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It will be seen that the duties of prevention undertaken in these regulations are largely the same as those required of all neutral territory. The requirements are, however, stricter in some cases, as the rights of fueling, repairing, and replenishing stores are more limited. The regulation interprets the twentyfour hour stay rule as permitting a twenty-four hour stay in addition to the time occupied in transit of the canal.
The regulations seem to have adequately covered the duties specifically undertaken by the United States in reference to the Canal, as well as the duties encumbent upon it for preserving the neutrality of all its territory.
ACTS BY AGENCIES OF GOVERNMENT
Aside from the duties of prevention incumbent upon the United States in reference to its civil population, international law and treaty require it to prevent unneutral acts by public officers. On the outbreak of wars, special instructions have been generally sent to diplomatic officers, often relating especially to duties imposed upon such officers in belligerent countries in case affairs of the other belligerent are entrusted to them. On the outbreak of the Russo-Japanese war in 1904 an executive order directed “all officials of the government, civil, military and naval--not only to observe the President's proclamation of neutrality but also to abstain from either action or speech which can legitimately cause irritation to either of the combatants.83">
The Navy regulations enjoin naval officers to observe strict neutrality on all occasions.84 These regulations can be enforced by court martial, a procedure resorted to in the case of an unneutral act by a naval commander in 1844 during the war between Montevideo and Buenos Ayres.85
The obligations of prevention incumbent upon neutral states have been recognized by the United States in treaties and statutes, and the duties thus recognized seem to be in accord with international law. The failure of statutes to recognize the duty to prevent sales of armed vessels to belligerents is only an apparent exception, as the United States has acceded to this principle in the Treaty of Washington and the Hague conventions of 1907,
83 Executive Order, March 10, 1904, For. Rel., 1904, p. 185, Moore's Digest, 7;868. See also instructions to diplomatic and consular officers, Aug. 17, 1914, Supp. Am. Jour. Int. Law, 9;118, (Jan., 1915).
84 Navy Regulations, 1913, sec. 1502, 1633-1624, 1645, 1647. 85 Moore's Digest, 1;178.
which are according to the constitution a part of the law of the land.
The means relied on for enforcing these duties are (1) the deterrent effect of criminal punishment by fines and imprisonment, (2) the forfeiture of property involved in violations of neutrality, (3) the requirement of bonds of good behavior in suspicious cases, (4) the grant of jurisdiction to courts over cases involving breaches of neutrality, with implied power to enforce their judgments, (5) direct executive action to enforce criminal provisions, expel or detain foreign vessels, and otherwise prevent illegal acts, with a resort to the army, navy, and militia of the United States if necessary, (6) control of public officers by executive action and by courts martial.
While specific provision is made by statute for the use of these means in many cases, it seems probable that where such authority is not given by statute, executive and judicial officers can apply appropriate means for enforcing the duties specified by treaty or the Hague conventions. Treaties are part of the law of the land, and the executive and judiciary, being under oath to enforce the laws, can, it would seem, use all available means to enforce them.
In the field of international law defining neutral duties the United States holds an honored position. Its early neutrality statutes enforcing obligations in this field laid down a standard of conduct which was not required by international law at that time but has since become recognized as obligatory. The neutrality act of 1794 was influential in creating new international law. Canning said of American practice in this respect, "If I wished for a guide in the system of neutrality, I should take that laid down by America in the days of the presidency of Washington and the secretaryship of Jefferson.'86 This unique position
86Cited, Syngman Rhee, Neutrality as influenced by the United States, Princeton, 1912, P. 106. See also opinion of J. W. Foster, and of Rhee, Ibid., pp. 104,111. W. E. Hall, not inclined to flatter the United States, says of its practice in reference to neutrality obligations, “The policy of the United States in 1793 constituted an epoch in the development of the usages of neutrality. There can be no doubt that it was intended and believed to give effect to the obligations then incumbent upon neutrals. But it represented by far the most advanced existing opinion as to what these obligations were, and in some points it even went farther than authoritative international custom has up to the present time advanced. In the main, however, it is identical with the standard of conduct which is now admitted by the community of nations." W. E. Hall, A Treatise on International Law, 4th ed., London, 1895, p. 616.
is undoubtedly due in large measure to the situation of the United States as the most important power of European civilization remaining neutral in various European wars. It indicates, however, the effect which municipal law may have in creating new international law.
