The article in its present form was accepted by the commission and reported to the conference.25

The strongest reason advanced in favor of article 12, as distinguished from the German plan, is that the former embodies a precise rule of conduct, always applicable in the absence of special provisions to the contrary adopted by the neutral.26

Article 12 makes no distinction between the belligerent war vessel which enters neutral waters simply en route to the theater of hostilities, and that which seeks refuge therein to escape capture. In the latter case, if special legislative provisions of the neutral so provided, a belligerent war vessel might, according to article 12, be permitted to remain longer than twenty-four hours.

It was the opinion of the United States Naval War College in 1904, that a belligerent commander seeking to capture a fugitive vessel would be justified in protesting against a sojourn of the latter for more than twenty-four hours, unless on grounds of special necessity, and not for military reasons; 27 also, that the neutral state would be obliged to intern the vessel thus seeking its protection.

The Naval War College in 1905, pursuing the same problem with respect to the right as well as the duty of the neutral, reached the following conclusion, which in view of the terms of article 12 is peculiarly enlightening:

The precedents of the Russo-Japanese war have led to the definite acknowledgment of the correctness of the doctrine of internment by neutral states of belligerent vessels seeking refuge from the force of the enemy in neutral ports. This principle has been acknowledged or definitely acted upon by China, France, Great Britain, Germany, Japan, United States, and Russia. These include nearly all the states with considerable navies. Rarely has any principle received such general recognition within so short a period.

25 Report to the Conference, 11-16.

26 Report to the Conference, 14.

27 Naval War College, Inter. Law Situations, 1904, 79-93. There are there collected neutrality proclamations of various maritime states which employed the 24-hour rule at the time of the Spanish American war.

See also neutrality proclamations of the United States and certain other powers during the Russo-Japanese war. U. S. For. Rel., 1904, 14-35.

See also Rules Adopted by the Institute of International Law at The Hague in 1898, Annuaire, XVII, 285.

It may be safely said that the entrance and sojourn for a period of more than twenty-four hours in a neutral port will render a belligerent vessel which is pursued by the enemy or damaged in battle liable to internment.2 28

Article 13 declares:

If a power which has been informed of the outbreak of hostilities learns that a belligerent war ship is in one of its ports or roadsteads, or in its territorial waters, it must notify the said ship to depart within twenty-four hours or within the time prescribed by local regulations.

The necessity for the notification here provided is obvious.

Article 14 declares:

A belligerent war ship may not prolong its stay in a neutral port beyond the permissible time except on account of damage or stress of weather. It must depart as soon as the cause of the delay is at an end.

The regulations as to the question of the length of time which these vessels may remain in neutral ports, roadsteads, or waters do not apply to war ships devoted exclusively to religious, scientific, or philanthropic purposes.

The distinction between the treatment to be accorded belligerent war vessels and those specified in the second paragraph is essential and deserves the recognition here given.29

That damage or stress of weather should serve as a ground for the prolongation of the permissible sojourn of the belligerent is reasonable and generally appreciated. The extent of the sojourn for purposes of repair should be considered in connection with article 17. Article 15 declares:

In the absence of special provisions to the contrary in the legislation of a neutral power, the maximum number of war ships belonging to a

28 Naval War College, Inter. Law Situations, 1905, 154, 170.

29 Note the treatment accorded the U. S. S. Monocacy by China during the Spanish-American war. That vessel was an antiquated ship of light draft employed in Chinese waters for the protection of American citizens. It was permitted to remain in China. See Moore, Inter. Law Dig., VII, 991, citing Mr. Day, Secretary of State, to Mr. Denby, minister to China, No. 1593, June 7, 1898, MS. Inst. China, V, 566.

Concerning the case of a Russian vessel about to sail on a scientific expedition after coaling at a Norwegian port during the Russo-Japanese war, see Takahashi, Inter. Law Applied to the Russo-Japanese War, 353.

belligerent which may be in one of the ports or roadsteads of that power simultaneously shall be three.

That a maximum number of war vessels of a belligerent simultaneously in one of the ports or roadsteads of a neutral should be fixed by international agreement is not open to dispute. That such maximum should not be greater than three seems reasonable and highly advantageous to the neutral.30

Article 16 declares:

When war ships belonging to both belligerents are present simultaneously in a neutral port or roadstead, a period of not less than twentyfour hours must elapse between the departure of the ship belonging to one belligerent and the departure of the ship belonging to the other.

The order of departure is determined by the order of arrival, unless the ship which arrived first is so circumstanced that an extension of its stay is permissible.

A belligerent war ship may not leave a neutral port or roadstead until twenty-four hours after the departure of a merchant ship flying the flag of its adversary.

