of Duty Inter between Enemy. neutrality. It is of special importance with regard to Contents commerce of subjects of neutrals with belligerents, not to since formerly attempts were frequently made to inter- suppress cept all neutral trade with the enemy although no course effective blockade had been established. A conse- Neutrals quence of the now recognised freedom of neutral com- and the merce with either belligerent is, in the first place, the rule enacted by the Declaration of Paris of 1856, that enemy goods, with the exception of contraband, on neutral vessels on the open sea or in enemy territorial waters may not be appropriated by a belligerent,1 and, secondly, the rule, enacted by Article 1 of Hague Convention XI., that the postal correspondence of neutrals or belligerents, except correspondence destined for, or proceeding from, a blockaded port, which may be found on a neutral or enemy vessel at sea, is inviolable. But the recognised freedom of neutral commerce necessitates, on the other hand, certain measures on the part of belligerents. It would be unreasonable to impose on a belligerent a duty not to prevent the subjects of neutrals from breaking a blockade, from carrying contraband, and, lastly, from rendering unneutral service to the enemy. International Law gives, therefore, a right to either belligerent to prevent neutral merchantmen, so far as is in his power, from doing such things, and, accordingly, to visit, search, capture, and confiscate them.3 But the duty of a belligerent not to suppress intercourse, and especially legitimate commerce, between neutrals and the enemy has an exception in the case 1 That not only goods owned by enemy individuals, but also goods owned by the enemy State, ought to be exempt from appropriation when on neutral vessels, has already been pointed out, although the practice of Italy is to the contrary; see above, § 177 n. 2 See above, § 191, and below, § 411. That a subject of a neutral State who tries to break a blockade, or carries contraband to the enemy, or renders the enemy unneutral service, violates injunctions of the belligerents, but not International Law, has been shown above in § 296; see also below, §§ 383, 398. of reprisals. It has been pointed out above1 that neutrals must prevent each belligerent from interfering with their legitimate intercourse with the other belligerent, because a belligerent cannot be expected passively to suffer vital damage to himself in consequence of the violation by his enemy of a rule which, although it operates directly in favour of neutrals, indirectly operates in his favour also. If, therefore, the enemy resorts to measures which suppress, or aim at suppressing, his intercourse with neutrals, and they do not prevent these measures from being carried out, he is justified in resorting to reprisals, and in turn preventing intercourse between his enemy and neutrals, provided that these reprisals do not extend further than to prevent imports to, and exports from, the enemy country. Thus when in February 1915, during the World War, Germany, as a measure of reprisals against the Allies, mainly because they would not carry out the rules of the unratified Declaration of London,2 decreed all the waters surrounding the British Isles to be a war zone, in which every enemy merchant vessel would be destroyed by submarines without it being always possible to save crew and passengers, and neutral ships might be exposed to danger, Great Britain by Order in Council of March 11, 1915,3 and France by decree of March 13, 1915,1 retaliated by ordering their fleets to prohibit all exports from, and imports to, Germany, and by an Order in Council of January 10, 1917, the order of March 11, 1915, was extended to all enemy countries. The United States of America protested against these British and French reprisals, asserting that the measures resorted to were a violation of neutral 1 § 294; see also §§ 316, 318. 2 See above, § 292. 3 London Gazette, March 15, 1915. Dalloz, Jurisprudence Générale (1915), pp. 78-79. 5 London Gazette, January 12, 1917. Parl. Papers, Misc., No. 14 (1916), Cd. 8233. rights. Now this was certainly the case; but neutrals could not complain, because they did not prevent Germany from carrying out her nefarious submarine practice, which attempted to cut off entirely all communication with Great Britain. Just as neutrals who do not, or are not able to, prevent a belligerent from marching troops through their neutral territories cannot complain if the other belligerent likewise invades these territories and attacks the enemy there, so neutrals cannot complain if a belligerent prevents commercial intercourse between another belligerent and neutrals because they did not prevent that other belligerent from resorting to measures designed to stop intercourse between the first belligerent and neutrals. The rule that belligerents must not interfere with the legitimate commerce of neutrals is based on a compromise-just as is the rule that belligerents must not violate neutral territory; and it presupposes that both belligerents will carry it out, and that neutrals will prevent