International Law. A Treatise Volume Ii Part 43

[Sidenote: Rights and Duties of Neutrals contested.]

-- 315. Some writers[584] maintain that no rights derive from neutrality for neutrals, and, consequently, no duties for belligerents, because everything which must be left undone by a belligerent regarding his relations with a neutral must likewise be left undone in time of peace.

But this opinion has no foundation. Indeed, it is true that the majority of the acts which belligerents must leave undone in consequence of their duty to respect neutrality must likewise be left undone in time of peace in consequence of the territorial supremacy of every State. However, there are several acts which do not belong to this cla.s.s--for instance, the non-appropriation of enemy goods on neutral vessels. And those acts which do belong to this cla.s.s fall nevertheless at the same time under another category. Thus, a violation of neutral territory on the part of a belligerent for military and naval purposes of the war is indeed an act prohibited in time of peace, because every State has to respect the territorial supremacy of other States; but it is at the same time a violation of neutrality, and therefore totally different from other violations of foreign territorial supremacy. This becomes quite apparent when the true inwardness of such acts is regarded. For every State has a right to demand reparation for an ordinary violation of its territorial supremacy, but it need not take any notice of it, and it has no duty to demand reparation. Yet in case a violation of its territorial supremacy const.i.tutes at the same time a violation of its neutrality, the neutral State has not only a right to demand reparation, but has a duty[585] to do so. For, if it did not, this would contain a violation of its duty of impartiality, because it would be favouring one belligerent to the detriment of the other.[586]

[Footnote 584: Heffter, -- 149; Gareis, -- 88; Heilborn, _System_, p.

341.]

[Footnote 585: See, for instance, article 3 of Convention XIII. of the Second Peace Conference, which enacts:--"When a s.h.i.+p has been captured in the territorial waters of a neutral Power, such Power must, if the prize is still within its jurisdiction, employ the means at its disposal to release the prize with its officers and crew, and to intern the prize crew. If the prize is not within the jurisdiction of the neutral Power, the captor Government, on the demand of that Power, must liberate the prize with its officers and crew."]

[Footnote 586: See below, -- 360.]

On the other hand, it has been a.s.serted[587] that, apart from conventional neutrality, from which treaty obligations arise, it is incorrect to speak of duties deriving from neutrality, since at any moment during the war neutrals could throw up neutrality and become parties to the war. I cannot agree with this opinion either. That a hitherto neutral can at any moment throw up neutrality and take part in the war, is just as true as that a belligerent can at any moment during the war declare war against a hitherto neutral State. Yet this only proves that there is no duty to remain neutral, and no duty for a belligerent to abstain from declaring war against a hitherto neutral State. This is a truism which ought not to be doubted, and is totally different from the question as to what duties derive from neutrality so long as a certain State remains neutral at all. The a.s.sertion that such duties derive from neutrality is in no way inconsistent with the fact that neutrality itself can at any moment during the war come to an end through the beginning of war by either a neutral or a belligerent. This a.s.sertion only states the fact that, so long as neutrals intend neutrality and so long as belligerents intend to recognise such neutrality of third States, duties derive from neutrality for both belligerents and neutrals.

[Footnote 587: See Gareis, -- 88.]

[Sidenote: Contents of Duty of Impartiality.]

-- 316. It has already been stated above, in -- 294, that impartiality _excludes_ such a.s.sistance and succour to one of the belligerents as is detrimental to the other, and, further, such injuries to one of the belligerents as benefit the other, and that it _includes_ active measures on the part of neutrals for the purpose of preventing belligerents from making use of neutral territories and neutral resources for their military and naval purposes. But all this does not exhaust the contents of the duty of impartiality.

It must, on the one hand, be added that according to the present strict conception of neutrality the duty of impartiality of a neutral _excludes_ all facilities whatever for military and naval operations of the belligerents, even if granted to both belligerents alike. In former times a.s.sistance was not considered a violation of neutrality, provided it was given to both belligerents in the same way, and States were considered neutral although they allowed an equal number of their troops to fight on the side of each belligerent. To-day this could no longer happen. From Conventions V. and XIII. of the Second Peace Conference, which deal with neutrality in land and sea warfare respectively, it becomes quite apparent that any facility whatever directly concerning military or naval operations, even if it consists only in granting pa.s.sage over neutral territory to belligerent forces, is illegal, although granted to both belligerents alike. _The duty of impartiality to-day comprises abstention from any active or pa.s.sive co-operation with belligerents._

