RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS
I
RIGHTS AND DUTIES DERIVING FROM NEUTRALITY
Vattel, III. § 104--Hall, § 214--Phillimore, III. §§
136-138--Twiss, II. § 216--Heffter, § 146--Geffcken in
Holtzendorff, IV. pp. 656-657--Gareis, § 88--Liszt, § 42--Ullmann,
§ 191--Bonfils, Nos. 1441-1444--Despagnet, Nos. 684 and
690--Rivier, II. pp. 381-385--Nys, III. pp. 582-639--Calvo, IV. §§
2491-2493--Fiore, III. Nos. 1501, 1536-1540, and Code, Nos.
1776-1778, 1784--Martens, II. § 131--Kleen, I. §§
45-46--Mérignhac, pp. 339-342--Pillet, pp. 273-275.
[Sidenote: Conduct in General of Neutrals and Belligerents.]
§ 313. Neutrality can be carried out only if neutrals as well as
belligerents follow a certain line of conduct in their relations with
one another. It is for this reason that from neutrality derive rights
and duties, as well for belligerents as for neutrals, and that,
consequently, neutrality can be violated as well by belligerents as by
neutrals. These rights and duties are correspondent: the duties of
neutrals correspond to the rights of either belligerent, and the duties
of either belligerent correspond to the rights of the neutrals.
[Sidenote: What Rights and Duties of Neutrals and of Belligerents there
are.]
§ 314. There are two rights and two duties deriving from neutrality for
neutrals, and likewise two for belligerents.
Duties of neutrals are, firstly, to act toward belligerents in
accordance with their attitude of impartiality; and, secondly, to
acquiesce in the exercise of either belligerent's right to punish
neutral merchantmen for breach of blockade, carriage of contraband, and
rendering unneutral service to the enemy, and, accordingly, to visit,
search, and eventually capture them.
The duties of either belligerent are, firstly, to act towards neutrals
in accordance with their attitude of impartiality; and, secondly, not to
suppress their intercourse, and in especial their commerce, with the
enemy.[583]
[Footnote 583: All writers on International Law resolve the duty of
impartiality incumbent upon neutrals into many several duties, and they
do the same as regards the duty of belligerents--namely, to act toward
neutrals in accordance with the latter's impartiality. In this way quite
a large catalogue of duties and corresponding rights are produced, and
the whole matter is unnecessarily complicated.]
Either belligerent has a right to demand impartiality from neutrals,
whereas, on the other hand, neutrals have a right to demand such
behaviour from either belligerent as is in accordance with their
attitude of impartiality. Neutrals have a right to demand that their
intercourse, and in especial their commerce, with the enemy shall not be
suppressed; whereas, on the other hand, either belligerent has the right
to punish subjects of neutrals for breach of blockade, carriage of
contraband, and unneutral service, and, accordingly, to visit, search,
and capture neutral merchantmen.
[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 class--for instance,
the non-appropriation of enemy goods on neutral vessels. And those acts
which do belong to this class 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
constitutes 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 ship 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 asserted[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 assertion 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
assertion 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 assistance 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 assistance 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
passage 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 passive 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, constitute 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 constitute 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 attitude 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 Lémonon, 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 Lémonon, 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 incumbent
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 institution 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--Mérignhac, 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 incumbent 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-Japanese War. The ends for which Japan 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 Japan considered her action, which must be
classified 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 classified 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 _Reshitelni_, may illustrate the peculiar condition of affairs:--
(1) On February 8, 1904, a Japanese squadron under Admiral Uriu entered
the Korean harbour of Chemulpo and disembarked Japanese troops. The next
morning Admiral Uriu requested the commanders of two Russian ships 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
ships 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 Japanese violated Korean neutrality, would seem to
be unjustified, since Korea fell within the region and the theatre of
war.
(2) The Russian destroyer _Reshitelni_, 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 Japanese destroyers entered the harbour,
captured the _Reshitelni_, and towed her away.[603] There ought to be no
doubt that this act of the Japanese comprises a violation of
neutrality,[604] since Chifu does not belong to the part of China which
fell within the region of war.
[Footnote 601: See above, § 71, p. 87; Lawrence, _War_, pp. 268-294;
Ariga, §§ 16-22.]
[Footnote 602: See Lawrence, _War_, pp. 279-289, and Takahashi, pp.
462-466.]
[Footnote 603: See Lawrence, _War_, pp. 291-294, and Takahashi, pp.
437-444.]
[Footnote 604: See below, § 361, where the case of the _General
Armstrong_ is discussed.]
[Sidenote: Furnishing Troops and Men-of-War to Belligerents.]
§ 321. If a State remains neutral, it violates its impartiality by
furnishing a belligerent with troops or men-of-war. And it matters not
whether a neutral renders such assistance to one of the belligerents or
to both alike. Whereas Convention V. does not mention the furnishing of
troops to belligerents on the part of neutrals, article 6 of Convention
XIII. enacts that "the supply, in any manner, directly or indirectly, by
a neutral Power to a belligerent Power, of warships, ammunition, or war
material of any kind whatever, is forbidden."
However, the question is controversial as to whether a neutral State,
which in time of peace concluded a treaty with one of the belligerents
to furnish him in case of war with a limited number of troops, would
violate its neutrality by fulfilling its treaty obligation. Several
writers[605] have answered the question in the negative, and there is no
doubt that during the eighteenth century such cases happened. But no
case happened during the nineteenth century, and there ought to be no
doubt that nowadays the answer must be in the affirmative, since a
qualified neutrality[606] is no longer admissible.
[Footnote 605: See, for instance, Bluntschli, § 759, and Heffter, § 144.
See above, § 306 (2), where the case is quoted of Denmark furnishing
troops to Russia in 1788 during a Russo-Swedish war.]
[Footnote 606: See above, § 305.]
