It may be added that the Smolensk attracted further international attention when on July 15, 1904, she stopped the German mail-steamer Prinz Heinrich in the Red Sea, and took from her several bags of mail. After a leisurely examination of them, two bags destined for Japan were confiscated and the others forwarded by the P. and O. steamer Persia, which the Smolensk stopped for absence of specific information, an intention on the part of Germany so to do. The Department will, however, carefully examine the facts and circumstances of any particular case when it is called to its attention.

"The question of the place where the belligerent right of conversion may be exercised, difficult in itself, is complicated by the fact that there has been a difference of opinion among the maritime states parties to the present war, and that at the conferences, to which reference has been made, the British delegation stated that there was no rule of international law on the question. Germany and Austria-Hungary insisted at the conferences upon the right to convert merchant vessels upon the high seas. France and Russia, allies of Great Britain in the present war, likewise insisted upon the right so to convert. Great Britain and Belgium intimately associated with France and Russia in the prosecution of hostilities against Germany and Austria-Hungary, opposed the right of conversion on the high seas at the Second Hague Conference, where both these nations were represented; and at the London Naval Conference, to which Belgium was not invited and in which it did not participate, Great Britain maintained its previous attitude. It is thus seen that the right to convert merchant vessels upon the high seas was asserted in international conferences by four of the maritime countries now at war and that two of the maritime nations now at war opposed this contention. It is further seen that the maritime nations at war with Germany and Austria-Hungary are evenly divided on this question.

"At the Second Hague Conference, the British delegation, opposing conversion on the high seas, stated that there was no rule of international law on the question; that in its carefully prepared memorandum presented to the Powers invited to the London Naval Conference, the British Government held that 'no general practice of nations has prevailed in the past on this point from which any principles can be deduced and formulated as the established rules of international law. So far as can be ascertained there are no precedents on the subject.'

"In the official report of the conference, drafted by Mr. Renault, it is stated that agreement on conversion upon the high seas was impossible; and, in the report of the British delegates to their Government, it is said:

'We were met with a refusal to make any concessions or to abate one jot from the claim to the absolutely unfettered exercise of the right, which its advocates vindicate as a rule forming part of the existing law of nations. In these circumstances we felt that we had no option but to decline to admit the right, and the result is that the question remains an open one.'

"It is obvious that the subject of conversion must be carefully examined and considered, and, in view of these circumstances, it is deemed by the Department of State inexpedient to declare a policy as to what measures it will take in a contingency which has not yet arisen, and that it may well content itself, in so far as this matter is concerned, with an acknowledgment of your note."

(White Book, No. 2, pp. 37-39; American Journal of International Law, Supplement, July, 1915, pp. 223-27.)

that purpose. The Smolensk continued to visit and search neutral commerce long after the agreement to withdraw her had been made, it having been found impossible for the Russian authorities to get into communication with her. Finally, early in September, a British cruiser conveyed the notification to her off Zanzibar and she desisted from further naval activity.

(Parliamentary Debates, 4th Series, vols. 138-40, passim; Lawrence: War and Neutrality in the Far East [2d ed.], pp. 195–97, 202-18; International Law Situations, Naval War College, vol. VI [1906], pp. 92, 119-20; vol. VII [1907], pp. 48-50; Pearce Higgins: The Hague Peace Conferences, pp. 308-21; Hershey: International Law and Diplomacy of the Russo-Japanese War, pp. 138-42, 148-52.)

§ 39. WAR ZONES OR STRATEGIC AREAS

WAR ZONES (1915)

In warfare, especially in naval warfare, the ever-present problem is to reconcile the military necessity of the belligerents with the personal and commercial rights of neutrals. The belligerent state must be free to put effective pressure upon its antagonist, but the rights of a neutral state, being inherent in sovereignty, may not be abridged by belligerent action. These principles, if rigidly insisted on, would produce inevitable clash; hence experience has suggested compromise, and international law has accorded to the belligerent the right of visit and search with a view to prevent carriage of contraband or unneutral service, as well as the more extreme right of blockade.

The actual zone of battle, on sea as on land, has always been considered as interdicted to neutrals, and if damage is sustained through necessary acts of war no claims for indemnity arise. But it is unsafe to press the analogy further, for while on land the theatre of operations is always under the jurisdiction either of the local sovereign or the military occupant, naval warfare is conducted in large part upon the high seas which lie outside the

jurisdiction of any state and upon which all, neutrals and belligerents alike, have an equal right to be.

