International Law. A Treatise Volume Ii Part 40

As privateering was legitimate and in general use, neutral commerce was considerably disturbed during every war between naval States. Now in 1780, during war between Great Britain, her American colonies, France, and Spain, Russia sent a circular[536] to England, France, and Spain, in which she proclaimed the following five principles: (1) That neutral vessels should be allowed to navigate from port to port of belligerents and along their coasts; (2) that enemy goods on neutral vessels, contraband excepted, should not be seized by belligerents; (3) that, with regard to contraband, articles 10 and 11 of the treaty of 1766 between Russia and Great Britain should be applied in all cases; (4) that a port should only be considered blockaded if the blockading belligerent had stationed vessels there, so as to create an obvious danger for neutral vessels entering the port; (5) that these principles should be applied in the proceedings and judgments on the legality of prizes. In July and August 1780, Russia[537] entered into a treaty, first with Denmark and then with Sweden, for the purpose of enforcing those principles by equipping a number of men-of-war. Thus the "Armed Neutrality" made its appearance. In 1781, the Netherlands, Prussia, and Austria, in 1782 Portugal, and in 1783 the Two Sicilies joined the league. France, Spain, and the United States of America accepted the principles of the league without formally joining. The war between England, the United States, France, and Spain was terminated in 1783, and the war between England and the Netherlands in 1784, but in the treaties of peace the principles of the "Armed Neutrality" were not mentioned. This league had no direct practical consequences, since England retained her former standpoint. Moreover, some of the States that had joined the league acted contrary to some of its principles when they themselves went to war--as did Sweden during her war with Russia 1788-1790, and France and Russia in 1793--and some of them concluded treaties in which were stipulations at variance with those principles.

Nevertheless, the First Armed Neutrality has proved of great importance, because its principles have furnished the basis of the Declaration of Paris of 1856.

[Footnote 536: Martens, _R._ III. p. 158.]

[Footnote 537: Martens, _R._ III. pp. 189 and 198.]

[Sidenote: The French Revolution and the Second Armed Neutrality.]

-- 290. The wars of the French Revolution showed that the time was not yet ripe for the progress aimed at by the First Armed Neutrality.

Russia, the very same Power which had initiated the Armed Neutrality in 1780 under the Empress Catharine II. (1762-1796), joined Great Britain in 1793 in order to interdict all neutral navigation into ports of France, with the intention of subduing France by famine. Russia and England justified their att.i.tude by the exceptional character of their war against France, which country had proved to be the enemy of the security of all other nations. The French Convention answered with an order to the French fleet to capture all neutral ships carrying provisions to enemy ports or carrying enemy goods.

But although Russia herself had acted in defiance of the principles of the First Armed Neutrality, she called a second into existence in 1800, during the reign of the Emperor Paul. The Second Armed Neutrality was caused by the refusal of England to concede immunity from visit and search to neutral merchantmen under convoy.[538] Sweden was the first to claim in 1653, during war between Holland and Great Britain, that the belligerents should not visit and search Swedish merchantmen under convoy of Swedish men-of-war, provided a declaration was made by the men-of-war that the merchantmen had no contraband on board. Other States later raised the same claim, and many treaties were concluded which stipulated the immunity from visit and search of neutral merchantmen under convoy. But Great Britain refused to recognise the principle, and when, in July 1800, a British squadron captured a Danish man-of-war and her convoy of several merchantmen for having resisted visit and search, Russia invited Sweden, Denmark, and Prussia to renew the "Armed Neutrality," and to add to its principles the further one, that belligerents should not have a right of visit and search in case the commanding officer of the man-of-war, under whose convoy neutral merchantmen were sailing, should declare that the convoyed vessels did not carry contraband of war. In December 1800 Russia concluded treaties with Sweden, Denmark, and Prussia consecutively, by which the "Second Armed Neutrality" became a fact.[539] But it lasted only a year on account of the a.s.sa.s.sination of the Emperor Paul of Russia on March 23, and the defeat of the Danish fleet by Nelson on April 2, 1801, in the battle of Copenhagen. Nevertheless, the Second Armed Neutrality likewise proved of importance, for it led to a compromise in the "Maritime Convention" concluded by England and Russia under the Emperor Alexander I. on June 17, 1801, at St. Petersburg.[540] By article 3 of this treaty, England recognised, as far as Russia was concerned, the rules that neutral vessels might navigate from port to port and on the coasts of belligerents, and that blockades must be effective. But in the same article England enforced recognition by Russia of the rule that enemy goods on neutral vessels may be seized, and she did not recognise the immunity of neutral vessels under convoy from visit and search, although, by article 4, she conceded that the right of visit and search should be exercised only by men-of-war, and not by privateers, in case the neutral vessels concerned sailed under convoy.