As regards furnishing men-of-war to belligerents, the question arose
during the Russo-Japanese War as to whether a neutral violates his duty
of impartiality by not preventing his national steamship companies from
selling to a belligerent such of their liners as are destined in case of
war to be incorporated as cruisers in the national navy. The question
was discussed on account of the sale to Russia of the _Augusta Victoria_
and the _Kaiserin Maria Theresia_ by the North German Lloyd, and the
_Fürst Bismarck_ and the _Columbia_ by the Hamburg-American Line,
vessels which were at once enrolled in the Russian Navy as second-class
cruisers, re-named as the _Kuban_, _Ural_, _Don_, and _Terek_. Had these
vessels, according to an arrangement with the German Government, really
been auxiliary cruisers to the German Navy, and had the German
Government given its consent to the transaction, a violation of
neutrality would have been committed by Germany. But the German Press
maintained that these vessels had not been auxiliary cruisers to the
Navy, and Japan did not lodge a protest with Germany on account of the
sale. If these liners were not auxiliary cruisers to the German Navy,
their sale to Russia was a legitimate sale of articles of
contraband.[607]
[Footnote 607: See below, § 397.]
[Sidenote: Subjects of Neutrals fighting among Belligerent Forces.]
§ 322. Although several States, as Great Britain[608] and the United
States of America, by their Municipal Law prohibit their subjects from
enlisting in the military or naval service of belligerents, the duty of
impartiality incumbent upon neutrals does not at present include any
necessity for such prohibition, provided the individuals concerned cross
the frontier singly[609] and not in a body. But a neutral must recall
his military and naval officers who may have been serving in the army or
navy of either belligerent before the outbreak of war. A neutral must,
further, retain military and naval officers who want to resign their
commissions for the obvious purpose of enlisting in the service of
either belligerent. Therefore, when in 1877, during war between Turkey
and Servia, Russian officers left the Russian and entered the Servian
Army as volunteers with permission of the Russian Government, there was
a violation of the duty of impartiality on the part of neutral Russia.
[Footnote 608: See Section 4 of the Foreign Enlistment Act, 1870.]
[Footnote 609: See article 6 of Convention V.]
On the other hand, there is no violation of neutrality in a neutral
allowing surgeons and such other non-combatant members of his army as
are vested with a character of inviolability according to the Geneva
Convention to enlist or to remain in the service of either belligerent.
[Sidenote: Passage of Troops and War Material through Neutral
Territory.]
§ 323. In contradistinction to the practice of the eighteenth
century,[610] it is now generally recognised that a violation of the
duty of impartiality is involved when a neutral allows a belligerent the
passage of troops or the transport of war material over his
territory.[611] And it matters not whether a neutral gives such
permission to one of the belligerents only, or to both alike. The
practice of the eighteenth century was a necessity, since many German
States consisted of parts distant one from another, so that their troops
had to pass through other Sovereigns' territories for the purpose of
reaching outlying parts. At the beginning of the nineteenth century the
passing of belligerent troops through neutral territory still occurred.
Prussia, although she at first repeatedly refused it, at last entered in
1805 into a secret convention with Russia granting Russian troops
passage through Silesia during war with France. On the other hand, even
before Russia had made use of this permission, Napoleon ordered
Bernadotte to march French troops through the then Prussian territory
of Anspach without even asking the consent of Prussia. In spite of the
protest of the Swiss Government, Austrian troops passed through Swiss
territory in 1813, and when in 1815 war broke out again through the
escape of Napoleon from the Island of Elba and his return to France,
Switzerland granted to the allied troops passage through her
territory.[612] But since that time it has become universally recognised
that all passage of belligerent troops through neutral territory must be
prohibited, and the Powers declared _expressis verbis_ in the Act of
November 20, 1815, which neutralised Switzerland, and was signed at
Paris,[613] that "no inference unfavourable to the neutrality and
inviolability of Switzerland can and must be drawn from the facts which
have caused the passage of the allied troops through a part of the
territory of the Swiss Confederation." The few instances[614] in which
during the nineteenth century States pretended to remain neutral, but
nevertheless allowed the troops of one of the belligerents passage
through their territory, led to war between the neutral and the other
belligerent.
[Footnote 610: See Vattel, III. §§ 119-132.]
[Footnote 611: See Dumas in _R.G._ XVI. (1909), pp. 289-316.]
[Footnote 612: See Wheaton, §§ 418-420.]
[Footnote 613: See Martens, _N.R._ II. p. 741.]
[Footnote 614: See Heilborn, _Rechte_, pp. 8-9.]
[Sidenote: Passage of Wounded through Neutral Territory.]
However, just as in the case of furnishing troops so in the case of
passage, it is a moot point whether passage of troops can be granted
without thereby violating the duty of impartiality incumbent upon a
neutral, in case a neutral is required to grant it in consequence of an
existing State-servitude or of a treaty previous to the war. There ought
to be no doubt that, since nowadays a qualified neutrality is no longer
admissible, the question must be answered in the negative.[615]
[Footnote 615: See above, §§ 305 and 306, and also above, vol. I. § 207.
Clauss, _Die Lehre von den Staatsdienstbarkeiten_ (1894), pp. 212-217,
must likewise be referred to. See also Dumas in _R.G._ XVI. (1909), pp.
286-316.]
§ 324. The passage of wounded soldiers is different from that of troops.
If a neutral allows the passage of wounded soldiers, he certainly does
not render direct assistance to the belligerent concerned. But it may
well be that indirectly it is of assistance on account of the fact that
a belligerent, thereby relieved from transport of his wounded, can now
use the lines of communication for the transport of troops, war
material, and provisions. Thus, when in 1870 after the battles of Sedan
and Metz, Germany applied to Belgium and Luxemburg to allow her wounded
to be sent through their territories, France protested on the ground
that the relief thereby created to the lines of communication in the
hands of the Germans would be an assistance to the military operations
of the German Army. Belgium, on the advice of Great Britain, did not
grant the request made by Germany, but Luxemburg granted it.[616]
[Footnote 616: See Hall, § 219, and Geffcken in Holtzendorff, IV. p.
