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THE STATUS OF ARMED MERCHANT VESSELS
A circular issued by the Department of State on September 19, 1914,1 relates to the status of armed merchant vessels. The visit to the ports of the United States since the outbreak of the European war of armed vessels ordinarily engaged in peaceful pursuits has made it necessary that their exact status either as vessels of war or of commerce be determined, in order that the United States authorities may know exactly what their duties are with respect to the treatment to be accorded to such vessels. If they are to be regarded as merchant vessels, the usual privileges of such vessels in a friendly port will be accorded to them, and they will be entitled in addition to protection from hostile war craft in the same port by detaining the latter until twenty-four hours after the departure of the former. If, on the other hand, such vessels be regarded as ships of war, they will be restricted in their stay in the port, in the use which they may make of neutral waters, in the extent of the repairs which they may make here, and in the amount and character of the supplies which they will be allowed to take on board. The number of such vessels which might be present in one port at the same time would also be limited and their right to the subsequent use of American ports would be considerably curtailed. Again, if the modification of the character of such a vessel from that of a ship of commerce to an armed ship takes place within United States jurisdiction or acts are done within that jurisdiction, such as fitting it out for warlike purposes or the taking on of armament or munitions of war, with the intention of converting it into an armed vessel after it gets beyond American jurisdiction, the United States, by failing to prevent the departure of such a vessel, might lay itself open to the charge of allowing the fitting out and arming of vessels within its jurisdiction which it has reason to believe are intended to cruise or engage in hostile operations against a Power with which it is at peace, with a resultant claim for damages.2
Many of the large merchant vessels of modern construction are built so as to be easily adapted to warlike purposes, and arrangements between the owners of such vessels and their governments make them to all intents and purposes auxiliaries to the fighting fleet upon the outbreak
1 Printed in Supplement, p. 121.
* For a full discussion of this phase of the law of neutrality, see preceding editorial on the purchase of vessels of war in neutral countries by belligerents, p. 177.
of war. The status of such vessels under the rules of international law remains still to be settled and, in the meantime, their presence in neutral ports may raise difficult and intricate questions for the neutral governments to decide.3 It is worth while to note in this connection that the Hague Convention of 1907 extending certain privileges to merchant vessels belonging to a belligerent which are found in an enemy port or encountered upon the high seas upon the outbreak of war expressly excludes from its benefits ships whose build shows that they are intended for conversion into warships.
The Department's circular recognizes a distinction between an armament for defensive purposes and an armament for offensive operations, and it holds that a merchant vessel may carry an armament and ammunition for the sole purpose of defense without acquiring the character of a ship of war. The presence of such armament and ammunition, however, raises a presumption that they are for offensive purposes and puts upon the owners or agents the burden to prove that the armament is intended solely for defense. Each case is to be decided independently at an official investigation, which must show conclusively that the armament is not intended for and will not be used in offensive operations.
The Department indicates that the proof to overcome the presumption should include evidence as to the number and caliber of the guns carried and their location on the vessel, the number of small guns and the quantity of ammunition on board. Information is also required concerning the crew which mans the vessel and the officers in charge, the trade in which it intends to engage, the quantity of fuel and supplies shipped, the character of the cargo and passenger list, none of which should be unusual, and the speed of the ship. Upon the arrival of an armed merchant vessel at a port of the United States, the authorities are required immediately to investigate and report to Washington on the foregoing points, and the clearance of the vessel will not be granted unless and until the authorities there determine that the evidence submitted is sufficient to remove the presumption that the vessel is intended for offensive operations.
A final section of the circular states that the conversion of a merchant vessel into a warship is a question of fact to be established by evidence of intention to use the vessel as a ship of war.
5 For a discussion of this question, see International Law Situations, 1912, Naval War College, pp. 159-195.
MERCHANT VESSELS SUSPECTED OF CARRYING SUPPLIES TO BELLIGERENT
Another important circular issued by the Department of State on September 19, 1914,1 covers the subject of merchant vessels suspected of carrying supplies to belligerent vessels. The circular defines what is a base of naval operations on neutral territory, the essential idea of which it states, in addition to the furnishing of supplies directly to a belligerent warship in port, is the repeated departure from such territory by a belligerent naval tender or merchant vessel employed in belligerent service laden with fuel or other naval supplies. A presumption that such a base exists arises when belligerent warships are furnished with supplies either directly or by means of naval tenders or merchant vessels more than once within three months. Common rumor or suspicion, unsupported by evidence, that a merchant vessel, not heretofore known to have engaged in supplying a belligerent warship, intends to deliver its cargo to such a ship on the high seas, imposes no duty on a neutral government to detain such vessel even for investigation. If the rumor or suspicion be supported by evidence, the vessel should be detained for investigation, when a belligerent warship is known or strongly presumed to be off the port at which the merchant vessel is taking on supplies, when the vessel and the warship are of the same nationality, when a vessel which has shipped a cargo of naval supplies to a neutral port and failed to have them on board upon arrival there seeks to take on board a similar cargo, when coal or other supplies are purchased by an agent of a belligerent government and shipped on a merchant vessel to a neighboring neutral port, or when a merchant vessel with a cargo of fuel or other supplies clears for a neighboring neutral port and takes on board an agent of the belligerent.
