take refuge on his territory, although he need not do so, and may at
once send them back to the place they came from. If he grants such
asylum, his duty of impartiality obliges him to disarm the fugitives and
to take such measures as are necessary to prevent them from rejoining
their forces. But it must be emphasised that it is practically
impossible for a neutral to be so watchful as to detect every single
fugitive who enters his territory. It will always happen that such
fugitives steal into neutral territory and leave it again later on to
rejoin their forces without the neutral being responsible. And, before
he can incur responsibility for not doing so, a neutral must actually be
in a position to detain such fugitives. Thus Luxemburg, during the
Franco-German War, could not prevent hundreds of French soldiers, who,
after the capitulation of Metz, fled into her territory, from rejoining
the French forces; because, according to the condition[658] of her
neutralisation, she is not allowed to keep an army, and therefore, in
contradistinction to Switzerland and Belgium, was unable to mobilise
troops for the purpose of fulfilling her duty of impartiality.
[Footnote 658: See above, vol. I. § 100.]
[Sidenote: Neutral Territory and Fugitive Troops.]
§ 339. On occasions during war large bodies of troops, or even a whole
army, are obliged to cross the neutral frontier for the purpose of
escaping captivity. A neutral need not permit this, and may repulse them
on the spot, but he may also grant asylum. It is, however, obvious that
the presence of such troops on neutral territory is a danger for the
other party. The duty of impartiality incumbent upon a neutral obliges
him, therefore, to disarm such troops at once, and to guard them so as
to insure their not again performing military acts against the enemy
during the war. Convention V. enacts the following rules:--
Article 11: "A neutral Power which receives in its territory troops
belonging to the belligerent armies shall detain them, if possible, at
some distance from the theatre of war. It may keep them in camps, and
even confine them in fortresses or localities assigned for the purpose.
It shall decide whether officers are to be left at liberty on giving
their parole that they will not leave the neutral territory without
authorisation."
Article 12: "In the absence of a special Convention, the neutral Power
shall supply the interned with the food, clothing, and relief which the
dictates of humanity prescribe. At the conclusion of peace, the expenses
caused by internment shall be made good."
It is usual for troops who are not actually pursued by the enemy--for if
pursued they have no time for it--to enter through their commander into
a convention with the representative of the neutral concerned,
stipulating the conditions upon which they cross the frontier and give
themselves into the custody of the neutral. Such conventions are valid
without needing ratification, provided they contain only such
stipulations as do not disagree with International Law and as concern
only the requirements of the case.
Stress must be laid on the fact that, although the detained troops are
not prisoners of war captured by the neutral, they are nevertheless in
his custody, and therefore under his disciplinary power, just as
prisoners of war are under the disciplinary power of the State which
keeps them in captivity. They do not enjoy the exterritoriality--see
above, Vol. I. § 445--due to armed forces abroad because they are
disarmed. As the neutral is required to prevent them from escaping, he
must apply stern measures, and he may punish severely every member of
the detained force who attempts to frustrate such measures or does not
comply with the disciplinary rules regarding order, sanitation, and the
like.
The most remarkable instance known in history is the asylum granted by
Switzerland during the Franco-German War to a French army of 85,000 men
with 10,000 horses which crossed the frontier on February 1, 1871.[659]
France had, after the conclusion of the war, to pay about eleven million
francs for the maintenance of this army in Switzerland during the rest
of the war.
[Footnote 659: See the Convention regarding this asylum between the
Swiss General Herzog and the French General Clinchant in Martens,
_N.R.G._ XIX. p. 639.]
[Sidenote: Neutral Territory and Non-combatant Members of Belligerent
Forces.]
§ 340. The duty of impartiality incumbent upon a neutral obliges him to
detain in the same way as soldiers such non-combatant[660] members of
belligerent forces as cross his frontier. He may not, however, detain
army surgeons and other non-combatants who are privileged according to
article 2 of the Geneva Convention.
[Footnote 660: See Heilborn, _Rechte_, pp. 43-46. Convention V. does not
mention any rule concerning this matter.]
[Sidenote: Neutral Territory and War Material of Belligerents.]
§ 341. It can happen during war that war material belonging to one of
the belligerents is brought into neutral territory for the purpose of
saving it from capture by the enemy. Such war material can be brought by
troops crossing the neutral frontier for the purpose of evading
captivity, or it can be purposely sent there by order of a commander.
Now, a neutral is by no means obliged to admit such material, just as he
is not obliged to admit soldiers of belligerents. But if he admits it,
his duty of impartiality obliges him to seize and retain it till after
the conclusion of peace. War material includes, besides arms,
ammunition, provisions, horses, means of military transport such as
carts and the like, and everything else that belongs to the equipment
of troops. But means of military transport belong to war material only
so far as they are the property of a belligerent. If they are hired or
requisitioned from private individuals, they may not be detained by the
neutral.
It can likewise happen during war that war material, originally the
property of one of the belligerents but seized and appropriated by the
enemy, is brought by the latter into neutral territory. Does such
material, through coming into neutral territory, become free, and must
it be restored to its original owner, or must it be retained by the
neutral and after the war be restored to the belligerent who brought it
into the neutral territory? In analogy with prisoners of war who become
free through being brought into neutral territory, it is maintained[661]
that such war material becomes free and must be restored to its original
owner. To this however, I cannot agree.[662] Since war material becomes
through seizure by the enemy his property and remains his property
unless the other party re-seizes and thereby re-appropriates it, there
is no reason for its reverting to its original owner upon transportation
into neutral territory.[663]
[Footnote 661: See Hall, § 226.]
[Footnote 662: See Heilborn, _Rechte_, p. 60, and _Land Warfare_, § 492.
The Dutch Government at the Second Peace Conference proposed a rule
according to which captured war material brought by the captor into
neutral territory should be restored, after the war, to its original
owner, but--see _Deuxième Conférence, Actes_, vol. i. p. 145--this
proposal was not accepted.]
[Footnote 663: See Heilborn, _Rechte_, pp. 61-65, where the question is
discussed as to whether a neutral may claim a lien on war material
brought into his territory for expenses incurred for the maintenance of
detained troops belonging to the owner of the war material.]
V
NEUTRAL ASYLUM TO NAVAL FORCES
Vattel, III. § 132--Hall, § 231--Twiss, II. § 222--Halleck, II. p.
151--Taylor, §§ 635, 636, 640--Wharton, III. § 394--Wheaton, §
434--Moore, VII. §§ 1314-1318--Bluntschli, §§ 775-776B--Heffter, §
149--Geffcken in Holtzendorff, IV. pp. 665-667, 674--Ullmann, §
191--Bonfils, No. 1463--Despagnet, No. 692 _ter_--Rivier, II. p.
405--Calvo, IV. §§ 2669-2684--Fiore, III. Nos. 1576-1581, 1584,
and Code, Nos. 1788-1792--Martens, II. § 133--Kleen, II. §
155--Pillet, pp. 305-307--Perels, § 39, p. 231--Testa, pp.
173-187--Dupuis, Nos. 308-314, and _Guerre_, Nos.
304-328--Ortolan, II. pp. 247-291--Hautefeuille, I. pp.
344-405--Takahashi, pp. 418-484--Bajer in _R.I._ 2nd Ser. II.
(1900), pp. 242-244--Lapradelle in _R.G._ XI. (1904), p. 531.
[Sidenote: Asylum to Naval Forces in contradistinction to Asylum to Land
Forces.]
§ 342. Whereas asylum granted by a neutral to land forces and single
members of them is conditioned by the obligation of the neutral to
disarm such forces and to detain them for the purpose of preventing them
from joining in further military operations, a neutral may grant
temporary asylum to men-of-war of belligerents without being obliged to
disarm and detain them.[664] The reason is that the sea is considered an
international highway, that the ports of all nations serve more or less
the interests of international traffic on the sea, and that the
conditions of navigation make a certain hospitality of ports to vessels
of all nations a necessity. Thus the rules of International Law
regarding asylum of neutral ports to men-of-war of belligerents have
developed on somewhat different lines from the rules regarding asylum to
land forces. But the rule, that the duty of impartiality incumbent upon
a neutral must prevent him from allowing belligerents to use his
territory as a base of operations of war, is nevertheless valid
regarding asylum granted to their men-of-war.
