The Essentials of International Public Law and Organization

By Amos S. Hershey | Go to book overview

CHAPTER XXXVI
THE SO-CALLED LAW OF UNNEUTRAL SERVICE OR HOSTILE AID

513. Difference between Contraband and Unneutral Service or Hostile Aid. -- "In a general way, it may be said that the merchant vessel which violates neutrality, whether by carrying contraband of war or by breaking a blockade, affords aid to the enemy, and it is on this ground that the belligerent whom she injures by her acts is justified in inflicting on her certain losses. But there are cases where such unneutral service bears a particularly distinctive character, and for such cases it has been thought necessary to make special provision. These have been divided into two classes according to the gravity of the act charged against the neutral vessel."1

The offenses of carrying contraband and engaging in

____________________
1
Report on the Declaration of London as translated in Naval War College, Int. Law Topics ( 1909), 99; or Higgins, 593. The Report continues:

"In the cases included in the first class (Article 45), the vessel is condemned, and receives the treatment of a vessel subject to condemnation for carrying contraband. This means that the vessel does not lose her neutral character and is entitled to the rights conceded to neutral vessels; for instance, she may not be destroyed by the captor except under the conditions laid down for neutral vessels (Articles 48 et. seq.) [Cf. infra, No. 522]: the rule that the flag covers the goods applies to the goods on board.

"In the more serious cases belonging to the second class (Article 46), the vessel is likewise condemned; but further, she is treated not only as a vessel liable to confiscation for carrying contraband, but as an enemy merchant vessel, which treatment entails certain consequences. The rule governing destruction of neutral prizes does not apply to the vessel, and, as she has become an enemy vessel, it is no longer the second but the third rule of the Declaration of Paris which is applicable. The goods on board will be presumed to be enemy goods; neutrals will have the right to reclaim their property on establishing their neutrality (Article 59). [Cf. supra, No. 443]. It would not, however, be necessary to go so far as to consider that the original neutral character of the vessel is completely lost, so that she should be treated as though she had always been an enemy vessel. The vessel may plead that the allegation made against her is not well-founded, that the act of which she is accused has not the character of unneutral service. She has therefore the right of appeal to the International Court in virtue of the provisions which protect neutral property." The Court referred to is the International Prize Court (see infra, add. note on pp. 740-41) which never came into existence.

-720-

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