not be obligatory upon any States which should not accede to that Declaration; and further, that the Governments of the States, which had joined in the Declaration, should bring it to the knowledge of the States, which had not taken part in the Congress of Paris, and invite them to accede to it. In consequence of such invitation all the European Powers, with the exception of Spain, have acceded to the four articles of the Declaration". Amongst the States of the Western Hemisphere, the Argentine Confederation, Brazil, Chili, Ecuador, New Granada, Guatemala, Hayti, Peru, and Uruguay, have given Mexico and in their adhesion to all the articles. Mexico, on the Spain. other hand, following the example of Spain, has announced her intention of adopting, as part of her own legislation, the principles embodied in the last three articles, but has declined to accede to the Declaration itself, on account of the first article, which declares Privateering to be abolished. The United States of America have in a similar manner declared 55 A list of those Powers, which had acceded up to 1858, will be found in Martens, N. R. Gén. Tom. XVI. p. 641. But a more complete list is set out in the instructions sent from the Foreign Office by Earl Russell to Lord Lyons at Washington on 18 May 1861, which were laid before the Congress of the United States in the month of November 1861, with the President's Message, and subsequently presented to both Houses of Parliament in 1862 as Papers, North America, No. 2, p. 111. The latter list is as follows: Baden, Bavaria, Belgium, Bremen, Brazil, Duchy of Brunswick, Chili, the Argentine Confederation, the Germanic Con federation, Denmark, the two Sicilies, the Republic of the Equator, the Roman States, Greece, Guatemala, Hayti, Hamburg, Hanover, the two Hesses, Lubeck, Mecklenburg-Strelitz, Mecklenburg-Schwerin, Nassau, Oldenburg, Parma, Holland, Peru, Portugal, Saxony, Saxe-Altenburg, Saxe-Coburg-Gotha, SaxeMeiningen, Saxe-Weimar, Sweden, Switzerland, Tuscany, Wurtemberg, Anhalt-Dessau, Modena, New Granada, Uruguay. This is probably the same list, which was put forth by the French Government in a Memorandum from the Minister of Foreign Affairs, dated 12 June 1858. States and of America. their intention of observing the last three articles, United but have declined to accede to the Declaration itself, Confedeunless the other Powers would agree to adopt an rate States additional provision, to the effect "that the private property of the subjects or citizens of a belligerent on the High Seas shall be exempted from seizure by the public armed vessels of the other belligerent, except it be contraband." The Confederate States of America, by a resolution of 13 August 1861, have declared their intention of governing their intercourse with the rest of mankind in conformity with the last three articles, whilst they have affirmed the principle, "that we maintain the right of Privateering as it has been long established by the practice, and recognised by the Law of Nations." The result is that the exercise of belligerent Right upon the High Seas on the part of those Powers, which are parties to the Declaration of Paris, is governed, as respects one another, by the principles affirmed in that Declaration, but as respects the United and the Confederate States of America, Spain, and Mexico, by the Common Law of Nations, unless there be any preexisting treatyengagements with those Powers to the contrary. The plenipotentiaries of the Powers assembled in Congress at Paris on the day on which the Declaration was signed, placed on record in a Protocol 56 of that date Protocol 56 Protocol No. 24. Sur la proposition de M. le Comte Walewski et reconnoissant qu'il est de l'intérêt commun de maintenir l'indivisibilité des quatre principes mentionnés à la Déclaration signée en ce jour, MM. les Plénipotentiaires conviennent que les Puissances qui l'ont signée, ou celles qui y auront accédé, ne pourront entrer à l'avenir sur l'application du droit maritime en temps de guerre, en aucun ar- No. 24. Territorial their agreement, that neither the original parties to the Declaration, nor the Powers that should accede to it, can enter thereafter into any arrangement in regard to the application of Maritime Law in time of war, which does not at the same time rest upon the four principles which are the subject of the Declaration. § 87. Hübner, in his work upon the seizure of theory of neutral ships published in 1759, had advocated the Hübner. adoption of the principle of Free Ship Free Goods, Klüber. concurrently with the maintenance of the rule of the Consolato del Mare, that neutral merchandise should be exempt from capture although found on board an enemy's vessel. His argument in support of the former principle rested upon two propositions, that neutral ships are neutral territory 57 