[Footnote 664: See, however, below, § 347, concerning the abuse of
asylum, which must be prohibited.]
[Sidenote: Neutral Asylum to Naval Forces optional.]
§ 343. Although a neutral may grant asylum to belligerent men-of-war in
his ports, he has no duty to do so. He may prohibit all belligerent
men-of-war from entering any of his ports, whether these vessels are
pursued by the enemy or desire to enter for other reasons. However, his
duty of impartiality must prevent him from denying to the one party what
he grants to the other, and he may not, therefore, allow entry to
men-of-war of one belligerent without giving the same permission to
men-of-war of the other belligerent (article 9 of Convention XIII.).
Neutrals as a rule admit men-of-war of both parties, but they frequently
exclude all men-of-war of both parties from entering certain ports. Thus
Austria prohibited during the Crimean War all belligerent men-of-war
from entering the port of Cattaro. Thus, further, Great Britain
prohibited during the American Civil War the access of all belligerent
men-of-war to the ports of the Bahama Islands, the case of stress of
weather excepted.
Be that as it may, since a neutral must prevent belligerents from making
his territory the base of military operations, he must not allow an
unlimited number of men-of-war belonging to one of the belligerents to
stay simultaneously in one of his ports. Article 15 of Convention XIII.
limits the number of such men-of-war to three, unless there are special
provisions to the contrary in the Municipal Law of the neutral
concerned.
[Sidenote: Asylum to Naval Forces in Distress.]
§ 344. To the rule that a neutral need not admit men-of-war of the
belligerents to neutral ports there is no exception in strict law.
However, there is an international usage that belligerent men-of-war in
distress should never be prevented from making for the nearest port. In
accordance with this usage vessels in distress have always been allowed
entry even to such neutral ports as were totally closed to belligerent
men-of-war. There are even instances known of belligerent men-of-war in
distress having asked for and been granted asylum by the enemy in an
enemy port.[665]
[Footnote 665: See above, § 189.]
[Sidenote: Exterritoriality of Men-of-War during Asylum.]
§ 345. The exterritoriality, which according to a universally recognised
rule of International Law men-of-war must enjoy[666] in foreign ports,
obtains even in time of war during their stay in neutral ports.
Therefore, prisoners of war on board do not become free by coming into
the neutral port[667] so long as they are not brought on shore, nor do
prizes[668] brought into neutral ports by belligerents. On the other
hand, belligerent men-of-war are expected to comply with all orders
which the neutral makes for the purpose of preventing them from making
his ports the base of their operations of war, as, for instance, with
the order not to leave the ports at the same time as vessels of the
other belligerent. And, if they do not comply voluntarily, they may be
made to do so through application of force, for a neutral has the duty
to prevent by all means at hand the abuse of the asylum granted.
[Footnote 666: See above, vol. I. § 450.]
[Footnote 667: See above, § 337.]
[Footnote 668: See articles 21-23 of Convention XIII.]
Special provision is made by article 24 of Convention XIII. for the case
of a belligerent man-of-war which refuses to leave a neutral port. This
article enacts:--"If, notwithstanding the notification of the neutral
Power, a belligerent ship of war does not leave a port where it is not
entitled to remain, the neutral Power is entitled to take such measures
as it considers necessary to render the ship incapable of putting to sea
so long as the war lasts, and the commanding officer of the ship must
facilitate the execution of such measures. When a belligerent ship is
detained by a neutral Power, the officers and crew are likewise
detained. The officers and crew so detained may be left in the ship or
kept either on another vessel or on land, and may be subjected to such
measures of restriction as it may appear necessary to impose upon them.
A sufficient number of men must, however, be always left on board for
looking after the vessel. The officers may be left at liberty on giving
their word not to quit neutral territory without permission."
If a vessel is granted asylum for the whole time of the war--see below,
§ 347 (3 and 4)--and is, therefore, dismantled, she loses the character
of a man-of-war, no longer enjoys the privilege of exterritoriality due
to men-of-war in foreign waters, and prisoners on board become free,
although they must be detained by the neutral concerned.
[Sidenote: Facilities to Men-of-War during Asylum.]
§ 346. A belligerent man-of-war, to which asylum is granted in a neutral
port, is not only not disarmed and detained, but facilities may even be
rendered to her as regards slight repairs, and the supply of provisions
and coal. However, a neutral may only allow small repairs of the vessel
herself and not of her armaments;[669] for he would render assistance to
one of the belligerents, to the detriment of the other, if he were to
allow the damaged armaments of a belligerent man-of-war to be repaired
in a neutral port. And, further, a neutral may only allow a limited
amount of provisions and coal to be taken in by a belligerent man-of-war
in neutral ports;[670] for, if he did otherwise, he would allow the
belligerent to use the neutral ports as a base for operations of war.
And, lastly, a neutral may allow a belligerent man-of-war in his ports
to enrol only such a small number of sailors as is necessary to navigate
her safely to the nearest port of her home State.[671]
[Footnote 669: See above, § 333 (5), and below, § 347 (3).]
[Footnote 670: See above, § 333 (4).]
[Footnote 671: See above, §§ 330 and 333 (3).]
[Sidenote: Abuse of Asylum to be prohibited.]
§ 347. It would be easy for belligerent men-of-war to which asylum is
granted in neutral ports to abuse such asylum if neutrals were not
required to prohibit such abuse.
(1) A belligerent man-of-war can abuse asylum, firstly, by ascertaining
whether and what kind of enemy vessels are in the same neutral port,
accompanying them when they leave, and attacking them immediately they
reach the Open Sea. To prevent such abuse, in the eighteenth century
several neutral States arranged that, if belligerent men-of-war or
privateers met enemy vessels in a neutral port, they were not to be
allowed to leave together, but an interval of at least twenty-four hours
was to elapse between the sailing of the vessels. During the nineteenth
century this so-called twenty-four hours rule was enforced by the
majority of States, and the Second Peace Conference, by article 16 of
Convention XIII., has made it a general rule[672] by enacting:--"When
war-ships belonging to both belligerents are present simultaneously in a
neutral port or roadstead, a period of not less than twenty-four hours
must elapse between the departure of the ship belonging to one
belligerent and the departure of the ship belonging to the other. The
order of departure is determined by the order of arrival, unless the
ship which arrived first is so circumstanced that an extension of its
stay is permissible. A belligerent war-ship may not leave a neutral port
or roadstead until twenty-four hours after the departure of a merchant
ship flying the flag of its adversary."
(2) Asylum can, secondly, be abused by wintering in a port in order to
wait for other vessels of the same fleet, or by similar intentional
delay. There is no doubt that neutrals must prohibit this abuse by
ordering such belligerent men-of-war to leave the neutral ports.
Following the example set by Great Britain in 1862,[673] several
maritime States have adopted the rule of not allowing a belligerent
man-of-war to stay in their neutral ports for more than twenty-four
hours, except on account of damage or stress of weather. Other States,
such as France, do not, however, object to a more prolonged stay in
their ports. 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.[674]
(3) Asylum can, thirdly, be abused by repairing a belligerent man-of-war
which has become unseaworthy. Although small repairs are allowed,[675] a
neutral would violate his duty of impartiality by allowing such repairs
as would make good the unseaworthiness of a belligerent man-of-war.
During the Russo-Japanese War this was generally recognised, and the
Russian men-of-war _Askold_ and _Grossovoi_ in Shanghai, the _Diana_ in
Saigon, and the _Lena_ in San Francisco had therefore to be disarmed and
detained. The crews of these vessels had likewise to be detained for the
time of the war.