[Footnote 538: See below, -- 417.]

[Footnote 539: Martens, _R._ VII. pp. 127-171. See also Martens, _Causes Celebres_, IV. pp. 218-302.]

[Footnote 540: Martens, _R._ VII. p. 260.]

But this compromise did not last long. When in November 1807 war broke out between Russia and England, the former in her declaration of war[541] annulled the Maritime Convention of 1801, proclaimed again the principles of the First Armed Neutrality, and a.s.serted that she would never again drop these principles. Great Britain proclaimed in her counter-declaration[542] her return to those principles against which the First and the Second Armed Neutrality were directed, and she was able to point out that no Power had applied these principles more severely than Russia under the Empress Catharine II. after the latter had initiated the First Armed Neutrality.

[Footnote 541: Martens, _R._ VIII. p. 706.]

[Footnote 542: Martens, _R._ VIII. p. 710.]

Thus all progress made by the Maritime Convention of 1801 fell to the ground. Times were not favourable to any progress. After Napoleon's Berlin decrees in 1806 ordering the boycott of all English goods, England declared all French ports and all the ports of the allies of France blockaded, and ordered her fleet to capture all ships destined to these ports. And Russia, which had in her declaration of war against England in 1807 solemnly a.s.serted that she would never again drop the principles of the First Armed Neutrality, by article 2 of the Ukase[543]

published on August 1, 1809, violated one of the most important of these principles by ordering that neutral vessels carrying enemy (English) goods were to be stopped, the enemy goods seized, and the vessels themselves seized if more than the half of their cargoes consisted of enemy goods.

[Footnote 543: Martens, _N.R._ I. p. 484.]

[Sidenote: Neutrality during the Nineteenth Century.]

-- 291. The development of the rules of neutrality during the nineteenth century was due to four factors.

(1) The most prominent and influential factor is the att.i.tude of the United States of America towards neutrality from 1793 to 1818. When in 1793 England joined the war which had broken out in 1792 between the so-called First Coalition and France, Genet, the French diplomatic envoy accredited to the United States, granted Letters of Marque to American merchantmen manned by American citizens in American ports. These privateers were destined to cruise against English vessels, and French Prize Courts were set up by the French Minister in connection with French consulates in American ports. On the complaint of Great Britain, the Government of the United States ordered these privateers to be disarmed and the French Prize Courts to be disorganised.[544] As the trial of Gideon Henfield,[545] who was acquitted, proved that the Munic.i.p.al Law of the United States did not prohibit the enlistment of American citizens in the service of a foreign belligerent, Congress in 1794 pa.s.sed an Act temporarily forbidding American citizens to accept Letters of Marque from a foreign belligerent and to enlist in the army or navy of a foreign State, and forbidding the fitting out and arming of vessels intended as privateers for foreign belligerents. Other Acts were pa.s.sed from time to time. Finally, on April 20, 1818, Congress pa.s.sed the Foreign Enlistment Act, which deals definitely with the matter, and is still in force,[546] and which afforded the basis of the British Foreign Enlistment Act of 1819. The example of the United States initiated the present practice, according to which it is the duty of neutrals to prevent the fitting out and arming on their territory of cruisers for belligerents, to prevent enlistment on their territory for belligerents, and the like.

[Footnote 544: See Wharton, III. ---- 395-396.]

[Footnote 545: Concerning this trial, see Taylor, -- 609.]

[Footnote 546: See Wheaton, ---- 434-437; Taylor, -- 610; Lawrence, -- 223.]

(2) Of great importance for the development of neutrality during the nineteenth century became the permanent neutralisation of Switzerland and Belgium. These States naturally adopted and retained throughout every war an exemplary att.i.tude of impartiality towards the belligerents. And each time war broke out in their vicinity they took effectual military measures for the purpose of preventing belligerents from making use of their neutral territory and resources.

