SITUATION V.

While war exists between the United States and State X a number of the war vessels of State X are pursued by a United States fleet and seek refuge in a port of State Y, a neutral. The commander of the United States fleet, after waiting outside the port for twentyfour hours, protests to the authorities of State Y, claiming that as the vessels of the enemy have entered the neutral port to escape his fleet they may not justly be sheltered longer.

(a) Is the position taken by the United States commander correct?

(b) What should the authorities of State Y do?

SOLUTION.

(a) The United States commander would be justified in requesting that belligerent vessels entering and remaining in the neutral port solely in order to escape capture by his fleet be interned for the remaining period of the war.

(b) The authorities of State Y would be acting in accord with the best opinion in granting his request.

NOTES ON SITUATION V.

The twenty-four hour rule.-(a) The commander of the United States fleet waits twenty-four hours before entering his protest, probably on the ground that a belligerent war vessel is usually allowed twenty-four hours sojourn in a neutral port.

Upon this practice, however, there is considerable difference of opinion, some writers considering it to have the force of law, others regarding it as in effect only when so proclaimed.

Text writers' opinions.-Risley, discussing sojourn of a belligerent ship in a neutral port, says:

There is on principle no reason for limiting the stay of a belligerent ship in a neutral port, provided of course that she receives no augmenta

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tion of force there; but in the event of a ship belonging to the other belligerent appearing at the same port, restrictions become necessary in order to prevent a collision in neutral waters.

In 1759 Spain laid down the rule that the first of two vessels of war belonging to different belligerents to leave one of her ports should not be followed by the other until the expiration of twenty-four hours. At first this rule was only imposed upon privateers, the word of a captain of a ship of war that he would not commit hostilities being sufficient; but it has now been extended to all ships of war by most of the great states, including Great Britain, France, and the United States.

The "twenty-four hours rule," as it is called, is not, however, sufficient of itself to prevent abuse of neutral ports. In 1861 the United States ship Tuscarora took advantage of the rule to practically blockade the Confederate cruiser Nashville in Southampton Water. The Tuscarora contrived always to start before the Nashville, when the latter attempted to sail, and returned before the twenty-four hours-during which the Nashville had to stay behind—had expired. A similar case occurred during 1862 at Gibraltar, where the Confederate ship Sumter was practically blockaded, at first by the Tuscarora, and afterwards by the Ino and Kearsarge. This blockade was terminated by the sale of the Sumter to a British subject, and her subsequent escape to England. She was ultimately wrecked in attempting to run the blockade of Charleston. Accordingly, in 1862 Great Britain laid down the rule that war vessels of either belligerent must not remain in British ports for more than twenty-four hours, except under stress of weather, or in order to effect necessary repairs, in either of which cases the ship must put to sea as soon as possible after the expiration of the twenty-four hours.

During the Franco-Prussian war this rule was again adopted by Great Britain, and also by the United States, and, taken in conjunction with the old "twenty-four hours rule," seems likely to be accepted in the future for the regulation of the hospitality accorded to belligerent cruisers in neutral ports. But it can never be a hard-and-fast rule of International Law, because, as Hall well observes, "the right of the neutral to vary his own port regulations can never be ousted. The rule can never be more than one to the enforcement of which a belligerent may trust in the absence of notice to the contrary." (J. S. Risley, The Law of War, p. 206.)

Lawrence gives considerable attention to the subject but does not regard the rule as fixed:

We will consider next the duty of belligerent states to obey all reasonable regulations made by neutral states for the protection of their neutrality. This duty relates chiefly, though not exclusively, to maritime affairs. The land forces of the combatants are not permitted to enter neutral territory, but unless a neutral expressly forbids the entry of belligerent war ships, they may freely enjoy the hospitality of its ports and waters. Permission is assumed in the absence of any notice to the contrary, but nevertheless it is a privilege based upon the consent of the neutral, and therefore capable of being accompanied by any conditions he chooses to

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impose. Belligerent commanders can demand that they shall not be asked to submit to unjust and unreasonable restraints, and that whatever rules are made shall be enforced impartially on both sides. But further they can not go. Where they enter on sufferance they must respect the wishes of those who permit their presence. Only when their vessels are driven by stress of weather, or otherwise reduced to an unseaworthy condition, can they demand admission as a matter of strict law. Their right to shelter under such circumstances is called the right of asylum, and it can not be refused by a neutral without a breach of international duty. In recent times neutral states have acted upon their right of imposing conditions upon belligerent vessels visiting their ports. The twenty-four hour rule is the oldest and the most common. It lays down that when war vessels of opposing belligerents are in a neutral ports at the same time, or when war vessels of one side and merchant vessels of the other are in the like predicament, at least twenty-four hours shall elapse between the departure of those who leave first and the departure of their opponents. The object of this injunction is to prevent the occurrence of any fighting, either in the waters of the neutral or so close to them as to be dangerous to vessels frequenting them? Sometimes the word of the commanders that they will not commence hostilities in or near neutral territorial waters has been accepted as sufficient. Greater precautions were generally taken for the restraint of privateers; but the practical abolition of privateering by the Declaration of Paris has made obsolete the distinction between two classes of belligerent cruisers. The possibility of evading the twenty-four hours rule was shown by the conduct of the United States steamer Tuscarora at Southampton in December, 1861, and January, 1862. The southern cruiser Nashville was undergoing repairs in the harbor, and by keeping steam up, claiming to precede her whenever she attempted to depart, and then returning within a day, the Tuscarora really blockaded her in a British port. In the end a British ship of war, exercising a right which a neutral possesses in extreme cases, escorted the Nashville past the Tuscarora and out to sea, while the latter was forbidden to leave the port for twenty-four hours. This and other circumstances caused the British Government to issue, on January 31, 1862, a series of neutrality regulations more stringent than any hitherto published. They provided that no ship of war of either belligerent should be permitted to leave a British port from which a ship of war or merchant vessel of the other belligerent had previously departed, until after the expiration of at least twenty-four hours from the departure of the latter. They laid down further that war vessels of either belligerent should be required to depart within twenty-four hours of their entry, unless they needed more time for taking in innocent supplies or effecting lawful repairs, in which case they were to obtain special permission to remain for a longer period, and were to put to sea within twentyfour hours after the reason for their remaining ceased. They might freely purchase provisions and other things necessary for the subsistence of their crews; but the amount of coal they were allowed to receive was limited to as much as was necessary to take them to the nearest port of their country. 18239-05-6