(4) Asylum can, lastly, be abused by remaining in a neutral port an
undue length of time in order to escape attack and capture by the other
belligerent. Neutral territorial waters are in fact an asylum for
men-of-war which are pursued by the enemy, but, since nowadays a right
of pursuit into neutral waters, as asserted by Bynkershoek,[676] is no
longer recognised, it would be an abuse of asylum if the escaped vessel
were allowed to make a prolonged stay in the neutral waters. A neutral
who allowed such abuse of asylum would violate his duty of impartiality,
for he would assist one of the belligerents to the disadvantage of the
other.[677] Therefore, when after the battle off Port Arthur in August
1904 the Russian battleship _Cesarewitch_, the cruiser _Novik_, and
three destroyers escaped, and took refuge in the German port of
Tsing-Tau in Kiao-Chau, the _Novik_, which was uninjured, had to leave
the port after a few hours,[678] whereas the other vessels, which were
too damaged to leave the port, were disarmed and, together with their
crews, detained till the conclusion of peace. And when, at the end of
May 1905, after the battle of Tsu Shima, three injured Russian
men-of-war, the _Aurora_, _Oleg_, and _Jemchug_, escaped into the
harbour of Manila, the United States of America ordered them to be
disarmed and, together with their crews, to be detained during the war.
[Footnote 672: See above, § 333 (2), and Hall, § 231, p. 651.]
[Footnote 673: See Hall, § 231, p. 653.]
[Footnote 674: See above, § 333 (6)--Germany, Domingo, Siam, and Persia
have entered a reservation against article 12.]
[Footnote 675: See above, § 333 (5) and § 346.]
[Footnote 676: _Quaest. jur. publ._ I. c. 8. See also above, § 288, p.
352, and § 320, p. 387.]
[Footnote 677: It was only during the Russo-Japanese War in 1904 that
this became generally recognised, and article 24 of Convention XIII.
places it beyond all doubt. Until the Russo-Japanese War it was still a
controverted question whether a neutral is obliged either to dismiss or
to disarm and detain such men-of war as had fled into his ports for the
purpose of escaping attack and capture. See Hall, § 231, p. 651, and
Perels, § 39, p. 213, in contradistinction to Fiore, III. No. 1578. The
"Règlement sur le régime légal des navires et de leurs équipages dans
les ports étrangers," adopted by the Institute of International Law in
1898 at its meeting at the Hague--see _Annuaire_, XVII. (1898), p.
273--answers (article 42) the question in the affirmative.]
[Footnote 678: This case marks the difference between the duties of
neutrals as regards asylum to land and naval forces. Whereas land forces
crossing neutral frontiers must either be at once repulsed or detained,
men-of-war may be granted the right to stay for some limited time within
neutral harbours and to leave afterwards unhindered; see above, § 342.
The supply of a small quantity of coal to the _Novik_ in Tsing-Tau was
criticised by writers in the Press, but unjustly. For--see above, §
346--a neutral may allow a belligerent man-of-war in his port to take in
so much coal as is necessary to navigate her to her nearest home port.]
[Sidenote: Neutral Men-of-War as an Asylum.]
§ 348. It can happen during war that neutral men-of-war pick up and save
from drowning soldiers and sailors of belligerent men-of-war sunk by the
enemy, or that they take belligerent marines on board for other reasons.
Such neutral men-of-war being an asylum for the rescued marines, the
question has arisen whether such rescued marines must be given up to the
enemy, or must be detained during the war, or may be brought to their
home country. Two cases are on record which illustrate this matter.
(1) At the beginning of the Chino-Japanese War, on July 25, 1894, after
the Japanese cruiser _Naniwa_ had sunk the British ship _Kow-shing_,
which served as transport carrying Chinese troops,[679] forty-five
Chinese soldiers who clung to the mast of the sinking ship were rescued
by the French gunboat _Lion_ and brought to the Korean harbour of
Chemulpo. Hundreds of others saved themselves on some islands near the
spot where the incident occurred, and 120 of these were taken on board
the German man-of-war _Iltis_ and brought back to the Chinese port of
Tientsin.[680]
(2) At the beginning of the Russo-Japanese War, on February 9, 1904,
after the Russian cruisers _Variag_ and _Korietz_ had accepted the
challenge[681] of a Japanese fleet, fought a battle outside the harbour
of Chemulpo, and returned, crowded with wounded, to Chemulpo, the
British cruiser _Talbot_, the French _Pascal_, and the Italian _Elba_
received large numbers of the crews of the disabled Russian cruisers.
The Japanese demanded that the neutral ships should give up the rescued
men as prisoners of war, but the neutral commanders demurred, and an
arrangement was made according to which the rescued men were handed over
to the Russians under the condition that they should not take part in
hostilities during the war.[682]
[Footnote 679: See above, § 89, p. 114, note 1.]
[Footnote 680: See Takahashi, _Cases on International Law during the
Chino-Japanese War_ (1899), pp. 36 and 51.]
[Footnote 681: See above, § 320 (1).]
[Footnote 682: See Lawrence, _War_, pp. 63-75, and Takahashi, pp.
462-466.]
The Second Peace Conference has settled the question, for article 13 of
Convention X. enacts:--"If wounded, sick, or shipwrecked are taken on
board a neutral man-of-war, precaution must be taken, so far as
possible, that they do not again take part in the operations of the
war."
[Sidenote: Neutral Territory and Shipwrecked Soldiers.]
§ 348_a_. Just as in war on land members of the belligerent forces may
find themselves on neutral territory, so in war on sea shipwrecked or
wounded or sick belligerent soldiers can be brought into neutral
territory. Two cases of this kind must be distinguished:--
(1) According to article 14 of Convention X. it is left to the
belligerent man-of-war who captures shipwrecked, wounded, or sick enemy
soldiers to send them to a neutral port. The neutral Power concerned
need not receive them, but, on the other hand, may grant them asylum. If
asylum is granted, the neutral Power is, according to article 15 of
Convention X., obliged--unless there is an arrangement to the contrary
between the neutral Power and both belligerents--to guard them so as to
prevent them from again taking part in the war,[683] the expenses for
tending and interning them to be paid by the belligerent to whom they
belong.
(2) Neutral merchantmen[684] can either of their own accord have rescued
wounded, sick, or shipwrecked men, or they can have taken them on board
on appeal by belligerent men-of-war. The surrender of these men may,
according to article 12 of Convention X., be demanded at any time by any
belligerent man-of-war. But if such demand be not made and the men be
brought into a neutral port, they need not be detained by the neutral
concerned.
[Footnote 683: See above, § 205.]
[Footnote 684: See above, § 208 (2).]
VI
SUPPLIES AND LOANS TO BELLIGERENTS
Vattel, III. § 110--Hall, §§ 216-217--Lawrence, § 235--Westlake,
II. pp. 217-219--Phillimore, III. § 151--Twiss, II. §
227--Halleck, II. p. 163--Taylor, §§ 622-625--Walker, §
67--Wharton, III. §§ 390-391--Moore, VII. §§
1307-1312--Bluntschli, §§ 765-768--Heffter, § 148--Geffcken in
Holtzendorff, IV. pp. 687-700--Ullmann, §§ 191-192--Bonfils, Nos.
1471-1474--Despagnet, Nos. 693-694--Rivier, II. pp.
385-411--Calvo, IV. §§ 2624-2630--Fiore, III. Nos.
1559-1563--Martens, II. § 134--Kleen, I. §§ 66-69,
96-97--Mérignhac, pp. 360-364--Pillet, pp. 289-293--Dupuis, Nos.
317-319--_Land Warfare_, §§ 477-480.
[Sidenote: Supply on the part of Neutrals.]
