International Law. A Treatise Volume Ii Part 41

-- 295. Since neutrality is an att.i.tude during the condition of war only, this att.i.tude calls into existence special rights and duties which do not generally obtain. They come into existence by the fact that the outbreak of war has been notified or has otherwise[554] unmistakably become known to third States who take up an att.i.tude of impartiality, and they expire _ipso facto_ by the termination of the war.

[Footnote 554: See article 2 of Convention III. of the Second Peace Conference.]

Rights and duties deriving from neutrality do not exist before the outbreak of war, although such outbreak may be expected every moment.

Even so-called neutralised States, as Switzerland and Belgium, have during time of peace no duties connected with neutrality, although as neutralised States they have even in time of peace certain duties. These duties are not duties connected with neutrality, but duties imposed upon the neutralised States as a condition of their neutralisation. They include restrictions for the purpose of safeguarding the neutralised States from being drawn into war.[555]

[Footnote 555: See above, vol. I. -- 96.]

[Sidenote: Neutrality an Att.i.tude of States.]

-- 296. As International Law is a law between States only and exclusively, neutrality is an att.i.tude of impartiality on the part of States, and not on the part of individuals.[556] Individuals derive neither rights nor duties, according to International Law, from the neutrality of those States whose subjects they are. Neutral States are indeed obliged by International Law to prevent their subjects from committing certain acts, but the duty of these subjects to comply with such injunctions of their Sovereigns is a duty imposed upon them by Munic.i.p.al, not by International Law. Belligerents, on the other hand, are indeed permitted by International Law to punish subjects of neutrals for breach of blockade, for carriage of contraband and for rendering unneutral service to the enemy; but the duty of subjects of neutrals to comply with these injunctions of belligerents is a duty imposed upon them by these very injunctions of the belligerents, and not by International Law. Although as a rule a State has no jurisdiction over foreign subjects on the Open Sea,[557] either belligerent has, exceptionally, by International Law, the right to punish foreign subjects by confiscation of cargo, and eventually of the vessel itself, in case their vessels break blockade, carry contraband, or render unneutral service to the enemy; but punishment is threatened and executed by the belligerents, not by International Law. Therefore, if neutral merchantmen commit such acts, they neither violate neutrality nor do they act against International Law, but they simply violate injunctions of the belligerents concerned. If they choose to run the risk of punishment in the form of losing their property, this is their own concern, and their neutral home State need not prevent them from doing so. But to the right of belligerents to punish subjects of neutrals for the acts specified corresponds the duty of neutral States to acquiesce on their part in the exercise of this right by either belligerent.

[Footnote 556: It should be specially observed that it is an inaccuracy of language to speak (as is commonly done in certain cases) of individuals as being neutral. Thus, article 16 of Convention V. of the Second Peace Conference designates the nationals of a State which is not taking part in a war as "neutrals." Thus, further, belligerents occupying enemy territory frequently make enemy individuals who are not members of the armed forces of the enemy take a so-called oath of neutrality.]

[Footnote 557: See above, vol. I. -- 146.]

Moreover, apart from carriage of contraband, breach of blockade, and unneutral service to the enemy, which a belligerent may punish by capturing and confiscating the vessels or goods concerned, subjects of neutrals are perfectly unhindered in their movements, and neutral States have in especial no duty to prevent their subjects from selling arms, munitions, and provisions to a belligerent, from enlisting in his forces, and the like.

[Sidenote: No Cessation of Intercourse during Neutrality between Neutrals and Belligerents.]

-- 297. Neutrality as an att.i.tude of impartiality involves the duty of abstaining from a.s.sisting either belligerent either actively or pa.s.sively, but it does not include the duty of breaking off all intercourse with the belligerents. Apart from certain restrictions necessitated by impartiality, all intercourse between belligerents and neutrals takes place as before, a condition of peace prevailing between them in spite of the war between the belligerents. This applies particularly to the working of treaties, to diplomatic intercourse, and to trade. But indirectly, of course, the condition of war between belligerents may have a disturbing influence upon intercourse between belligerents and neutrals. Thus the treaty-rights of a neutral State may be interfered with through occupation of enemy territory by a belligerent; its subjects living on such territory bear in a sense enemy character; its subjects trading with the belligerents are hampered by the right of visit and search, and the right of the belligerents to capture blockade-runners and contraband of war.