664.]
According to article 14 of Convention V. a neutral Power _may_ grant the
passage of wounded or sick to a belligerent. If he does grant it, the
trains bringing them must carry neither combatants nor war material, and
those of the wounded and sick who belong to the army of the other
belligerent must remain on the neutral territory concerned, must there
be guarded by the neutral Government, and must, after having recovered,
be prevented from returning to their home State and rejoining their
corps. By the stipulation of article 14 it is left to the consideration
of a neutral whether or no he will allow the passage of wounded and sick
to a belligerent; he will, therefore, have to investigate every case and
come to a conclusion according to its merits. It should be stated that,
according to article 15 of Convention V., the "Geneva Convention applies
to the sick and wounded interned in neutral territory."
[Sidenote: Passage of Men-of-War.]
§ 325. In contradistinction to passage of troops through his territory,
the duty of impartiality incumbent upon a neutral does not require him
to forbid the passage of belligerent men-of-war through the maritime
belt forming part of his territorial waters. Article 10 of Convention
XIII. categorically enacts that "the neutrality of a Power is not
violated (_n'est pas compromise_) by the mere passage of belligerent
men-of-war and their prizes." Since, as stated above in Vol. I. § 188,
every littoral State may even in time of peace prohibit the passage of
foreign men-of-war through its maritime belt provided such belt does not
form a part of the highways for international traffic, it may certainly
prohibit the passage of belligerent men-of-war in time of war. However,
no duty exists for a neutral to prohibit such passage in time of war,
and he need not exclude belligerent men-of-war from his ports either,
although he may do this likewise. The reason is that such passage and
such admittance into ports contain very little assistance indeed, and
are justified by the character of the sea as an international high road.
But it is, on the other hand, obvious that belligerent men-of-war must
not commit any hostilities against enemy vessels during their passage,
and must not use the neutral maritime belt and neutral ports as a basis
for their operations against the enemy.[617]
[Footnote 617: See below, § 333.]
[Sidenote: Occupation of Neutral Territory by Belligerents.]
§ 326. In contradistinction to the practice of the eighteenth
century,[618] the duty of impartiality must nowadays prevent a neutral
from permitting belligerents to occupy a neutral fortress or any other
part of neutral territory. If a treaty previously entered into
stipulates such occupation, it cannot be granted without violation of
neutrality.[619] On the contrary, the neutral must even use force to
prevent belligerents from occupying any part of his neutral territory.
The question as to whether such occupation on the part of a belligerent
would be excusable in case of extreme necessity on account of the
neutral's inability to prevent the other belligerent from making use of
the neutral territory as a base for his military operations must, I
think, be answered in the affirmative, since an extreme case of
necessity in the interest of self-preservation must be considered as an
excuse.[620]
[Footnote 618: See Kleen, I. § 116.]
[Footnote 619: See Klüber, § 281, who asserts the contrary.]
[Footnote 620: See Vattel, III. § 122; Bluntschli, § 782; Calvo, IV. §
2642. Kleen, I. § 116, seems not to recognise an extreme necessity of
the kind mentioned above as an excuse.--There is a difference between
this case and the case which arose at the outbreak of the Russo-Japanese
War, when both belligerents invaded Korea, for, as was explained above
in § 320, Korea and Manchuria fell within the region and the theatre of
war.]
[Sidenote: Prize Courts on Neutral Territory.]
§ 327. It has long been universally recognised that the duty of
impartiality must prevent a neutral from permitting a belligerent to set
up Prize Courts on neutral territory. The intention of a belligerent in
setting up a court on neutral territory can only be to facilitate the
plundering by his men-of-war of the commerce of the enemy. A neutral
tolerating such Prize Courts would, therefore, indirectly assist the
belligerent in his naval operations. During the eighteenth century it
was not considered illegitimate on the part of neutrals to allow the
setting up of Prize Courts on their territory. The _Règlement du Roi de
France concernant les prises qui seront conduites dans les ports
étrangers, et des formalités que doivent remplir les Consuls de S.M. qui
y sont établis_ of 1779, furnishes a striking proof of it. But since in
1793 the United States of America disorganised the French Prize Courts
set up by the French envoy Genêt on her territory,[621] it became
recognised that such Prize Courts are inconsistent with the duty of
impartiality incumbent upon a neutral, and article 4 of Convention XIII.
enacts this formerly customary rule.
[Footnote 621: See above, § 291 (1.)]
[Sidenote: Belligerent's Prizes in Neutral Ports.]
§ 328. It would, no doubt, be an indirect assistance to the naval
operations of a belligerent if a neutral allowed him to organise on
neutral territory the safekeeping of prizes or their sale.
But the case of a temporary stay of a belligerent man-of-war with her
prize in a neutral port is different. Neutral Powers may--although most
maritime States no longer do it--allow prizes to be brought temporarily
into their ports. Articles 21 and 22 of Convention XIII. lay down the
following rules in the matter: A prize may only be brought into a
neutral port on account of unseaworthiness, stress of weather, or want
of fuel or provisions; it must leave as soon as the circumstances which
justified its entry are at an end, and if it does not, the neutral Power
must order it to leave at once and must, in case of disobedience, employ
the means at disposal to release the prize with its officers and crew,
and to intern the prize-crew; a prize brought into a neutral port for
reasons other than unseaworthiness, stress of weather, or want of fuel
or provisions, must forthwith be released by the respective neutral
Power.
