October 21, 1915, the United States in a Note in reply stated that the blockade under the Order, "cannot be recognized as a legal blockade by the United States," and that this Government "cannot with complacence suffer further subordination of its rights and interests to the plea that the exceptional geographic position of the enemies of Great Britain require or justify oppressive and illegal practices." Great Britain did not reply to this until April 24, 1916, and the Order in Council was continued in force until after the United States entered the war.
It is to be noted that the Privy Council in 1920 in the Noordam case held that "the Order in Council [of March 11, 1915] is a reprisals order -- that is to say, His Majesty, in the exercise of his belligerent right, has been pleased upon just and adequate provocation to resort to measures not prescribed by the general existing rules of the Law of Nations." And in the Leonora case in 1919 it held valid the more extreme Orders in Council of January 10 and February 16, 1917, on the ground of right of retaliation.
The failure of neutrals during the past twenty years to renew their opposition to such interferences with exports from and to neutral ports has resulted in a repetition of the same unjustifiable actions in the present war, by all the belligerents.
8. What is the right of a belligerent warship to stop neutral vessels on the high seas and remove therefrom persons who are not embodied in the armed forces of the enemy? The Declaration of London of 1909 provided for such removal only of persons "embodied in the armed forces of the enemy." What constituted such embodiment was left uncertain. Did it include reservists? As early as December 1914 the French cruiser Condé's removal from an American steamer of one Piepenbrink, a member of the crew, elicited a sharp protest from our Government. France responded by releasing the man "as a friendly act, while reserving the question of principle involved." A similar action by a German cruiser in April, 1915 -- the Muskogee case -- brought a similar protest. Removal of several Germans from various American steamers in December 1915 by the French cruiser Descartes, on the ground that they were suspected of German plots and intrigues in the West Indies, caused stiff demands by us that they be released from their unlawful detention. In February 1916, the British cruiser Laurentic stopped an American steamer, the China, on the high seas off Shanghai and removed 28 Germans, 8 Austrians, and 2 Turks travelling to American territory; the ground given was that they were about to engage in fostering rebellion in India. Secretary of State Lansing on February 23, 1916, termed this "an unwarranted invasion of the sovereignty of American vessels on the high seas," and on April 22 sent a sharp note stating that he could not allow this case "to become one of dilatory legal argument;" the rule of law was plain, he said, and had been accepted by Great Britain and the United States in the case of the Trent in the Civil War, that persons not in the military service could not be taken from neutral ships. He demanded immediate release and an apology for the disrespect shown the flag of the United States by the seizure. On May 8, 1916, Great Britain agreed to release the prisoners and expressed its regret at the occurrence, but continued to assert its right to remove such persons from neutral ships. Since the prisoners were not actually released for six months, Lansing, in notes of November 23 and December 1, 1916, setting forth in detail the American position, stated that:
The Government of the United States can not submit to such treatment of American vessels and American seamen, and if it is the firm policy of His Majesty's Government to continue to hold these men and to arrest others in similar circumstances, the Government of the United States will be compelled, much as it would regret to do so, to take such steps as may seem to it necessary to protect American vessels and seamen from further gross violations of their rights.
No further action was taken and the question of law remained unsettled at the close of the war. Repetition of such incidents have occurred in the present war, and British warships have taken noncombatants off Japanese and American merchant vessels, using precisely the same arguments which we challenged in 1916.