§ 349. The duty of impartiality must prevent a neutral from supplying
belligerents with arms, ammunition, vessels, and military
provisions.[685] And it matters not whether such supply takes place for
money or gratuitously. A neutral who sold arms and ammunition to a
belligerent at a profit would violate his duty of impartiality as also
would one who transferred such arms and ammunition to a belligerent as a
present. This is a settled rule so far as direct transactions regarding
such supply between belligerents and neutrals are concerned. The case is
different where a neutral does not directly and knowingly deal with a
belligerent, although he may, or ought to, be aware that he is
indirectly supplying a belligerent. Different States have during
neutrality taken up different attitudes regarding such cases. Thus in
1825, during the War of Independence which the Spanish South American
Colonies waged against their mother country, the Swedish Government sold
three old men-of-war, the _Försigtigheten_, _Euridice_, and _Camille_ to
two merchants, who on their part sold them to English merchants,
representatives of the Government of the Mexican insurgents. When Spain
complained, Sweden rescinded the contract.[686] Further, the British
Government in 1863, during the American Civil War, after selling an old
gunboat, the _Victor_, to a private purchaser and subsequently finding
that the agents of the Confederate States had obtained possession of
her, gave the order that during the war no more Government ships should
be sold.[687] On the other hand, the Government of the United States of
America, in pursuance of an Act passed by Congress in 1868 for the sale
of arms which the end of the Civil War had rendered superfluous, sold in
1870, notwithstanding the Franco-German War, thousands of arms and other
war material which were shipped to France.[688] This attitude of the
United States is now generally condemned, and article 6 of Convention
XIII. may be quoted against a repetition of such a practice on the part
of a neutral State. This article prohibits the supply in any manner,
directly or _indirectly_, by a neutral to a belligerent, of warships,
ammunition, or war material of any kind whatever.
[Footnote 685: See article 6 of Convention XIII.]
[Footnote 686: See Martens, _Causes Célèbres_, V. pp. 229-254.]
[Footnote 687: See Lawrence, § 235.]
[Footnote 688: See Wharton, III. § 391, and Moore, VII. § 1309.]
[Sidenote: Supply on the part of Subjects of Neutrals.]
§ 350. In contradistinction to supply to belligerents by neutrals, such
supply by subjects of neutrals is lawful, and neutrals are not,
therefore, obliged according to their duty of impartiality to prevent
such supply. Article 7 of Convention V. and article 7 of Convention
XIII. concur in enacting the old customary rule that "A neutral Power is
not bound to prevent the export or transit, on behalf of one or other of
the belligerents, of arms, munitions of war, or, in general, of anything
which can be of use to an army or fleet." And article 18[689] of
Convention V. recognises the fact that the furnishing of supplies to a
belligerent by such subjects of neutrals as do not live on the territory
of the other party, or on the territory occupied by that party, does
not invest these individuals with enemy character. When in August 1870,
during the Franco-German War, Germany lodged complaints with the British
Government for not prohibiting its subjects from supplying arms and
ammunition to the French Government, Great Britain correctly replied
that she was not by International Law under the obligation to prevent
her subjects from committing such acts. Of course, such neutral as is
anxious to avoid all controversy and friction can by his Municipal Law
order his subjects to abstain from such acts, as for instance
Switzerland and Belgium did during the Franco-German War. But such
injunctions arise from political prudence, and not from any obligation
imposed by International Law.
[Footnote 689: That Great Britain has entered a reservation against
article 18, and the portent of this reservation, has been pointed out
above, in § 88, p. 109, note 1.]
The endeavour to make a distinction between supply in single cases and
on a small scale on the one hand, and, on the other, supply on a large
scale, and to consider only the former lawful,[690] has neither in
theory nor in practice found recognition. As International Law stands,
belligerents may make use of visit, search, and seizure to protect
themselves against conveyance of contraband by sea to the enemy by
subjects of neutrals. But so far as their neutral home State is
concerned, such subjects may, at the risk of having their property
seized during such conveyance, supply either belligerent with any amount
of arms, ammunition, coal, provisions, and even with armed ships,[691]
provided always that they deal with the belligerents in the ordinary way
of commerce.
[Footnote 690: See Bluntschli, § 766.]
[Footnote 691: See above, § 334, and below, § 397.]
The case is different when there is no ordinary commerce with a
belligerent Government and when subjects of neutrals directly supply a
belligerent army or navy, or parts of them. If, for instance, a
belligerent fleet is cruising outside the maritime belt of a neutral,
the latter must prevent vessels of his subjects from bringing coal,
arms, ammunition, and provisions to that fleet, for otherwise he would
allow the belligerent to make use of neutral resources for naval
operations.[692] But he need not prevent vessels of his subjects from
bringing coal, arms, ammunition, and provisions to belligerent ports,
although the supply is destined for the navy and the army of the
belligerent. He need not prevent belligerent merchantmen from coming
into his ports and carrying arms and the like, bought from his subjects,
over to the ports of their home State. And he need not prevent vessels
of his subjects from following a belligerent fleet and supplying it _en
route_[693] with coal, ammunition, provisions, and the like, provided
such supply does not take place in the neutral maritime belt.
[Footnote 692: See above, § 333 (4).]
[Footnote 693: See above, § 311, p. 375, note 4.]
There is no doubt that, as the law stands at present, neutrals need not
prevent their subjects from supplying belligerents with arms and
ammunition. Yet, on the other hand, there is no doubt either that such
supply is apt to prolong a war which otherwise would come to an end at
an earlier date. But it will be a long time, if ever it happens, before
it is made a duty of neutrals to prevent such supply as far as is in
their power, and to punish such of their subjects as engage in it. The
profit derived from such supply being enormous, the members of the
Family of Nations are not inclined to cripple the trade of their
subjects by preventing it. And belligerents want to have the opportunity
of replenishing with arms and ammunition if they run short of them
during war. The question is merely one of the standard of public
morality.[694] If this standard rises, and it becomes the conviction of
the world at large that supply of arms and ammunition by subjects of
neutrals is apt to lengthen wars, the rule will appear that neutrals
must prevent such supply.
[Footnote 694: See above, vol. I. § 51 (6) p. 83.]
[Sidenote: Loans and Subsidies on the part of Neutrals.]
§ 351. His duty of impartiality must prevent a neutral from granting a
loan to either belligerent. Vattel's (III. § 110) distinction between
such loans as are granted on interest and such as are not so granted,
and his assertion that loans on the part of neutrals are lawful if they
are granted on interest with the pure intention of making money, have
not found favour with other writers. Nor do I know any instance of such
loan on interest having occurred during the nineteenth century.
What is valid regarding a loan is all the more valid regarding subsidies
in money granted to a belligerent on the part of a neutral. Through the
granting of subsidies a neutral becomes as much the ally of the
belligerent as he would by furnishing him with a number of troops.[695]
[Footnote 695: See above, §§ 305, 306, 321.]
[Sidenote: Loans and Subsidies on the part of Subjects of Neutrals.]
§ 352. It was formerly a moot point in the theory of International Law
whether a neutral is obliged by his duty of impartiality to prevent his
subjects from granting subsidies and loans to belligerents for the
purpose of enabling them to continue the war. Several writers[696]
maintained either that a neutral was obliged to prevent such loans and
subsidies altogether, or at least that he must prohibit a public
subscription on neutral territory for such loans and subsidies. On the
other hand, a number of writers asserted that, since money is just as
much an article of commerce as goods, a neutral was in no wise obliged
to prevent on his territory public subscription by his subjects to loans
for the belligerents. In contradistinction to the theory of
International Law, the practice of the States has beyond doubt
established the fact that neutrals need not prevent on their territory
subscription to loans for belligerents. Thus in 1854, during the Crimean
War, France protested in vain against a Russian loan being raised in
Amsterdam, Berlin, and Hamburg. In 1870, during the Franco-German War, a
French loan was raised in London. In 1877, during the Russo-Turkish War,
no neutral prevented his subjects from subscribing to the Russian loan.
Again, in 1904, during the Russo-Japanese War, Japanese loans were
raised in London and Berlin, and Russian loans in Paris and Berlin. The
Second Peace Conference, by enacting in article 7 of Convention V. that
a neutral is not bound to prevent the export ... of anything which can
be of use to an army or fleet, has indirectly recognised that a neutral
need not prevent the subscription on his territory to loans for
belligerents.
