Risley says:

A neutral government must prevent its ports from being used as a base of operations and supplies by the ships of either belligerent.

In time of war, as in time of peace, public vessels may freely enter a foreign port in the absence of prohibition by the state to whom the port belongs. But if a neutral power chooses to close its ports to the public vessels of both belligerents, the latter can only enter under stress of weather or in case of absolute necessity. This practice has been already adopted by many states with reference to one class of belligerent public vessels, namely, prizes taken from the enemy, and it is possible that, having regard to the strict impartiality expected from neutrals, it may be eventually extended to belligerent public vessels of every kind. The British regulations of 1862, described below, go far in this direction. At present, however, the rule is that, in the absence of prohibition, a belligerent man-of-war may enter a neutral port and make such repairs and take in such coal and provisions as may be necessary to enable it to navigate safely. Hospitality is lawful, but anything over and above this, amounting to an augmentation of force, is not. To permit a belligerent ship of war to receive such an illegal augmentation of force is a breach of neutrality and vitiates all captures subsequently made by the ship which has received it. (See La Santissima Trinidad, footnote, p. 197.)

Owing to the very modern development of steam, international law does not as yet contain an authoritative rule as to the purchase of coal by a belligerent in neutral ports. During the American civil war Great Britain allowed ships of war to take in only so much coal in British ports as would suffice to carry them to the nearest port of their own country, and refused any second supply to the same vessel, without special permission, until after the expiration of three months.

These regulations enable a belligerent ship to navigate safely without adding to its fighting power and prevent it from making the neutral port a base of operations by coaling there at frequent intervals.

The United States adopted similar regulations during the FrancoPrussian war, and the usage of the two countries is not unlikely to become general in the future. (J. S. Risley, Law of War, p. 205.)

Lawrence (Principles of International Law, page 503)

says:

The rule of abstention from active hostility in neutral waters or on neutral land has received in comparatively recent times an obvious and reasonable extension. It is now the duty of belligerents

To abstain from making on neutral territory direct preparations for acts of hostility.

Warlike expeditions may not be fitted out within neutral borders, nor may neutral land or waters be made the base of operations against an enemy. The fighting forces of a belligerent may not be reinforced or recruited in neutral territory, and supplies of arms and warlike stores or other equipments of direct use for war may not be obtained therein. But these prohibitions do not extend to remote uses and the supplies and equip

GENERAL STATEMENT AS TO NEUTRAL PORT. 75

ments that are useful for such purposes as sustaining life or carrying on navigation. Provisions may be purchased by belligerent ships lying in neutral ports, and they may take on board masts, spars, and cordage, and even undergo repairs, but nothing beyond what is necessary to make them seaworthy must be done to them. Any structural changes that increase their efficiency as instruments of attack and defense are strictly forbidden, as well as any augmentation of their warlike force.

A neutral state may, if it chooses, restrict the amount of innocent supplies allowed to belligerent ships who take advantage of the hospitality of its ports and waters, and a usage is springing up of permitting such vessels to take on board only a limited quantity of coal. A distinction must, however, be drawn between prohibitions which depend entirely upon the will of the neutral and prohibitions which are imposed by international law. The former can be made or unmade, strengthened or relaxed at pleasure, and as long as they are reasonable in themselves and applied with absolute impartiality to both sides in the struggle no power has any reason to complain. The latter are fixed and constant, and if a belligerent ignores them or a neutral suffers them to be ignored the aggrieved parties, whether neutral or belligerent, can demand reparation and take means to prevent a repetition of the offense.

We have seen that a belligerent is bound not to use neutral territory as a base of operations or as a convenient place for the organization of warlike expeditions which may proceed from thence to attack the enemy or prey upon his commerce.

But it is impossible to understand the nature and extent of these obligations without an examination of the exact sense to be attached to the two phrases, "base of operations" and "warlike expedition." The former is a technical term of the military art, and was introduced into international law when the growing sense of state duty rendered it necessary to define with accuracy the limits of belligerent liberty and neutral forbearance. It is to be found in the second of the three rules of the treaty of Washington of 1871, but the Geneva arbitrators did not attempt to explain it in their award. Hall quotes from Jomini, the great French writer on the art of war, a definition of a base of operations as a place or station "from which an army draws its resources and reinforcements, that from which it sets forth on an offensive expedition, and in which it finds a refuge at need." He goes on to contend that "continued use is above all things the crucial test of a base," and it is difficult to resist the arguments in favor of this view, which applies to a fleet or a single ship as well as to an army or a detachment of troops. The drawing of supplies once or twice from a given point in the course of long-continued hostilities will not make it into a base.

The general position may be said to be well established. With changed conditions, more definite rules are necessary.

Even during the American civil war ships of war were only permitted to be furnished with so much coal in English ports as might be sufficient to take them to the nearest port of their own country, and were not allowed to

receive a second supply in the same or any other port, without special permission, until after the expiration of three months from the date of receiving such coal. The regulations of the United States in 1870 were similar, no second supply being permitted for three months unless the vessel requesting it had put into a European port in the interval.

There can be little doubt that no neutral states would now venture to fall below this measure of care; and there can be as little doubt that their conduct will be as right as it will be prudent. When vessels were at the mercy of the winds it was not possible to measure with accuracy the supplies which might be furnished to them, and as blockades were seldom continuously effective, and the nations which carried on distant naval operations were all provided with colonies, questions could hardly spring from the use of foreign possessions as a source of supplies. Under the altered conditions of warfare matters are changed. When supplies can be meted out in accordance with the necessities of the case, to permit more to be obtained than can, in a reasonably liberal sense of the word, be called necessary for reaching a place of safety is to provide the belligerent with means of aggressive action, and consequently to violate the essential principles of neutrality. (Hall, International Law, 5th ed., p. 106.)