The question requires attention as to whether a prize whose
unseaworthiness is so great that it cannot be repaired, may be allowed
to remain in the neutral port and be there sold[622] after the competent
Prize Court has condemned it. Since article 21 enacts that an admitted
prize must leave the neutral port as soon as the circumstances which
justified its entry are at an end, there is no doubt that it may remain
if it cannot by repair be made seaworthy. And there ought, consequently,
to be no objection to its sale in the neutral port, provided it has
previously been condemned by the proper Prize Court.
[Footnote 622: See Kleen, vol. I. § 115.]
While the stipulation of article 21 cannot meet with any objection, the
stipulation of article 23 of Convention XIII. is of a very doubtful
character. This article enacts that a neutral Power may allow prizes to
enter its ports, whether under convoy or not, when they are brought
there to be sequestrated pending the decision of a Prize Court. And it
is of importance to state the fact that the restriction of article 21
does not apply to prizes brought into a neutral port under the rule of
article 23. This rule actually enables a belligerent to safeguard all
his prizes against recapture, and a neutral Power which allows
belligerent prizes access to its ports under the rule of article 23
would indirectly render assistance to the naval operations of the
belligerent concerned. For this reason, Great Britain as well as Japan
and Siam entered a reservation against article 23. Be that as it may,
those Powers which have accepted article 23 will not, I believe, object
to the sale in the neutral port concerned of such sequestrated prizes,
provided they have previously been condemned by the proper Prize Court.
III
NEUTRALS AND MILITARY PREPARATIONS
Hall, §§ 217-218, 221-225--Lawrence, §§ 234-240--Westlake, II. pp.
181-198--Manning, pp. 227-244--Phillimore, III. §§
142-151B--Twiss, II. §§ 223-225--Halleck, II. pp. 152-163--Taylor,
§§ 616, 619, 626-628--Walker, §§ 62-66--Wharton, III. §§ 392,
395-396--Wheaton, §§ 436-439--Moore, VII. §§ 1293-1305--Heffter,
§§ 148-150--Geffcken in Holtzendorff, IV. pp. 658-660,
676-684--Ullmann, § 191--Bonfils, Nos. 1458-1459,
1464-1466--Despagnet, Nos. 692-693--Rivier, II. pp.
395-408--Calvo, IV. §§ 2619-2627--Fiore, III. Nos.
1551-1570--Kleen, I. §§ 76-89, 114--Mérignhac, pp.
358-360--Pillet, pp. 288-290--Dupuis, Nos. 322-331, and _Guerre_,
Nos. 290-294--_Land Warfare_, §§ 472-476.
[Sidenote: Depôts and Factories on Neutral Territory.]
§ 329. Although according to the present intense conception of the duty
of impartiality neutrals need not[623] prohibit their subjects from
supplying belligerents with arms and the like in the ordinary way of
trade, a neutral must[624] prohibit belligerents from erecting and
maintaining on his territory depôts and factories of arms, ammunition,
and military provisions. However, belligerents can easily evade this by
not keeping depôts and factories, but contracting with subjects of the
neutral concerned in the ordinary way of trade for any amount of arms,
ammunition, and provisions.[625]
[Footnote 623: See below, § 350.]
[Footnote 624: See Bluntschli, § 777, and Kleen, I. § 114.]
[Footnote 625: The distinction made by some writers between an
occasional supply on the one hand, and, on the other, an organised
supply in large proportions by subjects of neutrals, and the assertion
that the latter must be prohibited by the neutral concerned, is not
justified. See below, § 350.]
[Sidenote: Levy of Troops, and the like.]
§ 330. In former centuries neutrals were not required to prevent
belligerents from levying troops on their neutral territories, and a
neutral often used to levy troops himself on his territory for
belligerents without thereby violating his duty of impartiality as
understood in those times. In this way the Swiss Confederation
frequently used to furnish belligerents, and often both parties, with
thousands of recruits, although she herself always remained neutral. But
at the end of the eighteenth century a movement was started which tended
to change this practice. In 1793 the United States of America
interdicted the levy of troops on her territory for belligerents, and
by-and-by many other States followed the example. During the nineteenth
century the majority of writers maintained that the duty of impartiality
must prevent a neutral from allowing the levy of troops. The few[626]
writers who differed made it a condition that a neutral, if he allowed
such levy at all, must allow it to both belligerents alike. The
controversy is now finally settled, for articles 4 and 5 of Convention
V. lay down the rules that corps of combatants may not be formed, nor
recruiting offices opened, on the territory of a neutral Power, and that
neutral Powers must not allow these acts.
[Footnote 626: See, for instance, Twiss, II. § 225, and Bluntschli, §
762.]
The duty of impartiality must likewise prevent a neutral from allowing
a belligerent man-of-war reduced in her crew to enrol sailors in his
ports, with the exception of such few men as are absolutely necessary to
navigate the vessel to the nearest home port.[627]
[Footnote 627: See article 18 of Convention XIII. and below, § 333 (3),
and § 346.]
A pendant to the levy of troops on neutral territory was the granting of
Letters of Marque to vessels belonging to the merchant marine of
neutrals. Since privateering has practically disappeared, the question
as to whether neutrals must prohibit their subjects from accepting
Letters of Marque from a belligerent,[628] need not be discussed.
[Footnote 628: See above, § 83. With the assertion of many writers that
a subject of a neutral who accepts Letters of Marque from a belligerent
may be treated as a pirate, I cannot agree. See above, vol. I. § 273.]
[Sidenote: Passage of Bodies of Men intending to Enlist.]
§ 331. A neutral is not obliged by his duty of impartiality to interdict
passage through his territory to men either singly or in numbers who
intend to enlist. Thus in 1870 Switzerland did not object to Frenchmen
travelling through Geneva for the purpose of reaching French corps or to
Germans travelling through Basle for the purpose of reaching German
corps, under the condition, however, that these men travelled without
arms and uniform. On the other hand, when France during the
Franco-German War organised an office[629] in Basle for the purpose of
sending bodies of Alsatian volunteers through Switzerland to the South
of France, Switzerland correctly prohibited this on account of the fact
that this _official_ organisation of the passage of whole bodies of
volunteers through her neutral territory was more or less equal to a
passage of troops.
