Article X of Hague Convention V of 1907 states:

The fact of a neutral Power resisting, even by force, attempts to violate its neutrality cannot be regarded as a hostile act.

2 Treaties, etc. (Malloy, 1910) 2290, 2298; 36 Stat. 2310, 2324.

The Danish Delegation to the Second Hague Peace Conference proposed: "If, in order to prepare in due time for the defence of its neutrality, a neutral State mobilizes its military forces, even before receiving notice from one of the belligerents of the commencement of a war, this act shall not be considered as an unfriendly act towards either of the parties in dispute."

The report to the Conference of the Second Commission, on rights and duties of neutral states in case of war on land, said:

"This proposition deals with the following difficulty:

"When a war is about to break out, a State which intends to remain neutral may have an interest in not waiting for the declaration and notification of the war before taking the steps necessary for enforcing respect for its neutrality in the armed conflict about to take place. In such a case it is important that it have the assurance of an international stipulation that the measures decreed by it for the accomplishment of its duty as well as for the safeguarding of its rights cannot in any wise be deemed by either of the future belligerents as an unfriendly act towards it. "The Commission was unanimous in thinking that every sovereign State has the indisputable right to take, in its own territory, all measures for its defence that it considers expedient, and that the exercise of this right, which flows quite naturally from its sovereignty, can less than ever give rise to criticism or complaint when, under the circumstances, the State in question has recourse thereto for an object as legitimate as that of ensuring its neutrality, and thus of performing its duties. It seemed that, far from gaining anything by the Danish proposition, this truth could only be weakened by a stipulation that would have the appearance at least of restricting its scope to certain specified circumstances. Moreover, the point was made that it was impossible and hardly correct in the text of an international treaty like the one being prepared, to attach the official description of 'neutral' to an undetermined State at a time when, war not yet having been the subject of notification, nor even declared, there are no belligerents and no neutrals, and the future attitude of each State is still theoretically uncertain so far as the others are concerned."

Scott, Reports to the Hague Conferences of 1899 and 1907 (1917) 547, 548; I Deuxième Conférence Internationale de la Paix: Actes et documents (The Hague, 1907) 146-147.

there are and have been two distinct reasons for merchant vessels carrying guns.

In the first place a merchant vessel on the high seas is without the protection of its government from lawless acts, it is, therefore, entitled to protect itself from pirates or other marauders, and may of course arm for that purpose. I do not see that it makes any difference whether a state of war or a state of peace exists so far as this right of defense is concerned.

Arming of neutral ships

The arming of American merchant vessels falls under the first right. The United States is at peace. American vessels cannot arm to resist the exercise of a recognized belligerent right, but they can arm to resist illegal acts by a belligerent ship or any other ship. It is merely carrying out the general principle of self-defense due to the unprotected condition of a merchant vessel on the high seas.

The Secretary of State (Lansing) to the Secretary of the Treasury (McAdoo), Feb. 17, 1917, MS. Department of State, file 763.72/33521⁄2 ; I The Lansing Papers, 1914-1920 (For. Rel.: 1939) 607, 608. See also ch. XXI, §597, of this Digest.

Section 6 of the joint resolution of November 4, 1939 provided that, when the President should have issued a proclamation under the authority of section 1(a), it should thereafter be unlawful until such proclamation should be revoked for any American vessel engaged in commerce with any foreign state to be armed except with such arms and ammunition therefor which the President might deem necessary for the preservation of discipline on board.

54 Stat. 4, 7.

For regulations with respect to arms for disciplinary purposes, see Department of State, I Bulletin, no. 20, pp. 481-482 (Nov. 6, 1939).

This provision of the act of 1939 was repealed by a joint resolution approved Nov. 17, 1941, 55 Stat. 764.

In his message to Congress on Oct. 9, 1941, urging this repeal, President Roosevelt said:

"The practice of arming merchant ships for civilian defense is an old one. It has never been prohibited by international law. Until 1937 it had never been prohibited by any statute of the United States. Through our whole history American merchant vessels have been armed whenever it was considered necessary for their own defense.

"It is an imperative need now to equip American merchant vessels with arms."

Department of State, V Bulletin, no. 120, pp. 257, 258 (Oct. 9, 1941). In his statement before the House Committee on Foreign Affairs Secretary Hull said on Oct. 13, 1941:

"The provisions of section 6 of the Neutrality Act are not called for under international law. They were adopted by our own choice. They now serve no useful purpose. On the contrary, they are a handicap. They render our merchant vessels defenseless and make them easier prey for twentieth-century pirates.

"It is our right to arm our vessels for purposes of defense. That cannot be questioned. We have, since the beginning of our independent existence, exercised this right of arming our merchant vessels whenever, for the purpose of protection, we have needed to do so."

Ibid., no. 121, pp. 291, 292 (Oct. 13, 1941).

In his statement before the Senate Foreign Relations Committee on Oct. 21, 1941 Secretary Hull stated that the right to arm American merchant vessels was a consequence of the principle of self-defense and said:

"When the Neutrality Act of 1939 was passed, we went far in foregoing the exercise of certain rights by our citizens in time of foreign war.

This

was for the purpose of avoiding incidents such as those that confronted our Government during the first World War as a result of unrestricted Germansubmarine warfare. But there was no waiving of our right to take the fullest measures needed for self-defense on land and sea if the tide of conquest should move in our direction.

"The tide has so moved. The course of the present war has altered the picture completely. Certain provisions of the existing legislation under the changed circumstances now handicap our necessary work of self-defense and stand squarely in the way of our national safety."

Ibid., no. 122, pp. 307-308 (Oct. 21, 1941). See also ibid., no. 125, p. 379 (Nov. 15, 1941).

