Bynkershoek, Quaest. jur. pub. I. c. 14—Vattel, III. § 114—Hall, §§ 270-276—Manning, pp. 433-460—Phillimore, III. §§ 322-344—Twiss, II. §§ 91-97—Halleck, II. pp. 255-271—Taylor, §§ 685-689—Wharton, III. §§ 325 and 346—Wheaton, §§ 524-537—Moore, VII. §§ 1199-1205—Bluntschli, §§ 819-826—Heffter, §§ 167-171—Geffcken in Holtzendorff, IV. pp. 773-781—Klüber, §§ 293-294—G. F. Martens, II. §§ 317 and 321—Ullmann, § 196—Bonfils, Nos. 1674-1691—Despagnet, Nos. 717-721—Rivier, II. pp. 423-426—Nys, III. pp. 682-692—Calvo, V. §§ 2939-2991—Fiore, III. Nos. 1630-1641, and Code, Nos. 1853-1877—Martens, II. § 137—Kleen, II. §§ 185-199, 209—Gessner, pp. 278-332—Boeck, Nos. 767-769—Dupuis, Nos. 239-252, and Guerre, Nos. 189-204—Bernsten, § 11—Nippold, II. § 35—Perels, §§ 52-55—Testa, pp. 230-242—Ortolan, II. pp. 214-245—Hautefeuille, III. pp. 1-299—Holland, Prize Law, §§ 1-17, 155-230—U.S. Naval War Code, articles 30-33—Schlegel, Sur la visite des vaisseaux neutres sous convoi (1800)—Mirbach, Die völkerrechtlichen Grundsätze des Durchsuchungsrechts zur See (1903)—Loewenthal, Das Untersuchungsrecht des internationalen Seerechts im Krieg und Frieden (1905)—Atherley-Jones, Commerce in War (1906), pp. 299-360—Hirschmann, Das internationale Prisenrecht (1912), §§ 33-34—Duboc in R.G. IV. (1897), pp 382-403—See also the monographs quoted above at the commencement of § [391], Bulmerincq's articles on Le droit des prises maritimes in R.I. X-XIII. (1878-1881), and the General Report presented to the Naval Conference of London on behalf of the Drafting Committee, article 63.
Conception of Right of Visitation.
§ 414. Right of visitation[886] is the right of belligerents to visit and eventually search neutral merchantmen for the purpose of ascertaining whether these vessels really belong to the merchant marine of neutrals, and, if this is found to be the case, whether they are attempting to break a blockade, or carry contraband, or render unneutral service to the enemy. The right of visit and search was already mentioned in the Consolato del Mare, and although it has often[887] been contested, its raison d'être is so obvious that it has long been universally recognised in practice. It is indeed the only means by which belligerents are able to ascertain whether neutral merchantmen intend to bring assistance to the enemy and to render him unneutral services.[888]
[886] It must be borne in mind that this right of visitation is not an independent right but is involved in the right of either belligerent—see above, § [314]—to punish neutral vessels breaking blockade, carrying contraband, and rendering unneutral service.
[887] See, for instance, Hübner, De la saisie des bâtiments neutres (1759), I. p. 227.
[888] Attention should be drawn to the Règlement international des prises maritimes, adopted at Heidelberg in 1887 by the Institute of International Law; §§ 1-29 regulate visit and search. See Annuaire, IX. (1888), p. 202.
Right of Visitation, by whom, when, and where exercised.
§ 415. The right of visit and search may be exercised by all warships[889] of belligerents. But since it is a belligerent right, it may, of course, only be exercised after the outbreak and before the end of war. The right of visitation on the part of men-of-war of all nations in time of peace in a case of suspicion of piracy—see above, [vol. I. § 266 (2)]—has nothing to do with the right of visit and search on the part of belligerents. And since an armistice does not bring war to an end, and since, on the other hand, the exercise of the right of visitation is not an act of warfare, this right may be exercised during the time of a partial as well as of a general armistice.[890] The region where the right may be exercised is the maritime territorial belt of either belligerent, and, further, the Open Sea, but not the maritime territorial belt of neutrals. Whether the part of the Open Sea in which a belligerent man-of-war meets with a neutral merchantman is near or far away from that part of the world where hostilities are actually taking place makes no difference so long as there is suspicion against the vessel. The question as to whether the men-of-war of a belligerent may exercise the right of visitation in the maritime territorial belt of an ally is one between the latter and the belligerent exclusively, provided such an ally is already a belligerent.
[889] It should be mentioned that privateers could also exercise the right of visit and search. But since even such States as have not acceded to the Declaration of Paris in practice no longer issue Letters of Marque, such a case will no longer occur.
[890] But this is not universally recognised. Thus, Hautefeuille, III. p. 91, maintains that during a general armistice the right of visitation may not be exercised, and § 5 of the Règlement international des prises maritimes of the Institute of International Law takes up the same attitude. It ought, likewise, to be mentioned that in strict law the right of visit and search may be exercised even after the conclusion of peace before the treaty of peace is ratified. But the above-mentioned § 5 of the Règlement international des prises maritimes declares this right to cease "avec les préliminaires de la paix." See below, § [436].