[Footnote 629: See Bluntschli, § 770.]
The Second Peace Conference has sanctioned this distinction, for article
6 of Convention V. enacts that "the responsibility of a neutral Power is
not involved by the mere fact that persons cross the frontier
individually (_isolément_) in order to offer their services to one of
the belligerents." An _argumentum e contrario_ justifies the conclusion
that the responsibility of a neutral _is_ involved in case it does allow
men to cross the frontier in a body in order to enlist in the forces of
a belligerent.
[Sidenote: Organisation of Hostile Expeditions.]
§ 332. If the levy and passage of troops, and the forming of corps of
combatants, must be prevented by a neutral, he is all the more required
to prevent the organisation of a hostile expedition from his territory
against either belligerent. Such organisation takes place when a band of
men combine under a commander for the purpose of starting from the
neutral territory and joining the belligerent forces. The case, however,
is different, if a number of individuals, not organised into a body
under a commander, start in company from a neutral State for the purpose
of enlisting with one of the belligerents. Thus in 1870, during the
Franco-German War, 1200 Frenchmen started from New York in two French
steamers for the purpose of joining the French Army. Although the
vessels carried also 96,000 rifles and 11,000,000 cartridges, the United
States did not interfere, since the men were not organised in a body,
and since, on the other hand, the arms and ammunition were carried in
the way of ordinary commerce.[630]
[Footnote 630: See Hall, § 222.]
[Sidenote: Use of Neutral Territory as Base of Naval Operations.]
§ 333. Although a neutral is not required by his duty of impartiality to
prohibit[631] the passage of belligerent men of-war through his maritime
belt, or the temporary stay of such vessels in his ports, it is
universally recognised that he must not allow admitted vessels to make
the neutral maritime belt and neutral ports the base of their naval
operations against the enemy. And article 5 of Convention XIII. enacts
that "belligerents are forbidden to use neutral ports and waters as a
base of naval operations against their adversaries." The following rules
may be formulated as emanating from the principle:--
(1) A neutral must, so far as is in his power, prevent belligerent
men-of-war from cruising within his portion of the maritime belt for the
purpose of capturing enemy vessels as soon as they leave this belt. It
must, however, be specially observed that a neutral is not required to
prevent this beyond his power. It is absolutely impossible to prevent
such cruising under all circumstances and conditions, especially in the
case of neutrals who own possessions in distant parts of the globe. How
many thousands of vessels would be necessary, if Great Britain, for
instance, were unconditionally obliged to prevent such cruising in every
portion of the maritime belt of all her numerous possessions scattered
over all parts of the globe?
(2) A neutral must prevent a belligerent man-of-war from leaving a
neutral port at the same time as an enemy man-of-war or an enemy
merchantman, or must make other arrangements which prevent an attack so
soon as both reach the Open Sea.[632] Article 16 of Convention XIII.
enacts that there must be an interval of at least twenty-four hours
between the departure of a belligerent warship and a ship of the other
belligerent.
(3) A neutral must prevent a belligerent man-of-war, whose crew is
reduced from any cause whatever, from enrolling sailors in his neutral
ports, with the exception of such few hands as are necessary for the
purpose of safely navigating the vessel to the nearest port of her home
State.[633]
(4) A neutral must prevent belligerent men-of-war admitted to his ports
or maritime belt from taking in such a quantity of provisions and coal
as would enable them to continue their naval operations, for otherwise
he would make it possible for them to cruise on the Open Sea near his
maritime belt for the purpose of attacking enemy vessels.
There is, however, no unanimity of the Powers concerning the quantity of
provisions and coal which belligerent men-of-war may be allowed to take
in. Articles 19 and 20 of Convention XIII. of the Second Peace
Conference enact the following:--
Article 19: "Belligerent war-ships may only revictual in neutral ports
or roadsteads to bring up their supplies to the peace standard.
Similarly these vessels may only ship sufficient fuel to enable them to
reach the nearest port in their own country. They may, on the other
hand, fill up their bunkers built to carry fuel, when in neutral
countries which have adopted this method of determining the amount of
fuel to be supplied. If in accordance with the law of the neutral Power,
the ships are not supplied with coal within twenty-four hours of their
arrival, the duration of their permitted stay is extended by twenty-four
hours."
Article 20: "Belligerent war-ships which have shipped fuel in a port
belonging to a neutral Power may not within the succeeding three months
replenish their supply in a port of the same Power."
Great Britain, Japan, and Siam, while they have accepted article
20,[634] have entered a reservation against article 19. Great Britain
upholds her rule that belligerent warships shall not be allowed to take
in more provisions and fuel in neutral ports than is necessary to bring
them safely to the nearest port of their own country.
While, therefore, the matter is not settled, it is agreed that it makes
no difference whether the man-of-war concerned intends to buy provisions
and coal on land or to take them in from transport vessels which
accompany or meet her in neutral waters.
(5) A neutral must prevent belligerent men-of-war admitted into his
ports or maritime belt from replenishing with ammunition and armaments,
and from adding to their armaments, as otherwise he would indirectly
assist them in preparing for hostilities (article 18 of Convention
XIII.). And it makes no difference whether the ammunition and armaments
are to come from the shore or are to be taken in from transport vessels.
Similarly a neutral must prevent belligerent men-of-war in his ports and
roadsteads from carrying out such repairs as would add in any manner
whatever to their fighting force. The local authorities of the neutral
Power must decide what repairs are absolutely necessary to make these
vessels seaworthy, and such repairs are allowed, but they must be
carried out with the least possible delay (article 17 of Convention
XIII.).