[Footnote 696: See Phillimore, III. § 151; Bluntschli, § 768; Heffter, §
148; Kleen, I. § 68. The case of _De Wütz_ v. _Hendricks_ (9 Moore, 586)
quoted by Phillimore in support of his assertion that neutrals must
prevent their subjects from subscribing to a loan for belligerents, is
not decisive, for Lord Chief Justice Best declared only "that it was
contrary to the Law of Nations for persons residing in this country to
enter into any agreements to raise money by way of a loan for the
purpose of _supporting subjects of a foreign State in arms against a
Government in alliance with our own_."]
But matters differ somewhat in regard to subsidies to belligerents by
subjects of neutrals. A neutral is not indeed obliged to prevent
individual subjects from granting subsidies to belligerents, just as he
is not obliged to prevent them from enlisting with either belligerent.
But if he were to allow on his territory a public appeal for
subscriptions to such subsidy, he would certainly violate his duty of
impartiality; for loans are a matter of commerce, subsidies are not. It
must, however, be emphasised that public appeals for subscriptions of
money for charitable purposes in favour of the wounded, the prisoners,
and the like, need not be prevented, even if they are only made in
favour of one of the belligerents.
The distinction between loans and subsidies is certainly correct as the
law stands at present. But there is no doubt that the fact of
belligerents having the opportunity of getting loans from subjects of
neutrals is apt to lengthen wars. The Russo-Japanese War, for instance,
would have come to an end much sooner if either belligerent could have
been prevented from borrowing money from subjects of neutrals.
Therefore, what has been said above in § 350 with regard to the supply
of arms and ammunition on the part of subjects of neutrals applies
likewise to loans: they will no longer be considered lawful when the
standard of public morality rises.
VII
SERVICES TO BELLIGERENTS
Westlake, II. pp. 219-220--Despagnet, No. 696 _bis_--Bonfils, No.
1475[1]--Ullmann, § 192--Rivier, II. pp. 388-391--Calvo, IV. §§
2640-2641--Martens, II. § 134--Perels, § 43--Kleen, I. §§
103-108--Lawrence, _War_, pp. 83-92, 218-220--Scholz, _Drahtlose
Telegraphie und Neutralität_ (1905), _passim_, and _Krieg und
Seekabel_ (1904), pp. 122-133--_Land Warfare_, §§
481-484--Kebedgy, in _R.I._ 2nd Ser. IV. (1904), pp. 445-451.
[Sidenote: Pilotage.]
§ 353. Since pilots are in the service of littoral States the question
as to whether neutrals may permit their pilots to render services to
belligerent men-of-war and transport vessels, is of importance. Article
11[697] of Convention XIII. enacts that "a neutral Power may allow
belligerent war-ships to employ its licensed pilots." Since, therefore,
everything is left to the discretion of neutrals, they will have to take
the merits and needs of every case into account. There would certainly
be no objection to a neutral allowing belligerent vessels to which
asylum is legitimately granted, to be piloted into his ports, and
likewise such vessels to be piloted through his maritime belt if their
passage is not prohibited. But a belligerent might justly object to the
men-of-war of his adversary being piloted on the Open Sea by pilots of a
neutral Power, except in a case of distress.
[Footnote 697: Germany has entered a reservation against article 11.]
It is worth mentioning that Great Britain during the Franco-German War
in 1870, prohibited her pilots from conducting German and French
men-of-war which were outside the maritime belt, except when in
distress.
[Sidenote: Transport on the part of Neutrals.]
§ 354. It is generally recognised that the duty of impartiality
incumbent upon a neutral obliges him to prevent his men-of-war and other
public vessels from rendering transport services to either belligerent.
Therefore, such vessels must neither carry soldiers nor sailors
belonging to belligerent forces, nor their prisoners of war, nor
ammunition, military or naval provisions, nor despatches. The question
as to how far such vessels are prevented from carrying enemy subjects
other than members of the forces depends upon the question whether by
carrying those individuals they render such service to one of the
belligerents as is detrimental to the other. Thus, when the Dutch
Government in 1901, during the South African War, intended to send a
man-of-war, the _Gelderland_, to President Kruger for the purpose of
conveying him to Europe, they made sure in advance that Great Britain
did not object.
The question has been raised[698] as to whether a neutral whose rolling
stock runs on the railway lines of a belligerent, may continue to leave
such rolling stock there although it is being used for the transport of
troops, war material, and the like. The answer, I believe, ought to be
in the negative, for there is no doubt that, if the rolling stock
remains on the railway lines of a belligerent, the neutral concerned is
indirectly rendering transport services to the belligerent. It is for
this reason that article 19 of Convention V. enacts that railway
material coming from the territory of neutrals shall not be
requisitioned or used by a belligerent except in the case and to the
extent required by absolute necessity.[699]
[Footnote 698: See Nowacki, _Die Eisenbahnen im Kriege_ (1906), p. 126.]
[Footnote 699: See below, § 365.]
[Sidenote: Transport on the part of Neutral Merchantmen and by neutral
rolling stock.]
§ 355. Just as a neutral is not obliged to prevent his merchantmen from
carrying contraband, so he is not obliged to prevent them from rendering
services to belligerents by carrying in the way of trade enemy troops,
and the like, and enemy despatches. Neutral merchantmen rendering such
services to belligerents do so at their own risk, for these are
unneutral services for which the merchantmen may be punished[700] by the
belligerents, but for which the neutral State under whose flag such
merchantmen sail bears no responsibility whatever.
[Footnote 700: See below, §§ 407-413.]
And the same is valid with regard to rolling stock belonging to private
railway companies of a neutral State. That such rolling stock may not,
without the consent of the companies owning it, be made use of by a
belligerent for the transport of troops, war material, and the like,
except in the case of and to the extent required by absolute necessity,
follows from article 19 of Convention V. But, if a private railway
company gives its consent, and if its rolling stock is made use of for
warlike purposes, it acquires enemy character, article 19 of Convention
V. does not apply, and the other belligerent may seize and appropriate
it as though it were the property of the enemy State.[701]
[Footnote 701: See Nowacki, _Die Eisenbahnen im Kriege_ (1906), p. 128.]
[Sidenote: Information regarding Military and Naval Operations.]
§ 356. Information regarding military and naval operations may be given
and obtained in so many various ways that several cases must be
distinguished:--
(1) It is obvious that the duty of impartiality incumbent upon a neutral
obliges him to prevent his men-of-war from giving any information to a
belligerent concerning naval operations of the other party. But a
neutral bears no responsibility whatever for private vessels sailing
under his flag which give such information. Such vessels run, however,
the risk of being punished for rendering unneutral service.[702]
[Footnote 702: See below, §§ 409 and 410, and articles 45, Nos. 1 and 2,
and 46, No. 4, of the Declaration of London.]
(2) It is likewise obvious that his duty of impartiality must prevent a
neutral from giving information concerning the war to a belligerent
through his diplomatic envoys, couriers, and the like. But the question
has been raised as to whether a neutral is obliged to prevent
couriers[703] from carrying despatches for a belligerent over his
neutral territory. I believe the answer must be in the negative, at
least so far as those couriers in the service of diplomatic envoys and
such agents as carry despatches from a State to its head or to
diplomatic envoys abroad are concerned. Since they enjoy--as stated
above, Vol. I. §§ 405 and 457--inviolability for their persons and
official papers, a neutral cannot interfere and find out whether these
individuals carry information to the disadvantage of the enemy.
[Footnote 703: See Calvo, § 2640.]
(3) According to article 8 of Convention V. "a neutral Power is not
bound to forbid or restrict the employment, on behalf of belligerents,
of telegraph or telephone cables, or of wireless telegraphy apparatus
whether belonging to it, or to companies, or to private individuals."
Since, therefore, everything is left to the discretion of the neutral
concerned, he will have to take the merits and needs of every case into
consideration, and act accordingly. But so much is certain that a
belligerent may not categorically request neutrals to forbid or restrict
such employment of their telegraph wires and the like on the part of his
adversary.