The restriction implied in the war zone, however, is primarily a result of new methods of warfare, such as the mine, the submarine, and the use of radiotelegraph. It was employed for the first time in the Russo-Japanese War both by way of the laying of mines on the high seas and the designation of strategical areas through which the passage of all vessels was regulated and in certain cases prohibited. Japan established 12 or more such areas, but in all cases the essential purpose was defense, though "in several areas the boundaries seem to have run outside the 3-mile limit and even 10 miles from land seems to have been included in some instances." The conclusion drawn from a discussion of the subject at the Naval War College was that a "belligerent may be obliged to assume in time of war for his own protection a measure of control over the waters which in time of peace would be outside of his jurisdiction." (International Law Situations, United States Naval War College [1912], pp. I14-29.)

The policy of the belligerents in the Great War went far beyond this limited idea of defense sea areas. Charging each other with violation of international law, they proceeded, on the basis of reprisals, to preëmpt for hostile uses large areas of the high seas. These areas were mined in many cases and became the scene of an unregulated submarine warfare. Early in October, 1914, the British Government advised mariners that it had authorized a mine-laying policy in the southern part of the North Sea, in retaliation for a similar policy pursued by Germany. On November 3 notice was given that the whole of the North Sea was to be considered a military area, and all vessels were warned against entering it except under admiralty directions. This step was taken, it was stated, because of indiscriminate German minelaying on the high seas on the trade route between Liverpool and America, the admiralty feeling it necessary "to adopt exceptional measures appropriate to the novel conditions under which the war is being waged." On Feb. 4, 1915, the German Government announced a further extension of this policy by proclaiming as a war zone the waters surrounding Great Britain and Ireland, the

English Channel included. "On and after Feb. 18, 1915," according to this proclamation, "every enemy merchant ship found in the said war zone will be destroyed without its being always possible to avert the danger threatening the crews and passengers on that account. Even neutral ships are exposed to danger in the war zone, as in view of the misuse of neutral flags ordered on January 31 by the British Government and of the accidents of naval war, it cannot always be avoided to strike even neutral ships in attacks that are directed at enemy ships."

The United States was prompt to protest against the proposed policy in so far as it might affect American life and property. Such a course of action, it pointed out, could not be viewed in "any other light than as an indefensible violation of neutral rights," and all steps would be taken to secure to American citizens the full enjoyment of their acknowledged rights on the high seas.

This policy of the war zone, rigorously pursued, led to a prolonged diplomatic controversy.1 Meanwhile a principle just beginning to secure recognition in international law was extended, through reprisals, far beyond its original purpose, in defiance alike of the recognized laws of warfare and the long-established rights of neutrals.2

(International Law Situations, United States Naval War College [1912]; World Peace Foundation: War Zones [Pamphlet Series, Boston, 1915], being the official documents as published by the United States Government.)

1 See the case of the Lusitania, p. 571.

This account, prepared for the New International Encyclopædia by H. F. Munro, is used here, slightly modified, with the kind permission of the Editor.

CHAPTER X

PRIZE COURTS AND PRIZE PROCEEDINGS

§ 40. ORGANIZATION AND FUNCTION OF PRIZE COURTS

THE INTERNATIONAL PRIZE COURT (1907)

THE function of prize courts was primarily to secure for the government its lawful proportion of the profits accruing to privateers from prizes made upon enemy commerce. Incidentally also it served the useful purpose of a check upon privateers and protected the belligerent government from their outrageous violations of the rights of neutrals, such as might have led the latter to have recourse to reprisals, or to make common cause with the enemy. The judicial procedure of prize courts qualified them likewise to apportion fairly the bounty or prize money, with which the national municipal regulations of belligerent states rewarded the officers and crew of warships for captures of vessels and cargoes liable to confiscation.

With the development of civilization, privateering virtually disappeared, and prize money,1 if it cannot be considered extinct, may at least be said to have rapidly declined in importance. But the need of an orderly procedure, with some guarantee of impartiality,

1 Several states, among them the United States, have abolished prize money. At the Second Hague Conference a proposal of the French Delegation sought to incorporate such a prohibition in an international convention containing other provisions limiting the right to capture enemy property. The French proposal was objected to on the ground that prize money was a matter of municipal regulation, and that the adoption of a half-way measure such as that proposed might block the realization of the hopes of those who advocated the entire abolition of the right of confiscation of private property in naval warfare.

In the House of Commons, as reported in the London Times of May 24, 1916, in reply to a question in regard to prize money in the navy, it was announced that instead of awarding prize money to the actual captor, the net value would be pooled and distributed among the whole fleet engaged in the war at the close of hostilities.