(3) The third factor is the Declaration of Paris of 1856, which incorporated into International Law the rule "Free ship, free goods,"

the rule that neutral goods on enemy ships cannot be appropriated, and the rule that blockade must be effective.

(4) The fourth and last factor is the general development of the military and naval resources of all members of the Family of Nations. As all the larger States were, during the second half of the nineteenth century, obliged to keep their armies and navies at every moment ready for war, it followed as a consequence that, whenever war broke out, each belligerent was anxious not to injure neutral States in order to avoid their taking the part of the enemy. On the other hand, neutral States were always anxious to fulfil the duties of neutrality for fear of being drawn into the war. Thus the general rule, that the development of International Law has been fostered by the interests of the members of the Family of Nations, applies also to the special case of neutrality.

But for the fact that it is to the interest of belligerents to remain during war on good terms with neutrals, and that it is to the interest of neutrals not to be drawn into war, the inst.i.tution of neutrality would never have developed so favourably as it actually did during the nineteenth century.

[Sidenote: Neutrality in the Twentieth Century.]

-- 292. And this development has continued during the first decade of the twentieth century. The South African and Russo-j.a.panese wars produced several incidents which gave occasion for the Second Peace Conference of 1907 to take the matter of neutrality within the range of its deliberations and to agree upon the Convention (V.) concerning the rights and duties of neutral Powers and persons in war on land, as well as upon the Convention (XIII.) concerning the rights and duties of neutral Powers in maritime war. And some of the other Conventions agreed upon at this Conference, although they do not directly concern neutral Powers, are indirectly of great importance to them. Thus the Convention (VII.) respecting the conversion of merchantmen into men-of-war indirectly concerns neutral trade as well as the Convention (VIII.) respecting the laying of submarine mines, and the Convention (XI.) concerning restrictions on the exercise of the right of capture. Of the greatest importance, however, is the fact that by the as yet unratified Convention XII. the Conference agreed upon the establishment of an International Prize Court to serve as a Court of Appeal in such prize cases decided by the Prize Courts of either belligerent as concern the interests of neutral Powers or their subjects. To enable this proposed Court to find its verdicts on the basis of a generally accepted prize law the Naval Conference of London met in 1908 and produced, in 1909, the Declaration of London concerning the laws of naval war, which represents a code comprising the rules respecting blockade, contraband, unneutral service, destruction of neutral prizes, transfer to neutral flag, enemy character, convoy, resistance to search, and compensation.

Although the Declaration of London has been signed by only ten Powers, none of which has as yet ratified,[547] there is no doubt that sooner or later, perhaps with some slight modifications, it will either be _expressly_ ratified, or become customary law by the fact that maritime Powers which go to war will carry out its rules.[548] Be that as it may, the Declaration of London is a doc.u.ment of epoch-making character and the future historian of International Law will reckon its development from the Declaration of Paris (1856) to the Declaration of London[549]

(1909).

[Footnote 547: See Smith, _International Law_, 4th ed. by Wylie (1911), pp. 353-371, where the chief points against ratification, and the answers made thereto, are impartially set forth.]

[Footnote 548: Thus both Italy and Turkey, although the latter is not even a signatory Power, during the Turco-Italian War, complied with the rules of the Declaration of London.]

[Footnote 549: As regards the literature in favour and against the ratification, on the part of Great Britain, of the Declaration of London, see above, vol. I. -- 568_b_, p. 595, note 1, and as regards the value of the Report of the Drafting Committee of the Naval Conference of London, see above, vol. I. -- 554, No. 7.]

II

CHARACTERISTICS OF NEUTRALITY

Grotius, III. c. 17, -- 3--Bynkershoek, _Quaest. jur. publ._ I. c.

9--Vattel, III. ---- 103-104--Hall, ---- 19-20--Lawrence, -- 222--Westlake, II. pp. 161-169--Phillimore, III. ---- 136-137--Halleck, II. p. 141--Taylor, -- 614--Moore, VII. ---- 1287-1291--Walker, -- 54--Wheaton, -- 412--Bluntschli, ---- 742-744--Heffter, -- 144--Geffcken in Holtzendorff, IV. pp.

