Questions of Public Law (1737)
Cornelius van Bynkershoek
Whether it Is Lawful to Pursue or Attack an Enemy in a Neutral Port or Territory
WE exercise the right of war against an enemy only in our own territory, the territory of the enemy, or the territory that belongs to no one. If we capture the enemy on our own territory there is nothing to hinder our treating him in a hostile manner, unless he has come with a safe-conduct. Considerations of war also permit us to invade the enemy’s territory and capture booty there; and the same is permissible upon the high seas, as being the territory of no one. But he who commits hostilities on the territory of a neutral, makes war upon the sovereign who governs there, and who lawfully repels every attack by whomsoever it may be made. Therefore the Carthaginians, though superior in naval forces, did not dare attack the Romans in the harbours of the Numidian King, as Grotius, citing Livy, narrates. Zouche, who copies Grotius, brings up some contrary arguments, but even these Grotius had already mentioned and refuted.
Now although all writers on public law, without exception I think, prohibit the use of force in the dominions of another, it deserves to be considered whether or not the customs of nations and the decisions of our princes and legislative bodies have been in accord with this principle, and whether we ought in this discussion to distinguish between the right of pursuit and the right of aggression. To begin with the princes, Philip II, King of Spain, in his Leges Nauticae which he gave to the Belgians on October 31, 1563, ordained, under penalty of death, that no violence should be done on the sea for the sake of war or anything else against his subjects and allies, or against ‘foreigners within sight of land or port’. It was understood, therefore, that the dominion of the mainland extended as far from land as the eye could see; and there are authorities who agree. But I have shown in my dissertation De Dominio Maris that this definition is too vague, for I hold that the territorial dominion ends where the power of weapons terminates. And I think I have shown in Chapters II and IV of the cited work that both the States-General and the Estates of Holland agree with me, in proof of which I cited two decrees relating to the salutation of princes.
It certainly is not permissible to attack or take an enemy in the port of a friend who is also on friendly terms with our enemy. If any one should do this, it is the duty of our friends to procure the restoration of the booty either at his own expense or at the expense of the injured party. That the restoration should be made at the expense of the latter has been agreed by Article 22 of the treaty of April 5, 1654, between the English Commonwealth and the States-General, Article 21 of the treaty of September 14, 1662, between the King of England and the States-General, and again in Article 29 in the treaty of July 31, 1667, between the same signatories. The same stipulation is made in Article 48 of the commercial treaty of April 27, 1662, between the King of France and the States-General, without, however, making any mention of a requirement that the one who sustained the injury should bear the expense. Indeed, such a requirement seems to me entirely unjust, for it is the duty of the sovereign himself to revenge the wrong done himself. Indeed, it is a wrong done the neutral power to violate a port which is open equally to all his friends. And if he who does the wrong presently sails away, can we expect the individual whose ship has possibly been taken, to wage a war at his own expense? Therefore the mention of expense is properly omitted in Article 35 of the commercial treaty of August 10, 1678, between the King of France and the States-General, and in Article 40 of the commercial treaty between the same signatories on September 20, 1697, and again in Article 39 of a similar treaty between these same parties on April 11, 1713, for treaties are usually transcribed from previous ones without any further examination, as we saw above in the case of the English ones. All the aforecited articles hold merely that the sovereign of the port, bay, or river in which prey is taken from a friend of his shall exert himself to the utmost to have fully restored what has been taken there. If it is the duty of the sovereign to use his utmost endeavours for this, he will doubtless do it at his own expense, even going to war if there be no other means at hand. This is a law which is observed among all nations, and there is no basis for it except that it is not permissible to commit violence on foreign territory within which are included ports, bays, and rivers. On this principle the Duke of Tuscany in 1695 compelled the Frenchman to restore at once the ship belonging to the powers that were fighting France but were friendly to Tuscany, for the Frenchman had captured the ship near Leghorn and brought it into port there, and as I have said, the sea which is near to the ports of a sovereign is a part of his territory.
From the aforesaid we may judge of the justice of the following cases. When in 1639 Admiral Tromp was blockading in the English port of Downs the fleet of the Spaniards who were on friendly terms with the English, the States-General on September 21 and 30, 1639, issued decrees commanding their admiral ‘to destroy the Spanish fleet without paying any regard to the harbours, roads, or bays of the country where it might be found’, even though the English and others should make resistance. This order the Admiral presently executed and the States-General approved and praised him for it, as Aitzema relates in full. This act can hardly be defended, nor that of the English, who on August 12, 1665, attacked ships of the Dutch East India Company in the Norwegian harbour of Bergen to the great indignation of the Danes, who used all their resources in repelling the English. However, two observations should be made, lest the deed of Tromp seem too unjust: one is that in 1627 the English took from a Dutch harbour a ship of the French King, who was then an enemy of England but on friendly terms with the States-General, the other is that the Spaniards themselves in 1631 were charged with having attacked the ships of the States-General in the harbours of the Danish King, a common friend. However, it is perfectly clear that when nothing intervenes which can justify retaliation it is wrong for the enemy to make an attack in the harbour of a common friend, and this very point was made by the States-General in 1623 in answer to a request of the English ambassador. Again, when in 1666 the commanders of the Dutch ships had committed hostilities against the ships of the English in the Elbe, a neutral stream, many complaints were raised, not only by the English, but also by Hamburg and various envoys of the German Empire. To the complaints of the English a ready answer could be given because of what they had done in Bergen the preceding year, but it was not so with the others, for this act of aggression rested wholly upon retorsion. Accordingly, when the French in 1693 hurled fire into some ships of Zealand in the neutral harbour of Lisbon, though the King of Portugal had not permitted the ships to be hauled out nor attacked with artillery,
there can be no doubt that they acted unjustly. This deed I relate from my own memory.