within which enemy's property is sacred, and that commerce ought to be as free to neutrals in time of war as in time of peace, seeing that neutrals are not parties to the contention. In the same spirit Klüber 5 and Martens both rest the principle of Free Ship Free Goods upon the territoriality of merchant vessels on the high seas. The former writer says, "Upon the ocean, every ship is considered extraterritorial in regard to all foreign Nations. A merchant-vessel ought to be considered as a floating colony of its State. In consequence, no belligerent Power ought to allow itself to visit a neutral ship, 57 Or les Vaisseaux neutres sont sans contredit des lieux neutres; d'où il s'ensuit que quand ils seraient incontestablement chargés pour le compte de l'ennemi, les belligérans n'ont aucun droit de les inquiéter au sujet de leurs cargaisons, puisqu'il revient au même d'enlever des effets d'un navire neutre, ou de les enlever sur un territoire neutre." De la Saisie des Batimens neutres ou du Droit qu'ont les Nations belligérantes d'arrêter les navires des peuples neutres. La Haye, 1759. 58 Droit des Gens. Part II. Tit. I. c. 2. § 299. 59 Précis de Droit des Gens. L. VIII. c. 7. § 316. 66 Martens. nor to confiscate enemy's goods which are on board of it, much less to appropriate to itself the ship by reason of the cargo belonging to an enemy. It is this principle which is expressed by the maxim of law, the neutral flag covers the cargo (die neutrale Flagge deckt die Warre); in other words, the neutral vessel renders the cargo neutral. It is the same with goods laden on board an enemy's vessel, which a belligerent has not any more the right to confiscate, than if he found them on the continental territory of an enemy." Martens, with a like view, Doctrine of observes, There is no doubt that a belligerent Power may confiscate enemy's ships with enemy's cargoes; but whilst war does not authorise hostilities in a neutral place, it would seem that the Law of Nature forbids us to capture enemy's goods of an innocent character, which are found on board of a neutral ship, and much more to confiscate the ship; and as war does not authorise us to appropriate the goods of the subjects of a State with which we are at peace, although found in an enemy's country, it is equally forbidden us to confiscate a neutral cargo found in an enemy's vessel; accordingly the law of Nature will suffice to establish the principle that the flag protects the cargo (frey schiff frey gut), but never confiscates it (verfallenes schiff macht nicht verfallenes gut). "It must be admitted," he goes on to say, "that an opinion contrary to the first of these principles, namely, that according to the Law of Nature regard should be had to the property of the cargo rather than to that of the ship, does not want specious arguments to support it, and that a simple theory will never suffice to make persons agree upon a point, in regard to which their interests are not the same." Of the above writers Klüber is the most logical in his Bynkershoek. conclusions, as he denies to a belligerent any Right of Visit and Search, which would be a necessary consequence of admitting a neutral ship to all the privileges of neutral territory. Martens, on the other hand, does not claim immunity under the law of Nature for enemy's cargo on board a neutral ship, except it be of an innocent character; but it must not be forgotten that the inviolability of neutral territory is something absolute, and is communicated to everything within it, whether it be suitable or not to belligerent purposes. Martens also admits the Right of Visit to be a Natural Right of belligerents, on the ground that the neutral merchant flag is not sufficient proof that the vessel is not an enemy vessel; but the Right of Visit on the part of a belligerent is inconsistent with the sacred character of neutral territory, more particularly as the object of the visit of a merchant ship by a belligerent is to examine the ship's papers, and to ascertain thereby whether the owners of the ship are friends or enemies, independently of the question whether the vessel lawfully sails under a neutral flag. § 88. Bynkershoek had anticipated the territorial theory of Hübner in discussing the right of a belligerent to take possession of enemy's goods on board of a neutral ship, and had shown its inconsistency with the belligerent Right of Visit. "Velim animadvertes eatenus licitum esse amicam navem sistere, ut non ex fallaci forte aplustri, sed ex ipsis instrumentis in navi repertis constet navem amicam esse. Si id constet, dimittam, si hostilem esse constiterit, occupabo. Quod si liceat, ut omni jure licet, et perpetuo observatur, licebit quoque instrumenta, quæ ad merces pertinent, excutere, et inde discere, an quæ hostium bona in navi lateant, et 60 Quæst. Juris Publici, L. I. c. 14. |