Moreover, no two supplies of coal were to be obtained in British waters within three months of each other. These restrictions upon the liberty of belligerent vessels in British ports have been reimposed in subsequent wars. The United States adopted them in 1870 at the outbreak of the conflict between France and Germany, and other powers have copied them wholly or in part. In fact, they have become so common that they are sometimes regarded as rules of International Law. This is especially the case with regard to the supply of coal. It is often said that a neutral state is bound to allow belligerent cruisers to take on board no more than is sufficient to carry them to the nearest port of their own country. Such an obligation is unknown to the law of nations, which arms neutrality with authority to impose what restraint they deem necessary, but does not condemn them if they impose none. (Lawrence, Principles of International Law, p. 509.)

Hall regards the twenty-four rule as "practically sure to be enforced in every war:"

Marine warfare so far differs from warfare on land that the forces of a belligerent may enter neutral territory without being under stress from their enemy. Partly as a consequence of the habit of freely admitting foreign public ships of war belonging to friendly powers to the ports of a state as a matter of courtesy, partly because of the inevitable conditions of navigation, it is not the custom to apply the same rigor of precaution to naval as to military forces. A vessel of war may enter and stay in a neutral harbor without special reasons; she is not disarmed on taking refuge after defeat; she may obtain such repair as will enable her to continue her voyage in safety; she may take in such provisions as the needs; and if a steamer, she may fill up with enough coal to enable her to reach the nearest port of her own country; nor is there anything to prevent her from enjoying the security of neutral waters for so long as may seem good to her. To disable a vessel, or to render her permanently immovable, is to assist her enemy; to put her in a condition to undertake offensive operations is to aid her country in its war. The principle is obvious; its application is susceptible of much variation; and in the treatment of ships, as in all other matters in which the neutral holds his delicate scale between two belligerents, a tendency toward the enforcement of a harsher rule becomes more defined with each successive war.

It is easy to fix the proper means of repairs; difficulties short of such circumstances as those which have already been discussed may sometimes occur with reference to supplies of coal or provisions; but if a belligerent can leave a port at his will, the neutral territory may become at any time a mere trap for an enemy of inferior strength. Accordingly, during a considerable period, though not very generally or continuously, neutral states have taken more or less precaution against the danger of their waters being so used. Perhaps the usual custom until lately may be stated as having been that the commander of a vessel of war was required to give his word not to commit hostilities against any vessel issuing from a neutral shortly before him, and that a privateer as being less responsible person, was subjected to detention for twenty-four hours. The disfavor however, with

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which privateers have long been regarded has not infrequently led to their entire exclusion, save in cases of danger from the sea or of absolute necessity; and the twenty-four hours rule has been extended to public ships of war by Italy, France, England, the United States, and Holland. Probably it may now be looked upon as a regulation which is practically sure to be enforced in every war. (Hall, International Law, 5th ed., p. 626.)

Hall also points out that the earlier view of the twentyfour hour rule was not sufficient to cover the cases which may easily arise, and that a limit to the time of sojourn should be made more definite. This position taken by Hall is emphasized by the differentiation in modern war vessels in respect to speed and seaworthiness.

On the general subject of the twenty-four hour rule Hall says:

It will probably be found necessary to supplement the twenty-four hours rule by imposing some limit to the time during which belligerent vessels may remain in a neutral port when not actually receiving repairs. The insufficiency of the twenty-four hours rule, taken by itself, is illustrated by an incident which occurred during the American civil war. In the end of 1861, the United States corvette Tuscarora arrived in Southampton waters with the object, as it ultimately appeared, of preventing the exit of the Confederate cruiser Nashville, which was then in dock. By keeping up steam and having slips on her cable, so that the moment the Nashville moved the Tuscarora could precede her, and claim priority of sailing, by moving and returning again within twenty-four hours and by notifying and then postponing her own departure, the latter vessel attempted and for some time was able to blockade the Nashville within British waters.

In order to guard against the repetition of such acts, it was ordered in the following January that during the continuance of hostilities any vessel of war of either belligerent entering an English port "should be required to depart and to put to sea within twenty-four hours after her entrance into such port, except in case of stress of weather, or of her requiring provisions or things necessary for the subsistence of her crew, or repairs;" in either of which cases the authorities of the port were ordered "to require her to put to sea as soon as possible after the expiration of such period of twenty-four hours." In 1870 [and in 1898] the same rule was laid down; and the United States, unwilling to allow the others the license which she permitted to herself, adopted an identical resolution. It. is perhaps not unlikely soon to become general. (Hall, International Law, 5th ed., p. 628.)

With these opinions continental writers in the main concur, some asserting it even more strongly than the British writers cited.

It is evident that while the twenty-four hour rule can not be held to be obligatory upon a neutral at the present