Germany under that of the British legation; in the war of 1898
between the United States and Spain, American interests in
Spain were committed to the care of the British legation, and
those of Spaniards in the United States to that of the Austro-Hungarian
legation. By legations are understood both diplomatic
and consular authorities. The protection granted is in
the nature of mere mediation. It confers no rights on the belligerent
subjects in question, nor does it give the neutral legation
any right to protect a belligerent subject or his property against
any ordinary rights of war.
Good offices, properly speaking, are a mild form of mediation
or tentative mediation, i.e. mediation before it has been accepted
by the parties. Article 3 of the Hague Convention
anew; for the pacific settlement of international disputes
of October 18, 1907, however, provides that “powers,
strangers to the dispute, have the right to offer
Right of offering good offices
and mediation.
good offices or mediation, even during the course of
hostilities,” and that “the exercise of this right can never be
regarded by one or other of the parties in conflict as an unfriendly
act.” The Hague Convention puts an end to the doubt
whether a neutral power can mediate without involving itself
in some way with the one or the other side in the dispute. Mediation
had already been provided for in several existing treaties,
such as the Treaty of Paris (30th March 1856), which provides
that “if any dissension should arise between the Sublime Porte
and one or more of the other signatory powers and threaten the
maintenance of their good relations, the Sublime Porte and each
of these powers before resorting to force shall give an opportunity
to the other contracting parties in order to prevent such extreme
measures” (article 8); the Treaty of Yedo between the United
States and Japan (29th July 1858) stipulating that in the case of
difference between Japan or any other state, “the president of
the United States, at the request of the Japanese government,
will act as a friendly mediator in such matters of difference as
may arise between the government of Japan and any other
European power” (article 2); and the General Act of Berlin
relating to West Africa (1885), which provides that “in the
case of a serious dissension having arisen on the subject of, or
within the territories” in question, between the signatory
powers, they undertake, before taking up arms, to have
recourse to the mediation of one or more of the friendly powers
(article 12).
In the Venezuela-Guiana boundary question, the mediation of the United States government was declined by Great Britain, but its good offices were accepted. In the difficulty which arose between Germany and Spain in connexion with the hoisting of the German flag on one of the Caroline Islands, Spain did not consider arbitration consistent with the sovereign power she claimed to exercise over the island in question, but she accepted the mediation of the pope, and the matter was settled by protocols, signed at Rome (17th December 1885). These incidents show the uses of variety and gradation in the methods of diplomacy.
Neutral subjects have the right to carry on trade and intercourse with belligerent subjects in so far as they do not interfere with the operations or necessities of war, and it is no violation of the neutral character that this trade or intercourse is of benefit to either side. This is subject always to the belligerent right to capture and confiscate Rights of neutral subjects on belligerent soil. contraband of war (see below). On the other hand, the property of subjects and citizens of neutral states follows the fortune of the belligerent state within whose territorial jurisdiction it is situated. It is liable to the same charges as that of native subjects and citizens, and in case of military contributions neutral subjects on belligerent soil can claim no protection or exemption (see below, Angary). They have also the same rights to all indemnities for loss as are granted to native subjects and citizens.
The position of neutral public ships and the relative assimilation to them of mail steamers has been the subject of some controversy. A public ship is a ship having an official character. It includes not only warships, but also any ships affected to any specific and exclusive government purpose. Public ships in this sense are invested with an extra-territorial character, and the state to which they belong is directly responsible The rights of neutral public ships and mail steamers. for their acts. They are therefore not liable to visit and search for contraband of war, and are exempt from territorial jurisdiction even in belligerent waters. As regards vessels which are engaged partly in private traffic and partly on public service, such as mail steamers and government packets, the position is necessarily different. Under the Japanese Prize Law, adopted in view of the Chino-Japanese campaign, any vessel carrying contraband of war, whose destination is hostile, may be detained, without exception being made for mail steamers. The United States proclamation of April 1898 in connexion with the Spanish War stated that mail steamers would only be stopped in case of grave suspicion of their carrying contraband or of their violating a blockade.
On the arrest of the German mail steamers “Bundesrath” and “General” during the South African War, the German government represented to the British government that “it was highly desirable” that steamers flying the German mail-flag should not be stopped, and the British government thereupon issued orders not to stop them on suspicion only (Parliamentary Papers, Africa, No. 1, 1900). This was a precedent of the greatest importance. It would have practically assimilated mail steamers to public ships. Yet the mere circumstance of carrying the mails does not manifestly per se change the character of the ship. Both this subject and the position of packets* under state ownership, which may carry on trade and may consequently transport contraband, require deliberate adjustment by treaty. The convention between Great Britain and France respecting postal communications (30th August 1890) provides that “in the case of war between the two nations the packets of the two administrations shall continue their navigation, without impediment or molestation until a notification is made on the part of either of the two governments of the discontinuance of postal communications, in which case they shall be permitted to return freely to their respective ports” (article 9). The position of either as neutral is not dealt with. The tendency seems to be towards exemption, but in this case there should be official certification that the ships in question carry nothing in the nature of contraband.
Meanwhile the Hague Conference of 1907 has adopted rules under which postal correspondence of neutrals or belligerents is inviolable, whether it be official or private, or the carrying vessel be neutral or an enemy vessel, but in so far as mail ships are concerned they are not otherwise exempt from the application of the rules of war affecting merchant ships Convoy. generally (see Convention on restrictions on the exercise of the right of capture in maritime war, October, 1907). Connected with the position of public ships is the question of the right of convoy. Neutral merchant ships travelling under the escort of a warship or warships of their own flag are held by some authorities to be exempt from visit and search. The Japanese Prize Law, which is largely based on English practice, following on this point the recommendations of the Institute of International Law (see Règlement des prises maritimes, Annuaire 1888, p. 221), provides that “when the commander of a neutral convoy declares that there is no contraband of war on board the vessels under convoy, and that all the papers are in order in these vessels, the vessels shall not be visited” (article 23).[1] The United States,
- ↑ At the outset of the Chino-Japanese War, Vice-Admiral Sir E. R. Fremantle sent a note to the Japanese admiral requesting him to “give orders to the ships under his command not to board, visit or interfere in any way with British merchant vessels, observing that the British admiral had directed all British ships under his orders to afford protection to such merchant vessels, and not to allow them to be molested in any way.” Professor Takahashi, in his International Law of the Chino-Japanese War, relates that the Japanese admiral replied that “as the matters demanded by the British admiral belonged to the sphere of international diplomacy, and consequently were outside his official responsibility, they should be communicated directly to the Japanese Department of Foreign Affairs.” “The idea of the British admiral,” observes Professor Takahashi, “seemed to be not only to claim a right of convoy, which has never been recognized