605-606--Gareis, -- 87--Liszt, -- 42--Ullmann, -- 190--Bonfils, Nos.

1441 and 1443--Despagnet, No. 686--Rivier, II. pp.

368-370--Pradier-Fodere, VIII. Nos. 3222-3224, 3232-3233--Nys, III. pp. 570-581--Calvo, IV. ---- 2491-2493--Fiore, III. Nos.

1536-1541, and Code, Nos. 1768-1775--Martens, II. -- 129--Dupuis, No. 316--Merignhac, pp. 349-351--Pillet, pp. 272-274--Heilborn, _System_, pp. 336-351--Perels, -- 38--Testa, pp. 167-172--Kleen, I.

---- 1-4--Hautefeuille, I. pp. 195-200--Gessner, pp.

22-23--Schopfer, _Le principe juridique de la neutralite et son evolution dans l'histoire de la guerre_ (1894).

[Sidenote: Conception of Neutrality.]

-- 293. Such States as do not take part in a war between other States are neutrals.[550] The term "neutrality" is derived from the Latin _neuter_.

Neutrality may be defined as _the att.i.tude of impartiality adopted by third States towards belligerents and recognised by belligerents, such att.i.tude creating rights and duties between the impartial States and the belligerents_. Whether or not a third State will adopt and preserve an att.i.tude of impartiality during war is not a matter for International Law but for International Politics. Therefore, unless a previous treaty stipulates it expressly, no duty exists for a State, according to International Law, to remain neutral in war. On the other hand, it ought not to be maintained, although this is done by some writers,[551] that every State has by the Law of Nations a right not to remain neutral. The fact is that every Sovereign State, as an independent member of the Family of Nations, is master of its own resolutions, and that the question of remaining neutral or not is, in absence of a treaty stipulating otherwise, one of policy and not of law. However, all States which do not expressly declare the contrary by word or action, are supposed to be neutral, and the rights and duties arising from neutrality come into and remain in existence through the mere fact that a State takes up and preserves an att.i.tude of impartiality and is not drawn into the war by the belligerents themselves. A special a.s.sertion of intention to remain neutral is not therefore legally necessary on the part of neutral States, although they often expressly and formally proclaim[552] their neutrality.

[Footnote 550: Grotius (III. c. 17) calls them _medii in bello_; Bynkershoek (I. c. 9) _non hostes qui neutrarum partium sunt_.]

[Footnote 551: See, for instance, Vattel, III. -- 106, and Bonfils, No.

1443.]

[Footnote 552: See below, -- 309.]

[Sidenote: Neutrality an Att.i.tude of Impartiality.]

-- 294. Since neutrality is an att.i.tude of impartiality, it excludes such a.s.sistance and succour to one of the belligerents as is detrimental to the other, and, further, such injuries to the one as benefit the other.

But it requires, on the other hand, active measures from neutral States.

For neutrals must prevent belligerents from making use of their neutral territories and of their resources for military and naval purposes during the war. This concerns not only actual fighting on neutral territories, but also transport of troops, war materials, and provisions for the troops, the fitting out of men-of-war and privateers, the activity of Prize Courts, and the like.

But it is important to remember that the necessary att.i.tude of impartiality is not incompatible with sympathy with one and antipathy against the other belligerent, so long as such sympathy and antipathy are not realised in actions violating impartiality. Thus, not only public opinion and the Press of a neutral State, but also the Government,[553] may show their sympathy to one party or another without thereby violating neutrality. And it must likewise be specially observed that acts of humanity on the part of neutrals and their subjects, such as the sending of doctors, medicine, provisions, dressing material, and the like, to military hospitals, and the sending of clothes and money to prisoners of war, can never be construed as acts of partiality, although these comforts are provided for the wounded and the prisoners of one of the belligerents only.

[Footnote 553: See, however, Geffcken in Holtzendorff, IV. p. 656, and Frankenbach, _Die Rechtsstellung von neutralen Staatsangehorigen in kriegfuhrenden Staaten_ (1910), p. 53, who a.s.sert the contrary.]

[Sidenote: Neutrality an Att.i.tude creating Rights and Duties.]