On the other hand, it must be added that the duty of impartiality _includes_ the equal treatment of both belligerents regarding such facilities as do not directly concern military or naval operations, and which may, therefore, be granted or not to belligerents, according to the discretion of a neutral. If a neutral grants such facilities to one belligerent, he must grant them to the other in the same degree. If he refuses them to the one, he must likewise refuse them to the other.[588]

Thus, since it does not, according to the International Law of the present day, const.i.tute a violation of neutrality if a neutral allows his subjects to supply either belligerent with arms and ammunition in the ordinary way of trade, it would const.i.tute a violation of neutrality to prohibit the export of arms destined for one of the belligerents only. Thus, further, if a neutral allows men-of-war of one of the belligerents to bring their prizes into neutral ports, he must grant the same facility to the other belligerent.

[Footnote 588: See articles 7, 8, 9, 11, 13, 14, of Convention V., and articles 7, 9, 11, 17, 19, 21, 23 of Convention XIII. of the Second Peace Conference.]

[Sidenote: Duty of Impartiality continuously growing more intense.]

-- 317. Although neutrality has already for centuries been recognised as an att.i.tude of impartiality, it has taken two hundred years for the duty of impartiality to attain its present range and intensity. Now this continuous development has by no means ceased. It is slowly and gradually going on, and there is no doubt that during the twentieth century the duty of impartiality will become much more intense than it is at present. The fact that the intensity of this duty is the result of gradual development bears upon many practical questions regarding the conduct of neutrals. It is therefore necessary to discuss separately the relations between neutrals and belligerents in order to ascertain what line of conduct must be followed by neutrals.

[Sidenote: Neutrality Conventions of the Second Peace Conference.]

-- 317_a_. The Second Peace Conference has produced two Conventions concerning neutrality:--

(1) The Convention (V.) respecting the rights and duties of neutral Powers and persons in war on land,[589] which comprises twenty-five articles and has been signed by all the Powers represented at the Conference, except China and Nicaragua; both, however, acceded later.

Many Powers have already ratified. Great Britain entered a reservation[590] against articles 16-18, and Argentina against article 18.

[Footnote 589: See Lemonon, pp. 407-425; Higgins, pp. 290-294; Boidin, pp. 121-134; Nippold, -- 25; Scott, _Conferences_, pp. 541-555; Bustamente in _A.J._ II. (1908), pp. 95-120.]

[Footnote 590: See above, -- 88.]

(2) The Convention (XIII.) respecting the rights and duties of neutral Powers in maritime war,[591] which comprises thirty-three articles and has been signed by all the Powers represented at the Conference, except the United States of America, China, Cuba, Nicaragua, and Spain; but America, China, and Nicaragua acceded later. Many Powers have already ratified, but there are a number of reservations; they will be dealt with in due course when the points concerned are being discussed.

[Footnote 591: See Lemonon, pp. 555-606; Higgins, pp. 459-483; Bernsten, -- 13; Boidin, pp. 236-247; Dupuis, _Guerre_, Nos. 277-330; Nippold, -- 34; Scott, _Conferences_, pp. 620-648; Hyde in _A.J._ II. (1908), pp.

507-527.]

Both Conventions deal comprehensively with the rights and duties of neutrals, but it is not convenient in a treatise on International Law either to treat separately of the duties of neutrals in war on land and on sea, or to dispense with any distinction in the treatment of the several points concerned. The arrangement of topics in the sections of this chapter will, therefore, be independent of the arrangement of topics in the two Conventions, and will be as follows:--Neutrals and Military Operations (---- 320-328); Neutrals and Military Preparations (---- 329-335); Neutral Asylum to Soldiers and War Materials (---- 336-341); Neutral Asylum to Naval Forces (---- 342-348); Supplies and Loans to Belligerents (---- 349-352); Services to Belligerents (---- 353-356).

[Sidenote: Contents of Duty of Belligerents to treat Neutrals in accordance with their Impartiality.]