(6) A neutral must prevent belligerent men-of-war admitted into his
ports from remaining there longer than is necessary for ordinary and
legitimate purposes.[635] It cannot be said that the rule adopted in
1862 by Great Britain, and followed by some other maritime States, not
to allow a longer stay than twenty-four hours, is a rule of
International Law. It is left to the consideration of neutrals to adopt
by their Municipal Law any rule they think fit so long as the admitted
men-of-war do not prolong their stay for any other than ordinary and
legitimate purposes. Article 12 of Convention XIII. prescribes the
twenty-four hours rule only for those neutral countries which have not
special provisions to the contrary in their Municipal Laws.[636] But it
is agreed--and article 14 of Convention XIII. enacts it--that
belligerent men-of-war, except those exclusively for the time devoted to
religious, scientific, or philanthropic purposes, must not prolong their
stay in neutral ports and waters beyond the time permitted, except on
account of damage or stress of weather. A neutral would certainly
violate his duty of impartiality if he were to allow belligerent
men-of-war to winter in his ports or to stay there for the purpose of
waiting for other vessels of the fleet or transports.
The rule that a neutral must prevent belligerent men-of-war from staying
too long in his ports or waters, became of considerable importance
during the Russo-Japanese War, when the Russian Baltic Fleet was on its
way to the Far East. Admiral Rojdestvensky is said to have stayed in the
French territorial waters of Madagascar from December 1904 till March
1905, for the purpose of awaiting there a part of the Baltic Fleet that
had set out at a later date. The Press likewise reported a prolonged
stay by parts of the Baltic Fleet during April 1905 at Kamranh Bay and
Hon-kohe Bay in French Indo-China. Provided the reported facts be true,
France would seem to have violated her duty of impartiality by not
preventing such an abuse of her neutral ports.
(7) A neutral must prevent more than three men-of-war belonging to the
same belligerent from being simultaneously in one of his ports or
roadsteads unless his Municipal Law provides the contrary (article 15 of
Convention XIII.).
(8) At the outbreak of war a neutral must warn all belligerent
men-of-war which were in his ports or roadsteads or in his territorial
waters before the outbreak of war, to depart within twenty-four hours or
within such time as the local law prescribes (article 13[637] of
Convention XIII.).
[Footnote 631: See Curtius, _Des navires de guerre dans les eaux
neutres_ (1907).]
[Footnote 632: See below, § 347 (1).]
[Footnote 633: See article 18 of Convention XIII. and above, § 330.]
[Footnote 634: But Germany has entered a reservation against article
20.]
[Footnote 635: See below, § 347.]
[Footnote 636: Germany, Domingo, Siam, and Persia have entered a
reservation against article 12.]
[Footnote 637: Germany has entered a reservation against article 13.]
[Sidenote: Building and Fitting-out of Vessels intended for Naval
Operations.]
§ 334. Whereas a neutral is in no[638] wise obliged by his duty of
impartiality to prevent his subjects from selling armed vessels to the
belligerents, such armed vessels being merely contraband of war, a
neutral is bound to employ the means at his disposal to prevent his
subjects from building, fitting out, or arming, to the order of either
belligerent, vessels intended to be used as men-of-war, and to prevent
the departure from his jurisdiction of any vessel which, by order of
either belligerent, has been adapted to warlike use.[639] The difference
between selling armed vessels to belligerents, on the one hand, and
building them to order, on the other hand, is usually defined in the
following way:--
An armed ship, being contraband of war, is in no wise different from
other kinds of contraband, provided she is not manned in a neutral port
so that she can commit hostilities at once after having reached the Open
Sea. A subject of a neutral who builds an armed ship or arms a
merchantman, not to order of a belligerent but intending to sell her to
a belligerent, does not differ from a manufacturer of arms who intends
to sell them to a belligerent. There is nothing to prevent a neutral
from allowing his subjects to sell armed vessels, and to deliver them to
belligerents, either in a neutral port or in a port of the belligerent.
In the case of the _La Santissima Trinidad_[640] (1822), as in that of
the _Meteor_[641] (1866), American courts have recognised this.[642]
[Footnote 638: See below, §§ 350 and 397.]
[Footnote 639: See article 8 of Convention XIII.]
[Footnote 640: 7 Wheaton, § 340.]
[Footnote 641: See Wharton, III. § 396, p. 561.]
[Footnote 642: See Phillimore, III. § 151B, and Hall, § 224.]
On the other hand, if a subject of a neutral builds armed ships to order
of a belligerent, he prepares the means of naval operations, since the
ships on sailing outside the territorial waters of the neutral and
taking in a crew and ammunition can at once commit hostilities. Thus,
through carrying out the order of the belligerent, the neutral territory
concerned has been made the base of naval operations. And as the duty
of impartiality includes the obligation of the neutral to prevent either
belligerent from making neutral territory the base of military or naval
operations, a neutral violates his neutrality by not preventing his
subjects from carrying out an order of a belligerent for the building
and fitting out of men-of-war.
This distinction, although of course logically correct, is
hair-splitting. It only shows that neutral States ought[643] to be
required to prevent their subjects from supplying arms, ammunition, and
the like, to belligerents. But so long as this progress is not made, the
above distinction will probably continue to be drawn, in spite of its
hair-splitting character.
[Footnote 643: See below, § 350.]
[Sidenote: The _Alabama_ Case and the Three Rules of Washington.]
