in which the violation of neutrality is so great that the offended party considers war the only adequate measure in answer to it, it is not the violation which brings neutrality to an end, but the determination of the offended party. For there is no violation of neutrality so great as to oblige the offended party to declare war in answer to it, such party always having the choice whether he will keep up the condition of neutrality or not. But this applies only to mere violations of neutrality, and not to a declaration of war or hostilities. Hostilities are acts of war, and bring neutrality to an end;1 and a declaration of war brings neutrality to an end even before the outbreak of hostilities. quences of Neu § 359. Violations of neutrality, whether committed Conseby a neutral against a belligerent or by a belligerent Viola against a neutral, are international delinquencies.2 tions of They may at once be repulsed, and the offended party trality. may require the offender to make reparation, and, if this is refused, may take such measures as he thinks adequate to exact the necessary reparation. If the violation is only slight and unimportant, the offended State will often merely complain. If, on the other hand, the violation is very substantial and grave, the offended State will perhaps at once declare that it considers itself at war with the offender. In such a case, it is not the violation of neutrality which brings neutrality to an end, but the declaration of the offended State that it considers the violation to be of so grave a character as to oblige it to regard itself at war with the offender. That a violation of neutrality, like any other international delinquency, can only be committed by malice or culpable negligence, and that it can be committed 4 1 They have been characterised in contradistinction to mere violations above in § 320. See above, vol. i. § 151. 3 See above, vol. i. § 156. See above, vol. i. § 154. Neutrals not to ac tions of Neutrality com a Belli gerent. through a State refusing to comply with the consequences of its' vicarious' responsibility for acts of its agents or subjects,1 is a matter of course. Thus, if a belligerent fleet attacks enemy vessels in neutral territorial waters without an order from its Government, the latter bears vicarious' responsibility for this violation of neutral territory by its fleet. If the Government concerned refuses to disown the act of its fleet, and to make the necessary reparation, this vicarious' responsibility turns into 'original' responsibility, for a case of violation of neutrality and an international delinquency has then arisen. The same is valid if an agent of a neutral State, without an order of his Government, commits such an act as would constitute a violation of neutrality in case it were ordered by the Government; for instance, if the head of a province of a neutral State, without authorisation from his Government, allows forces of a belligerent to march through the neutral province. § 360. It is entirely within the discretion of a belliquiescein gerent whether he will acquiesce in a violation of neuViola- trality committed by a neutral in favour of the other belligerent. On the other hand, a neutral may not exercise the same discretion regarding a violation of mitted by neutrality committed by one belligerent and detrimental to the other. His duty of impartiality rather obliges him, in the first instance, to prevent with the means at his disposal the belligerent concerned from committing such a violation; e.g. to repulse an attack by men-of-war of a belligerent on enemy vessels in neutral ports. Thus Article 3 of Hague Convention XIII. enacts: When a ship has been captured in the territorial waters of a neutral Power, such Power must, if the prize is still within its jurisdiction, employ the means at its disposal to release the prize with its officers 1 See above, vol, i. § 150. and crew, and to intern the prize crew.' But in case he could not prevent and repulse a violation of his neutrality, his same duty of impartiality obliges him to exact due reparation from the offender; 1 for otherwise he would favour the one party to the detriment of the other. If a neutral neglects this obligation, he himself thereby commits a violation of neutrality, for which he may be made responsible by a belligerent who has suffered through the violation of neutrality committed by the other belligerent and acquiesced in by him. For instance, if belligerent men-of-war seize enemy vessels in the ports of a neutral, and if that neutral, who could not or did not prevent this, exacts no reparation from the belligerent concerned, the other party may make the neutral responsible for the losses sustained. The § 361. Some writers 3 maintain that a neutral is Cases of freed from responsibility for a violation of neutrality General committed by a belligerent in attacking enemy forces Armin neutral territory, if the forces attacked, instead of The Dresden. trusting for protection or redress to the neutral, defend themselves against the attack. This rule is adopted from the arbitral award in the