CHAP. XXX

d. Neutrality

under the Covenant of the League

of Nations

to the legality of the interference by belligerents with neutral commerce. Belligerents with powerful navies have endeavored to extend the scope of the rules of blockade and contraband in order to bring the sharpest possible economic pressure to bear upon the enemy. On the other hand, the growth of commercial relations has made neutrals more than ever reluctant to submit to the restraints imposed upon their commerce by a war in which they have no immediate concern.1

It remains to be seen how far the establishment of the League of Nations will modify the fundamental principles of the law of neutrality. A number of the provisions of the Covenant, taken in their literal bearing, run counter to the primary conception of neutrality. The principle of the collective responsibility of the League as a whole for the maintenance of international peace negatives the traditional right of a sovereign state to use its individual judgment with respect to the issues of the war and to stand apart from the conflict if it should find it to its interest to do so. Article 11 of the Covenant states that "any war or threat of war, whether immediately affecting any of the high contracting parties or not, is hereby declared to be a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations." While the obligation of collective intervention here assumed is not absolute, it gives to such intervention a legal character, and it makes the neutrality of the individual state dependent in principle, if not in fact, upon the decision of the League rather than upon its own personal judgment.

More explicit abandonment of the right of individual neutrality is seen in the case, provided for in Article 16, in which a member of the League resorts to war in violation of the agreement to arbitrate contained in Article 12 of the Covenant. Such a state shall thereby "ipso facto be deemed to have committed an act of war against all other members of the League," and the latter shall forthwith discontinue trade and financial relations with the offending state. Again, the obligation assumed by Article 10, "to respect and preserve as against external aggression the territorial integrity and existing political independence of all members of the League" is incompatible with neutrality in the event of wars re

For general comment, see M. W. Graham, Jr., "Neutrality and the World War," Am. Journal, XVII (1923), 704.

See above, p. 48.

XXX

garded as coming within the terms of the agreement. In view, CHAP. however, of the uncertain practical effectiveness of the League of Nations, because of the individual veto power of its members, and in view of the technical loopholes of escape left between its several articles, legal as well as illegal resort to war is still possible. In consequence, neutrality may be still a legal attitude both for members of the League and for states not members of the League but governed by the old customary law.

a. Inviola. bility of neutral territory

CHAPTER XXXI

NEUTRAL RIGHTS

By direct inference from the right of a state to remain neutral in a given war is the right to maintain the integrity of its territory as against the commission therein of acts of hostility by either of the belligerents. This right, as has been seen, is implicit in the conception of sovereignty. Both the Hague Conventions confirm the customary law in this respect. The Convention (V) concerning the Rights and Duties of Neutral Powers and Persons in War on Land declares that "the territory of neutral Powers is inviolable"; while the Convention (XIII) respecting the Rights and Duties of Neutral Powers in Naval War lays down the same rule in terms of the duty of the belligerent "to respect the sovereign rights of neutral Powers" and to abstain "from any act which would, if knowingly permitted by any Power, constitute a violation of neutrality." In both conventions the right of the neutral to resist by force attempts to violate its neutrality is specifically declared not to constitute a hostile act.3

1

Where violations of neutral territory have been perpetrated by belligerent commanders, reparation by way of apology and redress is due from the belligerent state. In the case of the Confederate cruiser Florida, which in 1864 was captured in Brazilian waters by the United States man-of-war Wachusett, the United States admitted that the capture was "an unauthorized, unlawful, and indefensible exercise of the naval force of the United States, within a foreign country, in defiance of its established and duly recognized government." Due apology was made, the commander of the Wachusett was sent before a court martial, and the crew of the Florida were set at liberty. As the vessel itself had foundered in Hampton Roads, it could not be restored, but no obligation to make substitution or pecuniary compensation was recognized. In the case of the Chesapeake, a passenger steamer which had been captured in 1865 by certain persons acting in the interest of the

XXXI

Confederate States, and was subsequently seized in British terri- CHAP. torial waters by a United States cruiser, the United States disclaimed "any exercise whatever of authority, by its agents, within the waters or on the soil of Nova Scotia."'1

of neutral

in self

Under what circumstances the right of self-defense might justify Violations a belligerent in committing an act of hostility within neutral terri- territory tory is a political rather than a legal question.2 During the Russo- defense Japanese War, Manchuria and Korea became the actual theater of war, although both were technically neutral territory. Japan's justification was that neither China nor Korea was able to protect herself from the control by Russia which it was the very object of Japan in the war to break. More doubtful was the justification offered by Japan for the violation of Chinese neutrality during the attack upon Kiau-chau in 1914. Whether, under other conditions, such as the massing of large numbers of French troops upon the western boundary of Belgium in 1914, Germany would have been justified in anticipating an attack from that quarter, is a question outside the range of international law.