§ 335. The movement for recognition of the fact that the duty of
impartiality requires a neutral to prevent his subjects from building
and fitting out to order of belligerents vessels intended for naval
operations, began with the famous case of the _Alabama_. It is not
necessary to go into all the details[644] of this case. It suffices to
say that in 1862, during the American Civil War, the attention of the
British Government was drawn by the Government of the United States to
the fact that a vessel for warlike purposes was built in England to
order of the insurgents. This vessel, afterwards called the _Alabama_,
left Liverpool in July 1862 unarmed, but was met at the Azores by three
other vessels, also coming from England, which supplied her with guns
and ammunition, so that she could at once begin to prey upon the
merchantmen of the United States. On the conclusion of the Civil War,
the United States claimed damages from Great Britain for the losses
sustained by her merchant marine through the operations of the
_Alabama_ and other vessels likewise built in England. Negotiations went
on for several years, and finally the parties entered, on May 8, 1871,
into the Treaty of Washington[645] for the purpose of having their
difference settled by arbitration, five arbitrators to be
nominated--Great Britain, the United States, Brazil, Italy, and
Switzerland, each choosing one. The treaty contained three rules, since
then known as "The Three Rules of Washington," to be binding upon the
arbitrators, namely:[646]--
"A neutral Government is bound--
"_Firstly._ To use due diligence to prevent the fitting out, arming, or
equipping within its jurisdiction, of any vessel which it has reasonable
ground to believe is intended to cruise or carry on war against a Power
with which it is at peace, and also to use like diligence to prevent the
departure from its jurisdiction of any vessel intended to cruise or
carry on war as above, such vessel having been specially adapted in
whole or in part, within such jurisdiction, to warlike use.
"_Secondly._ Not to permit or suffer either belligerent to make use of
its ports or waters as the base of naval operations against the other,
or for the purpose of the renewal or augmentation of military supplies
or arms, or the recruitment of men.
"_Thirdly._ To exercise due diligence in its waters, and as to all
persons within its jurisdiction, to prevent any violations of the
foregoing obligations and duties."
[Footnote 644: See Mountague Bernard, _Neutrality of Great Britain
during the American Civil War_ (1870), pp. 338-496; Geffcken, _Die
Alabama Frage_ (1872); Pradier-Fodéré, _La Question de l'Alabama_
(1872); Caleb Cushing, _Le Traité de Washington_ (1874); Bluntschli in
_R.I._ II. (1870), pp. 452-485; Balch, _L'Évolution de l'arbitrage
international_ (1908), pp. 43-70.]
[Footnote 645: Martens, _N.R.G._ XX. p. 698.]
[Footnote 646: See Moore, VII. § 1330.]
In consenting that these rules should be binding upon the arbitrators,
Great Britain expressly declared that, in spite of her consent, she
maintained that these rules were not recognised rules of International
Law at the time when the case of the _Alabama_ occurred, and the treaty
contains also the stipulation that the parties--
"Agree to observe these rules as between themselves in future, and to
bring them to the knowledge of other Maritime Powers, and to invite them
to accede to them."
The appointed arbitrators[647] met at Geneva in 1871, held thirty-two
conferences there, and gave decision[648] on September 14, 1872,
according to which England had to pay 15,500,000 dollars damages to the
United States.
[Footnote 647: See Moore, _Arbitrations_, I. pp. 495-682.]
[Footnote 648: The award is printed in full in Moore, _Arbitrations_, I.
pp. 653-659, and in Phillimore, III. § 151.]
The arbitrators put a construction upon the term _due diligence_[649]
and asserted other opinions in their decision which are very much
contested and to which Great Britain never consented. Thus, Great
Britain and the United States, although they agreed upon the three
rules, did not at all agree upon the interpretation thereof, and they
could, therefore, likewise not agree upon the contents of the
communication to other maritime States stipulated by the Treaty of
Washington. It ought not, therefore, to be said that the Three Rules of
Washington[650] have literally become universal rules of International
Law. Nevertheless, they were the starting-point of the movement for the
universal recognition of the fact that the duty of impartiality obliges
neutrals to prevent their subjects from building and fitting out, to
order of belligerents, vessels intended for warlike purposes, and to
prevent the departure from their jurisdiction of any vessel, which, by
order of a belligerent, has been adapted to warlike use. Particular
attention must be paid to the fact that, although article 8 of
Convention XIII. in other respects copies almost verbally the first of
the Three Rules of Washington, it differs from it in so far as it
replaces the words "to use due diligence" by "to employ the means at its
disposal." For this reason the construction put by the Geneva
arbitrators upon the term _due diligence_ cannot find application to the
rule of article 8, the employment of the means at the disposal of a
neutral to prevent the acts concerned being a mere question of fact.
[Footnote 649: See below, § 363.]
[Footnote 650: As regards the seven rules adopted by the Institute of
International Law, at its meeting at the Hague in 1875, as emanating
from the Three Rules of Washington, see _Annuaire_, I. (1877), p. 139.]
IV
NEUTRAL ASYLUM TO LAND FORCES AND WAR MATERIAL
Vattel, III. §§ 132-133--Hall, §§ 226 and 230--Halleck, II. p.
150--Taylor, § 621--Wharton, III. § 394--Moore, VII. §§
1314-1318--Bluntschli, §§ 774, 776-776A, 785--Heffter, §
149--Geffcken in Holtzendorff, IV. pp. 662-665--Ullmann, §
191--Bonfils, Nos. 1461-1462--Rivier, II. pp. 395-398--Calvo, IV.
§§ 2668-2669--Fiore, III. Nos. 1576, 1582, 1583--Martens, II. §
133--Mérignhac, pp. 370-376--Pillet, pp. 286-287--Kleen, II. §§
151-157--Holland, War, Nos. 131-133--Zorn, pp. 316-352--Heilborn,
_Rechte und Pflichten der neutralen Staaten in Bezug auf die
während des Krieges auf ihr Gebiet übertretenden Angehörigen einer
Armee und das dorthingebrachte Kriegsmaterial der kriegführenden
Parteien_ (1888), pp. 12-83--Rolin-Jaequemyns in _R.I._ III.