9. What is the right of a belligerent to interfere with mail on a neutral ship on the high seas? The Hague Convention of 1907 (No. XI) provided that: "The postal correspondence of neutrals or belligerents, whatever its official or private character may be, found on the high seas on board a neutral or enemy ship, is inviolable. If the ship is detained, the correspondence is forwarded by the captor with the least possible delay." No attempt was made to abide by this provision in the World War. Beginning in December 1915, mail was seized and taken from Dutch, Danish, Swedish, Norwegian ships on the high seas -- both mail going from those neutral countries to the United States as well as mail destined to the neutral countries. On January 4, 1916, Secretary of State Lansing wrote to Ambassador Page: "The Department cannot admit the right of British authorities to seize neutral vessels plying directly between American and neutral European ports without touching at British ports, to bring them into port, and, while there, to remove or censor mails carried by them." Mr. Page was directed to make a "formal and vigorous protest and press for a discontinuance of these unwarranted interferences with inviolable mails." On January 24, 1916, Sweden appealed for United States coöperation "to bring about a discontinuance of the violations of international law." On April 3, 1916, both France and Great Britain replied, stating that letter mail must be opened because of contraband having been found in such mail. Secretary Lansing replied, May 24, 1916, referring to the illegal and indefensible practice and stated that "the Government of the United States must again insist with emphasis that the British and French Governments do not obtain rightful jurisdiction of ships by forcing or inducing them to visit their ports for the purpose of seizing their mails, or thereby obtain greater belligerent rights as to such ships than they could exercise on the high seas." He concluded by saying that the United States "can no longer tolerate the wrongs which citizens of the United States have suffered and continue to suffer" through these lawless practices. This very inflammatory issue, however, remained unsettled. And finally, on October 17, 1916, Mr. Lansing sent to President Wilson a memorandum of a policy to be approved by him, in which he suggested that "we insist that mail outcoming from neutral countries in continental Europe shall be treated as inviolable and shall not be subject to detention, inspection or seizure." As to ingoing mail, he suggested that the question be submitted to arbitration or to a joint commission of inquiry to frame a modus operandi seeking to apply the conflicting principles equitably. This plan President Wilson approved on November 26, 1916; but our entry into the war stopped further action. The question has already arisen again. The protest of the United States to Great Britain was made public January 2, 1940; and in its answer Great Britain has used almost verbatim the language of 1915-1916.
Similar disregard of a neutral's mail rights was shown by Germany in the World War, and now again in the present war, in sinking neutral ships carrying mail. To Great Britain's contention that neutrals ought not to complain of her action, in view of Germany's greater wrong, the reply is conclusive; one wrong does not justify another. And as Mr. Lansing said to Germany in his Sussex Note of May 8, 1916, when Germany was seeking to involve the submarine question with British wrongs to the United States: "Responsibility in such matters is single, not joint; absolute, not relative."
10. What is the right of a belligerent to sink a neutral prize? On March 10, 1915, the German raider, Prinz Eitel Friedrich, arrived in Newport News. Previously a passenger steamer, she had been converted into a cruiser at Tsingtao and had left that port on August 6, 1914. For over seven months, she had cruised the Pacific and Atlantic Oceans without being detected or caught and had destroyed eight enemy merchantmen, and one American, the William P. Frye, a Seattle bark loaded with wheat consigned to British owners in Falmouth, Plymouth or Queenstown. The United States made claim on Germany for damages for destruction of the ship, and Germany admitted liability because of the existence of an old Treaty of 1799 between the United States and Prussia providing for non-confiscation of contraband and for release of a contraband-carrying ship to proceed on her voyage. Germany, however, claimed that under general doctrines of international law and under the Declaration of London, she had a right to destroy a prize where its preservation "would involve danger to the captor or to the success of the military operations in which it was at the time engaged," and where the ship itself would be liable to condemnation by a prize court. The United States challenged this general statement of law.
Since then, no international agreement on the subject has been had; and the United States is today in a definitely worse position than it was in 1915, the Prussian Treaty under which Germany then admitted liability being no longer in force, having been abrogated by the Treaty of Peace with Germany of August 25, 1921. It is entirely possible that, during the present war, an American vessel may be sunk in those waters where the present Neutrality Act allows such a vessel to transport contraband to a belligerent; and in such case, the United States will not have the protection of the old Treaty and must rely on doctrines of general law which Germany denied twenty-five years ago. Here is a question which nations have allowed to go unsolved since 1904, when Russia, then engaged in war with Japan, was the first nation to begin the practice of sinking neutral merchantmen. The Hague Conference of 1907 discussed the right of destruction of neutral prizes without reaching any solution. The Declaration of London of 1909 permitted exercise of such a right, but placed certain definite limits to it, in the nature of a compromise; but neither that Declaration nor any other solution has ever been accepted internationally.
