Aide-mémoire of the British Embassy (handed by Mr. Mallet to Mr. Moffat), June 5, 1939, and aide-mémoire of the Department of State- (handed by Mr. Dunn to Mr. Mallet), June 19, 1939, MS. Department of State, file 711.00111/132.

BELLIGERENT VESSELS AND AIRCRAFT IN
NEUTRAL TERRITORY

WARSHIPS

ENTRY AND STAY

$668

The United States Naval War Code of 1900, withdrawn in 1904, provided:

ART. 17. Vessels of war of the United States may take shelter during war in a neutral port, subject to the limitations that the authorities of the port may prescribe as to the number of belligerent vessels to be admitted into the port at any one time. This shelter, which is allowed by comity of nations, may be availed of for the purpose of evading an enemy, from stress of weather, or to obtain supplies or repairs that the vessel needs to enable her to continue her voyage in safety and to reach the nearest port of her own country.

ART. 18. Such vessel or vessels must conform to the regulations prescribed by the authorities of the neutral port with respect to the place of anchorage, the limitation of the stay of the vessel in port, and the time to elapse before sailing in pursuit or after the departure of a vessel of the enemy.

No increase in the armament, military stores, or in the number of the crew of a vessel of war of the United States shall be attempted during the stay of such vessel in a neutral port.

1903 U.S. Naval War College, Int. Law Discussions 106-107.

The neutrality of a Power is not affected by the mere passage Passage through its territorial waters of war-ships or prizes belonging territorial through to belligerents.

Hague Convention XIII of 1907, art. X, 2 Treaties, etc. (Malloy, 1910) 2352, 2360; 36 Stat. 2415, 2429.

See also par. 2, Instructions for the Navy of the United States Governing Maritime Warfare (June 1917) and 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) 167, 421.

"While according to customary International Law and to Hague Convention No. XIII. the neutral State is entitled to permit the passage of belligerent men-of-war through its territorial waters, the nature and the duration of such passage are governed by the overriding principle that neutral territorial waters must not be permitted to become a basis for warlike activities of either belligerent. The prolonged use of neutral territorial waters by belligerent men-of-war or their auxiliaries for passage

waters

not dictated by normal requirements of navigation and intended, inter alia, as a means of escaping capture by superior enemy forces must, therefore, be deemed to constitute an illicit use of neutral territory which the neutral State is by International Law bound to prevent by the means at his disposal or which, in exceptional cases, the other belligerent is entitled to resist or remedy by way of self-help." II Oppenheim's International Law (6th ed., by Lauterpacht, 1940) 555-556.

In holding that, under the provisions of the Treaty of Versailles with respect to the Kiel Canal, Germany had no right to refuse passage through the canal to the English steamship Wimbledon, chartered to a French company to carry munitions to a Polish naval base at Danzig, at a time when Poland was at war with Russia, the Permanent Court of International Justice said:

The argument has also been advanced that the general grant of a right of passage to vessels of all nationalities through the Kiel Canal cannot deprive Germany of the exercise of her rights as a neutral power in time of war, and place her under an obligation to allow the passage through the canal of contraband destined for one of the belligerents; for, in this wide sense, this grant would imply the abandonment by Germany of a personal and imprescriptible right, which forms an essential part of her sovereignty and which she neither could nor intended to renounce by anticipation. This contention has not convinced the Court; it conflicts with general considerations of the highest order. It is also gainsaid by consistent international practice and is at the same time contrary to the wording of Article 380 which clearly contemplates time of war as well as time of peace.

the rules established with regard to the Suez and Panama Canals ... demonstrate that the use of the great international waterways, whether by belligerent men-of-war, or by belligerent or neutral merchant ships carrying contraband, is not regarded as incompatible with the neutrality of the riparian sovereign.

The precedents afforded by the Suez and Panama Canals [see vol. II, pp. 780-781, 823-824, of this Digest] invalidate in advance the argument that Germany's neutrality would have necessarily been imperilled if her authorities had allowed the passage of the "Wimbledon" through the Kiel Canal, because that vessel was carrying contraband of war consigned to a state then engaged in an armed conflict. Moreover they are merely illustrations of the general opinion according to which when an artificial waterway connecting two open seas has been permanently dedicated to the use of the whole world, such waterway is assimilated to natural straits in the sense that even the passage of a belligerent man-ofwar does not compromise the neutrality of the sovereign State under whose jurisdiction the waters in question lie.

