of Manchuria1 in the Russo-Japanese War. Or when a neutral State, either deliberately, or because it has not at its disposal sufficiently strong naval forces, does not prevent a belligerent from committing hostilities in its territorial waters, and making them a basis for military operations and preparations. These territorial waters become in consequence a part of the region of war,2 and the other belligerent may also commit hostilities there. Or again, if a belligerent army which has crossed the frontier of a neutral State is not at once disarmed and interned, and is, therefore, able at any moment to recross the frontier and attack the other belligerent.3 Necessity of self-defence can then compel the latter also to cross the neutral frontier, and pursue and attack the enemy on a portion of neutral territory, which would for this reason become part of the region of war. But if in such an exceptional case neutral territory becomes the region and theatre of war, and is militarily occupied by a belligerent, the occupant does not possess such a wide range of rights with regard to the occupied country and its inhabitants as he possesses in occupied enemy territory. He can indeed resort to all measures which are necessary for the safety of his forces; but he cannot exact contributions or appropriate cash, funds, and realisable securities which are the property of the neutral State.4 1 See below, § 320. 2 See the judgment in the French case of The Tinos (1917), printed in R.G., xxv. (1918), Jurisprudence en Matière de Prises maritimes, p. 3. The Tinos and twelve other German merchantmen were captured during the World War, in September 1916, in the roadsteads of several Greek ports by the Allies. Since Greece was at that time still neutral, the German owners of the vessels claimed restitution on account of these vessels having been captured in neutral waters; but the French Prize Court condemned them because a succes Exclusion from § 72. Moreover, certain areas may be excluded from Region of the region of war through neutralisation. This may be War permanent, through a general treaty of the Powers, Neutral or temporary, through a special treaty between the through isation. belligerents. At present no part of the open sea is neutralised, as the neutralisation of the Black Sea was abolished in 1871. The following are some important instances 2 of parts of territories 3 which are, or were at one time, permanently neutralised : (1) The provinces of Chablais and Faucigny were permanently neutralised until the resettlement after the World War.4 (2) The Ionian Islands were permanently neutralised 5 when they merged in the kingdom of Greece. But this neutralisation was restricted to the islands of Corfu and Paxo only by Article 2 of the Treaty of London of March 24, 1864. (3) The mouth and some parts of the River Danube were closed to vessels of war by Article 52 of the Treaty of Berlin of 1878.7 The Rivers Congo and Niger, and all their territories, were neutralised by Articles 25 and 33 of the Berlin Congo Act of 1885; but this Act was abrogated at the conclusion of the World War.8 (4) The Suez Canal is permanently neutralised9 since 1888. The Panama 10 Canal is permanently neutralised 1 See above, vol. i. §§ 181, 265. 2 The matter is thoroughly treated in Rettich, Zur Theorie und Geschichte des Rechtes zum Kriege (1888), pp. 174213. See also Schramm, pp. 83-87. 3 See Krauel, Neutralität, Neutralisation und Befriedung im Völkerrecht (1915), pp. 48-90, where all the existing cases are discussed under the term of Befriedung' (Pacification). That he includes Luxemburg is very odd. 4 See above, vol. i. § 207. Trésal, L'Annexion de la Savoie en France (1913), asserts that, through the annexation of Chablais and Faucigny by France in 1860, the neutralisation As to the provisions made with regard to the Danube after the World War, see above, vol. i. § 459. See above, vol. i. § 564. 9 See above, vol. i. § 183. 10 See above, vol. i. § 184. through Article 3 of the Hay-Pauncefote Treaty of November 18, 1901. But this treaty is not a general treaty of the Powers, but only one between Great Britain and the United States. By the Treaty of Peace between the Allied Powers and Turkey at the end of the World War, a zone comprising the Bosphorus and Dardanelles is placed under an International Commission of Control, and no belligerent right may be exercised in it, or hostilities be committed there, except under the authority of the League of Nations. These three cases are cases of internationalisation' rather than neutralisation. 