[224] See above, § [100]; Moore, VII. § 1196; Scott, Conferences, pp. 559-563.
[225] The indulgence granted to enemy merchantmen in Russian and Japanese ports at the outbreak of the war in 1904, to leave those ports unmolested within a certain period of time, was conditional upon there being no contraband in the cargoes. See Lawrence, War, p. 52.
[226] As the seizure of all these articles is, according to article 53 of the Hague Regulations, permissible in occupied enemy country, provided they are restored and indemnities paid after the conclusion of peace, seizure must likewise—under the same conditions—be permissible in case these articles are on the territory of a belligerent. As regards rolling stock belonging to private enemy railway companies, see Nowacki, Die Eisenbahnen im Kriege (1906), § 15.
Effect of the Outbreak of War on Merchantmen.
§ 102a. In former times International Law empowered States at the outbreak of war to lay an embargo upon all enemy merchantmen in their harbours in order to confiscate them. And enemy merchantmen on the sea could at the outbreak of war be captured and confiscated although they did not even know of the outbreak of war. As regards enemy merchantmen in the harbours of the belligerents, it became, from the outbreak of the Crimean War in 1854, a usage, if not a custom, that no embargo[227] could be laid on them for the purpose of confiscating them, and that a reasonable time must be granted them to depart unmolested; but no rule was in existence until the Second Peace Conference of 1907 which prescribed immunity from confiscation for such enemy merchantmen at sea as did not know of the outbreak of war. This Conference took the matter into consideration, and produced a Convention (VI.) relative to the status of enemy merchantmen at the outbreak of hostilities[228] which is signed by all the Powers represented at the Conference, except the United States of America,[229] China, and Nicaragua; but Nicaragua acceded later. In coming to an agreement on the subject, two facts had to be taken into consideration. There is, firstly, the fact that in all maritime countries numerous merchantmen are now built from special designs in order that they may quickly, at the outbreak of or during war, be converted into cruisers; it would therefore be folly on the part of a belligerent to grant any lenient treatment to such vessels. There is, secondly, the fact, that a belligerent fleet cannot nowadays remain effective for long without being accompanied by a train of colliers, transport vessels, and repairing vessels; it is, therefore, of the greatest importance for a belligerent to have as many merchantmen as possible at his disposal for the purpose of making use of them for such assistance to the fleet. For this reason, Convention VI. represents a compromise, and it distinguishes between vessels in the harbours of the belligerents and vessels on the sea. Its provisions are the following:—
[228] See Lémonon, pp. 647-661; Higgins, pp. 300-307; Nippold, II. pp. 146-153; Scott, Conferences, pp. 556-568; Dupuis, Guerre, Nos. 74-81; Scott in A.J. II. (1908), pp. 260-269.
[229] The United States of America refused to sign the Convention because she considers its stipulations retrogressive as they are less liberal than the practice which has prevailed since 1854. But circumstances have changed since that time, and the two facts explained in the text would seem to have compelled the maritime Powers to adopt rules somewhat less liberal. This was the more necessary since no agreement could be arrived at concerning the question of the locality in which belligerents should be allowed to convert merchantmen into cruisers.
(1) Article 1 of the Convention enacts that, in case an enemy merchantman is at the beginning of the war in the port of a belligerent, it is desirable that she should be allowed freely to depart, either immediately or after a sufficient term of grace, and, after being furnished with a passport, to proceed either direct to her port of destination or to such other port as may be determined. It is obvious that, since only the desirability of free departure of such vessels is stipulated, a belligerent is not compelled to grant free departure; nevertheless there must be grave reasons for not acting in accordance with what is considered desirable by article 1. And it must be specially observed that a belligerent may make a distinction in the treatment of several enemy vessels in his harbours, and may grant free departure to one or more of them, and refuse it to others, according to his discretion.
(2) The former usage that enemy merchantmen in the harbours of the belligerents at the outbreak of war may not be confiscated, has been made a binding rule by article 2 which enacts that such vessels as were not allowed to leave, or were by force majeure prevented from leaving during the term of grace, may not be confiscated, but may only be detained under the obligation that they shall be restored, without indemnity, after the conclusion of peace, or they may be requisitioned on condition of indemnities to be paid to the owners.