[Sidenote: Neutrality an Att.i.tude during War (Neutrality in Civil War).]

-- 298. Since neutrality is an att.i.tude during war, the question arises as to the necessary att.i.tude of foreign States during civil war. As civil war becomes real war through recognition[558] of the insurgents as a belligerent Power, a distinction must be made as to whether recognition has taken place or not. There is no doubt that a foreign State commits an international delinquency by a.s.sisting insurgents in spite of its being at peace with the legitimate Government. But matters are different after recognition. The insurgents are now a belligerent Power, and the civil war is now real war. Foreign States can either become a party to the war or remain neutral, and in the latter case all duties and rights of neutrality devolve upon them. Since, however, recognition may be granted by foreign States independently of the att.i.tude of the legitimate Government, and since recognition granted by the latter is not at all binding upon foreign Governments, it may happen that insurgents are granted recognition on the part of the legitimate Government, whereas foreign States refuse it, and _vice versa_.[559] In the first case, the rights and duties of neutrality devolve upon foreign States as far as the legitimate Government is concerned. Men-of-war of the latter may visit and search merchantmen of foreign States for contraband; a blockade declared by the legitimate Government is binding upon foreign States, and the like. But no rights and duties of neutrality devolve upon foreign States as regards the insurgents. A blockade declared by them is not binding, their men-of-war may not visit and search merchantmen for contraband. On the other hand, if insurgents are recognised by a foreign State but not by the legitimate Government, such foreign State has all rights and duties of neutrality so far as the insurgents are concerned, but not so far as the legitimate Government is concerned.[560] In practice, however, recognition of insurgents on the part of foreign States will, if really justified, always have the effect of causing the legitimate Government to grant its recognition also.

[Footnote 558: See above, ---- 59 and 76, and Rougier, _Les guerres civiles et le droit des gens_ (1903), pp. 414-447.]

[Footnote 559: See above, -- 59.]

[Footnote 560: See the body of nine rules regarding the position of foreign States in case of an insurrection, adopted by the Inst.i.tute of International Law at its meeting at Neuchatel in 1900 (_Annuaire_, XVIII. p. 227). The question as to whether, in case foreign States refuse recognition to insurgents, although the legitimate Government has granted it, the legitimate Government has a right of visit and search for contraband is controversial; see _Annuaire_, XVIII. pp. 213-216.]

[Sidenote: Neutrality to be recognised by the Belligerents.]

-- 299. Just as third States have no duty to remain neutral in a war, so they have no right[561] to demand that they be allowed to remain neutral. History reports many cases in which States, although they intended to remain neutral, were obliged by one or both belligerents to make up their minds and choose the belligerent with whom they would throw in their lot. For neutrality to come into existence it is, therefore, not sufficient for a third State at the outbreak of war to take up an att.i.tude of impartiality, but it is also necessary that the belligerents recognise this att.i.tude by acquiescing in it and by not treating such third State as a party to the war. This does not mean, as has been maintained,[562] that neutrality is based on a contract concluded either _expressis verbis_ or by unmistakable actions between the belligerents and third States, and that, consequently, a third State might at the outbreak of war take up the position of one which is neither neutral nor a party to the war, reserving thereby for itself freedom in its future resolutions and actions. Since the normal relation between members of the Family of Nations is peace, the outbreak of war between some of the members causes the others to become neutrals _ipso facto_ by their taking up an att.i.tude of impartiality and by their not being treated by the belligerents as parties to the war. Thus, it is not a contract that calls neutrality into existence, but this condition is rather a legal consequence of a certain att.i.tude on the part of third States at the outbreak of war, on the one hand, and, on the other, on the part of the belligerents themselves.