both of them from violating it. If, on the contrary, neutrals acquiesce in the violation of this rule by one belligerent to the vital disadvantage of the other belligerent, the latter cannot be expected to suffer this without redress, and must be excused if, in retaliating upon the enemy, he also violates the rule.1 On February 1, 1917, Germany embarked upon a further extended submarine practice, and thereby provoked a new reprisals Order in Council of February 16, 1 See below, § 360, n. 2. Whether a belligerent is justified in resorting to reprisals which injure neutrals as well as the enemy is a very controversial question. See Phillimore in the Grotius Society, ii. p. 175; Pyke, The Law of Contraband of War (1915), p. 4; A.J., ix. (1915), pp. 673, 680. The British Prize Courts have recognised the Order in Council of March 11, 1915, as being in accordance with International Law. See The Stigstad, (1916) 2 B. and C. P. C. 179, affirmed by the Privy Council, 3 B. and C. P. C. 347; The United States, (1916) 2 B. and C. P. C. 390; The Frederick VIII., (1916) 2 B. and C. P. C. 395; and in particular The Leonora, (1918) 3 B. and C. P. C. 181, 385. 1917,1 which decreed that any vessel carrying goods with an enemy destination, or of enemy origin, should be liable to capture and condemnation in respect of the carriage of such goods unless she called before capture at a British or Allied port for the examination of her cargo, and that goods found on examination to be goods of enemy origin or enemy destination should be liable to condemnation. This Order in Council was in my opinion ultra vires, because it threatened punishment and assumed jurisdiction over neutral ships for acts which, according to International Law, are perfectly legitimate. That a belligerent may in certain cases as a matter of reprisals attempt to prevent all exports from, and imports to, the enemy country, I consider to be in accordance with International Law; but he transgresses the permissible limits of action if he condemns and confiscates neutral ships and their cargoes for carrying enemy goods from or to the enemy country.2 II NEUTRALS AND MILITARY OPERATIONS Vattel, iii. §§ 105, 118-135-Hall, §§ 215, 219, 220, 226-Westlake, ii. pp. 227-232-Lawrence, §§ 229, 234-240—Manning, pp. 225-227, 245-250— Twiss, ii. §§ 217, 218, 228-Taylor, §§ 618, 620, 632, 635-Walker, §§ 55, 57, 59-61-Wharton, iii. §§ 397-400-Moore, vii. §§ 1293-1303Wheaton, §§ 426-429-Bluntschli, §§ 758, 759, 763, 765, 769-773— Heffter, §§ 146-150-Geffcken in Holtzendorff, iv. pp. 657-676-Ullmann, § 191-Bonfils, Nos. 1449-1457, 1460, 1469, 1470-Despagnet, Nos. 690-692-Rivier, ii. pp. 395-408-Calvo, iv. §§ 2644-2664, 2683-Fiore, iii. Nos. 1546-1550, 1574-1575, 1582-1584-Martens, ii. §§ 131-134Kleen, i. §§ 70-75, 116-122—Mérignhac, iii". pp. 516-547-Pillet, pp. 284-289-Perels, § 39-Testa, pp. 173-180-Heilborn, Rechte, pp. 4 1 London Gazette, February 23, 1917. See, however, the judgment in The Leonora, (1918) 3 B. and C. P. C. 181, which declared the Order in Council of February 16, 1917, to be in accordance with International Law. It was affirmed by the Privy Council (ibid., 385). 12-Dupuis, Nos. 308-310, 315-317, and Guerre, Nos. 277-294-Land Warfare, §§ 465-471-Einicke, Rechte und Pflichten der neutralen Mächte im Seekrieg (1912), pp. 22-70-Wehberg, § 11. ties by Neutrals. § 320. The duty of impartiality incumbent upon a Hostilineutral must obviously prevent him from committing and hostilities against either belligerent. This would need against no mention, except to distinguish between hostilities on the one hand, and, on the other, military or naval acts of force by a neutral for the purpose of repulsing violations of his neutrality committed by either belligerent. Hostilities by a neutral are acts of force performed for the purpose of attacking a belligerent. They are acts of war, and they create a condition of war between such neutral and the belligerent concerned. If, however, a neutral does not attack a belligerent, but only repulses him by force when he violates, or attempts to violate, the neutrality of the neutral, this does not constitute hostilities. Thus, if men-of-war of a belligerent attack an enemy vessel in a neutral port and are repulsed by neutral men-of-war, or if belligerent forces try to make their way through neutral territory and are forcibly prevented by neutral troops, no hostilities have been committed by the neutral, who has done nothing else than fulfil his duty of impartiality. Article 10 of Convention v. enacts categorically that the fact of a neutral Power repelling, even by force, attacks on its neutrality, cannot be considered as a hostile act.' And stress must be laid on the fact that it is no longer legitimate for a belligerent to pursue 1 military or naval forces who take refuge on neutral territory; should a belligerent nevertheless do this, he must, if possible, be repulsed by the neutral. 1 It is, on the other hand, likewise obvious that hostilities against a neutral on the part of either belligerent are acts of war, and not mere violations of 1 See above, § 288, and below, § 347 (4). |