In any case a neutrality order, issued by an individual State, could not prevail over the provisions of the Treaty of Peace. Since Article 380 of the Treaty of Versailles lays down that the Kiel Canal shall be maintained free and open to the vessels of commerce and war of all nations at peace with Germany, it is impossible to allege that the terms of this article preclude, in the interests of the protection of Germany's neutrality, the transport of contraband of war. The German Government had not at the time when the "Wimbledon" incident took place claimed any right to close the Canal to ships of war of belligerent nations at peace with Germany.

From the foregoing, therefore, it appears clearly established that Germany not only did not, in consequence of her neutrality, incur the obligation to prohibit the passage of the "Wimbledon" through the Kiel Canal, but, on the contrary, was entitled 'to permit it. Moreover under Article 380 of the Treaty of Versailles, it was her definite duty to allow it. She could not advance her neutrality orders against the obligations which she had accepted under this Article. Germany was perfectly free to declare and regulate her neutrality in the Russo-Polish war, but subject to the condition that she respected and maintained intact the contractual obligations which she entered into at Versailles on June 28th, 1919.

The S.S. Wimbledon, Per. Ct. Int. Jus., Judgment 1, Aug. 17, 1923, ser. A, no. 1, pp. 15, 25, 28, 29, 30; I Hudson, World Court Reports (1934) 163, 175-179.

See the dissenting opinion in the Wimbledon case by Schücking, German national judge ad hoc, Per. Ct. Int. Jus., ser. A, no. 1, pp. 43, 45–57; I Hudson, World Court Reports (1934) 186, 188-189.

"... It is believed that, as a general rule, a neutral State may not grant, and a belligerent State has no right to demand, passage for belligerent warships in time of war upon its rivers, of whatever kind they may be." II Oppenheim's International Law (6th ed., by Lauterpacht, 1940) 556-557.

A number of states have excluded belligerent warships (with the exception of cases of distress) from their territorial waters or from certain ports or parts of territorial waters. For examples, see references in Rights and Duties of Neutral States in Naval and Aerial War, Research in International Law (Harvard Law School), 33 A.J.I.L. Supp. (1939) 167, 424, 428-429.

A decree of the Netherlands, issued July 30, 1914, provided that until further notice

it shall not be permissible for warships and vessels converted into warships belonging to foreign powers to proceed from the sea into Netherlands territorial waters and the Netherlands water-domain situated within those territorial waters, or to stay there.

Exceptions were made for cruisers policing fisheries, for warships destined for religious, scientific, or humanitarian purposes, and for warships in case of distress, danger of the sea, or damage.

Deák and Jessup, Collection of Neutrality Laws, etc. (1939) 806.

On Aug. 11, 1918 several British motorboats fought a number of German seaplanes outside territorial waters off the coast of the Netherlands. The motorboats were damaged and attempted to withdraw from the contest. Three motorboats were destroyed by their crews, two entered Netherlands waters with their crews, and one was found abandoned drifting within territorial waters. Some of the crews of the abandoned boats swam ashore and others were picked up by Netherlands torpedo boats and brought to land. The British Minister presented a note to the Government of the Netherlands requesting that the motorboats and their crews be allowed to leave its jurisdiction after the boats had been again rendered seaworthy. In its reply of Sept. 27, 1918 the Netherlands Government pointed out that the entrance of the motorboats into territorial waters did not fall within any of the exceptions found in article 5 of its proclamation of neutrality. It differentiated between these cases and the case of the V 69 (post, pp. 449-450), which had not entered territorial waters while in direct flight from the enemy but as a result of damages sustained in combat. The British motorboats, it was stated, were in flight from the enemy and entered to escape pursuit; they had not come in to repair damages, since their crews had even attempted to destroy them. The Government of the Netherlands interned the boats and their crews. Netherlands, Mededeelingen van den Minister van Buitenlandsche Zaken aan de Staten-Generaal, April 1918–Juni 1919, pp. 25-28.