The case is different when a belligerent intends to arrange the
transmitting of messages through a submarine cable purposely laid over
neutral territory or through telegraph and telephone wires purposely
erected on neutral territory. This would seem to be an abuse of neutral
territory, and the neutral must prevent it. Accordingly, when in 1870,
during the Franco-German War, France intended to lay a telegraph cable
from Dunkirk to the North of France, the cable to go across the Channel
to England and from there back to France, Great Britain refused her
consent on account of her neutrality. And again in 1898, during war
between Spain and the United States of America, when the latter intended
to land at Hong Kong a cable proposed to be laid from Manila, Great
Britain refused her consent.[704]
[Footnote 704: See Lawrence, _War_, p. 219.]
The case is likewise different when a belligerent intends to erect in a
neutral country, or in a neutral port or neutral waters, a wireless
telegraphy station or any apparatus intended as a means of communication
with belligerent forces on land or sea, or to make use of any
installation of this kind established by him before the outbreak of war
for purely military purposes, and not previously opened for the service
of the public generally. According to articles 3 and 5 of Convention V.
and article 5 of Convention XIII., a neutral is bound to prohibit this.
The case which occurred in 1904, during the Russo-Japanese War and the
siege of Port Arthur, when the Russians installed an apparatus for
wireless telegraphy in Chifu and communicated thereby with the besieged,
constituted a violation of neutrality.
(4) It is obvious that his duty of impartiality must prevent a neutral
from allowing belligerents to establish intelligence bureaux on his
territory. On the other hand, a neutral is not obliged to prevent his
subjects from giving information to belligerents, be it by letter,
telegram, telephone, or wireless telegraphy. In especial a neutral is
not obliged to prevent his subjects from giving information to
belligerents by wireless telegraphy apparatus installed on a neutral
merchantman. Such individuals run, however, the risk of being punished
as spies, provided they act clandestinely or under false pretences, and
the vessel concerned is subject to the risk of being captured and
confiscated for rendering unneutral service.
Stress must be laid on the fact that newspaper correspondents making use
of wireless telegraphy from on board neutral merchantmen for the purpose
of sending news to their papers,[705] may not be treated as spies, and
the merchantmen concerned may not be confiscated, although belligerents
need by no means allow the presence of such vessels at the seat of war.
Thus, during the Russo-Japanese War, the _Haimun_, a vessel fitted with
a wireless telegraphy apparatus for the service of the _Times_, was
ordered away by the Japanese. But, of course, an individual can at the
same time be a correspondent for a neutral newspaper and a spy, and he
may then be punished for espionage.
[Footnote 705: See Lawrence, _War_, pp. 84-88. On newspaper
correspondents generally in naval warfare, see Higgins, _War and the
Private Citizen_ (1912), pp. 91-114, and in _Z.V._ VI. (1912), pp.
19-28, and the literature and cases there cited.]
VIII
VIOLATION OF NEUTRALITY
Hall, §§ 227-229--Lawrence, §§ 233, 238, 239--Phillimore, III. §§
151A-151B--Taylor, §§ 630 and 642--Wharton, III. §§ 402,
402A--Wheaton, §§ 429-433--Moore, VII. §§ 1319-1328,
1334-1335--Bluntschli, §§ 778-782--Heffter, § 146--Geffcken in
Holtzendorff, IV. pp. 667-676, 700-709--Ullmann, § 191--Bonfils,
No. 1476--Despagnet, No. 697--Pradier-Fodéré, No. 3235--Rivier,
II. pp. 394-395--Calvo, IV. §§ 2654-2666--Fiore, III. Nos.
1567-1570--Martens, II. § 138--Kleen, I. § 25--Dupuis, Nos.
332-337.
[Sidenote: Violation of Neutrality in the narrower and in the wider
sense of the Term.]
§ 357. Many writers who speak of violation of neutrality treat under
this head only of violations of the duty of impartiality incumbent upon
neutrals. And indeed such violations only are meant, if one speaks of
violation of neutrality in the narrower sense of the term. However, it
is necessary for obvious reasons to discuss not only violations of the
duty of impartiality of neutrals, but violations of all duties deriving
from neutrality, whether they are incumbent upon neutrals or upon
belligerents. In the wider sense of the term violation of neutrality
comprises, therefore, every performance or omission of an act contrary
to the duty of a neutral towards either belligerent as well as contrary
to the duty of either belligerent towards a neutral. Everywhere in this
treatise the term is used in its wider sense.
It is important to remember that violations of neutrality on the part of
belligerents must not be confounded with violations of the laws of war
by which subjects of neutral States suffer damage. If, for instance, an
occupant levies excessive contributions from subjects of neutral States
domiciled in enemy country in contravention of article 49 of the Hague
Regulations, this is a violation of the Laws of War, for which,
according to article 3 of Convention IV., the belligerent concerned
must pay compensation, but it is not a violation of neutrality.
[Sidenote: Violation in contradistinction to End of Neutrality.]
§ 358. Violation of neutrality must not be confounded with the ending of
neutrality,[706] for neither a violation on the part of a neutral[707]
nor a violation on the part of a belligerent brings _ipso facto_
neutrality to an end. If correctly viewed, the condition of neutrality
continues to exist between a neutral and a belligerent in spite of a
violation of neutrality. It must be emphasised that a violation of
neutrality contains nothing more than a breach of a duty deriving from
the condition of neutrality. This applies not only to violations of
neutrality by negligence, but also to those by intention. Even in an
extreme case in which the violation of neutrality is so great that the
offended party considers war the only adequate measure in answer to it,
it is not the violation which brings neutrality to an end, but the
determination of the offended party. For there is no violation of
neutrality so great as to oblige the offended party to make war in
answer to it, such party having always the choice whether it will keep
up the condition of neutrality or not.
[Footnote 706: See above, § 312.]
[Footnote 707: But this is almost everywhere asserted, as the
distinction between the violation of the duty of impartiality incumbent
upon neutrals on the one hand, and on the other, the ending of
neutrality, is usually not made.]
But this applies only to mere violations of neutrality, and not to
hostilities. The latter are acts of war and bring neutrality to an end;
they have been characterised in contradistinction to mere violations
above in § 320.
[Sidenote: Consequences of Violations of Neutrality.]
§ 359. Violations of neutrality, whether committed by a neutral against
a belligerent or by a belligerent against a neutral, are international
delinquencies.[708] They may at once be repulsed, the offended party may
require the offender to make reparation, and, if this is refused, it may
take such measures as it thinks adequate to exact the necessary
reparation.[709] If the violation is only slight and unimportant, the
offended State will often merely complain. If, on the other hand, the
violation is very substantial and grave, the offended State will perhaps
at once declare that it considers itself at war with the offender. In
such case it is not the violation of neutrality which brings neutrality
to an end, but the declaration of the offended State that it considers
the violation of so grave a character as to oblige it to regard itself
at war with the offender.
[Footnote 708: See above, vol. I. § 151.]
[Footnote 709: See above, vol. I. § 156.]
That a violation of neutrality can only, like any other international
delinquency, be committed by malice or culpable negligence,[710] and
that it can be committed through a State's refusing to comply with the
consequences of its "vicarious" responsibility for acts of its agents or
subjects,[711] is a matter of course. Thus, if a belligerent fleet
attacks enemy vessels in neutral territorial waters without an order
from its Government, the latter bears "vicarious" responsibility for
this violation of neutral territory on the part of its fleet. If the
Government concerned refuses to disown the act of its fleet and to make
the necessary reparation, this "vicarious" responsibility turns into
"original" responsibility, for a case of violation of neutrality and an
international delinquency has then arisen. And the same is valid if an
agent of a neutral State without an order of his Government commits such
an act as would constitute a violation of neutrality in case it were
ordered by the Government; for instance, if the head of a province of a
neutral, without thereto being authorised by his Government, allows
forces of a belligerent to march through this neutral territory.
[Footnote 710: See above, vol. I. § 154.]
[Footnote 711: See above, vol. I. § 150.]
[Sidenote: Neutrals not to acquiesce in Violations of Neutrality
committed by a Belligerent.]
