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prize is restored not as a reparation to the state from which it was taken, but as a vindication of its own neutral rights by the neutral state. Like international cooperation and the extradition of criminals, it is an obligation growing out of the general interest of humanity which requires the greatest possible restriction of the area of war. Unlike them, however, it is a duty required by international law even in the absence of treaty stipulations, and reparation may be demanded in case of failure to observe it. We will therfore include the duties which Lawrence discusses as duties of "restoration" in the subject "obligations of vindication." There are other obligations which will logically be included in this subject, such as that to intern belligerent troops entering neutral territory and to enforce observation of the twenty-four hour stay and twenty-four hour interval rules by belligerent vessels taking asylum in its ports.
(5) The duty of reparation refers to the obligation which a neutral state is under to make suitable amends to the injured belligerent for a failure to perform any of its other duties as a neutral. The reparation may assume the forms of payment of damages, restoration of property or public apology. The payment by Great Britain of the Alabama claims award in 1871 is a classic its legal validity can be called in question; and as to him only it is to be considered void." The Ann, 3 Wheat. 435, 447, (1818). See also, The Adela, 6 Wall. 266, (1867); The Sir Wm. Peel, 5 Wall. 535; The Lilla, 2 Sprague, 177; The Florida, 101 U. S. 37, (1879). English cases, The Eliza Ann, 1 Dods. 244, (1813); The Purissima Conception, 6 Rob. 45, (1805); The Diligentia, 1 Dods. 404, 412, (1814); The Etrusco, Lords, 1795, 3 Rob. 31; The Vrouw Anna Catherina, 5 Rob. 144. See Scott, Cases, pp. 684691; Moore's Digest, 6;1000, 7;511,1089.
"If the property has been captured within the jurisdiction of the neutral, the neutral "may indeed inflict pecuniary or other penalties on the parties for such violation; but it then does it professedly in vindication of its own rights, and not by way of compensation to the captured." La Amistad de Rues, 5 Wheat. 385. See also La Estrella, 4 Wheat. 298, (1819); The Santissima Trinidad, 7 Wheat. 283,496. Fenwick, op. cit. p. 90, says: "Where vessels have been fitted out and armed or have increased their force, in violation of the neutrality of the United States, the courts of the United States will intervene to effect a restitution of prizes captured by such vessels, not because the capture is illegal as between the captor and the former owner, but because the neutral state has the right to vindicate its own sovereignty by divesting possession of property acquired as the result of a violation of its sovereignty."
8 Commodore Stewart's Case, 1 Ct. Cl. 113, (1864), Scott, 910. Infra P. 134, note 25.
example of the performance of this duty. There are no duties of reparation peculiar to the law of neutrality. The provisions of United States law enforcing this duty in time of peace apply equally well to the enforcement of obligations arising in time of neutrality.
We will then consider the municipal measures enforcing the obligations of the United States as a neutral under two heads, (1) the obligations of prevention, and (2) the obligations of vindication.
It is probably desirable to present in more detail the basis of distinction between these two classes of duties. The duty of prevention differs from the duty of vindication in that the former relates to certain obligations a neutral state is under in reference to its own subjects and territory, while the latter is concerned with the treatment of foreign subjects and agencies of government. International law does not define the means which a state must take in performing its duties of prevention. It is of no international importance whether it chooses to control its subjects and the use of its territory by means of criminal penalties, requirements of bonds or other guarantees, or the use of military force; so long as it exercises "due diligence" or "the means at its disposal," the methods are entirely a matter of internal policy. On the other hand, in performing the duty of vindication the state is dealing with persons who are not its own subjects. It is really acting as an agent of the society of nations to adjudicate a breach of international law. Consequently that society is interested in the method of treating these violators of international duty, and specifies in international law that illegal prizes shall be restored, belligerent troops shall be interned, vessels illegally in ports shall be expelled or sequestrated, etc.
In general, therefore, the municipal rules enforcing duties of prevention consist of rules supplementary to international law, while those enforcing duties of vindication consist of rules of international law which are also rules of municipal law.
It may be added that the same act may entail obligations of both kinds. A neutral state may be required to prevent a specified infraction of its neutrality. If it is unsuccessful in preventing this act, it may be required to vindicate its neutrality in a particular manner. Thus a neutral state is under an obligation to prevent hostilities in its territorial waters. Yet if a prize is there taken in spite of its efforts, the duty of vindication requires it to adjudicate this prize and restore it to its situation before capture.
CHAPTER VIII. OBLIGATIONS OF PREVENTION.
(1) The United States has recognized certain duties of prevention as incumbent upon it by treaty. Many of the early treaties of the United States contain an article stipulating for the preservation of "perpetual peace and amity" between the two parties.1 In Henfield's case, which arose in 1793, such provisions in the treaties with Netherlands3, Prussia', and Great Britain were made one of the bases for the government prosecution of a person accused of accepting a commission from France who was at war with these countries. General principles of international law were also relied on in the case, but the main support for the indictment seemed to be that Henfield's acts were prohibited by these treaties, which were law in the United States. Though the court accepted this view at that time, it is clear that criminal indictments could no longer be supported under such general treaty provisions", and as a matter of fact few treaties now in force contain the perpetual peace and amity clause in the mandatory form it assumed in the early treaties.
By another common provision in early treaties the contracting parties bound themselves when neutral to prevent their
1As an example of this kind of treaty may be mentioned that with France, in force from 1778 to 1798, which said, "There shall be a firm, inviolable, and universal peace and a true and sincere friendship between" etc., Malloy, p. 469. The same phrase introduces the treaty with Sweden of 1783, p. 1725; with Prussia, 1785-1796, p. 1477; with the Netherlands, 1782-1795, p. 1234; with Great Britain, 1794, p. 591. Most of these treaties have been abrogated or superseded and the more recent treaties generally relate to particular subjects such as commerce, extradition, consular privileges, etc., and do not contain the specific peace and amity clause. This, however, is not universally true. The treaty with Spain of 1902 begins with an article of the character formerly so common, p. 1701.