-- 318. Whereas the relations between neutrals and belligerents require detailed discussion with regard to the duty of impartiality inc.u.mbent upon neutrals, the contents of the duty of belligerents to treat neutrals in accordance with their impartiality are so manifest that elaborate treatment is unnecessary. Such duty _excludes_, firstly, any violation of neutral territory for military or naval purposes of the war;[592] and, secondly, the appropriation of neutral goods, contraband excepted, on enemy vessels.[593] On the other hand, such duty _includes_, firstly, due treatment of neutral diplomatic envoys accredited to the enemy and found on occupied enemy territory; and, secondly, due treatment of neutral subjects and neutral property on enemy territory. A belligerent who conquers enemy territory must at least grant to neutral envoys accredited to the enemy the right to quit the occupied territory unmolested.[594] And such belligerent must likewise abstain from treating neutral subjects and property established on enemy territory more harshly than the laws of war allow; for, although neutral subjects and property have, by being established on enemy territory, acquired enemy character, they have nevertheless not lost the protection of their neutral home State.[595] And such belligerent must, lastly, pay full damages in case he makes use of his right of angary[596] against neutral property in course of transit through enemy territory.

[Footnote 592: See articles 1-4 of Convention V., and articles 1-5 of Convention XIII. of the Second Peace Conference.]

[Footnote 593: This is stipulated by the Declaration of Paris of 1856.]

[Footnote 594: The position of foreign envoys found by a belligerent on occupied enemy territory is not settled as regards details. But there is no doubt that a certain consideration is due to them, and that they must at least be granted the right to depart. See above, vol. I. -- 399.]

[Footnote 595: See above, -- 88.]

[Footnote 596: See below, ---- 364-367.]

[Sidenote: Contents of Duty not to suppress Intercourse between Neutrals and the Enemy.]

-- 319. The duty of either belligerent not to suppress intercourse of neutrals with the enemy requires no detailed discussion either. It is a duty which is in accordance with the development of the inst.i.tution of neutrality. It is of special importance with regard to commerce of subjects of neutrals with belligerents, since formerly attempts were frequently made to intercept all neutral trade with the enemy. A consequence of the now recognised freedom of neutral commerce with either belligerent is, firstly, the rule, enacted by the Declaration of Paris of 1856, that enemy goods, with the exception of contraband, on neutral vessels on the Open Sea or in enemy territorial waters may not be appropriated by a belligerent,[597] and, secondly, the rule, enacted by article 1 of Convention XI. of the Second Peace Conference, that the postal correspondence of neutrals or belligerents, except correspondence destined for or proceeding from a blockaded port, which may be found on a neutral or enemy vessel, is inviolable.[598] But the recognised freedom of neutral commerce necessitates, on the other hand, certain measures on the part of belligerents. It would be unreasonable to impose on a belligerent a duty not to prevent the subjects of neutrals from breaking a blockade, from carrying contraband, and, lastly, from rendering unneutral service to the enemy. International Law gives, therefore, a right to either belligerent to forbid all such acts to neutral merchantmen, and, accordingly, to visit, search, capture, and punish them.[599]

[Footnote 597: That not only goods owned by enemy individuals but also goods owned by the enemy State are exempt from appropriation when on neutral vessels, has been pointed out above, -- 177, p. 220, note 2.]

[Footnote 598: See above, -- 191, and below, -- 411.]

[Footnote 599: That a subject of a neutral State who tries to break a blockade, or carries contraband to the enemy, or renders the enemy unneutral service, violates injunctions of the belligerents, but not International Law, has been shown above in -- 296; see also below, ---- 383 and 398.]

II

NEUTRALS AND MILITARY OPERATIONS

Vattel, III. ---- 105, 118-135--Hall, ---- 215, 219, 220, 226--Westlake, II. pp. 179-183--Lawrence, ---- 229, 234-240--Manning, pp. 225-227, 245-250--Twiss, II. ---- 217, 218, 228--Halleck, II. pp. 146, 165, 172--Taylor, ---- 618, 620, 632, 635--Walker, ---- 55, 57, 59-61--Wharton, III. ---- 397-400--Moore, VII. ---- 1293-1303--Wheaton, ---- 426-429--Bluntschli, ---- 758, 759, 763, 765, 769-773--Heffter, ---- 146-150--Geffcken in Holtzendorff, IV. pp. 657-676--Ullmann, -- 191--Bonfils, Nos. 1449-1457, 1460, 1469, 1470--Despagnet, Nos. 690-692--Rivier, II. pp.

395-408--Calvo, IV. ---- 2644-2664, 2683--Fiore, III. Nos.

1546-1550, 1574-1575, 1582-1584--Martens, II. ---- 131-134--Kleen, I. ---- 70-75, 116-122--Merignhac, pp. 352-380--Pillet, pp.

