[790] Attention ought to be drawn here to Convention VII. (concerning the conversion of merchant-ships into war-ships) of the second Hague Peace Conference of 1907. Although this convention concerns the time of war only, it is indirectly of importance for the time of peace. Its stipulations are the following:—No merchant-ship converted into a war-ship can have the rights and duties appertaining to that status unless it is placed under the direct authority, immediate control, and responsibility of the Power whose flag it flies (art. 1). Merchant-ships converted into war-ships must bear the external marks which distinguish the war-ships of their nationality (art. 2). The commander must be in the service of the State and duly commissioned by the proper authorities. His name must figure on the list of the officers of the military fleet (art. 3). The crew must be subject to the rules of military discipline (art. 4). Every merchant-ship converted into a war-ship is bound to observe, in its operations, the laws and customs of war (art. 5). A belligerent who converts a merchant-ship into a war-ship must, as soon as possible, announce such conversion in the list of the ships of its military fleet (art. 6).
[791] Privateers used to enjoy the same character and exemptions as men-of-war.
Occasions for Men-of-war abroad.
§ 449. Whereas armed forces in time of peace have no occasion to be abroad, cases of a special right from a convention and cases of necessity excepted, men-of-war of all maritime States possessing a navy are constantly crossing the High Seas in all parts of the world for all kinds of purposes. Occasions for men-of-war to sail through foreign territorial waters and to enter foreign ports necessarily arise therefrom. And a special convention between the flag-State and the littoral State is not necessary to enable a man-of-war to enter and sail through foreign territorial waters and to enter a foreign port. All territorial waters and ports of the civilised States are, as a rule, quite as much open to men-of-war as to merchantmen of all nations, provided they are not excluded by special international stipulations or special Municipal Laws of the littoral States. On the other hand, it must be emphasised that, provided special international stipulations or special treaties between the flag-State and the littoral State do not prescribe the contrary in regard to one port or another and in regard to certain territorial waters, a State is in strict law always competent to exclude men-of-war from all or certain of its ports, and from those territorial waters which do not serve as highways for international traffic.[792] And a State is, further, always competent to impose what conditions it thinks necessary upon men-of-war which it allows to enter its ports, provided these conditions do not deny to men-of-war their universally recognised privileges.
[792] The matter is controversial. See above, § [188], and Westlake, I. p. 192, in contradistinction to Hall, § 42.
Position of Men-of-war in foreign waters.
§ 450. The position of men-of-war in foreign waters is characterised by the fact that they are called "floating" portions of the flag-State. For at the present time a customary rule of International Law is universally recognised that the owner State of the waters into which foreign men-of-war enter must treat them in every point as though they were floating portions of their flag-State.[793] Consequently, a man-of-war, with all persons and goods on board, remains under the jurisdiction of her flag-State even during her stay in foreign waters. No official of the littoral State is allowed to board the vessel without special permission of the commander. Crimes committed on board by persons in the service of the vessel are under the exclusive jurisdiction of the commander and the other home authorities. Individuals who are subjects of the littoral State and are only temporarily on board may, although they need not, be taken to the home country of the vessel, to be there punished if they commit a crime on board. Even individuals who do not belong to the crew, and who after having committed a crime on the territory of the littoral State have taken refuge on board, cannot be forcibly taken off the vessel; if the commander refuses their surrender, it can be obtained only by means of diplomacy from the home State.
[793] This rule became universally recognised during the nineteenth century only. On the change of doctrines formerly held in this country and the United States of America, see Hall, § 54, and Lawrence, § 107. English and American Courts now recognise the exterritoriality of foreign public vessels. Thus, in the case of the Exchange (7 Cranch, 116), the Supreme Court of the United States recognised the fact that the latter had no jurisdiction over this French man-of-war. In the case of the Constitution, an American man-of-war, the High Court of Admiralty in 1879 held that foreign public ships cannot be sued in English Courts for salvage (L.R. 4 P.D. 39). And in the case of the Parlement Belge (L.R. 5 P.D. 197) the Court of Appeal, affirmed by the House of Lords in 1878, held that foreign public vessels cannot be sued in English Courts for damages for collision. Again the same was held in 1906 in the case of the Jassy, a Roumanian ship, 10 Aspinall, Mar. Cas. p. 278. See also the Charkieh (1873), L.R. 4 Adm. and Eccl. 59.
On the other hand, men-of-war cannot do what they like in foreign waters. They are expected voluntarily to comply with the laws of the littoral States with regard to order in the ports, the places for casting anchor, sanitation and quarantine, customs, and the like. A man-of-war which refuses to do so can be expelled, and, if on such or other occasions she commits acts of violence against the officials of the littoral State or against other vessels, steps may be taken against her to prevent further acts of violence. But it must be emphasised that even by committing acts of violence a man-of-war does not fall under the jurisdiction of the littoral State. Only such measures are allowed against her as are necessary to prevent her from further acts of violence.[794]
[794] Attention ought to be drawn to the "Règlement sur le régime légal des navires et de leurs équipages dans les ports étrangers," adopted by the Institute of International Law, in 1898, at its meeting at the Hague of which articles 8-24 deal with men-of-war in foreign waters; see Annuaire, XVII. (1898), pp. 275-280.