Treaties, States Parties and Commentaries
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Commentary of 2017 
Article 29 : Hospital ships in a port fallen into enemy hands
Text of the provision
Any hospital ship in a port which falls into the hands of the enemy shall be authorized to leave the said port.
Reservations or declarations
None
Contents

A. Introduction
2238  Hospital ships and their lifeboats enjoy protection from capture and attack and must be protected and respected wherever they operate.[1] According to Article 2(2), the Second Convention applies ‘to all cases of partial or total occupation’. At first glance, Article 29 might therefore be considered redundant. If a port has fallen into the hands of an Occupying Power, that Power remains under an obligation to protect and respect the hospital ships of the adverse Party or of neutral countries that may be present there. Nevertheless, to avoid too narrow an interpretation of Articles 22, 24 and 25, which expressly prohibit ‘capture’, as opposed to ‘seizure’ or ‘requisition’ under the law of occupation, Article 29 leaves no doubt as to the protection to which hospital ships are entitled in such circumstances. Moreover, the phrase ‘port which falls into the hands of the enemy’ indicates that the obligation under Article 29 applies not only to situations of military occupation, as defined in Article 42 of the 1907 Hague Regulations, but to all situations in which one of the belligerents has established control over an enemy port. Thus, the provision strengthens the protection of hospital ships and safeguards the performance of their humanitarian functions during international armed conflict.
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B. Historical background
2239  The specific scenario envisioned by Article 29 has no equivalent as such in the conventions preceding the Second Convention. Even so, during the Second World War the belligerents did not deny hospital ships found in a port that had fallen into their hands protection from capture, seizure or requisition. There were only two disputed instances, in which the vessels concerned were converted into hospital ships while in a port that was about to fall into enemy hands, and it was questioned whether the conversions had been effected merely to avoid capture.[2] Nevertheless, the delegation of the Netherlands proposed that the provision be included as Article 24 of the draft conventions submitted to the 1948 International Conference of the Red Cross in Stockholm.
2240  At the 1949 Diplomatic Conference, the UK delegate suggested that this provision be deleted because ‘it was only a simple statement of the established practice’.[3] The delegate of the Netherlands responded that a ‘belligerent, finding a hospital ship in a port occupied by its forces, might claim that he had not “captured” the ship, but “seized” it in accordance with the Hague Regulations. It was therefore desirable to lay down specifically that a hospital ship was authorized to leave an occupied port.’[4] Since the two delegations agreed that the protection enjoyed by hospital ships also applied in situations where they were found in a port that had fallen into the hands of the enemy, the UK delegate withdrew his proposal to delete this provision, and it was eventually adopted without further discussion.
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C. Discussion
1. Any hospital ship
2241  Article 29 applies to ‘any hospital ship’. Although the Second Convention distinguishes between ‘military hospital ships’ (Article 22) and ‘[h]ospital ships utilized by National Red Cross [and Red Crescent] Societies, by officially recognized relief societies or by private persons’ both of the Parties to the conflict (Article 24) and of neutral countries (Article 25), they all have to be authorized to leave a port that has fallen into enemy hands. Thus, Article 29 re-emphasizes the far-reaching protection all hospital ships enjoy from any form of capture[5] and extends it to include protection from seizure and requisition under the law of occupation.[6]
2242  The term ‘any’ seems to suggest that Article 29 applies to all hospital ships, even if their names and descriptions have not yet been notified to the Parties to the conflict. However, as proper notification is constitutive of the protection accorded to hospital ships,[7] the obligation under Article 29 only applies to those whose names and descriptions have been duly notified to the Parties to the conflict.
2243  Article 29 does not apply to coastal rescue craft. This indicates that, if they are in a port that has fallen into enemy hands, they may be seized or requisitioned under the law of occupation or captured, provided this is justified by operational requirements in accordance with Article 27(1).
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2. Ports fallen into the hands of the enemy
2244  Article 29 applies to hospital ships in ‘port’. A port is, according to the ordinary meaning of the term, ‘a town or city with a harbour or access to navigable water where ships load or unload’.[8] It may also be defined as ‘a place provided with various installations, terminals and facilities for loading and discharging cargo or passengers’.[9] For the purposes of Article 29 it is immaterial whether hospital ships are made fast to a pier or are anchored within the ‘outermost permanent harbour works which form an integral part of the harbour system’.[10] Therefore, strictly speaking, according to its wording, Article 29 does not apply to ‘roadsteads’, which, by definition, lie beyond the ‘port’.[11] However, in view of the object of the provision, it should be considered to apply also to hospital ships anchoring in a roadstead that falls into the hands of the enemy.
2245  The phrase ‘which falls into the hands of the enemy’ should not be interpreted too narrowly. Although the delegations at the 1949 Diplomatic Conference were focused on ports occupied by the enemy, the wording does not require the provision’s applicability to be limited to situations in which a port has been ‘actually placed under the authority of the hostile army’.[12] Article 29 similarly applies if the enemy exercises de facto control over a port, without having established an occupation regime. It also applies if the port is under siege from land, or under a blockade by sea.[13] For the purposes of Article 29, it suffices if the belligerent is in a position to exercise physical control over persons and objects present in the port.
