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to by the United States (December 3, 1909), contains the following provisions on this question: Belligerents are forbidden to use neutral ports and waters as a base of naval operations against their adversaries (Article 5), and their war ships are not permitted to remain in neutral porta or territorial waters for more than 24 hours (Article 12), except for making, with the least possible delay, such repairs as are absolutely necessary to render them seaworthy, to be determined by the neutral authorities. They may not, in neutral ports, add to their fighting force or crew or replenish or increase their supplies of war material or armament (Articles 17 and 18). They may only revictual to bring their supplies up to the peace standard and ship sufficient fuel to enable them to reach the nearest port in their own country (Article 19). Belligerent war ships which have shipped fuel in a neutral port may not within the succeeding three months replenish their supply in a port of the same Power (Article 20).
If, notwithstanding the notification of the neutral Power, a belligerent ship of war does not leave a port where it is not entitled to remain, either because it has entered in defiance of a prohibition, or, if regularly entered, because it stays longer than permitted, the neutral Power is entitled to take such measures as it considers necessary to render the ship incapable of putting to sea during the war, the execution of which the commander of the ship must facilitate. The officers and crew shall be detained, either in their ship or on another vessel or on land, and may be subjected to such restrictions as it may appear necessary to impose upon them. A sufficient number of men for looking after the vessel must be left on board and the officers may be liberated on parole not to quit the neutral territory without permission (Article 24).
Article 25 requires a neutral Power to exercise such surveillance as the means at its disposal allow, to prevent any violation of the foregoing provisions, which action, according to Article 26, can, under no circumstances, be considered as an unfriendly act.
Concerning the position of the officers and crew in such cases, the distinguished French publicist M. Renault, makes the following observations in his report on this convention:
We say that they are likewise detained, which is an expression rather vague. It has been substituted for interned, which seemed to indicate too strictly that the officers and crew should be placed within the neutral country. Their real position is regulated by a special provision to which we shall return. In law their position is analogous to that of troops of a belligerent who seek refuge in neutral territory, and it has been agreed that the two cases should be controlled by one and the same rule. The regulations annexed to the Convention of July 29, 1899, on the laws and customs of war on land provide for the case in its Article 57; after having said that a neutral State which receives in its territory troops belonging to the belligerent armies shall intern them, as far as possible, at a distance from the theater of war, it adds (paragraph 3): "It shall decide whether officers may be left at liberty on giving their parole not to leave the neutral territory without permission."
Nothing is said with respect to the conditions upon which this permission shall be based. The delegation of Japan had proposed in order to fill this gap to say that the men interned could not be liberated or permitted to reenter their own country except with the consent of the enemy. The Second Commission thought it best not to modify the text of the regulations, considering the permission given to one interned to reenter temporarily his own country as too exceptional a case to require regulation in express terms. It added that the Japanese proposal, conformably to recent precedents, contained a useful suggestion for a neutral State that is desirous of remaining entirely free from any liability. His Excellency Mr. Tsudzuki declared himself satisfied with this declaration. In these circumstances, in order to treat the interned belonging to land forces and those belonging to sea forces alike, we should adopt the foregoing ideas and regulate accordingly the position of officers and crews. Doubtless, in principle, a neutral government, to be free from responsibility, will hot permit officers thus detained to return to their own country without being sure of the consent of the other belligerent. But it was not deemed necessary to lay down a rule for these very exceptional cases.
There has been a great deal of discussion as to what should be the fate of the officers and crew. The opinion that prevailed is that all depends upon the circumstances, and that it is necessary to leave it to the neutral to settle the matter. Wc have therefore mentioned several possible solutions without indicating any preference, as desired by certain delegations which thought that, as a rule, the crew ought to be left on board their ship. There has been accepted, however, an amendment moved by the Italian delegation, according to which a sufficient number of men for looking after the vessel must be left on board. To the objection that there were no analogous provisions in the regulations of land warfare, it was replied that cannon or other arms are not so valuable as ships, which for want of upkeep may easily deteriorate and even become useless. The amendment was carried by 11 votes (Germany, United States, Brazil, Denmark, Spain, France, Italy, Netherlands, Russia, Sweden, Turkey) against 2 (Great Britain, Japan), and 1 abstention (Norway).
Apropos of t he cases regulated by this Article 24, there was mentioned the case of a warship wishing to go to sea too soon, before the expiration of the twenty-four hours provided by Article 16; no question then arises of disarming the ship but only of preventing its departure, which is easier to do.4
It will be noted that no mention is made of the expenses of maintaining the ship, its officers and crew during the period of internment, it evidently being assumed that the government to which the ship belongs will
* Deuxieme Conference Internationale de la Paix, Vol. 1, p. 322.
always be willing to defray such expenses in order to preserve its valuable property in the ship.