1 (5) The Straits of Magellan 1 are permanently neutralised through Article 5 of the Boundary Treaty of Buenos Ayres of July 23, 1881, between Argentina and Chili. A piece of territory along the frontier between Sweden and Norway is neutralised by the Convention of Stockholm of October 26, 1905, between Sweden and Norway, which includes rules concerning a neutral zone, but stipulates 3 that the neutralisation shall not be valid in a war against a common enemy. 1 The neutralisation provided for in these two cases is the concern of the contracting parties alone, and has no consequences for third States. (6) The territory of the former Congo Free State was neutralised in compliance with Article 10 of the General Act of the Berlin Congo Conference. In 1908 it merged by cession into Belgium; 4 but this did not affect the neutralisation of the territory, so long as the Berlin Act was in force.5 However, the case was unique, because Belgium was herself a neutralised State. 1 See Martens, N.R. G., 2nd Ser. xii. p. 491, and above, vol. i. § 195. The Bangor, (1916) 2 B. and C. P. C. 206. 2 See Martens, N.R.G., 2nd Ser. VOL. II. G xxxiv. p. 703. 3 See Article 1. See above, vol. i. § 101. 5 See above, vol. i. § 564. Asserted Exclusion of the As regards temporary neutralisation, parts of the territories of belligerents or the open sea may become neutralised through a treaty of the belligerents for a particular war. Thus, when in 1870 war broke out between France and Germany, the commanders of the French man-of-war1 Dupleix and the German man-ofwar Hertha-both stationed in the Japanese and Chinese waters-through their embassies in Yokohama, proposed to their respective Governments the neutralisation of these waters for that war. Germany consented, but France refused. Again, at the commencement of the Turco-Italian War in 1911, Turkey proposed the neutralisation of the Red Sea, but Italy refused to agree to it.2 § 73. That at present no part of the open sea is neutralised is universally recognised, and this applies Baltic Sea to the Baltic Sea, which is admittedly part of the open Region of sea. Some writers, however, maintained before the from the War. World War that the littoral States of the Baltic had a right to forbid all hostilities within it in a war between States other than themselves, and could thereby neutralise it without the consent, and even against the will, of the belligerents. This opinion was based on the fact that, during the eighteenth century, these littoral States claimed that right in several conventions; but it appeared untenable, because it was opposed to the universally recognised principle of the freedom of the open sea. As no State has territorial supremacy over parts of the open sea, I could not see how such a claim could be justified; 1 and, in fact, during the World War, hostilities did take place in the Baltic. 1 V THE BELLIGERENTS Vattel, iii. § 4-Phillimore, iii. §§ 92-93-Taylor, §§ 458-460-Wheaton, § 294 -Bluntschli, §§ 511-514-Heffter, §§ 114-117-Lueder in Holtzendorff, iv. pp. 237-248-Klüber, § 236-G. F. Martens, ii. § 264-Gareis, § 83Liszt, § 39, ii.-Ullmann, §§ 168-169-Pradier-Fodéré, vi. Nos. 26562660-Rivier, ii. pp. 207-216-Nys, iii. pp. 23-26—Mérignhac, iii“. pp. 136-139-Martens, ii. § 108-Heilborn, System, pp. 333-335. tion to gerent bellandi). § 74. As the Law of Nations recognises the status Qualificaof war, and its effects as regards rights and duties become a between the belligerents on the one hand, and, on the Belliother, between the belligerents and neutral States, the facultas question arises what kind of States are legally qualified to make war, and thereby to become belligerents. Publicists who discuss this question at all speak for the most part of a right of States to make war, a jus belli. But if this so-called right is examined, it turns out to be no right at all, as there is no corresponding duty in those against whom the right is said to exist.2 A State which makes war against another exercises one of its natural functions, and the only question is whether it is, or is not, legally qualified to exercise this function. Now, according to the Law of Nations, full sovereign States alone possess the legal qualification to become belligerents; half and part sovereign States are not legally qualified to become belligerents. Since neutralised States, as Switzerland, are full sovereign States, they are legally qualified to become belligerents, although 1 See Rivier, ii. p. 218; Bonfils, 2 See Heilborn, System, p. 333. 504; Nys, i. pp. 448-450. |