[673] See Hall, § 231, p. 653.
[674] See above, § 333 (6)—Germany, Domingo, Siam, and Persia have entered a reservation against article 12.
[675] See above, § 333 (5) and § [346].
[676] Quaest. jur. publ. I. c. 8. See also above, § [288], p. 352, and § [320], p. 387.
[677] It was only during the Russo-Japanese War in 1904 that this became generally recognised, and article 24 of Convention XIII. places it beyond all doubt. Until the Russo-Japanese War it was still a controverted question whether a neutral is obliged either to dismiss or to disarm and detain such men-of war as had fled into his ports for the purpose of escaping attack and capture. See Hall, § 231, p. 651, and Perels, § 39, p. 213, in contradistinction to Fiore, III. No. 1578. 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—see Annuaire, XVII. (1898), p. 273—answers (article 42) the question in the affirmative.
[678] This case marks the difference between the duties of neutrals as regards asylum to land and naval forces. Whereas land forces crossing neutral frontiers must either be at once repulsed or detained, men-of-war may be granted the right to stay for some limited time within neutral harbours and to leave afterwards unhindered; see above, § [342]. The supply of a small quantity of coal to the Novik in Tsing-Tau was criticised by writers in the Press, but unjustly. For—see above, § [346]—a neutral may allow a belligerent man-of-war in his port to take in so much coal as is necessary to navigate her to her nearest home port.
Neutral Men-of-War as an Asylum.
§ 348. It can happen during war that neutral men-of-war pick up and save from drowning soldiers and sailors of belligerent men-of-war sunk by the enemy, or that they take belligerent marines on board for other reasons. Such neutral men-of-war being an asylum for the rescued marines, the question has arisen whether such rescued marines must be given up to the enemy, or must be detained during the war, or may be brought to their home country. Two cases are on record which illustrate this matter.
(1) At the beginning of the Chino-Japanese War, on July 25, 1894, after the Japanese cruiser Naniwa had sunk the British ship Kow-shing, which served as transport carrying Chinese troops,[679] forty-five Chinese soldiers who clung to the mast of the sinking ship were rescued by the French gunboat Lion and brought to the Korean harbour of Chemulpo. Hundreds of others saved themselves on some islands near the spot where the incident occurred, and 120 of these were taken on board the German man-of-war Iltis and brought back to the Chinese port of Tientsin.[680]
(2) At the beginning of the Russo-Japanese War, on February 9, 1904, after the Russian cruisers Variag and Korietz had accepted the challenge[681] of a Japanese fleet, fought a battle outside the harbour of Chemulpo, and returned, crowded with wounded, to Chemulpo, the British cruiser Talbot, the French Pascal, and the Italian Elba received large numbers of the crews of the disabled Russian cruisers. The Japanese demanded that the neutral ships should give up the rescued men as prisoners of war, but the neutral commanders demurred, and an arrangement was made according to which the rescued men were handed over to the Russians under the condition that they should not take part in hostilities during the war.[682]