In order to defend themselves against possible violations Mine-laying of their neutral territory, neutrals may lay automatic contact by neutrals mines off their coasts.

A neutral, in laying mines within his territorial waters, must have regard to the duty of impartiality incumbent upon him, and must consider whether his mine-field favours one belligerent at the expense of another.

II Oppenheim's International Law (6th ed., by Lauterpacht, 1940) 619.

Hague Convention VIII provides in article IV:

Neutral Powers which lay automatic contact mines off their coasts must observe the same rules and take the same precautions as are imposed on belligerents.

The neutral Power must inform ship-owners, by a notice issued in advance, where automatic contact mines have been laid. This notice must be communicated at once to the Governments through the diplomatic channel.

2 Treaties, etc. (Malloy, 1910) 2304, 2310.

For instances of mine-laying by neutrals and for national laws on the subject, see Research in International Law, Rights and Duties of Neutral States in Naval and Aerial War (Harvard Law School), 33 A.J.I.L. Supp. (1939) 754-756. With respect to mine-laying by belligerents, see ch. XXI, $598, of this Digest.

In August 1918 the British Government asked the Norwegian Government to lay a mine field in Norwegian territorial waters, so as to prevent the passage of submarines and thereby carry out the Norwegian Government's decree of January 30, 1917 with respect to the entry of belligerent submarines into Norwegian territorial waters. On August 13, 1918 the Department of State instructed the Chargé d'Affaires in Norway to point out to the Norwegian Government that the steps so far taken had failed to prevent the use of Norwegian territorial waters by submarines and to point out the importance "of finding an immediate solution of a problem at once vital to Norway, in upholding her scrupulous neutrality, and to the United States, in maintaining her full rights of belligerency". In

reply the Norwegian Government stated that it had not been bound under international law to issue the decree at all and requested information as to specific instances of violation. On August 19, 1918 the British Embassy informed the Department that the British Government had instructed its Minister to Norway to the effect that:

The result of allowing these submarines, which are on their way to perform hostile acts, habitually to follow with success a course through neutral territorial waters, will be equivalent to the creation of a privileged passage for their benefit, and the other belligerent is bound to take all steps in his power to prevent such an abuse.

The only effective method of preventing the passage of submarines is by mining Norwegian territorial waters, and this fact must again be impressed on the Norwegian Government. The right of neutrals to mine territorial waters is clearly admitted in article IV of convention VIII of the Hague Conference, to which the Norwegian Government has referred in their reply, and this article was adopted unanimously at the conference.

In the opinion of His Majesty's Government, the proposed mining would not unduly inconvenience Norwegian sailing and fishing vessels, since the passage by the inner lead would not be affected. In any case the damage caused to Norwegian shipping by the illegal action of German submarines is incomparably greater.

The Norwegian Minister of Foreign Affairs in a note of August 20, 1918 to the American Chargé said that the Norwegian Government would insist upon its right by international law to determine for itself what measures it should take and added:

[The duties] imposed in time of war by international law on a neutral state in respect of its territorial waters consist, partly in the obligation that it shall prevent by all the means at its disposal any of the belligerents utilizing them for operations of war or as a base there [for], and partly in the obligation that it shall enforce upon all the belligerents equally the observance of the regulations it issues. No matter what may flow from these obligations, none of the belligerents is justified by international law in demanding that special measures be taken by the neutral state in its own territorial waters. The Norwegian Government is convinced that it has unquestionably fulfilled its obligations in respect of both the above-mentioned points.

On August 27 Secretary Lansing instructed the Chargé in Norway to present to the Minister of Foreign Affairs a note calling attention to the fact that the British Government had furnished definite information concerning cases of violation of Norwegian waters by

German submarines, referring to the interest of the United States in preventing the exit of submarines from the North Sea through Norwegian waters (which formed the only passage open in view of the North Sea mine barrage), and adding that—

if Norwegian waters are used by belligerent submarines as a rendezvous whence they can freely pass into the Atlantic Ocean for hostile purposes the waters so used may justly be considered a base of naval operations, the establishment of which within Norwegian jurisdiction the Government of the United States believes to be entirely contrary to the will and intention of the Government of Norway.

On September 28 the Minister of Foreign Affairs replied:

The thirteenth Hague convention of 1907 provides expressly in article 10 that a country's neutrality is not called in question by the mere fact that belligerent war vessels are permitted to pass through its territorial waters. No exception is made in this provision of the convention for submarine boats. The fact that Norway by a domestic regulation has conditionally forbidden such war vessels to pass through her territorial waters does not in any respect change the position of Norway under international law and gives the belligerents no right to make a demand on the Norwegian Government which is not based on general rules of international law. The regulation was called forth exclusively by consideration of Norway's own interests, and just as a similar regulation has [not] been made by all other neutral states, so Norway would also be fully entitled by international law to revoke this regulation if, according to circumstances, at a given time Norway should no longer find it compatible with her interests.

There is no information before the Norwegian Government that Norwegian territorial waters are being used by foreign submarines as a "rendezvous". None of the circumstances surrounding the cases of sojourn of submarines in territorial waters which the Norwegian naval authorities have observed or been informed of or which are brought by the British Government confidentially to the knowledge of the Norwegian Government, indicate that these cases involved anything else than passage.

On that date, however, the Norwegian Government instructed its Legations to announce that Norway had decided to mine Norwegian territorial waters in order to prevent their violation by belligerent submarines. This announcement referred to the fact that assurances had been received from the American, British, and French Governments that no submarines belonging to those countries had violated the decree of January 30, 1917 (with the exception of one British submarine, in respect to which the Norwegian Government had