can be as little question that the conduct of the Greek and American governments presented examples of grave deviations from the spirit of the rule of neutrality and from the letter of that which guides nations in time of general peace. In cases of this kind the neutral country is brought under the common military definition of a base of operations; it becomes the territory "from which an army" or a naval force" draws its resources and reinforcements, that from which it sets forth on an offensive expedition, and in which it finds a refuge. at need." But there are some cases in which the question whether a neutral territory is so converted by a belligerent into a base of operations as to affect the neutral state with responsibility is not so readily answered. An argument placed before the Tribunal of Arbitration at Geneva on behalf of the United States, though empty in the particular case to which it was applied, suggests that the essential elements of the definition of a base possess a wider scope than is usually given to them. In 1865 the Shenandoah, a Confederate cruiser, entered Melbourne in need of repairs, provisions, and coal, and with a crew insufficient for purposes of war. She was refitted and provisioned, and obtained a supply of coal, which seems to have enabled her to commit depredations in the neighborhood of Cape Horn on whalers belonging to the United States; her crew having been surreptitiously recruited at the moment of her departure from Port Philip. It was urged on the part of the government of that country that "the main operation of the naval warfare" of the Shenandoah having been accomplished by means of the coaling "and other refitment," Melbourne had been converted into her base of operations. The argument was unsound because continued use is above all things the crucial test of a base, both as a matter of fact, and as fixing a neutral with responsibility for acts in themselves innocent. or ambiguous. A neutral has no right to infer evil intent from a single innocent act performed by a belligerent armed force; but if he finds that it is repeated several times, and that it has always prepared the way for warlike operations, he may fairly be expected to assume that a like consequence is intended in all cases to follow, and he ought therefore to prevent its being done within his territory. If a belligerent vessel, belonging to a nation having no colonies, carries on hostilities in the Pacific by provisioning in a neutral port, and by returning again and again to it, or to other similar ports, without ever revisiting her own, the neutral country practically becomes the seat of magazines of stores, which though not warlike are necessary to the prolongation of the hostilities waged by the vessel. She obtains as solid an advantage as Russia in a war with France would derive from being allowed to march her troops across Germany. She is enabled to reach her enemy at a spot which would otherwise be unattainable. That previously to the American Civil War neutral states were not affected by liability for acts done by a belligerent to a further point than that above indicated, there can be no question: but there is equally little question that opinion has moved onwards since that time and the law can hardly be said to have remained in its then state. Hall, pp. 627-629. * The principle upon which the act of issuing from neutral ground for an immediately hostile end is interdicted was laid down by Lord Stowell in a case in which an English frigate lying within Prussian waters sent out its boats to make captures among vessels anchored in the neighboring roads at the entrance of the Dollart. Hall, pp. 626, 627. Extension of rule. But the term "base" does not in itself carry any implication as to the importance or number of the operations proceeding from it, and the principle is the same whether an expedition consists of a fleet or of a single ship. Nay, more, the principle is the same for expeditions starting from land or from sea frontiers. The departure of a force from either with belligerent intent is a matter which in every country is reserved for the public authority, and any private person or foreign government which presumes to despatch a force with such an intent usurps that authority, and involves the territorial government which permits such a usurpation in the charge of participating in the war. Westlake, vol. 2, p. 222. A difficulty in the practical application of the doctrine as to illegal expeditions has been sometimes felt to arise when the elements of an expedition, such as ships, men and arms, are despatched from a neutral territory separately and are combined outside its limits. It would indeed be difficult to hold that the fact of combination gave a non-commercial character, in violation of neutrality, to something of which the separate elements were all of a merely commercial character; but such a case could scarcely occur in reality. If what results from the combination is a military force inspired by a belligerent intent. it can hardly be but that at least some of its elements must have been despatched from the neutral territory with that intent, so as to give to their despatch an unneutral character which, as we have seen, does not depend on the completeness of the belligerent preparations. Westlake, vol. 2, 223. General acceptance has been given to the doctrine that the completion of preparations for an immediate act of hostility is forbidden to belligerents in neutral waters. This interpretation of the received rule would suffice to bring within its prohibitions the assemblage in a neutral bay of a number of torpedo boats prepared to make a sudden dash for a neighboring port belonging to the other belligerent, especially if they stole into the bay or harbor one by one, having picked their way towards it along a neutral coastline. Indeed, it might be argued that any use by belligerent torpedo boats of neutral waters which lay near a hostile line of naval communication was forbidden. since nothing would be easier for them than to make a dash from thence at a passing enemy squadron many miles out at sea. Lawrence, p. 609. A belligerent, as we have just seen, is bound not to use neutral territory as a base of operations. * * * it is difficult to resist the argument that, though continuous use does undoubtedly make a place from which supplies and reinforcements are drawn into a base, yet we cannot go so far as to say that without continuous use there can be no question of any violation of neutrality. It is quite possible for instance, to conceive of a case where the admission into a neutral port of a warlike expedition for the purpose of refitment and coaling would enable it to strike a successful blow at some neighboring possession of the other belligerent. Surely in such circumstances the