§ 360. It is entirely within the discretion of a belligerent whether he
will acquiesce in a violation of neutrality committed by a neutral in
favour of the other belligerent. On the other hand, a neutral may not
exercise the same discretion regarding a violation of neutrality
committed by one belligerent and detrimental to the other. His duty of
impartiality rather obliges him in the first instance to prevent, with
the means at his disposal, the belligerent concerned from committing
such violation; for instance, to repulse an attack of men-of-war of a
belligerent on enemy vessels in neutral ports. Thus article 3 of
Convention XIII. 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." And in case he could not prevent and repulse a violation of his
neutrality, the same duty obliges him to exact due reparation from the
offender,[712] for otherwise he would favour the one party to the
detriment of the other. If a neutral neglects this obligation, he is
thereby committing a violation of neutrality on his part for which he
may be made responsible by such belligerent as has suffered through the
violation of neutrality committed by the other belligerent and
acquiesced in by the neutral. For instance, if belligerent men-of-war
seize enemy vessels in ports of a neutral, and if the neutral, who could
not or did not prevent this, exacts no reparation from the belligerent
concerned, the other party may make the neutral responsible for the
losses sustained.
[Footnote 712: See articles 25 and 26 of Convention XIII. This duty is
nowadays universally recognised, but before the nineteenth century it
did not exist, although the rule that belligerents must not commit
hostilities on neutral territory, and in especial in neutral ports and
waters, was well recognised. That in spite of its recognition this rule
was in the eighteenth century frequently infringed by commanders of
belligerent fleets, may be illustrated by many cases. Thus, for
instance, in 1793, the French frigate _Modeste_ was captured in the
harbour of Genoa by two British men-of-war (see Hall, § 220). And in
1801, during war against Sweden, a British frigate captured the _Freden_
and three other Swedish vessels in the Norwegian harbour of Oster-Risoer
(see Ortolan, II. pp. 413-418).]
[Sidenote: Case of the _General Armstrong_.]
§ 361. Some writers[713] maintain that a neutral is freed from
responsibility for a violation of neutrality through a belligerent
attacking enemy forces in neutral territory, in case the attacked
forces, instead of trusting for protection or redress to the neutral,
defend themselves against the attack. This rule is adopted from the
arbitral award in the case of the _General Armstrong_. In 1814, during
war between Great Britain and the United States of America, the American
privateer _General Armstrong_, lying in the harbour of Fayal, an island
belonging to the Portuguese Azores, defended herself against an attack
of an English squadron, but was nevertheless captured. The United States
claimed damages from Portugal because the privateer was captured in a
neutral Portuguese port. Negotiations went on for many years, and the
parties finally agreed in 1851 upon arbitration to be given by Louis
Napoleon, then President of the French Republic. In 1852 Napoleon gave
his award in favour of Portugal, maintaining that, although the attack
on the privateer in neutral waters comprised a violation of neutrality,
Portugal could not be made responsible, on account of the fact that the
attacked privateer chose to defend herself instead of demanding
protection from the Portuguese authorities.[714] It is, however, not at
all certain that the rule laid down in this award will find general
recognition in theory and practice.[715]
[Footnote 713: See, for instance, Hall, § 228, and Geffcken in
Holtzendorff, IV. p. 701.]
[Footnote 714: See Moore, _Arbitrations_, II. pp. 1071-1132; Calvo, IV.
§ 2662; and Dana's note 208 in Wheaton, § 429.]
[Footnote 715: The case of the _Reshitelni_, which occurred in 1904,
during the Russo-Japanese War, and is somewhat similar to that of the
_General Armstrong_, is discussed above in § 320 (2). That no violation
of neutrality took place in the case of the _Variag_ and _Korietz_, is
shown above in § 320 (1).]
[Sidenote: Mode of exacting Reparation from Belligerents for Violations
of Neutrality.]
§ 362. It is obvious that the duty of a neutral not to acquiesce in
violations of neutrality committed by one belligerent to the detriment
of the other obliges him to repair, so far as he can, the result of such
wrongful acts. Thus, he must liberate[716] a prize taken in his neutral
waters, or prisoners made on his territory, and the like. In so far,
however, as he cannot, or not sufficiently, undo the wrong done, he must
exact reparation from the offender. Now, no general rule can be laid
down regarding the mode of exacting such reparation, since everything
depends upon the merits of the individual case. Only as regards capture
of enemy vessels in neutral waters has a practice grown up, which must
be considered binding, and according to which the neutral must claim the
prize, and eventually damages, from the belligerent concerned, and must
restore her to the other party. Thus in 1800, during war between Great
Britain and the Netherlands, Prussia claimed before the British Prize
Court the _Twee Gebroeders_,[717] a Dutch vessel captured by the British
cruiser _L'Espiègle_ in the neutral maritime belt of Prussia. Sir
William Scott ordered restoration of the vessel, yet he refused costs
and damages, because the captor had not violated Prussian neutrality
intentionally but only by mistake and misapprehension. Thus again, in
1805, during war between Great Britain and Spain, the United States
claimed before the British Prize Court the _Anna_,[718] a Spanish vessel
captured by the English privateer _Minerva_ within their neutral
maritime belt. Thus, further, in 1864, during the American Civil War,
when the Confederate cruiser _Florida_ was captured by the Federal
cruiser _Wachuset_ in the neutral Brazilian port of Bahia, Brazil
claimed the prize. As the latter had sunk while at anchor in Hampton
Roads, she could not be restored, but the United States expiated the
violation of neutrality committed by her cruiser by court-martialing
the commander; further, by dismissing her Consul at Bahia for having
advised the capture; and, finally, by sending a man-of-war to the spot
where the violation of neutrality had taken place for the special
purpose of delivering a solemn salute to the Brazilian flag.[719]
[Footnote 716: See article 3 of Convention XIII.]
[Footnote 717: 3 C. Rob. 162.]
[Footnote 718: 5 C. Rob. 373. See above, vol. I. § 234.]
[Footnote 719: See Moore, VII. § 1334, p. 1090.]
[Sidenote: Negligence on the part of Neutrals.]
§ 363. Apart from intentional violations of neutrality, a neutral can be
made responsible only for such acts favouring or damaging a belligerent
as he could by due diligence have prevented, and which by culpable
negligence he failed to prevent. It is by no means obligatory for a
neutral to prevent such acts under all circumstances and conditions.
This is in fact impossible, and it becomes more obviously so the larger
a neutral State, and the longer its boundary lines. So long as a neutral
exercises due diligence for the purpose of preventing such acts, he is
not responsible in case they are nevertheless performed. However, the
term _due diligence_ has become controversial through the definition
proffered by the United States of America in interpreting the Three
Rules of Washington, and through the Geneva Court of Arbitration
adopting such interpretation.[720] According to this interpretation the
_due diligence_ of a neutral _must be in proportion to the risks to
which either belligerent may be exposed from failure to fulfil the
obligations of neutrality on his part_. Had this interpretation been
generally accepted, the most oppressive obligations would have become
incumbent upon neutrals. But no such general acceptance has taken place.
The fact is that _due diligence_ in International Law can have no other
meaning than it has in Municipal Law. It means _such diligence as can
reasonably be expected when all the circumstances and conditions of the
case are taken into consideration_.
[Footnote 720: See above, § 335.]
Be that as it may, the Second Peace Conference has taken a step which
certainly excludes for the future the continuation of the controversy
regarding the interpretation of _due diligence_, for articles 8 and 25
of Convention XIII., instead of stipulating due diligence on the part of
neutrals, stipulate _the employment of the means at their disposal_.
[Sidenote: Laying of Submarine Contact Mines by Neutrals.]
§ 363_a_. In order to defend themselves against possible violations of
their neutral territory, neutrals may lay automatic contact mines off
their coasts. If they do this, they must, according to article 4 of
Convention VIII., observe the same rules and take the same precautions
as are imposed upon belligerents, and as have been expounded above, §
182_a_. Moreover they must, according to paragraph 2 of article 4 of
Convention VIII., give notice in advance to mariners of the place where
automatic contact mines have been laid, and this notice must be
communicated at once to the Governments through the diplomatic channels.