Woolsey says:

The same spirit of humanity, as well as respect for a friendly power, imposes on neutrals the duty of opening their ports to armed vessels of both belligerents for purposes having no direct relation to the war and equally likely to exist in the time of peace. Cruisers may sail into neutral harbors for any of the purposes for which merchant vessels of either party frequent the same places, except that merchant vessels are suffered to take military stores on board, which is forbidden generally, and ought to be forbidden, to ships of war. (International Law, section 167.)

Conclusions. The rapid changes in the means and methods of conducting maritime hostilities has made necessary the development of new regulations in regard to the treatment of belligerent vessels in neutral ports. These regulations will naturally change with further development in means and methods of warfare.

It may be safely said that belligerent vessels in neutral ports in time of war can scarcely be said to have rights, but only such privileges as the neutral state may grant, which are generally of entrance for purposes which are not warlike in character, in intent, or in effect.

In other words, the neutral state must maintain its neutrality, even though it grants belligerent war vessels certain privileges within its ports.

Kleen clearly presents the case:

FITTING OUT HOSTILE EXPEDITION.

77

Il appartient à tout État souverain de décider lui-même dans quelle mesure il veut permettre aux étrangers l'usage de ses ports et rades, comme de ses eaux territoriales en général; et ce droit de décision est indépendant du but et de la nature de l'emploi. Juridiquement, un navire de guerre ne peut pas exiger plus d'hospitalité pour ses visites d'exercice, qu'un navire de commerce pour son trafic, un pleasure-yacht pour ses excursions. La seule priorité juridique des navires de guerre consiste dans leur exterritorialité, l'accès une fois admis. Mais quant à l'accès lui-même, ils n'y ont pas plus de droit que d'autres navires; et ils sont soumis, autant que ceux-ci, au devoir d'obéir à l'ordre prescrit par le souverain et les autorités des lieux.

Un état de guerre n'apporte en général à l'application de cette règle pas d'autres modifications que celles qui découlent des devoirs d'un État neutre, particulièrement de son devoir de faire valoir son inviolabilité territoriale contre les abus éventuels de l'hospitalité commis par les belligérants en vue de renforts ou d'autres buts de guerre, et de protéger contre toute hostilité tant les belligérants eux-mêmes que d'autres étrangers admis soit à l'asile soit à l'accès simple, l'expérience ayant démontré combien la présence de navires de guerre des belligérents en port neutre peut devenir dangereuse à ces deux égards. Mais, à ces restrictions apportées par le devoir, pour garantir la neutralité de l'État et les droits de chacun, le souverain du territoire est naturellement libre d'ajouter les ordonnances qu'il lui plaît et qu'il trouve convenables, pour sauvegarder l'ordre chez lui, en considérant, par exemple, sa situation géographique, les circonstances spécialement difficiles, des intérêts particuliers etc.,-bien entendu sans favoriser ou défavoriser l'une des parties belligérantes comme telle plus que l'autre. (La Neutralité, I, p. 530.)

Halleck's International Law, Baker's ed., II, p. 166, maintains that,

Moreover, the extent of a nation's sovereign rights depends, in some measure, upon its municipal laws, and other powers are bound not only to abstain from violating such laws, but to respect the policy of them. The municipal laws of a state for the protection of the integrity of its soil and the sanctity of its neutrality are sometimes more stringent than the general laws of war. The right of a sovereign state to impose such restrictions and prohibitions, consistent with the general policy of neutrality, as it may see fit is undeniable. And all acts of the officers of a belligerent power against the municipal law of a neutral state or in violation of its policy involve that government in responsibility for their conduct.

In the situation as proposed, State Y, a neutral, has protested against the taking of coal, oil, etc., by a war vessel of the United States, a belligerent, from one of its supply vessels lying in the neutral port of State Y. State Y claims that to permit such an act would be equivalent to allowing the port to be used as a place for fitting out a hostile expedition.

From the nature of the supply ship, a United States vessel, State Y would not care to exercise any jurisdiction over it beyond the ordinary port jurisdiction.

The intent of the sending of such a vessel is with a view of fitting out the war vessel for more effective and extended service. Naturally, as the neutral state could not determine the amount or kind of supplies which the war vessel might take from the supply ship, it could not guard its neutrality. To allow this action to proceed would be much like transforming its port into a coaling station, at which the war vessel might take on supplies even with more safety than at one of its own ports, as it would be under the protection of the neutrality of the port and not liable to attack from the enemy. Such a transfer of supplies would not be a commercial transaction, but an actual part of the military operations of the United States.

To permit such action would be equivalent to allowing the port to be used as a base for military operations.

The neutrality regulations of Brazil in 1898 distinctly stated, "It will not be permitted to either of the belligerents to receive in the ports of the Republic goods coming directly for them in the ships of any nation whatever."

This position of Brazil goes a step further than the case under consideration, as this involves receiving supplies from a United States supply ship, while the Brazilian regulation forbids such action in case of "ships of any nation whatever."

(a) The protest of State Y is valid and fully justified; indeed to maintain her neutrality State Y must use due diligence to prevent such action.

(b) Owing to the reasons as set forth already, the commander must conform to the just demands of the authorities of State Y.

(c) The only difference in case there was a fleet of war vessels with supply ships in the port would be one of degree. The evidence of an intent to use the port of Y as a base for hostile operations would be more clear even, and the duty of State Y would be more plain.