XXIX neighborhood of the coasts, afford absolute certainty that the boats CHAP. will reach the nearest port." The promise was, however, made 1 with reference to neutral prizes. In the case of enemy prizes the obligation of protecting human life, while recognized in principle, was, in the view of the German Government, not always possible of strict fulfilment, even in the case of unarmed vessels, since their calls for help made it necessary at times for the submarine to take prompt action. In the case of the British vessel Falaba, sunk on March 28, 1915, with a loss of 104 persons, it was alleged by Germany that "the captain disregarded the order to lay to and took to flight, sending up rocket signals for help." The torpedo was not fired "until suspicious steamers were hurrying to the aid of the Falaba." In the case of the Ancona, sunk on November 7, 1915, the Austro-Hungarian Government claimed that the loss of life was due to the failure of the vessel to heed the warning to stop, and to other circumstances not the fault of the submarine. In these as in other cases the principle of law thus remained in the background, and it became a question of fact, not readily determinable under the circumstances, whether the individual commander had fulfilled the obligation incumbent upon him or had been guilty of wilful and inhuman conduct. So conditioned, the responsibility of the belligerent state became elusive.* In view of the suffering and loss of life on the part of noncombatants and of the unwarranted damage to neutral shipping caused by the methods of warfare pursued by the German submarines, the Washington Conference on the Limitation of Armaments in 1921-22 undertook to lay down specific rules governing the use of the submarine in the future. The British delegation proposed that since the use of the submarine, while of small value for defensive purposes, inevitably led to violations of the laws of war, "united action should be taken by all nations to forbid their maintenance, construction or employment." To this extreme posi Am. White Book, III, 316. Ibid., II, 169 ff. 3 Ibid., IV, 178 ff. In its note of protest the United States had asserted that "the conduct of the commander can only be characterized as wanton slaughter of defenseless non-combatants, since at the time when the vessel was shelled and torpedoed she was not, it appears, resisting or attempting to escape. Ibid., 175. 4 The student should draw, here as elsewhere, a distinction between the principles which belligerents announce as guiding their conduct and the actual conduct observed by them. The principles represent the rule of law as the state interprets it, whether or not obeyed in the particular emergency. The chief object of the text is to present the principles recognized. 1. Outlawry of subma rines as commerce destroyers CHAP. tion the United States delegation was opposed, and offered as an alternative that laws should be drawn up prescribing the methods of procedure to be followed by submarines against merchant vessels both belligerent and neutral. The decision taken by the conference was incorporated in a treaty signed on February 6, 1922.1 The treaty applies to the submarine the existing rules, "deemed to be an established part of international law," as regards the visit and search of merchant vessels, and requires that if a submarine cannot conform to them it must desist from attack and permit the merchant vessel to proceed unmolested. Other states are called upon to assent to the same statement of established law.3 Further, the contracting powers, recognizing the practical impossibility of using submarines as commerce-destroyers without violating the laws of war, prohibited as between themselves the use of submarines for that purpose and called upon other powers to adhere to the prohibition.* For the text of the treaty, see Am. Journal, XVI (1922), Supp., 57. 'Art. I. In ratifying the treaty France entered a reservation to the effect that its provisions were not to apply to an armed merchantman. 'Art. II. Art. IV. Art. III undertakes to make any person in the service of any power who violates the rules laid down, whether or not acting under the orders of a governmental superior, liable to trial and punishment "as if for an act of piracy." See below, p. 579. For comment on the treaty, see "Conference on the Limitation of Armament: Report of the American Delegation," Am. Journal, XVII (1922), 159, 185. CHAPTER XXX THE RELATION OF NEUTRAL STATES TO BELLIGERENTS principles trality: rights The procedure of war is, as has been seen, a legally recognized a. General means of coercion for the maintenance of rights or the redress of neuof wrongs. In the absence of a recognition of collective responsi- neutral bility on the part of the community of nations, and of an organization to give effect to it, each state may determine for itself the conditions under which resort to such procedure is expedient, as well as legal, and its action in so doing is restricted only by the general sanctions of international law against arbitrary conduct.1 Resort to the procedure of war, however, necessarily brings the parties to the conflict, plaintiff and defendant states alike, into new relations with third states. On the one hand, international law recognizes the right of third states to remain aloof from the conflict. While it is their option to take sides with one or other of the belligerents if they find it to their essential interest to do so, it is also their right to declare that the war is one in which they have no legal concern. In taking this latter position third states acquire the inferential right to have their position of neutrality respected by the belligerents, together with a number of subordinate rights necessary to the enjoyment of their primary right. These rights of neutral states obviously give rise to corresponding duties on the part of belligerents to observe them. 2 rights On the other hand, international law recognizes the right of the Belligerent belligerent state to hold third states to the observance of certain duties corresponding to the position of neutrality they have