a. Duty of abstention Commercial relations between neutral and belligerent states CHAPTER XXXIII NEUTRAL DUTIES As has been pointed out above, neutral duties represent the conduct which it is the right of the belligerent to demand of a neutral state as the condition of its neutrality. These duties may, for convenience of legal treatment, be divided into two groups.1 The first and less important of these groups includes the negative or passive duties deducible from the general obligation of the neutral state to abstain from participation in the war. Direct participation under treaty obligation, such as was possible in the eighteenth century, is now out of the question. Indirect participation by the grant to one belligerent of privileges which are not accorded to the other, such as was provided for in the treaty of 1778 between the United States and France,2 is likewise no longer compatible with neutrality. Moreover, abstention by the neutral state from participation in a war is something more than the mere impartial treatment of the contending parties. As Vattel pointed out, "the same number of troops, the same quantity of arms, munitions, etc., furnished under different circumstances, do not amount to equivalent help." 3 Not only does the duty of abstention forbid a neutral state to participate directly or indirectly in the conduct of hostilities, but it prescribes that the state may not in its corporate capacity maintain certain commercial relations with a belligerent which would have the effect of furnishing him with the sinews of war. What individual citizens of the neutral state may do is another question ;* the state itself, acting through its government, must forego such transactions as lending money to the belligerents,5 guaranteeing a There is no standard classification adopted by either customary or conventional law. The Hague Conventions merely distinguish between neutral rights and duties in war on land and in maritime war. Treaties and texts vary widely in their method of handling the subject. * Malloy, Treaties, I, 468. * Droit des Gens, III, § 104. See below, p. 565. "Vattel thought it no offense to lend money to one belligerent rather than to the other so long as it appears that the nation is lending its money solely for the purpose of obtaining interest,'' believing that it can get better security from one belligerent than from the other. Droit des Gens, Bk. III, § 110. But the United States refused to make a loan to France in 1798 on the ground that it would be a violation of neutrality. XXXIII belligerent loan floated in the neutral country, selling military CHAP. supplies to the belligerent, etc.-all unobjectionable in time of peace. During the Franco-Prussian War the United States sold surplus supplies of munitions which, being bought by French agents in the open market, went to the use of the French armies.1 The sales were subsequently defended on the ground that they had been begun before the outbreak of war; but the present conception of neutral obligation is better expressed by the Thirteenth Hague Convention, which provides that "the supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of war-ships, ammunition, or war material of any kind whatever, is forbidden." 2 courtesy The obligation of complete abstention from participation in Acts of the war does not, however, prevent a neutral state from continuing to exhibit toward the belligerents certain acts of friendliness, such as the furnishing of warships with limited supplies of food and coal, which involve a measure of indirect help to the belligerent and may, under the circumstances, benefit one belligerent more than the other. The line between such permissible acts of courtesy and other forbidden acts has not been determined upon principle, but has been worked out synthetically by the practice of states. The Thirteenth Hague Convention adopted specific rules on the subject which put an end to some, if not all, of the controversial issues. But whether the conduct of the neutral in this matter be guided by customary or by conventional law, the strictest impartiality must be shown in extending the same privileges to both belligerents.* prevention In addition to its negative or passive duties of abstention, a b. Duties of neutral state is held to certain positive or active duties of prevention. It is not sufficient for the neutral state to refrain from giving help to either belligerent by any act of its own; it must go farther and prevent any use of its territory by either of the belligerents, or by persons acting in their interest, which would give one of them. an advantage over the other. The legal basis of these duties of prevention is the sovereign right of the neutral state over the territory subject to its jurisdiction. If belligerents may not violate 'See Moore, Digest, VII, § 1309. 'Art. 6, Convention respecting the Rights and Duties of Neutral Powers in Maritime War. 'See below, p. 557. The subject is treated below under the heading of "Duties of Prevention,'' because of the fact that controversies as to the observance of neutral duty in this respect have turned upon the failure of the neutral to take active steps to prevent the abuse of its hospitality. CHAP. XXXIII Acts of the belligerents themselves Measures short of actual hostilities the neutrality of a state by committing acts of hostility within its territory, no more may a neutral state acquiesce in such acts without giving ground of complaint to the injured party. 