[Footnote 561: But many writers a.s.sert the existence of such a right; see, for instance, Vattel, III. -- 106; Wheaton, -- 414; Kleen, I. -- 2; Bonfils, No. 1443.]

[Footnote 562: See Heilborn, _System_, pp. 347 and 350.]

III

DIFFERENT KINDS OF NEUTRALITY

Vattel, III. ---- 101, 105, 107, 110--Phillimore, III. ---- 138-139--Halleck, II. p. 142--Taylor, -- 618--Wheaton, ---- 413-425--Bluntschli, ---- 745-748--Geffcken in Holtzendorff, IV. pp.

634-636--Ullmann, -- 190--Despagnet, No. 685--Pradier-Fodere, VIII.

Nos. 3225-3231--Rivier, II. pp. 370-379--Calvo, IV. ---- 2592-2642--Fiore, III. Nos. 1542-1545--Merignhac, pp.

347-349--Pillet, pp. 277-284--Kleen, I. ---- 6-22.

[Sidenote: Perpetual Neutrality.]

-- 300. The very first distinction to be made between different kinds of neutrality is that between perpetual or other neutrality. Perpetual or permanent is the neutrality of States which are neutralised by special treaties of the members of the Family of Nations, as at the present time that of Switzerland, Belgium, and Luxemburg. Apart from duties arising from the fact of their neutralisation which are to be performed in time of peace as well as in time of war, the duties and rights of neutrality are the same for neutralised as for other States. It must be specially observed that this concerns not only the obligation not to a.s.sist either belligerent, but likewise the obligation to prevent them from making use of the neutral territory for their military purposes. Thus, Switzerland in 1870 and 1871, during the Franco-German War, properly prevented the transport of troops, recruits, and war material of either belligerent over her territory, disarmed the French army which had saved itself by crossing the Swiss frontier, and detained the members of this army until the conclusion of peace.[563]

[Footnote 563: See below, -- 339.]

[Sidenote: General and Partial Neutrality.]

-- 301. The distinction between general and partial neutrality derives from the fact that a part of the territory of a State may be neutralised,[564] as are, for instance, the Ionian Islands of Corfu and Paxo, which are now a part of the territory of the Kingdom of Greece.

Such State has the duty to remain always partially neutral--namely, as far as its neutralised part is concerned. In contradistinction to such partial neutrality, general neutrality is the neutrality of States no part of whose territory is neutralised by treaty.

[Footnote 564: See above, -- 72.]

[Sidenote: Voluntary and Conventional Neutrality.]

-- 302. A third distinction is that between voluntary and conventional neutrality. Voluntary (or simple or natural) is the neutrality of such State as is not bound by a general or special treaty to remain neutral in a certain war. Neutrality is in most cases voluntary, and States whose neutrality is voluntary may at any time during the war give up their att.i.tude of impartiality and take the part of either belligerent.

On the other hand, the neutrality of such State as is by treaty bound to remain neutral in a war is conventional. Of course, the neutrality of neutralised States is in every case conventional. Yet not-neutralised States can likewise by treaty be obliged to remain neutral in a certain war, just as in other cases they can by treaty of alliance be compelled not to remain neutral, but to take the part of one of the belligerents.

[Sidenote: Armed Neutrality.]

-- 303. One speaks of an armed neutrality when a neutral State takes military measures for the purpose of defending its neutrality against possible or probable attempts of either belligerent to make use of the neutral territory. Thus, the neutrality of Switzerland during the Franco-German War was an armed neutrality. In another sense of the term, one speaks of an armed neutrality when neutral States take military measures for the purpose of defending the real or pretended rights of neutrals against threatening infringements on the part of either belligerent. The First and Second Armed Neutrality[565] of 1780 and 1800 were armed neutralities in the latter sense of the term.

[Footnote 565: See above, ---- 289 and 290.]

[Sidenote: Benevolent Neutrality.]

