Volume Ii Part 62 (1/2)

-- 414. Right of visitation[886] is the right of belligerents to visit and eventually search neutral merchantmen for the purpose of ascertaining whether these vessels really belong to the merchant marine of neutrals, and, if this is found to be the case, whether they are attempting to break a blockade, or carry contraband, or render unneutral service to the enemy. The right of visit and search was already mentioned in the _Consolato del Mare_, and although it has often[887]

been contested, its _raison d'etre_ is so obvious that it has long been universally recognised in practice. It is indeed the only means by which belligerents are able to ascertain whether neutral merchantmen intend to bring a.s.sistance to the enemy and to render him unneutral services.[888]

[Footnote 886: It must be borne in mind that this right of visitation is not an independent right but is involved in the right of either belligerent--see above, -- 314--to punish neutral vessels breaking blockade, carrying contraband, and rendering unneutral service.]

[Footnote 887: See, for instance, Hubner, _De la saisie des batiments neutres_ (1759), I. p. 227.]

[Footnote 888: Attention should be drawn to the _Reglement international des prises maritimes_, adopted at Heidelberg in 1887 by the Inst.i.tute of International Law; ---- 1-29 regulate visit and search. See _Annuaire_, IX. (1888), p. 202.]

[Sidenote: Right of Visitation, by whom, when, and where exercised.]

-- 415. The right of visit and search may be exercised by all wars.h.i.+ps[889] of belligerents. But since it is a belligerent right, it may, of course, only be exercised after the outbreak and before the end of war. The right of visitation on the part of men-of-war of all nations in time of peace in a case of suspicion of piracy--see above, vol. I. -- 266 (2)--has nothing to do with the right of visit and search on the part of belligerents. And since an armistice does not bring war to an end, and since, on the other hand, the exercise of the right of visitation is not an act of warfare, this right may be exercised during the time of a partial as well as of a general armistice.[890] The region where the right may be exercised is the maritime territorial belt of either belligerent, and, further, the Open Sea, but not the maritime territorial belt of neutrals. Whether the part of the Open Sea in which a belligerent man-of-war meets with a neutral merchantman is near or far away from that part of the world where hostilities are actually taking place makes no difference so long as there is suspicion against the vessel. The question as to whether the men-of-war of a belligerent may exercise the right of visitation in the maritime territorial belt of an ally is one between the latter and the belligerent exclusively, provided such an ally is already a belligerent.

[Footnote 889: It should be mentioned that privateers could also exercise the right of visit and search. But since even such States as have not acceded to the Declaration of Paris in practice no longer issue Letters of Marque, such a case will no longer occur.]

[Footnote 890: But this is not universally recognised. Thus, Hautefeuille, III. p. 91, maintains that during a general armistice the right of visitation may not be exercised, and -- 5 of the _Reglement international des prises maritimes_ of the Inst.i.tute of International Law takes up the same att.i.tude. It ought, likewise, to be mentioned that in strict law the right of visit and search may be exercised even after the conclusion of peace before the treaty of peace is ratified. But the above-mentioned -- 5 of the _Reglement international des prises maritimes_ declares this right to cease ”avec les preliminaires de la paix.” See below, -- 436.]

[Sidenote: Only Private Vessels may be Visited.]

-- 416. During the nineteenth century it became universally recognised that neutral men-of-war are not objects of the right of visit and search of belligerents.[891] And the same is valid regarding public neutral vessels which sail in the service of armed forces, such as transport vessels, for instance. Doubt exists as to the position of public neutral vessels which do not sail in the service of armed forces, but sail for other purposes, as, for instance, mail-boats belonging to a neutral State. It is a.s.serted[892] that, if commanded by an officer of the Navy, they must be treated in the same way as men-of-war, but that it is desirable to ask the commanders to give their word of honour a.s.suring the absence of contraband and unneutral service.

[Footnote 891: In former times Great Britain tried to extend visitation to neutral men-of-war. See Manning, p. 455.]

[Footnote 892: See, for instance, Gessner, p. 297, and Perels, -- 52, IV.]

[Sidenote: Vessels under Convoy.]

