Any discussion of international law at the present time must necessarily be L a purely academic one. At the beginning of World War II, however, many of the problems of neutrality were suddenly brought to the attention of Americans. It would be well for naval officers to keep them in mind. Some of the questions often heard throughout the country were of the following tenor. “What right did the Germans have to seize the City of Flint?” “Why does Uruguay allow the Graf Spee to remain at Montevideo?” “Why didn’t Norway intern the Altmark and release the British prisoners of war?” “What right have the British to censor our mails at Gibraltar and Bermuda?” Inasmuch as these questions indicate some degree of bafflement by our populace on the subject of international law, a discussion of three of the earlier cases is herewith given in the hope of clearing up some of our misconceptions.
The “City of Flint”
The right of a belligerent to seize a neutral vessel carrying contraband had its inception as far back as Great Britain’s Rule of 1756 and has since been supported many times by the policy of the United States, notably in the Civil War, the World War, and our ratification of the Hague Convention of 1907. In fact, the Instructions for the Navy of the United States Governing Maritime Warfare states as follows:
Art. 42. The belligerent right of visit and search, subject to exemptions mentioned in section VII, may be exercised outside of neutral jurisdiction upon private vessels after the beginning of war in order to determine their nationality, port of departure and destination, the character of their cargo, the nature of their employment, or other facts which bear upon their relation to the war.
Contraband may be defined as goods or merchandise which, according to international law, cannot be supplied to one belligerent except at the risk of seizure and condemnation by the other. Contraband was originally limited to arms and munitions, but during the World War almost everything but peacock feathers was declared contraband by Great Britain and the United States. Coming down to the present war, we find our sensibilities on our favorite American doctrine of “freedom of the seas” first injured by the seizure of the freighter City of Flint by the German pocket battleship Deutschland on October 9, 1939. What contraband was she carrying? 20,000 drums of lubricating oil and a quantity of white bread flour consigned to England. The German Prize Law of September 12, 1939, lists as unconditional contraband “material for producing energy and heat of all kinds, lubricating oils.” It further lists as conditional contraband “foodstuffs (including livestock), food and clothing, objects and materials used for their manufacture.” All perfectly legal so far, and ample precedents already set by England and America.
Now it was the turn of Captain Gainard of the City of Flint to try a ruse. Article 17 of the Pan-American Havana Convention of 1928 states as follows:
Prizes cannot be taken to a neutral port except in case of unscaworthiness, stress of weather, or want of fuel or provisions. When the cause has disappeared, the prizes must leave immediately; if none of the conditions exist, the state shall suggest to them that they depart, and if not obeyed shall have recourse to the means at its disposal to disarm them with their officers and crew, or to intern the prize crew placed on board by the cap- tor.
A couple of days before they reached the
Norwegian coast, therefore, Captain Gainard let it be known to the German prize crew that the ship’s water was running low, in hopes that when this reason proved to be false, the Norwegian authorities would intern the prize crew and release the ship. The Germans swallowed the bait and put into Tromso, Norway. Unluckily, however, the Norwegians simply filled the tanks without inspection and allowed the ship to sail. Again the Germans were acting under a perfectly legitimate right under international law in taking the City of Flint into Tromso to replenish her water supply. The Norwegians were under no obligation to intern the prize crew until such cause for entry into port ceased to exist. Of course it might be argued that they were remiss in their duty as a neutral in not ascertaining if the ship really needed water, but they had no reason to doubt the word of both Germans and Americans that it did. Apparently Captain Gainard could not afford to take the chance of antagonizing the Germans at that time by openly contradicting them. What if the Norwegians might decide to support the Germans in either case? That his strategem failed was no fault of astute Captain Gainard.
So the little City of Flint sailed on to Murmansk, Russia. Here the Russians started off as if they intended to play the part of a real neutral. They interned the German prize crew and told Captain Gainard that he could sail free as soon as his papers were in order. The Germans knew what they were doing, however, when they took their prize into a Russian port without a legal excuse. After many delays, Captain Gainard saw his prize crew returning once again, and once again the City of Flint set sail under the Nazi swastika. The action of the authorities in Murmansk was definitely a breach of international law, but the Russians were to blame, not the Germans. It was just another instance of the crumbling of international law in the present war, and just another proof that, as usual, the only real international law is that might makes right.
Finally the City of Flint received orders from Germany to put into Haugesund, Norway. Lieutenant Pussbach, the commander of the prize crew, tried to persuade Captain Gainard to have “engine trouble,” but the latter declined to co-operate. Consequently since the Germans had no legitimate excuse to enter a Norwegian port a second time, the prize crew was interned in Haugesund and the City of Flint released, eventually to return to Baltimore on January 27, 1940. In this saga of modern Vikings, the Germans had acted well within their rights throughout. As long as our present international law recognizes such impossible doctrines as continuous voyage and the universality of contraband, such situations will always arise. The only solution is a return to the declaration of clear- thinking Thomas Jefferson that “free ships should make free goods.” Then indeed would we achieve freedom of the seas, subject only to the laws of visit and search (for identification) and legitimate blockade.
