Act of November 20, 1815, which neutralised Switzerland, and was signed at Paris,1 that no inference unfavourable to the neutrality and inviolability of Switzerland can and must be drawn from the facts which have caused the passage of the allied troops through a part of the territory of the Swiss Confederation.' The few instances in which during the nineteenth century States pretended to remain neutral, but nevertheless allowed the troops of one of the belligerents passage through their territory, led to war between the neutral and the other belligerent. As has been already stated,3 in October 1915 during the World War, while Greece was still neutral, the Allies, on the invitation of M. Venizelos, then prime minister of Greece, disembarked troops at Salonika for the purpose of bringing aid to Serbia. The Greek Government protested pro forma, but did not put any obstacle in the way of their landing. This led to an attack on Salonika by the Central Powers, but war between the Central Powers and Greece did not ensue until much later.4 However, just as in the case of furnishing troops, it is a moot point whether passage of troops can be granted without violating the duty of impartiality incumbent upon a neutral, in case a neutral is required to grant it in consequence of an existing State servitude, or of a treaty previous to the war. There ought to be no doubt that, since nowadays qualified neutrality is no longer admissible, the question must be answered in the negative.5 (b) The Transport of War Material and Supplies With regard to the transport of war material and supplies, Article 2 of Hague Convention v. categorically 1 See Martens, N.R., ii. p. 741. 2 See Heilborn, Rechte, pp. 8-9. Above, §§ 306, 320. • Above, § 320, and Garner, ii. S$ 464-473. 5 See above, §§ 305-306, and vol. i. § 207. Clauss, Die Lehre von den Staatsdienstbarkeiten (1894), pp. 212217, must likewise be referred to. See also Dumas in R. G., xvi. (1909), pp. 289-316. through Territory. enacts that 'belligerents are forbidden to move across the territory of a neutral Power troops or convoys either of munitions of war or of supplies.' But different from this case is the case in which munitions and the like are sent by private individuals to a belligerent across neutral territory. As to this, Article 7 of that convention lays down the rule that a neutral Power is not bound to prevent the export or transit, for one or the other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or fleet.' The distinction between these two articles was incidentally considered 1 during the controversy that arose in the World War between Great Britain and Holland concerning the transit of metals from Belgium (then under German military occupation) to Germany, and of sand and gravel from Germany to occupied Belgium through Dutch territory. Great Britain argued that Holland, by permitting such traffic (whatever the purpose for which the materials were used), was giving direct assistance to Germany, and so committing a violation of neutrality. Holland, on the other hand, argued that she was only bound to prevent the transit of these materials when they were connected with military operations, and that the consignments which had passed through were not so connected. Passage of § 324. The passage of wounded soldiers is different Wounded from that of troops. If a neutral allows the passage Neutral of wounded soldiers, he certainly does not render direct assistance to the belligerent concerned. But it may well be that he gives indirect assistance because a belligerent, being relieved from transporting his wounded, can now use the lines of communication for the transport of troops, war material, and provisions. Thus when in 1870, after the battles 1 Parl. Papers, Misc., No. 17 (1917), Cd. 8693, and Garner, ii. § 570. of Sedan and Metz, Germany applied to Belgium and Luxemburg to allow her wounded to be sent through their territories, France protested on the ground that the relief thereby given to the German lines of communication would be an assistance to the military operations of the German Army. Belgium, on the advice of Great Britain, did not grant the request, but Luxemburg did.1 According to Article 14 of Convention v. a neutral Power may grant the passage of the wounded or sick at the request of a belligerent. If he does, the trains bringing them must carry neither combatants nor war material, and those of the wounded and sick who belong to the army of the other belligerent must remain on the neutral territory, must there be guarded by the neutral Government, and, after having recovered, must be prevented from returning to their home State and rejoining their corps.2 By Article 14 it is left to the discretion of a neutral whether