There may be more reason to doubt whether it is lawful to pursue an enemy into a stream, station, port, or bay, of a friendly power, if we have found mm on the open seas and are pursuing in the heat of battle. The weight of the argument is in favour of permitting it, if certain precautions are taken which I shall presently enumerate. This certainly was the opinion of the States-General in 1623, when they answered the English Ambassador that it was not permissible to make an attack in the harbour of a common friend, ‘with the understanding, however, that it was hoped his majesty would not be offended if in finding and pursuing any ships of Dunkirk they should chase them along the coasts and into the harbours of his majesty’. The same opinion seems to be expressed in the decree of the States-General dated October 10, 1652, which, however, appropriately adds the warning that one must refrain from attacking forts of friends even if violence should be committed from them, and also that one must spare the enemy that has entered friendly harbours. Both of these exceptions are reasonable, for it is better to suffer injury in the territory of another than to be the aggressor, and if we must act, we must also take care lest the violence intended for the enemy does injury to a friend. Accordingly, if two fleets meet in conflict upon the high seas, and one gives way, I do not insist that the victor has no right to pursue the vanquished one though it take refuge within the territory of a friend; but I approve of the clause in the decree just cited which holds that one must refrain from violence at the harbour, because we cannot commit it there without endangering our friends. Following this principle, it is not permitted to begin a battle on the seas so near land that it is within reach of the cannon of the forts, but after battle is begun, it is lawful to pursue the enemy along the coast even near to land, or into a bay or river, provided we spare the land forts, though they should assist the enemy, and provided we do not involve our friends in the danger.
From incidents of later date we may conclude that the States-General approve of even this principle; for in 1654, when a Dutch commander had attacked an English ship upon the seas, pursued it into the harbour of Leghorn, and seized it when on the point of coming to anchor, and when the Grand Duke of Tuscany had sent a protest to the States-General, we read that the States-General refused to heed the complaint. The Grand Duke, however, had his revenge, for he confiscated the ship that had aided in the capture of the English vessel. Again, when the people of Ostend had fired at a Dutch vessel which was pursuing an English ship up to the very harbour, the States-General in 1665 protested to the Spaniards, alleging that the act was unlawful since the Dutch ship had not fired upon the English one at the harbour of Ostend. But their argument was not of any value except to emphasize the injury done to Ostend, for it is of little consequence what means are used in an attack, if it be with hostile purpose. However, it is evident that the States-General approved of the pursuit in both of these instances, because the violence was begun before and only continued in neutral waters.
The same principle that applies to the sea is valid also upon land, namely, that it is lawful to pursue an enemy into the territory of another when he is fleeing from a recent battle. Thus I interpret the decree issued in 1653 by the States-General, which held that it was lawful to pursue even into the domains of the Spanish King the troops of Lorraine that had ravaged the territory of the States-General; for the practice cannot be defended unless you apply it in the case of a fresh pursuit after a battle or act of devastation immediately preceding. Otherwise it is no more lawful to use friendly territory for the destruction of an enemy than a friendly harbour. Very properly the States-General, at the request of the French King, who then was at peace with the Spanish King, forbade upon pain of death the plundering of Spaniards within the dominions of the French King. When in 1666 ‘the troops of Münster, on passing through Spanish territory, committed depredations in the domains of the States-General, and the latter complained to Spain, demanding an indemnity for the damage done by the troops of Münster, the demand would have been just if the Spanish had knowingly and willingly permitted those of Münster to pass through their territory for the sake of plunder. But it does not anywhere appear that this is clearly established. Had they known, it would have been their duty to prevent violence from being committed against friends from their territory. Therefore, I do not approve of the conduct of the people of Wolfenbuttel, who, though said to be neutrals, permitted the Saxons to pass through their territory in 1700 to plunder Luneburg, and also permitted the allies of Luneburg to kill the Saxons. At most, we may grant that after a recent battle it is lawful to pursue a fleeing enemy in the dominions of another, by the same principle that Philip II of Spain ( 76, of his criminal edict of 1570) permitted the pursuit of a criminal immediately and flagrante delicto into territory not our own. But it is one thing to begin an attack, quite another to press on in the heat of the engagement. For it is an old principle that an act may be valid when committed in a cause in which it could not originate. In a word, the fact that a territory is that of a common friend prevents the beginning of hostilities there, but it does not prevent the immediate continuation there of hostilities begun elsewhere.
This distinction, therefore, seems to have reasonable support, though I have not seen it mentioned in discussions of these questions made by writers on public law, nor indeed in the laws of any European nations except the Dutch. Yet reason supports and commands the observance of it, and usage in other branches of law is also favourable.
If we adopt it we may readily reach a decision in the following case: A French ship in time of war pursued a Spanish ship which fled into the port of Tor Bay, ran aground, and concealed her cordage, tackle, sails, &c., in the houses of the inhabitants. The French mariners landed, took these articles from the houses and brought them to their own ships. Was it lawful for the French thus to attack the houses of the English and carry away the articles kept there? It could not be done without injury to the English; the King of England was therefore wholly in the right when in 1668 he demanded the restoration of all the captured articles, and ordered his ambassador in France to continue the prosecution of the wrong. Aitzema tells of further complaints of the English for the violation of their ports by the French, and of damages paid by the French, but these I need not repeat, since the reader can be his own judge by employing the distinction I have suggested, if indeed he is as well satisfied with it as I am.