2 With respect to acts of hostility committed by the belligerents themselves within neutral territory, the neutral may not always be able to prevent the actual commission of the offense, but it can at least make such redress to the injured belligerent as it is able on its part to exact from the offending belligerent. The obligation imposed by the Hague convention that "a neutral power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory" obviously does not impose an obligation beyond the physical powers of the neutral. A small state is, therefore, not called upon to intervene forcibly between the contending belligerents. The non-resistance of Luxemburg to the German armies in 1914 was not an offense on its part. Nevertheless, the neutral must do what it can to make redress. If a capture has been made in its territorial waters, as in the case of the Florida, the neutral must demand restoration, and if this cannot be effected the neutral must make compensation to the injured belligerent. In the case of the General Armstrong, an American privateer attacked by a British cruiser in Portuguese waters, the United States demanded redress of Portugal for its failure to protect the vessel, although the claim was disallowed by the arbitrator on the ground that the vessel had not asked protection from the Portuguese authorities. The Thirteenth Hague Convention confirms customary law in requiring that if a prize has been captured in neutral waters, and is still within the neutral jurisdiction, the neutral must use the means at its disposal to release the prize with its officers and crew and to intern the prize crew." 5 4 Belligerent measures short of the actual commission of hostilities must be checked by the neutral state as soon as it has become aware of them. In war on land the neutral must prevent the passage across its territory of belligerent troops or convoys of 'See above, p. 524. Art. 5, Convention respecting the Rights and Duties of Neutral Powers and Persons in War on Land. The use of force is, however, justified as a matter of neutral right, if the "Moore, International Arbitrations, II, 1071; Digest, II, § 210. XXXIII supplies.1 If belligerent armies are allowed to take refuge on its CHAP. soil, the neutral must intern them so as to prevent their escape.2 A special duty of humanity, as distinct from neutrality, is imposed on the neutral state by the Hague convention to supply interned troops with food and clothing. A like duty is imposed with respect to the wounded and sick of either belligerent interned on neutral territory. In maritime warfare similar obligations arise. Neutral states must prevent belligerents from setting up prize courts within their territory; they must prevent belligerents from using their ports and waters as a base of naval operations against their enemy, or from erecting wireless telegraph stations or any apparatus for the purpose of communicating with belligerent forces on land or sea. It should be observed, however, that the mere passage of a belligerent vessel through neutral territorial waters does not constitute an offense against neutral rights or raise a question of neutral duty." In the case of the above acts the prohibition is absolute; the neutral must allow them under no circumstances. There are, however, as has been seen, certain courtesies which a neutral may show to belligerents with respect to the use of its ports by belligerent ships of war. These courtesies may, on occasion, actually amount to aid to the belligerent in the conduct of hostilities; but the aid is in these cases regarded as incidental and raises no question of the obligations of neutrality. All that the neutral is called upon to do is to apply impartially to both belligerents the conditions and restrictions imposed by customary and conventional law." c. Permis sible use of neutral ports imposed: port Practice has varied considerably with respect to these condi- Restrictions tions and restrictions. The Thirteenth Hague Convention at- stay in tempted the formulation of definite rules, and its provisions represent with respect to the points of contention a compromise between the states, notably Great Britain, possessing naval stations in all parts of the world and other states, notably Germany, having 'Art. 2, 5, Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in War on Land, confirm the customary rule. 'Art. 10, ibid., confirms the customary rule. 'Art. 12. Art. 15. Art. 5, Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval Warfare. The duty is stated in terms of a prohibition to belligerents against the violation of neutral rights. See above, p. 526. The same is true of several other duties laid down by the same convention. Art. 10. 'Art. 9. CHAP. XXXIII Departure from port Repairs Food and fuel Internment of prize ships fewer or no ports. It is provided that, in default of special legislation of the neutral state to the contrary, the stay of belligerent warships in neutral waters is to be limited to twenty-four hours.' Earlier practice tended to accept the twenty-four-hour limit as unconditional.2 Vessels in neutral waters at the outbreak of hostilities must be notified to depart within the twenty-four-hour or other prescribed period. Further, in default of special legislation of the neutral state to the contrary, no more than three warships of the same belligerent may be present simultaneously in the neutral port.* An older rule, dating from treaties of the eighteenth century, reappears in the provision that, when warships of both the belligerents are present in neutral ports, a period of twenty-four hours must elapse between the departure of the ships of the respective powers, the order of departure being determined by the order of arrival. In like manner a merchant vessel of one belligerent must be given a twenty-four-hour start over a warship of the enemy. The repairs which belligerent warships may make in neutral ports are limited to such as are "absolutely necessary to render them seaworthy" without adding in any manner to their fighting force." With respect to the supplies that may be taken on by belligerent warships in neutral ports, while any increase of war material or armament is denied them, they may revictual to the extent of bringing up their food stores to the peace standard. No adjustment of the conflicting views as to the quantity of fuel that might be shipped was reached, with the result that an option is left to the neutral state either to permit belligerent ships to take only so much as is necessary to enable them to reach the nearest port of their own country, or on the other hand to allow them to fill up their bunkers built to carry fuel. In both cases, however, the belligerent warship must not be allowed to replenish its supply of fuel in a port of the same neutral power within the succeeding three months." The Hague Convention further provides that prize ships may be brought into a neutral port only on account of unseaworthiness, 1 Art. 12. For the origin of the rule in the British orders of January 31, 1862, see Hall, International Law, § 231. |