2In re Henfield, Fed. Cas. 6360, (1793).
Treaty with the Netherlands, 1792-1795, art. 1, Malloy, p. 1234. 4Treaty with Prussia, 1785-1796, art. 1, Malloy, p. 1477.
"Treaty with Great Britain, 1794-1807, art. 1, Malloy, p. 591.
“U. S. vs. Worral, 2 Dall. 384, (1798); U. S. vs. Hudson, 7 Cranch 32, (1812).
subjects from accepting privateering commissions or letters of→ marque to serve against the other. Often the stipulation was added that offenders were to be punished as pirates. Such provisions were frequently mentioned by the courts as the basis for assuming jurisdiction over prizes brought into United States ports, and for restoring them to their original owners when it was proved that the captor was an American citizen operating under a foreign letter of marque. No criminal prosecutions have, however, been instituted under strength of the treaty provisions alone, although there would seem to be greater warrant for such action than under the general peace and amity provisions invoked in the Henfield case. On the contrary, the court in The Bello Corrunes, commenting on the fact that the acceptor of a certain commission to cruise against Spain ought to be indictable as a pirate according to the treaty with that country, expressed the opinion that under the "free institutions of this country" such action would probably be impossible.10 The fact that this duty was undertaken as a privilege, accorded to the contracting party, indicates that it was not regarded as a duty demanded by international law. Privateering itself is now prohibited by international law and states are therefore under the general obligation to prevent the acceptance of letters of marque by their subjects. The matter is
"The acceptance of letters of marque to serve against the contracting party is forbidden in the following treaties: France, 1778-1798, art. 21, Malloy, p. 475; Bolivia, 1858, art. 25, p. 121; Central America, 1825-1839, art. 24, p. 167; Chili, 1832-1850, art. 22, p. 178; Colombia, 1824-1836, art. 22, p. 299, 1846, art. 26, p. 310; Dominican Republic, 1867-1898, art. 25, p. 411; Ecuador, 1879-1892, art. 25, p. 428; Guatemala, 1849-1874, art. 24, p. 868; Hayti, 1864-1905, art. 31, p. 929; Netherlands, 1782-1795, art. 19, p. 1239; Peru, 1870-1886, art. 28, p. 423; 1887-1899, art. 26, p. 1439; Prussia, 1785-1796, art. 20, p. 1483; 1799-1810, art. 20, p. 1493; 1828, art. 12, p. 1499; Salvador, 1850-1870, art. 26, p. 1545; 1870-1893, art. 26, p. 1559; Spain, 17951902, art. 14, p. 1645; Sweden, 1783, art. 23, p. 1733, renewed, 1827, art. 17, p. 1754; Venezuela, 1860-1870, art. 25, p. 1853; Great Britain, 1794-1807, art. 21, p. 603.
It is provided that offenders shall be treated as pirates in the following of the above treaties: Colombia, Ecuador, Guatemala, Netherlands, Peru, Prussia, Salvador, Spain, Sweden, Great Britain.
9Talbot vs. Jansen, 3 Dall. 133; The Bello Corrunes, 6 Wheat. 152, (1821).
10 The Bello Corrunes, 6 Wheat. 152, (1821); Treaty with Spain, 17951902, art. 14, Malloy, p. 1645.
mentioned in few if any particular treaties in force, but is considered in general law-making treaties and in statutes.
Article 22 of the treaty with France, of 1778, made it unlawful for foreign privateers other than those of France "to fit their ships" in the ports of the United States, or to sell or exchange prizes which they had captured or to purchase provisions in excess of an amount necessary to supply them to the nearest home port. Since an implied exception was made in the case of France11 it seems that the duties here mentioned were not at that day conceived of as duties imposed by international law. Similar provision, without the exception for the benefit of the contracting parties, has been inserted in a number of other treaties.12 The special privilege accorded to France in this respect was the basis of much diplomatic difficulty in the early days of the United States, and it was finally abrogated in 179813 by act of congress. It is now clear that the duty to prevent the fitting out of armed vessels is required by international law, and no nation can be accorded special privileges in this regard compatibly with the continued maintenance of neutrality. The United States recognized this fact in the treaty of Washington with Great Britain in 1871.14 Article six of that treaty stated that a neutral government is bound to exercise "due diligence" to prevent (1) the fitting out within its jurisdiction of vessels intended to cruise against foreign states and the departure of such vessels, and (2) the use of its ports or waters as a "base of naval operations" for the augmentation of military supplies or for the recruitment of men. Although this treaty was concluded with the immediate purpose of furnishing a basis for adjudicating the so called Alabama claims, both countries expressly declared their intention to be bound for the future by these provisions. The treaty is still in force and is law in the United States.
11Treaty with France, 1778-1798, art. 17, 18, Malloy, p. 475.
12The selling of prizes, fitting out of privateers, and purchasing of victuals by warships except sufficient to reach the nearest home port is prohibited to enemies of the contracting party in the following treaties: France, 1778-1798, art. 22, Malloy, p. 475; 1800-1809, art. 25, p. 504; Dominican Republic, 1867-1898, art. 24, p. 411; Hayti, 1864-1905, art. 31, p. 929; Venezuela, 1860-1870, art. 24, p. 1853; Great Britain, 1794-1807, art. 24, p. 604.
13 Act of July 7, 1798, I stat. 578.
14 Treaty of Washington, with Great Britain, 1871, Malloy, p. 703.