Volume Ii Part 48 (1/2)
A sufficient number of men must, however, be always left on board for looking after the vessel. The officers may be left at liberty on giving their word not to quit neutral territory without permission.”
If a vessel is granted asylum for the whole time of the war--see below, -- 347 (3 and 4)--and is, therefore, dismantled, she loses the character of a man-of-war, no longer enjoys the privilege of exterritoriality due to men-of-war in foreign waters, and prisoners on board become free, although they must be detained by the neutral concerned.
[Sidenote: Facilities to Men-of-War during Asylum.]
-- 346. A belligerent man-of-war, to which asylum is granted in a neutral port, is not only not disarmed and detained, but facilities may even be rendered to 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;[669] for he would render a.s.sistance 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 a limited amount of provisions and coal to be taken in by a belligerent man-of-war in neutral ports;[670] 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 his ports to enrol only such a small number of sailors as is necessary to navigate her safely to the nearest port of her home State.[671]
[Footnote 669: See above, -- 333 (5), and below, -- 347 (3).]
[Footnote 670: See above, -- 333 (4).]
[Footnote 671: See above, ---- 330 and 333 (3).]
[Sidenote: Abuse of Asylum to be prohibited.]
-- 347. It would be easy for belligerent men-of-war to which asylum is granted in neutral ports to abuse such asylum if neutrals were not required to prohibit such abuse.
(1) A belligerent man-of-war can abuse asylum, firstly, 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, in the eighteenth century several neutral States arranged that, if belligerent men-of-war or privateers met enemy vessels in a neutral port, they were not to be allowed to leave together, but an interval of at least twenty-four hours was to elapse between the sailing of the vessels. During the nineteenth century this so-called twenty-four hours rule was enforced by the majority of States, and the Second Peace Conference, by article 16 of Convention XIII., has made it a general rule[672] by enacting:--”When war-s.h.i.+ps belonging to both belligerents are present simultaneously in a neutral port or roadstead, a period of not less than twenty-four hours must elapse between the departure of the s.h.i.+p belonging to one belligerent and the departure of the s.h.i.+p belonging to the other. The order of departure is determined by the order of arrival, unless the s.h.i.+p which arrived first is so circ.u.mstanced that an extension of its stay is permissible. A belligerent war-s.h.i.+p may not leave a neutral port or roadstead until twenty-four hours after the departure of a merchant s.h.i.+p flying the flag of its adversary.”
(2) Asylum can, secondly, be abused by wintering in a port in order to wait for other vessels of the same fleet, or by similar intentional delay. There is no doubt that neutrals must prohibit this abuse by ordering such belligerent men-of-war to leave the neutral ports.
Following the example set by Great Britain in 1862,[673] several maritime States have adopted the rule of not allowing a belligerent man-of-war to stay in their neutral ports for more than twenty-four hours, except on account of damage or stress of weather. Other States, such as France, do not, however, object to a more prolonged stay in their ports. Article 12 of Convention XIII. prescribes the twenty-four hours rule only for those neutral countries which have not special provisions to the contrary in their Munic.i.p.al Laws.[674]
(3) Asylum can, thirdly, be abused by repairing a belligerent man-of-war which has become unseaworthy. Although small repairs are allowed,[675] a neutral would violate his duty of impartiality by allowing such repairs as would make good the unseaworthiness of a belligerent man-of-war.
During the Russo-j.a.panese 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 can, lastly, be abused by remaining in a neutral port an undue length of time in order to escape attack and capture by the other belligerent. Neutral territorial waters are in fact an asylum for men-of-war which are pursued by the enemy, but, since nowadays a right of pursuit into neutral waters, as a.s.serted by Bynkershoek,[676] is no longer recognised, it would be an abuse of asylum if the escaped vessel were allowed to make a prolonged stay in the neutral waters. A neutral who allowed such abuse of asylum would violate his duty of impartiality, for he would a.s.sist one of the belligerents to the disadvantage of the other.[677] Therefore, when after the battle off Port Arthur in August 1904 the Russian battles.h.i.+p _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,[678] 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 s.h.i.+ma, 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.
[Footnote 672: See above, -- 333 (2), and Hall, -- 231, p. 651.]
[Footnote 673: See Hall, -- 231, p. 653.]
[Footnote 674: See above, -- 333 (6)--Germany, Domingo, Siam, and Persia have entered a reservation against article 12.]
[Footnote 675: See above, -- 333 (5) and -- 346.]
[Footnote 676: _Quaest. jur. publ._ I. c. 8. See also above, -- 288, p.
352, and -- 320, p. 387.]
[Footnote 677: It was only during the Russo-j.a.panese War in 1904 that this became generally recognised, and article 24 of Convention XIII.
places it beyond all doubt. Until the Russo-j.a.panese War it was still a controverted question whether a neutral is obliged either to dismiss or to disarm and detain such men-of war 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 ”Reglement sur le regime legal des navires et de leurs equipages dans les ports etrangers,” adopted by the Inst.i.tute of International Law in 1898 at its meeting at the Hague--see _Annuaire_, XVII. (1898), p.
273--answers (article 42) the question in the affirmative.]
[Footnote 678: 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 detained, men-of-war may 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 quant.i.ty of coal to the _Novik_ in Tsing-Tau was criticised by writers in the Press, but unjustly. For--see above, -- 346--a neutral may 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.]
[Sidenote: Neutral Men-of-War as an Asylum.]
-- 348. It can happen during war that neutral men-of-war pick up and save from drowning soldiers and sailors of belligerent men-of-war sunk by the enemy, or that they take belligerent marines on board for other reasons.