The provisions of the first paragraph were regarded as simply declaratory of the existing rule of the law of nations, and aroused no opposition in the comité.31

The order of departure of war ships of both belligerents simultaneously in one of the ports or roadsteads of a neutral furnished a problem which provoked discussion. The following plans were suggested: First, that the neutral should control the order of departure; secondly, that the priority of demands should be taken into consideration; thirdly, that the weaker naval vessel should depart first; fourthly, that the order of arrival should determine the order of departure. The last of these met with the approval of the comité.32 Article 17 declares:

In neutral ports and roadsteads belligerent war ships may only carry out such repairs as are absolutely necessary to render them seaworthy,

30 It will be remembered that this number of Russian men-of-war, under Admiral Enquist, sought asylum at Manila in June, 1905. See Moore, Inter. Law Dig., VII, 992.

and may not add in any manner whatsoever to their fighting force. The authorities of the neutral power shall decide what repairs are necessary, and these must be carried out with the least possible delay.

It will be observed that " ports and roadsteads " are the only waters to which reference is here made. Replying to the inquiry of Sir E. Satow, why other "territorial waters" were not included, it was declared by the reporter that in such waters (other than ports and roadsteads) a belligerent would find it difficult to make repairs; and also that the effectual control by the neutral might not there be always possible.

33

There can be no dispute that a belligerent war ship should not be permitted to make such repairs as may add to its fighting or military force. This principle is generally accepted.3. 34

The extent of repairs absolutely necessary to render a belligerent war ship seaworthy, and the extent of time to be allowed therefor, involve problems which may be raised under articles 14 and 17. The terms of these articles clearly give some latitude to the neutral. The allowance of a few days might not be regarded as improper, or as affording grounds for protest by one of the belligerents. It is not believed that extensive repairs, however necessary, requiring several weeks for their completion, could be justly permitted.35

33 Report to the Conference, 20.

34 Such was the position of the United States during the Russo-Japanese war. With respect to the squadron of Admiral Enquist which arrived at Manila early in June, 1905, the Secretary of War, at the direction of the President, telegraphed the Governor of the Philippine Islands on June 5, as follows: "Advise Russian Admiral that as his ships are suffering from damages due to battle, and our policy is to restrict all operations of belligerents in neutral ports, the President can not consent to any repairs unless the ships are interned at Manila until the close of hostilities." (Naval War College, Situations in Inter. Law, 1905, 168.) See also Moore, Inter. Law Dig., VII, 992–995, and documents there cited.

35 With reference to the Russian cruiser Lena, which arrived at San Francisco Sept. 13, 1904, Mr. Adee, Acting Secretary of State, advised the Russian Ambassador Sept. 14, 1904, in part as follows: “If repaired, only such bare repairs can be allowed as may be necessary for seaworthiness and for taking her back to nearest home port, and even such repairs can be permitted only on condition that they do not prove too extensive." (U. S. For. Rel., 1904, 785–786.) In view of the formal application of the captain of the vessel to make needed re

Article 18 declares:

Belligerent war ships may not make use of neutral ports, roadsteads, or territorial waters, for replenishing or increasing their supplies of war material or their armament, or for completing their crews.

This article embodies the principle expressed in the second of the Neutrality Rules of the Treaty of Washington of May 8, 1871. Instead, however, of declaring it to be the duty of the neutral to prevent certain uses of its own waters, as is done in the earlier treaty, the belligerent is here directly forbidden to use such waters for the purposes specified. That the prohibition should have been extended to "territorial waters " as well as to ports and roadsteads was eminently wise.

Article 19 declares:

Belligerent war ships may only revictual in neutral ports or roadsteads to complete their supplies up to amount usual in time of peace. Similarly these vessels may only ship sufficient fuel to enable them to reach the nearest port of their country. They may, however, fill up their bunkers built to carry fuel, when in neutral countries which have adopted this method of determining the amount of fuel to be supplied.

If, in accordance with the law of the neutral power, the ships are not supplied with coal within twenty-four hours of their arrival, the permissible duration of their stay is extended by twenty-four hours.

The right of the belligerent to revictual and to take fuel were considered separately. The first paragraph of the article relating to the former was accepted by the comité, without difficulty.3

36

With respect to the supply of fuel to be taken by a belligerent war ship divergent views were expressed. Great Britain, on the one hand, advocated a rule that the quantity should not in any case exceed an amount necessary to enable the vessel to reach the nearest

pairs, which included new boilers, and the reconstruction of the engines, and which would require several months for their completion, the vessel was interned by the United States. U. S. For. Rel., 785-790; Moore, Inter. Law Dig., VII, 999-1000.

Note attitude of Japan with respect to Russian war ships at Shanghai, Aug. 1904. Takahashi, Inter. Law Applied to the Russo-Japanese War, 418-436; also, U. S. For. Rel., 1904, 426.

See also Naval War College, Situations in Inter. Law, 1905, 160-170.

36 Report to the Conference, 21.