port would be a base of operations, even though the belligerent flag was seen in it on no other occasion during the war. * * It is suggested that the words should be used to cover cases where acts which neutrals need not prohibit when done to a slight extent or for a short time, have taken place on such a scale or for so long a time as to turn them into occurrences highly beneficial to the belligerent in pursuit of his warlike ends. For instance, a brief visit to a neutral port is quite allowable, but a lengthy stay for purposes of rest and refitment should be forbidden; or a prize may be taken in and kept for a short period, but if the port is filled with prizes and they are left in safety there for an indefinite time, it should be regarded as a base of operations. Lawrence, p. 618-619. A neutral must, so far as is in his power, prevent belligerent menof-war from cruising within his portion of the maritime belt for the purpose of capturing enemy vessels as soon as they leave this belt. It must, however, be specially observed that a neutral is not required to prevent this beyond his power. It is absolutely impossible to prevent such cruising under all circumstances and conditions, especially in the case of neutrals who own possessions in distant parts of the globe. Oppenheim, vol. 2, p. 401. On April 16, 1795, Mr. Randolph, Secretary of State sent a circular letter to the Governors of the several states in which he said: "As it is contrary to the law of nations that any of the belligerent powers should commit hostility on the waters which are subject to the exclusive jurisdiction of the United States, so ought not the ships of war, belonging to any belligerent power, to take a station in those waters in order to carry on hostile expeditions from thence. I do myself the honor, therefore, of requesting of your excellency, in the name of the President of the United States, that, as often as a fleet, squadron, or ship, of any belligerent nation, shall clearly and unequivocally use the rivers, or other waters of as a station, in order to carry on hostile expeditions from thence, you will cause to be notified to the commander thereof that the President deems such conduct to be contrary to the rights of our neutrality; and that a demand of retribution will be urged upon their government for prizes which may be made in consequence thereof. A standing order to this effect may probably be advantageously placed in the hands of some confidential officer of the militia, and I must entreat you to instruct him to write by the mail to this Department, immediately upon the happening of any case of the kind." 1 Am. State Papers, For. Rel., 608; Moore's Digest, vol. vii, pp. 934, 935. Nor is it proper to make a convenience in any manner of neutral ports or neutral territory for the purpose of exercising in the vicinity thereof the belligerent right of search or seizure. The capture of a vessel after standing off and on in neutral waters or lying in wait within the same for the purpose, although the capture may have been actually made beyond the jurisdiction of the neutral, might not be recogned as valid. Instructions of United States Secretary of the Navy, September 23, 1864. * * * no ship of war or privateer of either belligerent shall be permitted to make use of any port, harbor, roadstead, or other waters within the jurisdiction of the United States as a station or place of resort for any warlike purpose. Proclamation of President Grant, October 8, 1870. For. Rel. 1870, 48. See also proclamation of President Roosevelt, February 11, 1904. The Commander may not use Neutral Territorial Waters as an habitual War Station, whence to sally out with his Ship or Boats and exercise the powers of Visit, Search, or Detention upon Vessels lying beyond the limits of such Waters. Holland, p. 2. Article 5, Hague Convention XIII, 1907, is substantially identical with section 125, Austro-Hungarian Manual, 1913. On July 29, 1863, Mr. Seward, Secretary of State, wrote to the British Minister that Commander Craven, U. S. N., had been instructed by the Secretary of the Navy "that it was not proper to make a convenience, in any manner, of neutral territory for the purpose of exercising the belligerent right of search or capture. A capture of a neutral vessel made after standing off and on a neutral harbor, or mouth of a river, or lying in wait within it for the purpose, although actually made beyond the neutral jurisdiction, would not be recognised as valid, and the right of search can not properly be exercised when it is known previously that, whatever the event of the search, the capture would not be lawful." Moore's Digest, vol. vii, p. 935. SUPPLY BY NEUTRAL POWER TO BELLIGERENT POWER OF WAR-MATERIAL FORBIDDEN. The supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of war-ships, ammunition, or war material of any kind whatever, is forbidden.-Hague Convention XIII, 1907, Article 6. No citizen or subject of either of the contracting parties shall take from any Power with which the other may be at war any commission or letter of marque, for arming any vessel to act as a privateer against the other, on pain of being punished as a pirate; nor shall either party hire, lend, or give any part of its naval or military force to the enemy of the other, to aid them offensively or defensively against the other. Treaty of Amity and Commerce concluded between the United States and Prussia, July 11. 1799, Article XX. A neutral State which is desirous of remaining on terms of peace and friendship with the belligerents, and of enjoying the rights of neutrality, must abstain from taking any part whatever in the war, by lending military assistance to one or both of the belligerents, ** Consequently the neutral State cannot, in any manner whatever, put at the disposal of any of the belligerent States, or sell to them its war vessels or military transports, nor material from its arsenals or military stores, for the purpose of assisting it in prosecuting the war. Institute, 1875, pp. 12, 13. The principal restriction which the law of nations imposes on the trade of neutrals is the prohibition to furnish the belligerent parties with warlike stores and other articles which are directly auxiliary to warlike purposes. Kent, vol. 1, p. 142. Exception. But the neutral duty does not extend so far as to prohibit the fulfilment of antecedent engagements, which may be kept consistently with an exact neutrality, unless they go so far as to require the neutral nation to become an associate in the war. If a nation be under a previous stipulation made in time of peace, to furnish a given number of ships or troops to one of the parties at war, the contract may be complied with, and the state of peace preserved, except so far as the auxiliary forces are concerned. Kent, vol. 1, p. 123. |