11. What is the right of a neutral to permit the departure of aircraft intended for hostile use against a belligerent? A neutral nation's obligation to prevent the departure of warships is now recognized by international law, beginning with the Treaty of Washington and the Alabama Claims decision and following the adoption of domestic legislation on the subject by many states. It was crystallized in the provision of the Hague Convention of 1907 that: "A neutral Government is bound to employ the means at its disposal to prevent the fitting out or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage in hostile operations, against a Power with which that Government is at peace" and to prevent the departure of such vessel. This rule is based on the doctrine which forbids a neutral country from being a base of operations against a belligerent. There is little logic in the rule. Supplies of arms and ammunition obtained in a neutral country may make it, in fact, much more of a base of operations; yet such supplies are allowable and are merely treated as contraband. Which rule is to be applied to aircraft -- the warship doctrine or the contraband doctrine?
In the World War, Ambassador Bernstorff in a Note of January 19, 1915, insisted: "There is no doubt that hydro-aeroplanes must be regarded as war vessels whose delivery to belligerent states by neutrals should be stopped," under the Hague Convention. The Secretary of State, in his reply of January 29, 1915, declined to accept this contention; and he called attention to the fact that Germany had included in its list of conditional contraband "balloons and flying machines." In the twenty-three years since the World War, there has been no international agreement on the subject, though the Air Rules suggested (but never adopted by the governments) by the Commission of Jurists at the Hague in 1923 made the proposal that: "A neutral Government is bound to use the means at its disposal to prevent the departure from its jurisdiction of an aircraft in a condition to make a hostile attack against a belligerent Power." And the Uniform Neutrality Rules adopted by the Scandinavian and Baltic States in 1938 also contain a similar proposal. There is grave question, however, whether duties of neutrals should be increased, until their present rights are recognized and protected.
12. What is the status of ships owned, operated, or requisitioned by a belligerent government? This question was presented to our Government in the cases of the Luigi and the Attualità, two ships requisitioned by the Italian Government to carry from the United States to Italy cargoes of grain and rails undoubtedly designed for government use in the war. The Italian Ambassador requested our Department of Justice to instruct the United States Attorneys to appear in Court and represent that these ships were public ships and immune from Court process. This action the Department declined to take; but if it had been taken, there might well have been a question whether the requisitioned ships were not supply-ships of the Italian Navy or Army and therefore to be treated in our ports as ships of war of a belligerent. A similar question might have been present relative to a British ship, the Gleneden, under control of the British Admiralty to carry a cargo of wheat consigned to the British Government (see Re Muir, 254 U. S. 522, in 1921).
A somewhat similar question arises over the right of a neutral government to loan money through government-owned, controlled or incorporated banks; or to sell to belligerents arms, potash, or other articles useful in a war when such industries are government-owned; or to enter into arrangements for government barter. This question might arise in the United States with reference to the Export-Import Banks. It was raised in 1916 with reference to the Federal Reserve Banks. Is there a difference in principle between such loans or sales by a government-owned bank or industries and actions by the Government itself? Professor Jessup has taken the position that "as governments extend their activities in fields of commerce, industry, transportation and communications, they necessarily enhance their neutral responsibilities." On the other hand, it has been contended that "if, in any war between other powers, a State like Russia were to be debarred from supplying any goods of military value to belligerents (in particular, in view of the continuing extension of the notion of contraband . . .) it would, in effect, amount to penalization because of a particular form of social organization. The tender fabric of international law will hardly stand such a strain. Either rights and duties of States must be equal in principle, or the international community will break up."
The fact is that statesmen and jurists must soon face squarely the grave question whether, in the future, provisions of international law which grew up between nations whose structures contemplated the existence of individual property rights can be applied or will be accepted by nations which recognize no private ownership or control of property within their territory as not subject to prior government rights.
The foregoing summary of controversies involving neutral rights is only partial. It omits many unsolved controversial questions, such as the right of "angary," the right of a belligerent to requisition neutral property prior to condemnation by a prize court, the right of a neutral to allow prizes to enter and remain in its port, the right of a neutral to refuse the use of its ports to a belligerent war vessel to repair damage received in hostilities, the right of a neutral to purchase in time of war merchant ships belonging to citizens of a belligerent nation, the right of a neutral to establish protective areas on the high seas beyond the three-mile territorial limit as well as to forbid passage through its territorial waters, and the far-reaching subject of rules to govern aërial warfare on land as well as on sea.