The “Admiral Graf Spec”
The aspects of international law in the case of the Admiral Graf Spec, December 13 to 17, 1939, were comparatively simple, yet some Americans did not understand why she was not interned within 48 hours, instead of the 4 days allowed by Uruguay. This misconception was caused by Art. 9 of the Pan-American Havana Convention of 1928 which reads in part as follows:
Damaged belligerent ships shall not be permitted to make repairs in neutral ports beyond those that are essential to the continuance of the voyage and which in no degree constitute an increase in its military strength. Damages which are found to have been produced by the enemy's fire shall in no case be repaired.
The answer to the question is that Uruguay had not ratified the Havana Convention of 1928, although she had signed it. Evidently Uruguay was following the Hague Convention of 1907 which lays down the rules below regarding belligerent ships of war in neutral ports:
Art. 12. In the absence of special provisions to the contrary, belligerent ships of war are forbidden to remain in the waters of a neutral power for more than 24 hours, except in the cases covered in the following.
Art. 14. A belligerent ship of war must not prolong its stay in a neutral port beyond the period legally allowed except on account of damage or stress of weather. It must depart as soon as the cause of the delay is at an end.
Art. 17. In neutral ports or roadsteads, belligerent ships of war can carry out such repairs as are absolutely necessary to render them seaworthy and cannot add in any manner whatsoever to their fighting force. The authorities of the neutral power shall decide what repairs arc necessary to be made and these must be carried out with the least possible delay.
Art. 19. If in accordance with the law of the neutral power, the ships are not supplied with fuel within 24 hours after their arrival, the permissible duration of their stay is extended by 24 hours.
Therefore it can be seen from the above that the Uruguayan authorities decided that 4 days were ample time for the Admiral Graf Spec to make such repairs as to render her seaworthy, and that Uruguay acted in accordance with accepted international law throughout the incident.
The “Alkmark”
The case of the Altmark presents something more difficult. On February 16,1940, the British destroyer Cossack entered Jösing Fiord, Norway, and attacked the German tanker Altmark carrying 299 British merchant seamen captured by the Admiral Graf Spec. The Altmark in our opinion may be definitely classed as a vessel of war because of her operations as a naval auxiliary with the Admiral Graf Spee. As we have seen before, belligerent ships of war are customarily allowed a sojourn of 24 hours in the waters of a neutral, which time may be extended another 24 hours for fueling at the discretion of the neutral authorities. Therefore Norway would have a perfectly legitimate right to permit the Altmark passage in her waters for 24 hours. In any case, the Cossack certainly violated international law by invading the territorial waters of Norway for the purpose and act of engaging in hostilities with the Altmark.
Although this case involves many technicalities, it appears that the British would have had a very strong claim against Norway if they had only waited 48 hours from the time the Altmark first entered Norwegian territorial waters. Then Norway would have been expected to intern the Altmark. On the other hand, Norway might also have then elected to intern the British prisoners of war too in the interests of strict neutrality. Perhaps it was the loss of prestige that might be occasioned by the internment of the Graf Spee’s prisoners of war that decided the Cossack to enter Jösing Fiord. At any rate the British were wrong in the eyes of international law. Norway acted within her rights throughout the incident.
From the above cases it can be seen that both belligerents and neutrals have definite rights and duties under international law, no matter where our sympathies may lie. New problems are arising daily and at present we are concerned over the inviolability of the mails, the sale of war vessels, the right of angary, etc. It may be said in passing that the precedents on these questions are fairly simple. The immunity from capture at sea granted to mail (not parcel post) by the Hague Convention of 1907 does not necessarily prevent it from being censored when found on vessels entering the territorial waters of a belligerent. The sale of war vessels to a belligerent by a neutral has always been considered in the past to be an unneutral act. The Right of Angary may be defined as the right of a state to requisition foreign neutral ships, aircraft, and other means of transport, which are at the time of requisition within its territorial jurisdiction. The requisition may only be made in time of national emergency and is subject to full compensation. Personnel may not be requisitioned. In the past it has been customary only for belligerents to exercise the right of angary.
Although the prestige of international law is rapidly on the wane, perhaps some day in the future nations will accept the logical rules of common sense in regard to international law. And perhaps some great nation will champion the rights of neutrals and make them stick, as the United States has so often championed the freedom of the seas in the past.
Nothing is more effective in war than to take your enemy by surprise. Except by surprise, says Clausewitz, the greatest of all writers upon war, it is logically impossible to bring a superior force to the decisive point. —Wilkinson, War and Policy.