-- 417. Sweden in 1653, during war between Great Britain and the Netherlands, claimed that the belligerents ought to waive their right of visitation over Swedish merchantmen if the latter sailed under the convoy of a Swedish man-of-war whose commander a.s.serted the absence of contraband on board the convoyed vessels. The Peace of Westminster in 1654 brought this war to an end, and in 1756 the Netherlands, then neutral, claimed the right of convoy. But it was not until the last quarter of the eighteenth century that the right of convoy was more and more insisted upon by Continental neutrals. During the American War of Independence in 1780, the Netherlands again claimed that right, and when they themselves in 1781 waged war against Great Britain, they ordered their men-of-war and privateers to respect the right of convoy. Between 1780 and 1800 treaties were concluded, in which Russia, Austria, Prussia, Denmark, Sweden, France, the United States of America, and other States recognised that right. But Great Britain always refused to recognise it, and in July 1800 the action of a British squadron in capturing a Danish man-of-war and her convoy of six merchantmen for resistance to visitation called the Second Armed Neutrality into existence. Yet Great Britain still resisted, and by article 4 of the ”Maritime Convention” of St. Petersburg of June 17, 1801, she conceded to Russia only that vessels under convoy should not be visited by privateers. During the nineteenth century more and more treaties stipulating the right of convoy were concluded, but this right was not mentioned in the Declaration of Paris of 1856, and Great Britain refused to recognise it throughout the century. However, Great Britain abandoned her opposition at the Naval Conference of London of 1908-9, and the Declaration of London proposes to settle the matter by articles 61 and 62 in the following way:--

Neutral vessels under the convoy of a man-of-war flying the same flag are exempt from search and may not be visited if the commander of the convoy, at the request of the commander of the belligerent cruiser which desires to visit, gives, in writing, all information as to the character of the convoyed vessels and their cargoes which could be obtained by search. Should the commander of the belligerent man-of-war have reason to suspect that the confidence of the commander of the convoy has been abused, he may not himself resort to visit and search, but must communicate with the commander of the convoy. The latter must investigate the matter, and must record the result of his investigation in a report, a copy of which must be given to the commander of the belligerent cruiser. Should, in the opinion of the commander of the convoy, the facts stated in the report justify the capture of one or more of the convoyed vessels, he must withdraw protection from the offending vessels, and the belligerent cruiser may then capture them.

In case a difference of opinion arises between the commander of the convoy and the commander of the belligerent cruiser--for instance, with regard to the question as to whether certain goods are absolute or conditional contraband or as to whether the port of destination of a convoyed vessel is an ordinary commercial port or a port which serves as a base of supply for the armed forces of the enemy and the like--the commander of the belligerent cruiser has no power of overruling the decision of the commander of the convoy. He can only protest and report the case to his Government, which will settle the matter by means of diplomacy.

[Sidenote: No Universal Rules regarding Mode of Visitation.]

-- 418. There are no rules of International Law which lay down all the details of the formalities of the mode of visitation. A great many treaties regulate them as between the parties, and all maritime nations have given instructions to their men-of-war regarding these formalities.

Thereby uniform formalities are practised with regard to many points, but regarding others the practice of the several States differs. Article 17 of the Peace Treaty of the Pyrenees of 1659 has served as a model of many of the above-mentioned treaties regulating the formalities of visitation: ”Les navires d'Espagne, pour eviter tout desordre, n'approcheront pas de plus pres les Francais que la portee du canon, et pourront envoyer leur pet.i.te barque ou chaloupe a bord des navires francais et faire entrer dedans deux ou trois hommes seulement, a qui seront montres les pa.s.seports par le maitre du navire francais, par lesquels il puisse apparoir, non seulement de la charge, mais aussi du lieu de sa demeure et residence, et du nom tant du maitre ou patron que du navire meme, afin que, par ces deux moyens, on puisse connaitre, s'il porte des marchandises de contrebande; et qu'il apparaisse suffisamment tant de la qualite du dit navire que de son maitre ou patron; auxquelles pa.s.seports on devra donner entiere foi et creance.”

[Sidenote: Stopping of Vessels for the Purpose of Visitation.]

-- 419. A man-of-war which wishes to visit a neutral vessel must stop her or make her bring to. Although the chasing of vessels may take place under false colours, the right colours must be shown when vessels are stopped.[893] The order for stopping can be given[894] by hailing or by firing one or two blank cartridges from the so-called affirming gun, and, if necessary, by firing a shot across the bows of the vessel. If nevertheless the vessel does not bring to, the man-of-war is justified in using force to compel her to bring to. Once the vessel has been brought to, the man-of-war also brings to, keeping a reasonable distance. With regard to this distance, treaties very often stipulate either the range of a cannon shot or half such width or even a range beyond a cannon shot; but all this is totally impracticable.[895] The distance must vary according to the requirements of the case, and according to wind and weather.

[Footnote 893: See above, -- 211.]

[Footnote 894: See above, vol. I. -- 268.]

[Footnote 895: See Ortolan, II. p. 220, and Perels, -- 53, pp. 284, 285.]

[Sidenote: Visit.]

-- 420. The vessel, having been stopped or brought to, is visited[896] by one or two officers sent in a boat from the man-of-war. These officers examine the papers of the vessel to ascertain her nationality, the character of her cargo and pa.s.sengers, and, lastly, the ports from and to which she is sailing. Instead of visiting the merchantman and inspecting her papers on board, the practice is followed, by the men-of-war of some States, of summoning the master of the merchantman with his papers on board the former and examining the papers there.