(1871), pp. 352-366--_Land Warfare_, §§ 485-501.
[Sidenote: On Neutral Asylum in general.]
§ 336. Neutral territory, being outside the region of war,[651] offers
an asylum to members of belligerent forces, to the subjects of the
belligerents and their property, and to war material of the
belligerents. Since, according to the present rules of International
Law, the duty of either belligerent to treat neutrals according to their
impartiality must--the case of extreme necessity for self-preservation
excepted--prevent them from violating the territorial supremacy of
neutrals, enemy persons as well as enemy goods are perfectly safe on
neutral territory. It is true that neither belligerent has a right to
demand from a neutral[652] such asylum for his subjects, their property,
and his State property. But neither has he, on the other hand, any right
to demand that a neutral refuse such asylum to the enemy. The
territorial supremacy of the neutral enables him to use his discretion,
and either to grant or to refuse asylum. However, the duty of
impartiality incumbent upon him must induce a neutral granting asylum to
take all such measures as are necessary to prevent his territory from
being used as a base of hostile operations.
[Footnote 651: See above, §§ 70 and 71.]
[Footnote 652: The generally recognised usage for a neutral to grant
temporary hospitality in his ports to vessels in distress of either
belligerent is an exception to be discussed below in § 344.]
Now, neutral territory may be an asylum, first, for private enemy
property; secondly, for public enemy property, especially war material,
cash, and provisions; thirdly, for private subjects of the enemy;
fourthly, for enemy land forces; and, fifthly, for enemy naval forces.
Details, however, need only be given with regard to asylum to land
forces, war material, and naval forces. For with regard to private
property and private subjects it need only be mentioned that private war
material brought into neutral territory stands on the same footing as
public war material of a belligerent brought there, and, further, that
private enemy subjects are safe on neutral territory even if they are
claimed by a belligerent for the committal of war crimes.
Only asylum to land forces and war material will be discussed here in §§
337-341, asylum to naval forces being reserved for separate discussion
in §§ 342-348. As regards asylum to land forces, a distinction must be
made between (1) prisoners of war, (2) single fugitive soldiers, and (3)
troops or whole armies pursued by the enemy and thereby induced to take
refuge on neutral territory.
[Sidenote: Neutral Territory and Prisoners of War.]
§ 337. Neutral territory is an asylum to prisoners of war of either
belligerent in so far as they become free _ipso facto_ by their coming
into neutral territory. And it matters not in which way they come there,
whether they escape from a place of detention and take refuge on neutral
territory, or whether they are brought as prisoners into such territory
by enemy troops who themselves take refuge there.[653]
[Footnote 653: The case of prisoners on board a belligerent man-of-war
which enters a neutral port is different; see below, § 345.]
The principle that prisoners of war regain their liberty by coming into
neutral territory has been generally recognised for centuries. An
illustration occurred in 1558, when several Turkish and Barbary captives
escaped from one of the galleys of the Spanish Armada which was wrecked
near Calais, and, although the Spanish Ambassador claimed them, France
considered them to be freed by the fact of their coming on her
territory, and sent them to Constantinople.[654] But has the neutral on
whose territory a prisoner has taken refuge the duty to retain such
fugitives and thereby prevent them from rejoining the enemy army?
Formerly this question was not settled. In 1870, during the
Franco-German War, Belgium answered the question in the affirmative, and
detained a French non-commissioned officer who had been a prisoner in
Germany and had escaped into Belgian territory with the intention of
rejoining at once the French forces. Whereas this case was
controversial,[655] all writers agreed that the case was different if
escaped prisoners wanted to remain on the neutral territory. As such
refugees might at any subsequent time wish to rejoin their forces, the
neutral was by his duty of impartiality considered to be obliged to take
adequate measures to prevent their so doing. There was likewise no
unanimity regarding prisoners brought into neutral territory by enemy
forces taking refuge there. It was agreed that such prisoners became
free by being brought into neutral territory; but whereas some
writers[656] maintained that they could not be detained in case they
intended at once to leave the neutral territory, others asserted that
they must always be detained and that they must comply with such
measures as the neutral considers necessary to prevent them from
rejoining their forces.
[Footnote 654: See Hall, § 226, p. 641, note 1.]
[Footnote 655: See Rolin-Jaequemyns in _R.I._ III. (1871), p. 556;
Bluntschli, § 776; Heilborn, _Rechte_, pp. 32-34.]
[Footnote 656: For instance, Heilborn, _Rechte_, pp. 51-52.]
Article 13 of Convention V. settles the controversy by enacting that a
neutral who receives prisoners of war who have escaped or who are
brought there by troops of the enemy taking refuge on neutral territory,
shall leave them at liberty, but that, if he allows them to remain on
his territory, he _may_--he need not!--assign them a place of residence
so as to prevent them from rejoining their forces. Since, therefore,
everything is left to the discretion of the neutral, he will have to
take into account the merits and needs of every case and to take such
steps as he thinks adequate. But so much is certain that a belligerent
may not in every case categorically demand from a neutral who receives
escaped prisoners, or such as have been brought there by troops who take
refuge, that he should detain them.
The case of prisoners who, with the consent of the neutral, are
transported through neutral territory is different. Such prisoners do
not become free on entering the neutral territory, but there is no doubt
that a neutral, by consenting to the transport, violates his duty of
impartiality, because such transport is equal to passage of troops
through neutral territory (article 2 of Convention V.).
Attention must, lastly, be drawn to the case where enemy soldiers are
amongst the wounded whom a belligerent is allowed by a neutral to
transport through neutral territory. Such wounded prisoners become
free, but they must, according to article 14 of Convention V., be
guarded by the neutral so as to insure their not again taking part in
military operations.[657]
[Footnote 657: See also article 15 of Convention X. and below, §
348_a_.]
[Sidenote: Fugitive Soldiers on Neutral Territory.]