CHAPTER IX. OBLIGATIONS OF VINDICATION.
Duties of vindication are necessitated by the failure of belligerent troops, warships or prize crews to observe their obligations as belligerents toward neutrals, and some of them also imply a failure on the part of the neutral state to perform its duties of prevention. Thus a neutral state is bound to prevent hostilities in its land or water territory, but if it fails in this it must perform its duty of vindication by interning troops, or restoring prizes captured in the course of such hostilities.
Most of the obligations of this kind are specified in the Hague conventions, and consist of measures to be taken by the neutral state in case of violations of its territory by land forces, hostilities in its territorial waters by naval forces or violations of the right of asylum by belligerent warships or their prizes.
There are a number of general requirements laid down for belligerent warships which a neutral is at liberty to modify by law. Thus a neutral state is permitted to vary the general rule demanding that all belligerent vessels be equally permitted to enter its ports, by forbidding such entrance to vessels which have violated its neutrality. It may also vary the twenty-four hour stay rule by municipal regulations, and the general rule permitting no more than three belligerent warships in a port at one time. The conventions also give a neutral power the right to grant asylum to belligerent prizes on condition that it sequestrate them, pending adjudication, but this provision was not ratified by the United States.
1 Hague Conventions, 1907, xiii, art. 9, Malloy, p. 2352.
*Ibid., xiii, art. 23. This permission was a variation from the general rule laid down in articles 21 and 22 which forbade the giving of asylum to prizes except in cases of "unseaworthiness, stress of weather, or want of fuel or provisions," and even then only temporarily. The United States ratified the convention with a proviso excluding article 23, thereby recognizing it as neutral duty to refuse to permit prizes to be sequestrated in her ports. See Naval War College, International Law Situations, 1908, p. 76. It is interesting to note that the United States had specifically permitted the sequestration of prizes in a number of its early treaties. See
International law in these cases imposes a belligerent duty but no corresponding neutral duty of vindication. The belligerent duty is for the benefit of the neutral and if the neutral indicates by local law that it does not care to avail itself of this benefit international law is unconcerned. These subjects therefore do not form obligations of vindication; they are rather exceptions to those obligations.
Eliminating these exceptions, the duties of vindication recognized by the United States by treaty may be classified as (1) the internment of belligerent troops violating neutral territory, (2) the internment of belligerent warships violating the law of asylum, (3) the expulsion of belligerent warships after a twenty-four hour stay, subject to exceptions,? (4) the detention of belligerent warships in accordance with the twenty-four hour interval rule,8 (5) the restoration of prizes captured in neutral waters or brought into neutral ports in violation of the law of asylum, and the internment of the prize crew. These are positive duties imposed upon the neutral state, and failure to perform them will furnish grounds for diplomatic complaint and demand for reparation by the injured belligerent.
The performance of these duties involves an assertion of jurisdiction over foreign prizes, warships or armed forces, agencies which under ordinary circumstances are exempt from the jurisdiction of any sovereign but their own. It is therefore of importance to investigate the measures which the United States has taken for performing its duties of vindication by the exercise of this extraordinary jurisdiction. The subject may be conveniently divided into the three parts, (1) illegal prizes, (2) illegal
treaties with France, 1778-1789, art. 17, p. 474; 1800-1809, art. 24, p. 504; Netherlands, 1782-1795, art. 5, p. 1245; Sweden, 1783-1799, revived 1816, 1827, art. 19, p. 1732; Prussia, 1785-1796, art. 19, 21, p. 1493; Great Britain, 1794-1807, art. 25, p. 604. Treaties with Tripoli, 1805, art. 17, p. 1792 and with Algiers, 1795-1815, art. 10, p. 3; 1815-1830, art. 18, p. 10, permitted United States vessels to sequestrate and sell prizes in their ports and forbade the sale of prizes taken by any of the Barbary states from the United States in a similar manner. Asylum to merchant vessels and in most cases to warships and privateers also when necessitated through “stress of weather or pursuit of pirates or enemies” is provided for in treaties with twenty-five countries, a few of which are still in force.
5Hague Conventions, 1907, v, arts. 11-12, Malloy, p. 2300.