The Netherlands interned the German patrol boat Nürnberg, found anchored a short distance from shore on Aug. 21, 1918, although it attempted to escape. The German Minister on Sept. 12 stated that the vessel had entered in distress because of a defective compass and heavy fog. This, the Minister of Foreign Affairs of the Netherlands denied. Ibid., pp. 23-25.

The decree of the Netherlands with respect to foreign warships in Netherlands ports, issued Aug. 25, 1939, read in part:

"ART. 1. From the date of the publication of this decree in the Staatsblad, it is forbidden to every warship of a foreign power, together with the aircraft on board thereof, to enter within the Netherland jurisdiction, which is understood to include the territory of the Empire in Europe, including the territorial waters.

"ART. 2.-The prohibition contained in Article 1 does not prevent the free passage of warships through the territorial waters, in so far as this is recognized in international law.

"ART. 3.-The prohibition in Article 1 does not apply to:

"a) A warship on board which, as is indicated by the flag or standard which it flies, there is a Ruling Prince, a member of a Ruling House, the President or Head of State of a Republic; furthermore, the Head of an Embassy of a foreign power in the Netherlands or the Head of a Mission of a foreign power to the Netherlands, and to the warships escorting the ship together with the aircraft on board thereof;

"b) Cruisers for the police supervision of the fisheries in the North Sea by the powers on which the treaty of May 6, 1882 (Staatsblad, 1884, No. 40) is binding.

"c) Warships of foreign powers which are intended exclusively for religious, scientific, or humanitarian purposes;

"d) Warships of foreign powers in cases of distress, hazard at sea or sea damage; as soon as these causes have ceased to exist, they are obliged to leave the Netherland jurisdiction within six hours."

The Minister to the Netherlands (Gordon) to the Secretary of State (Hull), no. 877, Sept. 1, 1939 (enclosure), MS. Department of State, file 740.00111 European War 1939/148; Deák and Jessup, Collection of Neutrality Laws, etc., Supp. (1940) 823[1].

A neutral State may exclude from its territory belligerent warships other than:

(a) warships entering in distress; and

(b) warships employed exclusively in scientific or humanitarian

missions.

Research in International Law, Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War (Harvard Law School), art. 26, 33 A.J.I.L. Supp. (1939) 175, 425. In the comment on this article, it is stated:

"Although the point is controversial, it is believed that this article lays down an existing rule of international law.

"It is clear that a neutral State is not under a duty to exclude belligerent warships; this article merely asserts its right to do so. Of course such

...

a rule of exclusion must be applied impartially . . . unless a discriminatory measure applied to the warships of one belligerent only is justified as a measure of reprisal .

...

"The practice of States indicates that warships are usually admitted to neutral waters under conditions fixed by the neutral State, but the evidence does not indicate that admission is allowed as a matter of legal duty, though there were many treaties in the eighteenth century which provided that public armed vessels might enjoy the hospitality of neutral ports." Research in International Law, Rights and Duties of Neutral States in Naval and Aerial War (Harvard Law School), 33 A.J.I.L. (1939) 167, 426. “... Insofar as permission to enter is concerned, international law does not distinguish between the causes of the distress. Vessels damaged by enemy gunfire or pursued by enemy craft are granted asylum in a fashion no different from warships driven in by stress of weather. Once admitted in distress, a belligerent warship is subject to varying treatment depending upon the causes of the distress. What should be done after admission is therefore a separate problem from that of the original entry. Force majeure gives a right of entry only but no necessary right to repair the damage, to replenish supplies, to depart freely, or to be immune from internment. The distress must be genuine." 1939 U.S. Naval War College, Int. Law Situations 43-44.

"... If a vessel enters neutral waters to escape capture, the neutral state is usually under obligation to intern the vessel after 24 hours' sojourn." 1931 idem 107. See also 1904 idem 89.

Hague Convention X provides in article I that military hospital- Hospitalships "are not on the same footing as warships as regards their stay ships in a neutral port".

2 Treaties, etc. (Malloy, 1910) 2326.2333; 36 Stat. 2371, 2383.