284-289--Perels, -- 39--Testa, pp. 173-180--Heilborn, _Rechte_, pp.

4-12--Dupuis, Nos. 308-310, 315-317, and _Guerre_, Nos.

277-294--_Land Warfare_, ---- 465-471.

[Sidenote: Hostilities by and against Neutrals.]

-- 320. The duty of impartiality inc.u.mbent upon a neutral must obviously prevent him from committing hostilities against either belligerent. This would need no mention were it not for the purpose of distinction between hostilities on the one hand, and, on the other, military or naval acts of force by a neutral for the purpose of repulsing violations of his neutrality committed by either belligerent. Hostilities of a neutral are acts of force performed for the purpose of attacking a belligerent. They are acts of war, and they create a condition of war between such neutral and the belligerent concerned. If, however, a neutral does not attack a belligerent, but only repulses him by force when he violates or attempts to violate the neutrality of the neutral, such repulse does not comprise hostilities. Thus, if men-of-war of a belligerent attack an enemy vessel in a neutral port and are repulsed by neutral men-of-war, or if belligerent forces try to make their way through neutral territory and are forcibly prevented by neutral troops, no hostilities have been committed by the neutral, who has done nothing else than fulfil his duty of impartiality. Article 10 of Convention V. enacts categorically that "the fact of a neutral Power repelling, even by force, attacks on its neutrality, cannot be considered as a hostile act." And stress must be laid on the fact that it is no longer legitimate for a belligerent to pursue[600] military or naval forces who take refuge on neutral territory; should, nevertheless, a belligerent do this, he must, if possible, be repulsed by the neutral.

[Footnote 600: See above, -- 288, p. 352, and below, -- 347 (4), p. 422.]

It is, on the other hand, likewise obvious that hostilities against a neutral on the part of either belligerent are acts of war, and not mere violations of neutrality. If, however, belligerent forces attack enemy forces which have taken refuge on neutral territory or which are there for other purposes, such acts are not hostilities against the neutral, but mere violations of neutrality which must be repulsed or for which reparation must be made, as the case may be.

Quite a peculiar condition arose at the outbreak of and during the Russo-j.a.panese War. The ends for which j.a.pan went to war were the expulsion of the Russian forces from the Chinese Province of Manchuria and the liberation of Korea, which was at the time an independent State, from the influence of Russia. Manchuria and Korea became therefore the theatre of war, although both were neutral territories and although neither China nor Korea became parties to the war. The hostilities which occurred on these neutral territories were in no wise directed against the neutrals concerned. This anomalous condition of matters arose out of the inability of both China and Korea to free themselves from Russian occupation and influence. And j.a.pan considered her action, which must be cla.s.sified as an intervention, justified on account of her vital interests. The Powers recognised this anomalous condition by influencing China not to take part in the war, and by influencing the belligerents not to extend military operations beyond the borders of Manchuria.

Manchuria and Korea having become the theatre of war,[601] the hostilities committed there by the belligerents against one another cannot be cla.s.sified as a violation of neutrality. The case of the _Variag_ and the _Korietz_ on the one hand, and, on the other, the case of the _Res.h.i.+telni_, may ill.u.s.trate the peculiar condition of affairs:--

(1) On February 8, 1904, a j.a.panese squadron under Admiral Uriu entered the Korean harbour of Chemulpo and disembarked j.a.panese troops. The next morning Admiral Uriu requested the commanders of two Russian s.h.i.+ps in the harbour of Chemulpo, the _Variag_ and the _Korietz_, to leave the harbour and engage him in battle outside, threatening attack inside the harbour in case they would not comply with his request. But the Russian s.h.i.+ps did comply, and the battle took place outside the harbour, but within Korean territorial waters.[602] The complaint made by Russia, that in this case the j.a.panese violated Korean neutrality, would seem to be unjustified, since Korea fell within the region and the theatre of war.

(2) The Russian destroyer _Res.h.i.+telni_, one of the vessels that escaped from Port Arthur on August 10, 1904, took refuge in the Chinese harbour of Chifu. On August 12, two j.a.panese destroyers entered the harbour, captured the _Res.h.i.+telni_, and towed her away.[603] There ought to be no doubt that this act of the j.a.panese comprises a violation of neutrality,[604] since Chifu does not belong to the part of China which fell within the region of war.