Convention VIII. is quite as unsatisfactory in its rules concerning
mines laid by neutrals as in its rules concerning mines laid by
belligerents, and the danger to neutral shipping created by mines laid
by neutrals is very great, all the more as the laying of mines by
neutrals is not restricted to their maritime belt. For article 4 of
Convention VIII. speaks of the laying of contact mines on the part of
neutral Powers _off their coasts_, without limiting the laying within
the three-mile wide maritime belt as was proposed at the Second Peace
Conference, and as article 6[721] of the _Règlementation internationale
de l'Usage des Mines sous-marines et torpilles_ of the Institute of
International Law likewise proposes.
[Footnote 721: See _Annuaire_, XXIV. (1911), p. 302.]
IX
RIGHT OF ANGARY
Hall, § 278--Lawrence, § 233--Westlake, II. p. 119--Phillimore,
III. § 29--Halleck, I. p. 485--Taylor, § 641--Walker, §
69--Bluntschli, § 795A--Heffter, § 150--Bulmerincq in
Holtzendorff, IV. pp. 98-103--Geffcken in Holtzendorff, IV. pp.
771-773--Ullmann, § 192--Bonfils, No. 1440--Despagnet, No.
494--Rivier, II. pp. 327-329--Kleen, II. §§ 165 and 230--Perels, §
40--Hautefeuille, III. pp. 416-426--Holland, _War_, Nos.
139-140--_Land Warfare_, §§ 507-510--Albrecht, _Requisitionen von
neutralem Privateigenthum, insbesondere von Schiffen_ (1912), pp.
24-66.
[Sidenote: The Obsolete Right of Angary.]
§ 364. Under the term _jus angariae_[722] many writers on International
Law place the right, often claimed and practised in former times, of a
belligerent deficient in vessels to lay an _embargo_ on and seize
neutral merchantmen in his harbours, and to compel them and their crews
to transport troops, ammunition, and provisions to certain places on
payment of freight in advance.[723] This practice arose in the Middle
Ages,[724] and was made much use of by Louis XIV. of France. To save the
vessels of their subjects from seizure under the right of angary, States
began in the seventeenth century to conclude treaties by which they
renounced such right with regard to each other's vessels. Thereby the
right came into disuse during the eighteenth century. Many writers[725]
assert, nevertheless, that it is not obsolete, and might be exercised
even to-day. But I doubt whether the Powers would concede to one another
the exercise of such a right. The facts that no case happened in the
nineteenth century and that International Law with regard to rights and
duties of neutrals has become much more developed during the eighteenth
and nineteenth centuries, would seem to justify the opinion that such
angary is now probably obsolete,[726] although some writers[727] deny
this.
[Footnote 722: The term _angaria_, which in medieval Latin means _post
station_, is a derivation from the Greek term ἄγγαρος for
messenger. _Jus angariae_ would therefore literally mean a right of
transport.]
[Footnote 723: See above, § 40.]
[Footnote 724: On the origin and development of the _jus angariae_, see
Albrecht, _op. cit._ pp. 24-37.]
[Footnote 725: See, for instance, Phillimore, III. § 29; Calvo, III. §
1277; Heffter, § 150; Perels, § 40.]
[Footnote 726: See Article 39 of the "Règlement sur le régime légal des
navires ... dans les ports étrangers" adopted by the Institute of
International Law (_Annuaire_, XVII. 1898, p. 272): "Le droit d'angarie
est supprimé, soit en temps de paix, soit en temps de guerre, quant aux
navires neutres."]
[Footnote 727: See Albrecht, _op. cit._ pp. 34-37.]
[Sidenote: The Modern Right of Angary.]
§ 365. In contradistinction to this probably obsolete right to compel
neutral ships and their crews to render certain services, the modern
right of angary consists in the right of belligerents to make use of, or
destroy in case of necessity, _for the purpose of offence and defence_,
neutral property on their own or on enemy territory or on the Open Sea.
In case property of subjects of neutral States is vested with enemy
character,[728] it is not neutral property in the strict sense of the
term neutral, and all rules respecting appropriation, utilisation, and
destruction of enemy property obviously apply to it. The object of the
right of angary is _such property of subjects of neutral States as
retains its neutral character from its temporary position on belligerent
territory and which therefore is not vested with enemy character_. All
sorts of neutral property, whether it consists of vessels or other[729]
means of transport, or arms, ammunition, provisions, or other personal
property, may be the object of the right of angary, provided the
articles concerned are serviceable to military ends and wants. The
conditions under which the right may be exercised are the same as those
under which private enemy property may be utilised or destroyed, but in
every case the neutral owner must be fully indemnified.[730]
[Footnote 728: See above, § 90.]
[Footnote 729: Thus in 1870, during the Franco-German War, the Germans
seized hundreds of Swiss and Austrian railway carriages in France and
made use of them for military purposes.]
[Footnote 730: See article 6 of U.S. Naval War Code:--"If military
necessity should require it, neutral vessels found within the limits of
belligerent authority may be seized and destroyed, or otherwise used for
military purposes, but in such cases the owners of the neutral vessels
must be fully recompensed. The amount of the indemnity should, if
practicable, be agreed upon in advance with the owner or master of the
vessel; due regard must be had for treaty stipulations upon these
matters." See also Holland, _War_, No. 140.]
A remarkable case[731] happened in 1871 during the Franco-German War.
The Germans seized some British coal-vessels lying in the river Seine at
Duclair, and sank them for the purpose of preventing French gunboats
from running up the river. On the intervention of the British
Government, Count Bismarck refused to recognise the duty of Germany to
indemnify the owners of the vessels sunk, although he agreed to pay
indemnities.
[Footnote 731: See Albrecht, _op. cit._ pp. 45-48.]
However, it may safely be maintained that a duty to pay indemnities for
any damage done by exercising the right of angary must nowadays be
recognised. Article 53 of the Hague Regulations stipulates the payment
of indemnities for the seizure and utilisation of all appliances adapted
to the transport of persons or goods which are the private property of
inhabitants of occupied enemy territory, and article 52 of the Hague
Regulations stipulates payment for requisitions; if, thus, the immunity
from confiscation of private property of inhabitants is recognised, all
the more must that of private neutral property temporarily on occupied
enemy territory be recognised also.
[Sidenote: Right of Angary concerning Neutral Rolling Stock.]
§ 366. A special case of the right of angary has found recognition by
article 19 of Convention V. of the Second Peace Conference enacting that
railway material coming from the territory of a neutral Power, whether
belonging to the neutral State or to companies or private persons, shall
not be requisitioned or utilised by a belligerent, _except in the case
of and to the extent required by absolute necessity_, that it shall as
soon as possible be sent back to the country of origin, and that
compensation shall be paid for its use.[732] But it must be mentioned
that article 19 gives a right to a neutral Power, whose railway
material has been requisitioned by a belligerent, to retain and make use
of, to a corresponding extent, railway material coming from the
territory of the belligerent concerned.
[Footnote 732: See Nowacki, _Die Eisenbahnen im Kriege_ (1906), pp.
115-126, and Albrecht, _op. cit._ pp. 22-24.]
[Sidenote: Right of Angary not deriving from Neutrality.]
§ 367. Whatever the extent of the right of angary may be, it does not
derive from the law of neutrality. The correlative duty of a belligerent
to indemnify the neutral owner of property appropriated or destroyed by
the exercise of the right of angary does indeed derive from the law of
neutrality. But the right of angary itself is rather a right deriving
from the law of war. As a rule this law gives, under certain
circumstances and conditions, the right to a belligerent to seize, make
use of, or destroy private property of inhabitants only of occupied
enemy territory, but under other circumstances and conditions, and very
exceptionally, it likewise gives a belligerent the right to seize, use,
or destroy such neutral property as is temporarily on occupied enemy
territory.