or not he will allow the passage of wounded and sick; he must, therefore, investigate every case, and come to a conclusion according to its merits. During the World War, the United States, while neutral, did not allow certain wounded or disabled Canadian soldiers to pass through American territory on their way home after discharge.3 Men-of § 325. In contradistinction to passage of troops Passage of through his territory, the duty of impartiality in- War. cumbent upon a neutral does not require him to forbid the passage of belligerent men-of-war 4 through the maritime belt forming part of his territorial waters. Article 10 of Convention XIII. categorically enacts that 'the neutrality of a Power is not violated (n'est pas 1 See Hall, § 219, and Geffcken in Holtzendorff, iv. p. 664. According to Article 15 of Convention v., the 'Geneva Convention applies to the sick and wounded interned in neutral territory.' 3 See Garner, ii. § 570. 4 See Trainé, Das Gastrecht im Seekrieg (1912), §§ 8-12. Occupa tion of by Bel compromise) by the mere passage of belligerent men-ofwar and their prizes.' Since1 every littoral State may, even in time of peace, prohibit the passage of foreign men-of-war through its maritime belt unless it forms a part of the highways for international traffic, it may certainly prohibit the passage of belligerent men-of-war in time of war. Thus, at the outbreak of the World War in 1914, Holland declared that belligerent war-vessels would not be allowed passage through her maritime belt in Europe, and later she seized German and British submarines which, though not in distress, had entered Dutch territorial waters, and interned their crews. Again, in 1916, Norway declared that thenceforth belligerent submarines would not be allowed to pass through her territorial waters. However, no duty exists for a neutral to prohibit such passage in time of war. Nor need he exclude belligerent men-of-war from his ports, although he may do this likewise. The reason is that such passage and such admission to ports involves very little assistance indeed, and is justified by the character of the sea as an international high-road. But it is obvious that belligerent men-ofwar must not commit any hostilities against enemy vessels during their passage, and must not use the neutral maritime belt and neutral ports as a basis for their operations against the enemy. 3 § 326. In contradistinction to the practice of the Neutral eighteenth century, the duty of impartiality must Territory nowadays prevent a neutral from permitting belliligerents. gerents to occupy a neutral fortress, or any other part of neutral territory. Even if a treaty previously entered into stipulates such occupation, it cannot be granted without violation of neutrality.5 On the con 1 See above, vol. i. § 188. 3 See below, § 333. See Kleen, i. § 116. See Klüber, § 281, who asserts the contrary. trary, the neutral must even use force to prevent belligerents from occupying any part of his neutral territory. The question whether such occupation on the part of a belligerent would be excusable in case of extreme necessity in self-defence on account of the neutral's inability to prevent the other belligerent from making use of the neutral territory as a base for his military operations must, I think, be answered in the affirmative, since an extreme case of necessity in the interest of self-defence must be considered as an excuse.2 But necessity of this kind and degree exists only when the use of the territory by the enemy is imminent; it is not sufficient that a belligerent should merely fear that his enemy might perhaps attempt so to use it. Courts on § 327. It has long been universally recognised that Prize the duty of impartiality must prevent a neutral from permitting a belligerent to set up Prize Courts on neutral Territory. territory. The intention of a belligerent in so doing can only be to facilitate the plundering by his men-ofwar of the commerce of the enemy; a neutral tolerating such Prize Courts would, therefore, indirectly assist the belligerent in his naval operations. During the eighteenth century, however, it was not considered illegitimate for neutrals to allow the setting up of Prize Courts on their territory. The Règlement du Roi de France concernant les Prises qui seront conduites dans les Ports étrangers, et les Formalités que doivent remplir les Consuls de S.M. qui y sont établis ' of 1779, furnishes a striking proof of it. But after the United States of 1 As to the occupation of parts of Greek territory during the World War, see above, § 320. 2 See Vattel, iii. § 122; Bluntschli, § 782; Calvo, iv. § 2642. Kleen, i. § 116, seems not to recognise an extreme necessity of the kind mentioned above as an excuse.- |