2246  The wording seems to suggest that Article 29 is limited to situations in which a hospital ship is already in port when it falls into enemy hands. However, in view of the protection hospital ships enjoy, there would be no justification for depriving such a ship of the right to leave a port that had fallen into enemy hands for the sole reason that it had arrived there after the enemy had established control over the port. If the belligerent’s obligation to authorize them to leave were restricted to hospital ships already in port, such ships would be prevented from entering a port that had fallen into the hands of the enemy and, thus, from performing their humanitarian functions, which may include the disembarkation of wounded, sick and shipwrecked persons for their timely treatment on land.
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3. Authorization to leave
2247  The belligerent into whose hands a port has fallen is obliged to allow all hospital ships to leave that port. This obligation includes prohibitions on capture and, if an occupation regime has been established, on exercising the rights of an Occupying Power under Articles 52 and 53 of the 1907 Hague Regulations.[14] These rights relate to ‘requisition’ and ‘seizure’. In order to avoid legal sophistry over the distinction between ‘requisition’, ‘seizure’ and ‘capture’, the provision merely contains an obligation to allow all hospital ships to leave a port that has fallen into the hands of the enemy.[15] Giving authorization to leave is, therefore, only one means by which a belligerent complies with the overall obligation to respect and protect hospital ships.
2248  Article 29 does not specify the exact time when a hospital ship must be authorized to leave a port which has fallen into enemy hands. The wording suggests only that the obligation applies after the port has fallen into the hands of the enemy. The verb ‘authorize’ means ‘give official permission for or approval to’.[16] Accordingly, the belligerent into whose hands the port has fallen must allow hospital ships to leave. The Party controlling the port may not unduly delay, for example through administrative formalities, the departure of the hospital ship from the port.
2249  In view of the important humanitarian functions performed by hospital ships, and of the object of Article 29, the rule should be read as ‘prompt authorization’, should those responsible for the hospital ships so wish. Article 29 is, however, without prejudice to the rights of belligerents under Article 31 of the Second Convention. These include the right to control and search the vessel, and even to detain it for up to seven days, in accordance with the conditions outlined in Article 31. The belligerent into whose hands the port has fallen is therefore entitled to delay the departure of a hospital ship until it has searched the vessel and verified its innocent character. In view of the special protection afforded to hospital ships, such a search must be undertaken without undue delay. This means that the search of the hospital ship must be conducted at the earliest time possible. Detention is permissible only for a period not exceeding seven days, ‘if the gravity of the circumstances so requires’.[17]
2250  If necessary, the hospital ship, before departure, must be allowed to make provisions to leave the port, for example to refuel.
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Select bibliography
See the select bibliography of the commentary on Article 22 of the Second Convention.

1 - Articles 22, 24, 25 and 26 of the Second Convention. See also Convention for the Exemption of Hospital Ships, from Dues and Taxes (1904).
2 - The Italian Government gave notification of the status of the merchant ship Ramb IV as a hospital ship when it was in the blockaded port of Massawa. The Ramb IV was released after it was established that the conversion was genuine. In 1944, the German Government announced the conversion of the Rostock into a hospital ship while it was in the besieged port of Bordeaux. The Rostock was not released because it had been under orders to ‘indulge in weather-reporting activities and carried codes’. See Mossop, p. 404.
3 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 73.
4 - Ibid.
5 - “Capture” applies to all acts of asserting control over a vessel to the exclusion of the flag State concerned.
6 - According to Article 52 of the 1907 Hague Regulations, requisitions may be demanded from municipalities and from the inhabitants of occupied territory. According to Article 53 of the Regulations, seizure applies to State property in occupied territory.
7 - See the commentary on Article 22, para. 2008.
8 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1118.
9 - George K. Walker (ed.), Definitions for the Law of the Sea: Terms Not Defined by the 1982 Convention, Martinus Nijhoff Publishers, Leiden, 2012, p. 276.
10 - UN Convention on the Law of the Sea (1982), Article 11.
11 - Article 12 of the 1982 UN Convention on the Law of the Sea provides that ‘[r]oadsteads which are normally used for the loading, unloading and anchoring of ships, and which would otherwise be situated wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea’.
12 - Hague Regulations (1907), Article 42, para. 1. For a discussion, see the commentary on common Article 2(2), section E.
13 - For the requirements with which a naval blockade must comply in order to be ‘effective’, see Wolff Heintschel von Heinegg, ‘Blockade’, version of October 2015, paras 33–37, in Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Oxford University Press, http://www.mpepil.com.
14 - According to Article 52 of the 1907 Hague Regulations, ‘requisitions in kind’ may be demanded from municipalities or inhabitants ‘for the needs of the army of occupation’. According to Article 53, ‘an army of occupation’ is entitled to ‘take possession of … means of transport …belonging to the State’.
15 - See the statement by the delegate of the Netherlands, Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 73.
16 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 88.
17 - Article 31(1) of the Second Convention.