assumed. The claim of the neutral state to have its neutrality. respected must be accompanied, not only by a negative attitude. of non-interference, but by positive measures to prevent the commission within its territory of acts which have come to be regarded See above, p. 381. This attitude is formally taken by the publication of a "proclamation of neutrality," setting forth the fact that certain states are at war, and that the neutral state is on terms of friendship with them and proposes to remain so. American proclamations include a summary of the obligations incumbent upon the citizen body in pursuance of the laws enacted for the maintenance of neutrality. For a sample proclamation, see Am. Journal, IX (1915), Supp., 110. СНАР. XXX b. Conflict between belligerent and neutral rights as in contravention of neutrality. Belligerent right and neutral duty are here correlative; but in consequence of the greater convenience to governments of discussing neutral conduct in terms of positive acts, international practice has defined the scope of belligerent rights of this character in terms of neutral duties.1 In addition to the belligerent right to hold the neutral to its position of neutrality, international law has recognized that a belligerent cannot carry on war effectively without interfering in some degree with the normal intercourse between neutral citizens and the enemy state. It therefore calls upon neutral states to acquiesce in the imposition upon their citizens of certain restrictions in their commercial and social relations with the enemy state which are incidental to the successful prosecution of hostilities by the belligerent. These restrictions are principally the result of the application of the belligerent right to blockade enemy ports and to prevent the carriage to the enemy of contraband goods." The conflict between belligerents and neutrals as to their respective rights and duties fills a large place in the history of international relations of the past two centuries. Belligerents, on their part, have been reluctant to observe the rights of neutral states. Until the seventeenth century, when the conception of sovereignty began to take more definite shape, acts of war were freely committed within the territory of weaker neutral states; and even when the theory of neutral rights came to be generally accepted the practice of belligerents failed to conform to it. Ships were attacked in neutral territorial waters, belligerent troops were marched through neutral territory, and defeated enemy troops were pursued into it.* 3 At the same time, neutral states on their part had but an inadequate conception of the obligations now regarded as legally consequent upon the status of neutrality. Grotius devoted but a brief chapter to the status of those whom he described by the expressions, qui in bello medii sunt; qui extra bellum sunt positi. It seemed consistent to him that a state might remain neutral, and yet pass upon the justice of the war in progress and modify its neutral conduct accordingly. During this period the duties of a 1See below, Chap. XXXIII. 'See below, Chap. XXXII. 'For instances, see Hall, International Law, § 209. "It is the duty of neutrals, " he said, "to do nothing to strengthen those who are prosecuting an unjust cause, or which may impede the movements of him who is carrying on a just war. But if the cause is a doubtful one they must manifest an impartial attitude towards both sides, in permitting them to XXX neutral state were for the most part determined, not by fixed in- CHAP. ternational custom, but by treaties between individual states, by which each state sought to prevent third parties from giving help to the enemy in the event of a possible war.1 regard for rights By the middle of the eighteenth century the increasing recog- Increasing nition of the principle of territorial sovereignty resulted in fewer neutral instances of the commission of hostilities by belligerents in neutral territory, and publicists were explicit in affirming a rule of law upon the subject. On the other hand, the conception of neutral duty was still defective. Bynkershoek, writing in 1737, thought that "the purchase of soldiers among a friendly people is as lawful as the purchase of munitions of war"; 3 while Vattel, writing in 1758, thought that a sovereign might give to a belligerent "the moderate assistance which he owes in virtue of a former defensive alliance' without thereby becoming a party to the war. Moreover, levies of troops might be permitted and loans of money made in favor of one belligerent as against the other where the neutral nation believed that it had good reasons for the discrimination.* Apart from these exceptions, Vattel formulated clearly the two fundamental principles of neutral duty, (1) that in all matters connected with the war a neutral state must abstain from helping either party, and (2) that in matters not connected with the war a neutral state must not refuse to one of the belligerents what it grants to the other." state of From the time of Vattel down to the present day the inviola- c. Present bility of neutral territory has been clearly recognized in principle, the law though occasionally violated in practice. On the side of neutral duty there has been a gradual strengthening of the obligation of the neutral state, not only to refrain in its corporate capacity from rendering assistance to either party, but to take active measures to restrain its citizens and those within its jurisdiction from performing acts which would compromise its neutrality. In this latter respect the Neutrality Act passed by the United States in 1794 is conspicuous for its clear formulation of neutral obligations." As against this consistent development of the law there has been a constant struggle between belligerents and neutrals with respect pass through the country, in supplying their troops with provisions, and in not relieving the besieged." Bk. III, Chap. XVII, 3. For a list of such treaties, see Hall, op. cit., § 208. 'See Vattel, III, § 132. 'Quæstiones Juris Publica, Lib. I, Cap. 22. 'Bk. III, § § 104-105. Ibid. 'See below, p. 561. |