-- 304. Treaties stipulating neutrality often stipulate a "benevolent"

neutrality of the parties regarding a certain war. The term is likewise frequently used during diplomatic negotiations. However, at present there is no distinction between benevolent neutrality and neutrality pure and simple. The idea dates from earlier times, when the obligations imposed by neutrality were not so stringent, and neutral States could favour one of the belligerents in many ways without thereby violating their neutral att.i.tude. If a State remained neutral in the then lax sense of the term, but otherwise favoured a belligerent, its neutrality was called benevolent.

[Sidenote: Perfect and Qualified Neutrality.]

-- 305. A distinction of great practical importance was in former times that between perfect, or absolute, and qualified, or imperfect, neutrality. The neutrality of a State was qualified if it remained neutral on the whole, but actively or pa.s.sively, directly or indirectly, gave some kind of a.s.sistance to one of the belligerents in consequence of an obligation entered into by a treaty previous to the war, and not for the special war exclusively. On the other hand, a neutrality was termed perfect if a neutral State neither actively nor pa.s.sively, and neither directly nor indirectly, favoured either belligerent. There is no doubt that in the eighteenth century, when it was recognised that a State could be considered neutral, although it was by a previous treaty bound to render more or less limited a.s.sistance to one of the belligerents, this distinction between neutrality perfect and qualified was justified. But during the second half of the nineteenth century it became controversial whether a so-called qualified neutrality was neutrality at all, and whether a State, which, in fulfilment of a treaty obligation, rendered some a.s.sistance to one of the belligerents, violated its neutrality. The majority of modern writers[566] maintained, correctly I think, that a State was either neutral or not, and that a State violated its neutrality in case it rendered any a.s.sistance whatever to one of the belligerents from any motive whatever. For this reason, a State which had entered into such obligations as those just mentioned would in time of war frequently be in a conflict of duties.

For, in fulfilling its treaty obligations, it would frequently be obliged to violate its duty of neutrality, and _vice versa_. Several writers,[567] however, maintained that such fulfilment of treaty obligations would not contain a violation of neutrality. All doubt in the matter ought now to be removed, since article 2 of Convention V. of the Second Peace Conference categorically enacts that "belligerents are forbidden to move across the territory of a neutral Power troops or convoys either of munitions of war or of supplies." The principle at the back of this enactment no doubt is that a qualified neutrality has no longer any _raison d'etre_, and that neutrality must in every case be perfect.[568]

[Footnote 566: See, for instance, Ullmann, -- 190; Despagnet, No. 685; Rivier, II. p. 378; Calvo, IV. -- 2594; Taylor, -- 618; Fiore, III. No.

1541; Kleen, I. -- 21; Hall, -- 215 (see also Hall, -- 219, concerning pa.s.sage of troops). Phillimore, III. -- 138, goes with the majority of publicists, but in -- 139 he thinks that it would be too rigid to consider acts of "minor" partiality which are the result of conventions previous to the war as violations of neutrality.]

[Footnote 567: See, for instance, Heffter, -- 144; Manning, p. 225; Wheaton, ---- 425-426; Bluntschli, -- 746; Halleck, II. p. 142.]

[Footnote 568: See above, -- 77, where it has been pointed out that a neutral who takes up an att.i.tude of qualified neutrality may nowadays be considered as an accessory belligerent party to the war.]

[Sidenote: Some Historical Examples of Qualified Neutrality.]

-- 306. For the purpose of ill.u.s.tration the following instances of qualified neutrality may be mentioned:--

(1) By a treaty of amity and commerce concluded in 1778 between the United States of America and France, the former granted for the time of war to French privateers and their prizes the right of admission to American ports, and entered into the obligation not to admit the privateers of the enemies of France. When subsequently, in 1793, war was waged between England and France, and England complained of the admission of French privateers to American ports, the United States met the complaint by advancing their treaty obligations.[569]

(2) Denmark had by several treaties, especially by one of 1781, undertaken the obligation to furnish Russia with a certain number of men-of-war and troops. When, in 1788, during war between Russia and Sweden, Denmark fulfilled her obligations towards Russia, she nevertheless declared herself neutral. And although Sweden protested against the possibility of such qualified neutrality, she acquiesced in the fact and did not consider herself to be at war with Denmark.[570]