Conversely, the circular states that it is not sufficient ground to warrant detention if in an isolated case, where neither the vessel nor the warship has within three months taken on board naval supplies, a merchant vessel laden with such supplies seeks clearance under strong suspicion that it intends to carry them to a belligerent warship. Likewise, a merchant vessel which ships naval supplies from an American port to another neutral port and actually lands them there should not be detained if it attempts to make a second voyage of the same kind,
1 Printed in Supplement, p. 122.
and this even although it is notorious that the neutral port to which the shipments are being made is used as a base of naval operations by a belligerent. In such a case, the unneutral act is done within the jurisdiction of the other neutral state, which it and not the Government of the United States is bound to prevent. Furthermore, the circular states that a neutral government is not bound to limit shipments of supplies made directly to a naval base established in territory under the control of a belligerent or to detain vessels engaged in such trade.
The circular concludes that the foregoing propositions do not apply to the furnishing of munitions of war included in absolute contraband, which in no event may be supplied to belligerent warships, either directly in neutral waters or indirectly by means of tenders or merchant vessels.
SOME TECHNICAL POINTS REGARDING THE HAGUE CONVENTIONS
In more than one of the discussions which have recently appeared upon the obligations of the belligerent Powers under the Hague conventions some confusion seems to exist as to the modus operandi which the Conferences have prescribed in order to make the conventions adopted by them binding upon the governments. A reason for this confusion no doubt lies in the common unfamiliarity with matters relating to the Hague Conferences, due to a general lack of interest in them in ordinary times, and probably also to an insufficiency in dealing with this subject of the available treatises on the Hague Conferences. A less excusable reason, however, is obviously evident, namely, the failure carefully to read and note the final articles contained in all of the conventions, which set out in detail the steps necessary to be taken by the governments before the conventions become legally in effect.
The principal error arises from the failure to note the distinction between the signature of a treaty and its ratification. Such a misunderstanding on the part of Americans seems somewhat surprising, in view of the emphasis laid upon this distinction in the constitutional practice of the United States, which requires that treaties may not be ratified except by and with the advice and consent of the Senate. The requirement of the ratification of treaties is not peculiar to the practice of the United States, however, although the branch of the government which is vested with the ratifying power may be different according to the form of the government. "Ratification is now a universally recognized customary rule of international law," says Oppenheim, "even if it is not expressly stipulated." The reasons for the custom are given by the same writer as follows:
The reason is that states want to have an opportunity of re-examining not the single stipulations, but the whole effect of the treaty upon their interests. These interests may be of various kinds. They may undergo a change immediately after the signing of the treaty by the representatives. They may appear to public opinion in a different light from that in which they appear to the governments, so that the latter want to reconsider the matter. Another reason is that treaties on many important matters are, according to the constitutional law of most states, not valid without some kind of consent of parliaments. Governments must therefore have an opportunity of withdrawing from a treaty in case parliaments refuse their recognition. These two reasons have made, and still make, the institution of ratification a necessity for international law.1
In conformity with the regular practice in the negotiation of treaties, the Hague conventions are signed by the plenipotentiaries ad referendum, with an express stipulation that they shall be ratified and the ratifications deposited at The Hague. In the absence of ratification, a Hague convention is of no more effect than a treaty negotiated by an American diplomatic officer which has not been duly ratified by his government. While the signature of the plenipotentiary in both cases is appended under instructions of the foreign office, the approval of the ratifying branch of the government is necessary legally to obligate the government. To withhold ratification no doubt embarrasses the foreign office, but it nevertheless prevents the convention from taking effect, so far as the withholding government is concerned.
Furthermore, the time when the convention goes into force is commonly regulated by the date of ratification. As an example of this provision in the Hague conventions, Article 7 of the Convention of 1907 respecting the laws and customs of war on land, is quoted:
The present convention shall come into force, in the case of the Powers which were a party to the first deposit of ratifications sixty days after the date of the procesverbal of this deposit, and, in case of the Powers which ratify subsequently or which adhere, sixty days after the notification of their ratification or of their adhesion has been received by the Netherland Government.
Some explanation of the terms used in this article will be appreciated possibly by those who are not familiar with the procedure of the Hague Conferences. The French compound word "prods-verbcd" is a technical
1 Oppenheim, International Law, 2d ed., Vol. 1, Sec. 511.