An exceptional case in maritime warfare is to be seen in the demand made by the British Government upon Denmark in 1807 for the surrender of the neutral Danish fleet to Great Britain to prevent it from being used by Napoleon against Great Britain. Upon the failure of Denmark to comply with the request, orders were given to seize the fleet. Less grave instances of the violation of neutral territorial waters in self-defense are those in which belligerent commanders have acted upon their own responsibility and have subsequently been supported by their governments. 1814 the American privateer General Armstrong defended itself in Portuguese territorial waters against the attack of a British vessel, and the United States not only considered the act justifiable but pressed a claim against Portugal for damages for failure to give protection.®

In

'Ibid., II, § 210, where further cases in illustration may be found. 'The case of the Caroline has already been cited in illustration of an emergency arising in time of domestic rebellion. See above, p. 144.

As Oppenheim points out, Manchuria and Korea had become the theater of war, so that hostilities committed there by the belligerents against one another could not be classified as violations of neutrality. Hence he excuses the attack by the Japanese fleet upon two Russian ships, the Variag and the Korietz, in the territorial waters of Korea, but condemns the capture of the Reshitelni in the harbor of Chefoo. International Law, II, § 320.

*C. B. Elliott, "The Shantung Question,” Am. Journal, XIII (1919), 706. See above, p. 144.

The claim was, however, disallowed by decision of the Emperor Napoleon III, to whom the case was referred as arbitrator. Snow, Cases, 396.

CHAP.

XXXI

Cases during the World War

b. Acts short of hostilities

During the World War two British cruisers, the Kent and the Glasgow, attacked on March 14, 1915, the German warship Dresden within the territorial waters of Chile surrounding an island off the mainland. While an apology was promptly offered by the British foreign secretary, it was explained that the Dresden was itself abusing the neutrality of Chile by a pretense of internment that was being made to cover an opportunity to commence hostilities anew.1 In September, 1916, several German and Austro-Hungarian merchant vessels were captured by Allied warships in Greek territorial waters, and the captures were justified by the French Prize Council on the ground that acts of the enemy had already transformed the territorial waters of Greece into a "theater of war.'

What acts other than hostilities are to be regarded as in violation of neutral territory is a question that has raised numerous points of controversy. International practice has, however, found it more convenient to discuss these issues under the heading of neutral duties. In general, the prohibitions of the two Hague conventions, dealing respectively with the rights and duties of neutral powers in war on land and in naval war, embody previously existing usages together with extensions to meet new conditions. In war on land belligerents are forbidden to move troops or to transport munitions of war or other supplies across the territory of a neutral power. They are likewise forbidden to erect wireless telegraph stations or other apparatus upon neutral territory, or to use any such apparatus set up by them before the war for military purposes.5 Corps of combatants may not be formed nor recruiting offices established in neutral territory. Defeated belligerent troops may not take refuge in neutral territory unless the neutral state consents to receive them, in which case they are under obligation to observe the rules prescribed by the neutral state in pursuance of its own obligations of neutrality."

In naval war similar prohibitions apply. The exercise by a belligerent of the right of visit and search of merchant vessels is

1See Garner, International Law and the World War, II, § 562.

The Tinos, and other cases. French Prize Council, 1917. Scott, Cases, 855.
See below, Chap. XXXIII.

Art. 2, Convention respecting the Rights and Duties of Neutral Powers and Persons in War on Land.

Art. 3.

See further, the rules drawn up by the Commission of Jurists at the Hague in 1923 concerning the control of radio in time of war. "General Report, "Part I. Am. Journal, XVII (1923), Supp., 242.