THE JOINT RESOLUTION OF CONGRESS TO EMPOWER THE PRESIDENT TO BETTER ENFORCE AND MAINTAIN THE NEUTRALITY OF THE UNITED STATES
The late Mr. W. E. Hall was no lover of the United States, as appears from many passages from his treatise on international law. It is therefore consoling at the present time to recall his commendation of our neutral policy when that policy is being questioned by a belligerent better known for its efficiency in war than for its contributions to neutrality. In the first edition of his International Law, published in 1880, Mr. Hall said, and the passage has been retained in the subsequent editions of his work:
The policy of the United States in 1793 constitutes an epoch in the development of the usages of neutrality. There can be no doubt that it was intended and believed to give effect to the obligations then incumbent upon neutrals. But it represented by far the most advanced existing opinions as to what those obligations were; and in some points it even went further than authoritative international custom has up to the present time advanced. In the main however it is identical with the standard of conduct which is now adopted by the community of nations. (Hall, 4th Ed., p. 616.)
Admitting this statement to be substantially true, it is a fact that the United States has, by reason of its domestic law and procedure, found it very difficult to comply with those neutral duties which have recently made their appearance in international law. This is, in a way, surprising when it is borne in mind that international law has, since the beginning of our country, been regarded as a part of our municipal law, enforceable in and binding upon our courts. Thus, in a comparatively recent decision, the Supreme Court stated that "foreign municipal laws must indeed be proved as facts, but it is not so with the law of nations." (The Scotia, 14 Wallace, 170.) That is to say, the court takes judicial notice of international law. In a still more recent case the Supreme Court held that "international law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination." (The Paquete Habana, 1899,175 U. S. 677.) The court next proceeded to enumerate the sources of international law, or rather, the authorities by which it would be bound. "For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who, by years of labor, research, and experience, have made themselves peculiarly well acquainted with the subjects of which they treat." This decision settles the relation of international law to the municipal law of the United States as clearly and finally as a court can settle anything properly submitted to it.
As our government is a government of law, it follows that the government is bound by international law and is responsible for failure to comply with its dictates. It follows also that, in purely civil matters, international law will be taken notice of judicially and applied by the courts to the questions submitted to them for decision.
The government, however, has great difficulty in preventing the commission of an act within its jurisdiction which, if committed, violates international law; and it has even greater difficulty in punishing an act in violation of international law because, since the case of United States v. Hudson (7 Cranch, 32), decided in 1812, it has been held that there is no federal law of crimes and that, to punish any person for the commission of any act within the United States, "the legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offence." It thus appears that the United States can itself be liable to a foreign nation for the commission of an act which it could neither prevent nor punish in the absence of a statute. This was not the theory of Washington's administration, and, on the advice of his cabinet, he issued a proclamation of neutrality on April 22,1793, in the European wars. The material portion of this, for present purposes, is the following paragraph:
And I do hereby also make known, that whosoever of the citizens of the United States shall render himself liable to punishment or forfeiture under the law of nations, by committing, aiding, or abetting hostilities against any of the said Powers, or by carrying to any of them those articles which are deemed contraband by the modern usage of nations, will not receive the protection of the United States, against such punishment or forfeiture; and further, that I have given instructions to those officers, to whom it belongs, to cause prosecutions to be instituted against all persons, who shall, within the cognizance of the courts of the United States, violate the law of nations, with respect to the Powers at war, or any of them. (American State Papers, Foreign Relations, I, p. 140.)
The second proclamation, issued by President Washington on March 24, 1794, was much more specific in its terms. It was felt wise, and indeed necessary, to enact legislation. President Washington, in his annual address at the opening of Congress on December 3, 1793, called upon Congress to enact appropriate legislation, and the act approved June 5, 1794, was passed. This act, the first neutrality law of the United States, was in the nature of an experiment and was limited to two years. It was renewed in 1797 for a further period of two years, and, with some amendments, was made permanent by the act of April 20, 1818. It was included in the Revised Statutes as issued in 1878, and, with slight modifications of form but not of substance, it was issued as Chapter II of the so-called Penal Laws of the United States, approved March 4, 1909.
Now, applying the doctrine laid down in United States v. Hudson, only those offenses specified in the neutrality statutes can be punished. The Hague conventions, where they differ from the neutrality laws of the United States, are not enforceable within our country. Therefore, a joint resolution was introduced in Congress, and, after modification in the Senate, in which modification the House concurred, it was approved by the President on March 4, 1915. The purpose of this resolution was not to modify the statutory duties of the United States, or to change the punishments hitherto imposed for offenses against them. It was to supplement these statutes by enabling the President to prevent the commission of an unneutral act which, when committed, would be in violation of international law or of treaties to which the United States was a party. The simplest of expedients was devised, namely, the refusal of clearance to a vessel about to depart from the jurisdiction of the United States. The remedy, however, is, for this class of cases, adequate, because the land and naval forces are specifically placed at the disposal of the President to prevent the commission of the particular act, and the courts are competent to punish it when properly called to their attention. The text of the joint resolution follows:
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That, from and after the passage of this resolution, and during the existence of a war to which the United States is not a party, and in order to prevent the neutrality of the United States from being violated by the use of its territory, its ports, or its territorial waters as the base of operations for the armed forces of a belligerent, contrary to the obligations imposed by the law of nations, the treaties to which the United States is a party, or contrary to the statutes of the United States, the President be, and he is hereby, authorized and empowered to direct the collectors of customs under the jurisdiction of the United States to withhold clearance from any vessel, American or foreign, which he has reasonable cause to believe to be about to carry fuel, arms, ammunition, men, or supplies to any warship, or tender, or supply