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Removal of Enemy Persons from Neutral Vessels on the High Seas

  • Herbert W. Briggs

Extract

Early in the afternoon of January 21, 1940, the Japanese steamship Asama Maru, proceeding from Honolulu to Yokohama, was stopped at a point 35 nautical miles off the coast of Japan by a British man-of-war. The British warship boarded the Asama Maru, and, “claiming to act under a right in international law but without explaining in detail the reasons for its actions and without even disclosing its name,” forcibly removed 21 of the 50 Germans on board.

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1 Masayuki Tani, Japanese Vice-Minister for Foreign Affairs, to Sir Robert Craigie, H.B.M. Ambassador in Tokyo, Jan. 22, 1940. British White Paper, Japan No. 1 (1940), Correspondence … regarding the removal of German Citizens from the Japanese Ship Asama Maru, Jan.-Feb. 1940 (Cmd. 6166); partially reprinted in The Times (London), Feb. 7, 1940, 10: 2–3.

2 Ibid.

3 New York Times, Jan. 24, 1940.

4 New York Times, Jan. 26, 1940, 3: 1; The Times (London), Jan. 26, 1940, 8:7.

5 New York Times, Jan. 24, 1940.

6 Craigie to Arita, Jan. 27, 1940, British White Paper, loc. cit.

7 Art. 47 of the unratified Declaration of London of 1909 reads as follows:

“Any individual embodied in the armed forces of the enemy who is found on board a neutral merchant vessel, may be made a prisoner of war, even though there be no ground for the capture of the vessel.”

8 New York Times, Jan. 31, 1940, 8: 2.

9 Arita to Craigie, Feb. 1, 1940, British White Paper, loc. cit. Compare the American position during the World War. On Nov. 3, 1914, the London Gazette had published the following notice: “In view of the action taken by the German forces in Belgium and France of removing, as prisoners of war, all persons who are liable to military service, H. M. Government have given instructions that all enemy reservists on board neutral vessels should be made prisoners of war. Foreign Office, November 1, 1914.” U. S. Naval War College, International Law Situations, 1928, p. 91. When Sir Edward Grey referred to this notice as a justification for the removal of 38 enemy nationals from the American steamship China, Mr. Lansing replied: “The fallaciousness of this ground for repudiating the rule is manifest, for it amounts to saying that because a belligerent government undertakes to commit a reprehensible act in territory which it occupies, its enemy may violate the sovereignty of a neutral to commit a similar act.” U. S. Foreign Relations, 1916, Supp., p. 637. Lansing to Page, April 22, 1916. Lauterpacht in his fifth edition of Oppenheim, International Law, Vol. 2 (1935), p. 704 n., comments: “The legality of this measure of reprisals by the Allies may well be doubted.”

10 Craigie to Arita, Feb. 5, 1940, British White Paper, loc. cit.

11 The Times (London), Feb. 7, 1940, 8:2. See also editorial, ibid., 9:2, and report of Mr. Arita’s statement to the Japanese Parliament, ibid., 8: 2. Mr. Arita referred to the compromise as “though not yet a complete settlement, an important stage in that direction,” and the British Government reserved the right to reply to the Japanese legal arguments “in due course.” Ibid., 10: 3.

12 Cf. U. S. Foreign Relations, 1916, Supp., pp. 630–679. For previous and subsequent discussions of the issue, see ibid., 1915, Supp., pp. 744–755, and ibid., 1917, Supp. I, pp. 526–532. See also ibid., The Lansing Papers, 1914–1920, Vol. I, pp. 309–311, 327–328.

13 Ibid., 1916, Supp., p. 637. Italics not in original.

14 Ibid., pp. 666–667. Enclosure in Lansing to Page, Nov. 23, 1916.

15 Ibid., p. 664 ff.

16 Ibid., p. 634. Grey to Page, March 16, 1916.

17 Ibid., pp. 668–674. Enclosure in Lansing to Page, Dec. 1, 1916.

18 For a discussion of these treaties, see Harvard Research in International Law, Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War, Art. 62, this Journal, Supp., Vol. 33 (1939), p. 603 ff.

19 U. S. For. Rel., 1917, Supp. 1, p. 531. Balfour to Page, May 31, 1917.

20 Ibid., pp. 531–532.

21 Ibid., p. 529. Lansing to Page, April 23, 1917.

22 Ibid., p. 529. Page to Lansing, May 31, 1917.

23 Cf. generally, Moore, J. B., A Digest of International Law, Vol. VII, pp. 752779 ; U. S. Naval War College, International Law Situations, 1928 (G. G. Wilson, ed.), pp. 73–108; Harvard Research Draft Convention, loc. cit., p. 603 ff. See also Gamer, J. W., International Law and the World War (1920), Vol. 2, pp. 369370 , that Bentwich, Higgins, Dupuis, Bluntschli, Perels, Marquardsen, Lawrence, Kleen, Mountague Bernard, and many others take the view that reservists are not within the category of capturable persons, and “cannot lawfully be taken from a neutral vessel, and such carriage does not incriminate the vessel, unless the voyage is undertaken especially for their transport.”

24 U. S. For. Rel., 1916, Supp., p. 674.

25 Ibid.

26 See above, note 9.

27 See above, pp. 250–251.

28 See Harvard Research Draft Convention on Neutrality, Art. 23, loc. cit., pp. 392–419.

29 U. S. For. Rel., 1916, Supp., p. 654. Grey to Page, July 15, 1916.

30 Ibid., p. 651. Foreign Office Memorandum of June 28, 1916.

31 Hyde, C. C., International Law (1922), Vol. 2, p. 642 .

32 See above, note 18.

33 Oppenheim, L. F., International Law, 5th ed. (Lauterpacht), Vol. 2 (1935), p. 704 .

34 Harvard Research Draft Convention, loc. cit., pp. 617–618.

35 U. S. For. Rel., 1917, Supp. 1, p. 531. Balfour to Page, May 31, 1917.

36 “If there be no judicial remedy, the result is that the question must be determined by the captor himself on the deck of the prize vessel. Very grave objections arise against such a course. The captor is armed, the neutral is unarmed. The captor is interested, prejudiced, and perhaps violent; the neutral, if truly neutral, is disinterested, subdued, and helpless. The tribunal is irresponsible, while its judgment is carried into instant execution. The captured party is compelled to submit, though bound by no legal, moral, or Treaty obligation to acquiesce. Reparation is distant and problematical, and depends at last on the justice, magnanimity, or weakness of the State in whose behalf and by whose authority the capture was made. … I think all unprejudiced minds will agree that imperfect as the present judicial remedy may be supposed to be, it would be, as a general practice, better to follow it than to adopt the summary one of leaving the decision with the captor and relying upon diplomatic debates to review his decision.” Seward to Lord Lyons, Dec. 26, 1861. 55 British and Foreign State Papers, 634–635.

37 This Journal, Supp., Vol. 33 (1939), p. 601.

Removal of Enemy Persons from Neutral Vessels on the High Seas

  • Herbert W. Briggs

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