International Law Part 28

(4) _The Geneva Convention of 1864 neutralized persons and things_ employed in the amelioration of the condition of the sick and wounded in the time of war.[398] At the present time hospital ships properly certified and designated by flags and by bands of color on the outside are neutralized by general practice.[399]

-- 122. History

Neutrality as now understood is of recent growth. In early times, and in general throughout the Middle Ages, the fear of retaliation alone deterred states from hostile action against belligerent states with which they were formally at peace. A belligerent in the prosecution of war might disregard the territorial, personal, or property rights in a neutral state without violation of the principles of public law then accepted.

A gradual formulation of principles which gave the basis of a more equable practice came through the custom of making treaty provisions in regard to the conduct of one of the parties when the other was at war with a third state. Thus it was usually provided that no aid should be given to the third state. By the end of the seventeenth century that which had formerly been a matter of treaty stipulation became quite generally accepted as a rule of action. Grotius, in 1625, gives only about a fourth of a short chapter to the consideration of the duties of the neutral toward the belligerents and the balance of the same chapter to the duties of belligerents toward those not parties to the war.

Grotius maintains that "it is the duty of those who have no part in the war to do nothing which may favor the party having an unjust cause, or which may hinder the action of the one waging a just war, ... and in a case of doubt to treat both belligerents alike, in permitting transit, in furnishing provisions to the troops, in refraining from a.s.sisting the besieged."[400] In Barbeyrac's note to Pufendorf, 1706, the discussion shows that the idea of neutrality is clearer, but still confused by the attempt to admit a variety of qualified forms by which a state may be neutral in some respects and not in others.[401] Bynkershoek in 1737 said, "I call those _non hostes_ who are of neither party."[402] This statement of Bynkershoek furnishes a convenient starting-point for his successors. Vattel, in 1758, accepting this definition, also says that a state may give such aid as has been promised in a treaty of alliance previously made with one of the states, and still preserve exact neutrality toward the other state.[403]

By Article XVII. of the Treaty of Amity and Commerce between the United States and France, in 1778, "It shall be lawful for the ships of war of either party, and privateers, freely to carry whithersoever they please the ships and goods taken from their enemies; ... on the contrary, no shelter or refuge shall be given in their ports to such as shall have made prize of the subjects, people or property of either of the parties," except when driven in by stress of weather. By Article XXII.

of the same treaty, foreign privateers were not allowed to be fitted out or to sell their prizes in the ports of either party. In 1793 M. Genet, the French minister, began to fit out privateers, to give commissions to citizens of the United States to cruise in the service of France against the British, and to set up prize courts in the French consulates. He justified himself under the provisions of the Treaty of 1778. His action threatened to bring the United States into war with Great Britain and led to the enunciation of the principles by the United States authorities, of which Canning in 1823 said, "If I wished for a guide in a system of neutrality, I should take that laid down by America in the days of the presidency of Washington and the secretaryship of Jefferson."[404] The President's Proclamation of Dec. 3, 1793, declares that, in the war of France and the European powers, "the duty and interest of the United States require that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerent powers."[405] While the Proclamation does not mention "neutrality," the orders and instructions issued in accordance with it use the word. By the Act of Congress of June 5, 1794, and by subsequent acts codified in 1818,[406] the United States a.s.sumed a position which marks an epoch in the history of neutrality. The principles then enunciated are the generally accepted rules of the present day. Great Britain pa.s.sed similar enactments in 1819, and made these more definite and stringent by the Foreign Enlistment Act of 1870.[407]

-- 123. Declaration

In recent years it has become customary to issue proclamations of neutrality, or to make known the att.i.tude of the state by some public announcement. This method publishes to other states and to the subjects of the state issuing the announcement the position which the state will take during the hostilities. Ordinarily some specifications as to what may be done during the war accompany the proclamation.

In the war between the United States and Spain in 1898, practically all the leading states of the world made known their neutrality. Germany, according to the custom in that state for twenty years preceding, made no public proclamation, but the neutrality of the Empire was announced less formally by the Emperor in a speech before the Reichstag. The British proclamation of April 23, 1898, is, however, a very full statement of the principles which are to be observed during the hostilities.[408]

A clause from the Russian Declaration of April 18, 1898, is an example of the announcement of the general fact of neutrality: "It is with keen regret that the Imperial Government witnesses an armed conflict between two states to which it is united by old friendship and deep sympathy. It is firmly resolved to observe with regard to these two belligerents a perfect and impartial neutrality."[409]

-- 124. Divisions

The relations between neutrals and belligerents naturally fall into two divisions:--

1. The relations between neutral states and belligerent states as states. These relations are determined by the respect for sovereignty, by international usage, and by treaties.

2. Relations between the states and individuals. These relations involve:--

(1) Ordinary commerce.

