International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second EditionOppenheim, L. (Lassa)
History
International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second Edition
Oppenheim, L. (Lassa)
International law
§ 176. It is evident that in times when a belligerent could destroy all
public and private enemy property he was able to seize, no special rule
existed regarding private enemy ships and private enemy property carried
by them on the sea. But the practice of sea warfare frequently went
beyond the limits of even so wide a right, treating neutral goods on
enemy ships as enemy goods, and treating neutral ships carrying enemy
goods as enemy ships. It was not until the time of the _Consolato del
Mare_ in the fourteenth century that a set of clear and definite rules
with regard to private enemy vessels and private enemy property on sea
in contradistinction to neutral ships and neutral goods was adopted.
According to this famous collection of maritime usages observed by the
communities of the Mediterranean, there is no doubt that a belligerent
may seize and appropriate all private enemy ships and goods. But a
distinction is made in case of either ship or goods being neutral.
Although an enemy ship may always be appropriated, neutral goods thereon
have to be restored to the neutral owners. On the other hand, enemy
goods on neutral ships may be appropriated, but the neutral ships
carrying such goods must be restored to their owners. However, these
rules of the _Consolato del Mare_ were not at all generally recognised,
although they were adopted by several treaties between single States
during the fourteenth and fifteenth centuries. Neither the communities
belonging to the Hanseatic League, nor the Netherlands and Spain during
the War of Independence, nor England and Spain during their wars in the
sixteenth century, adopted these rules. And France expressly enacted by
Ordinances of 1543 (article 42) and 1583 (article 69) that neutral goods
on enemy ships as well as neutral ships carrying enemy goods should be
appropriated.[344] Although France adopted in 1650 the rules of the
_Consolato del Mare_, Louis XIV. dropped them again by the Ordinance of
1681 and re-enacted that neutral goods on enemy ships and neutral ships
carrying enemy goods should be appropriated. Spain enacted the same
rules in 1718. The Netherlands, in contradistinction to the _Consolato
del Mare_, endeavoured by a number of treaties to foster the principle
that the flag covers the goods, so that enemy goods on neutral vessels
were exempt from, whereas neutral goods on enemy vessels were subject
to, appropriation. On the other hand, throughout the eighteenth and
during the nineteenth century down to the beginning of the Crimean War
in 1854, England adhered to the rules of the _Consolato del Mare_. Thus,
no generally accepted rules of International Law regarding private
property on sea were in existence.[345] Matters were made worse by
privateering, which was generally recognised as lawful, and by the fact
that belligerents frequently declared a coast blockaded without having a
sufficient number of men-of-war on the spot to make the blockade
effective.
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