But even if incomplete, this summary clearly illustrates the folly of nations in not agreeing upon some code of maritime warfare during the past twenty years, and the necessity of doing so in the future if wars are not to continue to become more lawless than they are at present, or if every war is not to become a "world war" by the dragging in of injured neutrals. At present, a neutral nation possesses practically no rights on the high seas unless it is ready and able to fight for them. A neutral nation seeing its rights persistently violated has only the choice of protest without avail, or of becoming a party to the war. It has the choice of fighting for its rights, or of waiting to see whether after the war it can obtain damages in an international tribunal from a belligerent nation which, if a winner, will probably be insolvent and, if a loser, will be unable to pay. This situation should no longer be tolerated without some effort to change it. Any convention agreed upon by an international conference must grant to neutral nations some rights of freedom from loss of trade, property and lives due to a violation or continued violations of provisions of the convention; and it must grant some means of enforcement of such rights during a war against repeated violation by a belligerent. A neutral nation should at least be granted the right to adopt self-protective or retaliatory measures, either alone or in combination with other neutrals, without losing the status of a neutral.
The United States by the so-called Neutrality Act of 1939 -- a domestic law passed to protect its national interests -- has attempted to avoid some of the dangers to neutral property and lives arising from illegal acts of belligerents. It has set about doing this by voluntarily restricting its citizens in the exercise of some of their neutral rights. This has entailed great financial and economic loss and sacrifice of national interests. International law should be so changed in the future that a neutral nation shall not be obliged to make such sacrifice in order to keep out of war.
Underlying all this discussion, however, one fundamental fact must be recognized: it will be useless for nations to engage in any international conference or enter into any convention or treaty regulating maritime warfare and neutral rights unless they mean to keep their plighted word, or unless methods shall be provided for the positive enforcement of agreements against a violator. It is better that there should be no agreement than an agreement which parties do not intend to observe or to enforce when the conditions to which it is applicable actually arise.
All these considerations lead inevitably to the conclusion that the rights of nations, both neutral and belligerent, can be effectively protected in case of war only by the reëstablishment of some form of collective security provided by a regenerated League of Nations, or by a new international association or union of States of a more effective nature, willing to act and with power to act in case of the violation of a convention or treaty. Indeed, it may well be doubtful whether otherwise, in a world in which unwarned and unlimited aërial bombing is permitted, a small nation can in the future remain neutral, or even continue to survive.
In this connection, the recent united action of the American Republics under the Declaration of Panama in defense of their neutrality may well form the opening wedge for a more general union of nations desiring to remain neutral and having the power by economic and other pressure to remain so. The time may be closer at hand than we think, when the world shall not be wholly turned over to the belligerents and when peoples wishing to continue their peaceful pursuits without interference shall be able to compel those who want war to confine the war to themselves.
[i] Author's Note: Six years ago in these pages, in an article entitled "Troubles of a Neutral" (FOREIGN AFFAIRS, April 1934), I suggested the desirability of further domestic legislation as a partial safeguard against the United States' becoming involved again in war. The present so-called Neutrality Act, signed November 4, 1939, deals with many of the conditions to which I called attention. In the present article I consider the lack of international action since 1919 regarding many matters in which belligerents violated neutral rights during the World War.
[ii] A few Conventions limited to certain nations and to certain subjects were signed prior to September 3, 1939. Among them were the Washington Treaty of February 6, 1922, between Great Britain, France, Italy, Japan and the United States containing provisions as to the use of poisonous gases and submarines (never fully ratified); the London Naval Treaty of 1930 between the same nations, as to submarine warfare; the Uniform Rules of Neutrality adopted by the Scandinavian and Baltic nations among themselves in 1938; the Convention on Maritime Neutrality signed at Havana in 1928 by the nations of South and Central America and the United States (never fully ratified). Since the outbreak of the present war, the Declaration of Panama signed by the Foreign Ministers of the American Republics on October 3, 1939, has dealt with a limited number of topics affecting neutrality, such as armed merchantmen, entrance of submarines and warships into neutral ports; and it expresses sentiments of opposition to the use of poisonous gas and bombardment of places without military value, and to the inclusion of food as contraband.
[iii] There is a further argument against admission of armed merchantmen into neutral ports, namely that a neutral should not be called upon to assume the heavy responsibility of deciding in any specific case on whether the armament is, in fact, offensive or defensive.
The Naming and Shaming Strategy