(2) Contraband.

(3) Unneutral service.

(4) Visit and search.

(5) Convoy.

(6) Blockade.

(7) Continuous voyage.

(8) Prize and prize courts.

CHAPTER XXIII

RELATIONS OF NEUTRAL STATES AND BELLIGERENT STATES

125. +General Principles of the Relations between States.+

126. +Neutral Territorial Jurisdiction.+

127. +Regulation of Neutral Relations.+ (_a_) To belligerent troops.

(_b_) Asylum for vessels.

(_c_) Ordinary entry.

(_d_) Sojourn of vessels.

128. +No Direct a.s.sistance by Neutral.+ (_a_) Military.

(_b_) Supplies.

(_c_) Loans.

(_d_) Enlistment.

129. +Positive Obligations of a Neutral State.+

-- 125. General Principles of the Relations between States

Of the general principle Wheaton says, "The right of every independent state to remain at peace whilst other states are engaged in war is an incontestable attribute of sovereignty."[410] Equally incontestable is the right of a belligerent state to demand that a state not a party to the war shall refrain from all partic.i.p.ation in the contest, whether it be direct or indirect.

The modern tendency is to remove from the neutral all possible inconveniences which might result from war between states with which the neutral is at peace. The normal relations between neutral and neutral are unimpaired. As the neutral is at peace with the belligerents, the relations between the neutral and the belligerents are affected only so far as the necessities of belligerent operations demand. "Every restriction, however, upon the rights of a neutral or belligerent must have a clear and undoubted rule and reason. The burden of proof lies upon the restraining government."[411]

-- 126. Neutral Territorial Jurisdiction

One of the earliest principles to receive the sanction of theory and practice was that of the inviolability of territorial jurisdiction of neutrals. This principle has been liberally interpreted in recent times, and the tendency has been to make increasingly severe the penalties for its violation.

(_a_) The troops of a belligerent may not engage in hostilities in the land of a neutral.

(_b_) Belligerent persons who enter neutral land for warlike purposes, whether actually committing hostilities or merely organized for such purpose, should be interned "at points as far removed as possible from the theater of war." Those entering for asylum to escape death or captivity should be similarly treated.

Formerly it was held that the right of pa.s.sage might be granted by a neutral to both belligerents on the same terms, or to one of the belligerents if in accord with an agreement entered into before the war.

There are many examples of this practice before the nineteenth century, but at the present time it is the rule that a belligerent body of troops may not pa.s.s through neutral territory. In the Franco-German War of 1870 the application of Germany to transport its wounded by railway across Belgium was denied. It was claimed that the grant of this privilege would enable Germany to use its own lines of railway for strictly hostile purposes in the way of the transportation of troops, war supplies, etc., thus relieving Germany of a part of the burdens of war.

(_c_) The rules applicable to the maritime jurisdiction of a neutral are somewhat different from those of the land. The neutral does not control with the same absolute authority the waters washing its sh.o.r.es and the land within its boundaries. That portion of the sea which is within the three-mile limit is for the purposes of peaceful navigation a part of the open sea. The simple pa.s.sage of ships of war through these waters is permitted. All belligerent acts within the maritime jurisdiction of a neutral are forbidden.[412]

The waters which appertain more strictly to the exclusive jurisdiction of the neutral, such as harbors, ports, enclosed bays, and the like, are subject to the munic.i.p.al laws of the neutral.[413] Asylum in case of imminent danger is, however, not to be denied; otherwise these waters are open to belligerent ships of war only on condition that they observe the regulations prescribed by the neutral. Such regulations must of course be impartial. These regulations are now often announced in the proclamations of neutrality, as was the case in the war of the United States and Spain in 1898.

(_d_) Neutral territory may not be used as the base of military operations or for the organization or fitting out of warlike expeditions.

Sir W. Scott said in the case of the _Twee Gebroeders_ that, "no proximate acts of war are in any manner to be allowed to originate on neutral grounds."[414] This would without doubt apply to filibustering expeditions. Many acts are of such nature as to make it impossible to determine whether this principle is violated until the actor is beyond the jurisdiction of the neutral. In such cases the neutral sovereignty is "violated constructively."[415] A second act of this kind might const.i.tute the neutral territory a base of military operations.

It is difficult to distinguish in some cases between those expeditions which have a warlike character and those which cannot at the time of departure be so cla.s.sed.

In 1828, during the revolution in Portugal, certain troops took refuge in England. In 1829 these men, unarmed but under military command, set out from Plymouth in unarmed vessels, ostensibly for Brazil. Arms for their use had been shipped elsewhere as merchandise. Off the island of Terceira, belonging to Portugal, they were stopped by English vessels within Portuguese waters, and taken back to a point a few hundred miles from the English Channel. The Portuguese then put into a French port.