case of The General Armstrong. In 1814, during war between Great Britain 1 See Articles 25 and 26 of Convention XIII. This duty is nowa. days universally recognised; but before the nineteenth century it did not exist, although the rule that belligerents must not commit hostilities on neutral territory, and in particular in neutral ports and waters, was well recognised. That, in spite of its recognition, this rule was in the eighteenth century frequently infringed by commanders of belligerent fleets, may be illustrated by many cases. Thus, for instance, in 1793, the French frigate Modeste was captured in the harbour of Genoa by two British men-of-war (see Hall, § 220); and in 1801, during war against Sweden, a British frigate VOL. II. 21 captured the Freden and three other 2 It has been pointed out above, 3 See, for instance, Hall, § 228, and Geffcken in Holtzendorff, iv. p. 701. strong and and the United States of America, the American privateer General Armstrong, lying in the harbour of Fayal, an island belonging to the Portuguese Azores, defended herself against an attack by an English squadron, but was nevertheless captured. The United States claimed damages from Portugal because the privateer was captured in a neutral Portuguese port. Negotiations went on for many years, and the parties finally agreed in 1851 upon arbitration by Louis Napoleon, then President of the French Republic. In 1852 Napoleon gave his award in favour of Portugal, maintaining that, although the attack on the privateer in neutral waters comprised a violation of neutrality, Portugal could not be made responsible, because the vessel chose to defend herself, instead of demanding protection from the Portuguese authorities. It is, however, not at all certain that the rule laid down in this award will find general recognition in theory and practice.2 However that may be, cases similar to that of The General Armstrong occurred during the World War. Thus in March 1915 the German cruiser Dresden sought refuge within the territorial waters of Chili near the island of Juan Fernandez, and asked to be allowed to remain there for eight days in order to effect repairs. The request was refused, and the Dresden was ordered to depart within twenty-four hours. However, she did not depart, and received notification that she was to be interned. Meanwhile two British cruisers, Kent and Glasgow, came up and opened fire. The Dresden hoisted a flag of truce, and despatched one of her officers to inform the Glasgow that she was in neutral territorial waters. In reply, the British squadron called 1 See Moore, Arbitrations, ii. pp. 1071-1132; Calvo, iv. § 2662; and Dana's note 208 in Wheaton, § 429. 2 The case of The Reshitelni, which occurred in 1904, during the RussoJapanese War, and is somewhat similar to that of The General Armstrong, is discussed above in § 320 (2). That no violation of neutrality took place in the case of The Variag and The Korietz, is shown above in § 320 (1). upon her to surrender under a threat of destruction, whereupon she blew herself up and sank.1 Again, Hall mentions a case in which a British submarine which had run aground in Danish territorial waters was there fired upon by a German destroyer.2 Repar from Bel tions of trality. § 362. It is obvious that the duty of a neutral not Mode of to acquiesce in violations of neutrality committed by exacting one belligerent to the detriment of the other obliges ation him to repair, so far as he can, the result of such wrong-ligerents ful acts. Thus, he must liberate 3 a prize taken in his for Violaneutral waters, or prisoners made on his territory, and Neuthe like. In so far, however, as he cannot, or cannot sufficiently, undo the wrong done, he must exact reparation from the offender. Now, no general rule can be laid down regarding the mode of exacting such reparation, since everything depends upon the merits of the individual case. However, as regards the capture of enemy vessels in neutral waters, a practice has grown up which must be considered binding, according to which the neutral must claim the prize, and eventually damages, from the belligerent concerned, and must restore her to the other party. Thus in 1800, during war between Great Britain and the Netherlands, Prussia claimed in the British Prize Court the Twee Gebroeders, a Dutch vessel captured by the British cruiser L'Espiègle in the neutral maritime belt of Prussia. Sir William Scott ordered the restoration of the vessel, but refused costs and damages, because the captor had not violated Prussian neutrality intentionally but only by mistake and misapprehension. Thus again, in 1805, during war between Great Britain and Spain, the United States 1 Details from Garner, ii. § 562. See also Alvarez, La grande Guerre, etc. (1915), p. 227, and documents in A.J., x. (1916), Supplement, pp. 72-76. 2 7th ed. p. 663. See Article 3 of Convention XIII. 43 C. Rob. 162. This case is all the more important as the capture was really made outside the neutral maritime belt by boats sent from L'Espiègle. L'Espiègle was, however, herself within the neutral maritime belt. |