[669] See above, § 333 (5), and below, § [347 (3)].
[670] See above, § 333 (4).
[671] See above, §§ [330] and 333 (3).
Abuse of Asylum to be prohibited.
§ 347. It would be easy for belligerent men-of-war to which asylum is granted in neutral ports to abuse such asylum if neutrals were not required to prohibit such abuse.
(1) A belligerent man-of-war can abuse asylum, firstly, by ascertaining whether and what kind of enemy vessels are in the same neutral port, accompanying them when they leave, and attacking them immediately they reach the Open Sea. To prevent such abuse, in the eighteenth century several neutral States arranged that, if belligerent men-of-war or privateers met enemy vessels in a neutral port, they were not to be allowed to leave together, but an interval of at least twenty-four hours was to elapse between the sailing of the vessels. During the nineteenth century this so-called twenty-four hours rule was enforced by the majority of States, and the Second Peace Conference, by article 16 of Convention XIII., has made it a general rule[672] by enacting:—"When war-ships belonging to both belligerents are present simultaneously in a neutral port or roadstead, a period of not less than twenty-four 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."
(2) Asylum can, secondly, be abused by wintering in a port in order to wait for other vessels of the same fleet, or by similar intentional delay. There is no doubt that neutrals must prohibit this abuse by ordering such belligerent men-of-war to leave the neutral ports. Following the example set by Great Britain in 1862,[673] several maritime States have adopted the rule of not allowing a belligerent man-of-war to stay in their neutral ports for more than twenty-four hours, except on account of damage or stress of weather. Other States, such as France, do not, however, object to a more prolonged stay in their ports. Article 12 of Convention XIII. prescribes the twenty-four hours rule only for those neutral countries which have not special provisions to the contrary in their Municipal Laws.[674]
(3) Asylum can, thirdly, be abused by repairing a belligerent man-of-war which has become unseaworthy. Although small repairs are allowed,[675] a neutral would violate his duty of impartiality by allowing such repairs as would make good the unseaworthiness of a belligerent man-of-war. During the Russo-Japanese War this was generally recognised, and the Russian men-of-war Askold and Grossovoi in Shanghai, the Diana in Saigon, and the Lena in San Francisco had therefore to be disarmed and detained. The crews of these vessels had likewise to be detained for the time of the war.
(4) Asylum can, lastly, be abused by remaining in a neutral port an undue length of time in order to escape attack and capture by the other belligerent. Neutral territorial waters are in fact an asylum for men-of-war which are pursued by the enemy, but, since nowadays a right of pursuit into neutral waters, as asserted by Bynkershoek,[676] is no longer recognised, it would be an abuse of asylum if the escaped vessel were allowed to make a prolonged stay in the neutral waters. A neutral who allowed such abuse of asylum would violate his duty of impartiality, for he would assist one of the belligerents to the disadvantage of the other.[677] Therefore, when after the battle off Port Arthur in August 1904 the Russian battleship Cesarewitch, the cruiser Novik, and three destroyers escaped, and took refuge in the German port of Tsing-Tau in Kiao-Chau, the Novik, which was uninjured, had to leave the port after a few hours,[678] whereas the other vessels, which were too damaged to leave the port, were disarmed and, together with their crews, detained till the conclusion of peace. And when, at the end of May 1905, after the battle of Tsu Shima, three injured Russian men-of-war, the Aurora, Oleg, and Jemchug, escaped into the harbour of Manila, the United States of America ordered them to be disarmed and, together with their crews, to be detained during the war.
[672] See above, § 333 (2), and Hall, § 231, p. 651.