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Was Norway Delinquent in the Case of the Altmark?

Published online by Cambridge University Press:  12 April 2017

Edwin Borchard
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Editorial Comment
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American Journal of International Law , Volume 34 , Issue 2 , April 1940 , pp. 289 - 294
Copyright
Copyright © by the American Society of International Law 1940

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References

1 Only vessels employed by the government for public purposes are permitted to fly this flag. Decree of Oct. 31, 1935, Reichsgesetzblatt I, 1288. It is, however, distinct from the war flag.

2 Official radio statement of Norwegian Foreign Minister, Feb. 25, 1940. New York Times, Feb. 26, 1940.

3 New York Times, Feb. 19, 1940.

4 By Ryan, James W., New York Times, Feb. 25, 1940 Google Scholar.

5 Maurice Leon in the New York Times, March 10,1940.

6 Arts. 1 and 2 of Hague Convention XIII, Reports to the Hague Conference (edited by Scott), p. 841.

7 Hague Convention XIII, Art. 2. Cf. Oppenheim, International Law, 5th ed. by Lauter-pacht (London, 1935), II, p. 569 et seq.; Gidel, La mer territorial, 1934 lecture, Academy at The Hague, Recueil, II, pp. 209–10, 223–225; Genet, Droit maritime pour le temps de guerre,II, pp. 82–84; Hall, Law of Naval Warfare (1921), p. 131; Naval War College, International Law Situations, 1931, pp. 107–108; Peydiére, Du Sijour et des droits des navires de guerre belligirants (1936), pp. 70–71. Even the convoy of troops is privileged, unless it be so continuous as to become a place of concentration. Sandiford, Roberto, Diritto marittimo di guerra, 5th ed. (Rome, 1938), p. 303.

8 Even passage through, animo capiendi, is privileged. The Twee Gebroeder, 3 C. Rob. 162. Hague Convention XIII, Art. 10, permits prizes, including crew, to be taken through territorial waters. If a ship has been captured, it may, on its way to a prize port, pass through or even anchor temporarily in territorial waters. The Thorsten, No. 1, Oberprisen- gericht, I, 103 (1916); Reserv, ibid., 392 (1917, anchoring); The Sudmark, Br. and Col. Prize Cases, 473, 478 (1916). Mercker, R., Die Kiistengewasser (Stuttgart, 1927), p. 75. The use of the Altmark’s radio was not privileged, but the sanction was for Norway to determine.

An escort to assure free passage in territorial waters is approved practice. Cf. Chilean cases in Alvarez, La grande guerre europienne et la neuiraliU du Chili (Paris, 1915), pp. 163–165. Martin, Latin America and the Great War (1925), p. 277. Hague Convention XIII, Art. 11, permits the supply of licensed pilots.

9 Lois et usages de la neutralité (Paris, 1898), I, p. 507 et seq.

10 Reports to the Hague Conferences, p. 847.

11 The following countries permit the passage or entrance of belligerent warships: United States, U. S. Naval Instructions, 1917; Japan, De&k & Jessup, Neutrality Laws, Regulations and Treaties, I, p. 736; Italy, ibid., I, p. 723, but see ibid., p. 727; Brazil, Decree No. 1561, Sept. 2, 1939, Pan American Union, Law-Treaty Ser. 12, p. 21; also Deák & Jessup, op. cit., I, p. 87; Greece, ibid., I, p. 675; Belgium, Moniteur Beige, Sept. 3,1939, Rev. des lois, etc., pp. 213–214; Scandinavian Regulations (1939), 15 Rev. des lois, etc., pp. 214–217; Ecuador, De£k & Jessup, op. cit., I, p. 554; Venezuela, ibid., II, p. 1292. Cf. national rules in Genet, op. cit., pp. 86–87; Harvard Research in International Law, Territorial Waters, Art. 14 (1929), p. 295. The Netherlands prohibits entry, Deák & Jessup, op. cit., II, p. 802. Cf.Genet, II, pp. 87–88; Scott, Reports to the Hague Conferences (1917), pp. 847–848, 869.

12 Söderquist, Droit int. maritime suédois (1930), p. 62.

13 Press Release, Min. of For. Affairs, Oslo, Feb. 21, 1940, Aftenposten, Feb. 22, 1940.

14 The whole answer reads as follows:

“I am commanded by my Lords Commissioners of the Admiralty to communicate to you, for your information and guidance, the following occurrences which have taken place with reference to the observance of neutrality, and the legal opinions which have been furnished to Her Majesty’s Government in each case:

“ 1. A French vessel-of-war having entered the Firth of Forth with German prisoners on board, and the attention of Her Majesty’s Government having been called by the Consul of the North German Confederation at Leith to the circumstances, as a breach of neutrality on the part of this country, Her Majesty’s Government was legally advised as follows:

“ ‘ First, that the French war-ship had a right to enter the Firth of Forth, and remain there daring such time, and for such purposes, as are allowed to belligerents in the present war under Her Majesty’s Proclamation.

“‘Secondly, with regard to the assertion of the North German Consul, that the German prisoners on board the French war-ship were, ipso jure, free, as the ship was in neutral waters; that there is no warrant in the law of nations for such a position. So long as the Germans remained on board the French war-ship they were under French jurisdiction, and the neutral authorities had no right to interfere with them. If they had been landed from the war-ship the question raised would have been different, as they would have passed out of French jurisdiction, and have become practically free.’ ”

Fontes Juris Gentium, Digest of Diplomatic Correspondence, 1856–1871, Vol. II, Document 2928.

15 7 Opinions of the Attorney General, p. 123. See also Oppenheim, 5th ed., II, p. 591. That prisoners remain such on entrance into port on board warships and cannot be released, see Luchaire, Droits de séjour et d’action des navires belligerants dans les eaux territoriales neutres (1933), pp. 204, 206. Hall, Naval Warfare, p. 175; Genet, op. cit., II, pp. 180–181. There is, of course, a limit to the use of neutral ports for asylum. If the belligerent overstays its permitted sojourn, it may be interned and prize or captives released. Pitt Cobbett, Leading Cases, 4th ed., II, p. 1494.

16 Hall, Naval Warfare, p. 116; Meitani, “Le régime des prisonniers de guerre,” 7 Rev. Int. fran. de droit des gens (1939), p. 292; Rasmussen, Code des prisonniers de guerre (1931), pp. 25–26; cf. Geneva Convention, 1929, Art. 1, and Hague Regulations, 1907, Arts. 1–3; Rasmussen, pp. 108–109; Soderquist, op. cit., p. 395. The crew of an armed merchantman may be treated as prisoners of war. Cf. Sir Edward Carson in 93 Pari. Deb. (5th ser.), p. 310 (May 2, 1917).

17 An Associated Press dispatch of March 9th reports the landing in England of more than 100 German seamen, members of the crew of scuttled and captured German vessels. New York Times, March 10, 1940.

18 Cf. Baty: “The assumption that a neutral must absolutely guarantee the observance of the laws of war by each belligerent, on the pain of having her own rights disregarded, is a disquieting symptom.” “The Supposed Chaos in the Law of Nations,” 63 U. Pa. L. Rev. (1915), p. 716.