International Law. A Treatise Volume Ii Part 44

[Footnote 601: See above, -- 71, p. 87; Lawrence, _War_, pp. 268-294; Ariga, ---- 16-22.]

[Footnote 602: See Lawrence, _War_, pp. 279-289, and Takahashi, pp.

462-466.]

[Footnote 603: See Lawrence, _War_, pp. 291-294, and Takahashi, pp.

437-444.]

[Footnote 604: See below, -- 361, where the case of the _General Armstrong_ is discussed.]

[Sidenote: Furnishing Troops and Men-of-War to Belligerents.]

-- 321. If a State remains neutral, it violates its impartiality by furnishing a belligerent with troops or men-of-war. And it matters not whether a neutral renders such a.s.sistance to one of the belligerents or to both alike. Whereas Convention V. does not mention the furnishing of troops to belligerents on the part of neutrals, article 6 of Convention XIII. enacts that "the supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of warships, ammunition, or war material of any kind whatever, is forbidden."

However, the question is controversial as to whether a neutral State, which in time of peace concluded a treaty with one of the belligerents to furnish him in case of war with a limited number of troops, would violate its neutrality by fulfilling its treaty obligation. Several writers[605] have answered the question in the negative, and there is no doubt that during the eighteenth century such cases happened. But no case happened during the nineteenth century, and there ought to be no doubt that nowadays the answer must be in the affirmative, since a qualified neutrality[606] is no longer admissible.

[Footnote 605: See, for instance, Bluntschli, -- 759, and Heffter, -- 144.

See above, -- 306 (2), where the case is quoted of Denmark furnishing troops to Russia in 1788 during a Russo-Swedish war.]

[Footnote 606: See above, -- 305.]

As regards furnishing men-of-war to belligerents, the question arose during the Russo-j.a.panese War as to whether a neutral violates his duty of impartiality by not preventing his national steamship companies from selling to a belligerent such of their liners as are destined in case of war to be incorporated as cruisers in the national navy. The question was discussed on account of the sale to Russia of the _Augusta Victoria_ and the _Kaiserin Maria Theresia_ by the North German Lloyd, and the _Furst Bismarck_ and the _Columbia_ by the Hamburg-American Line, vessels which were at once enrolled in the Russian Navy as second-cla.s.s cruisers, re-named as the _Kuban_, _Ural_, _Don_, and _Terek_. Had these vessels, according to an arrangement with the German Government, really been auxiliary cruisers to the German Navy, and had the German Government given its consent to the transaction, a violation of neutrality would have been committed by Germany. But the German Press maintained that these vessels had not been auxiliary cruisers to the Navy, and j.a.pan did not lodge a protest with Germany on account of the sale. If these liners were not auxiliary cruisers to the German Navy, their sale to Russia was a legitimate sale of articles of contraband.[607]

[Footnote 607: See below, -- 397.]

[Sidenote: Subjects of Neutrals fighting among Belligerent Forces.]

-- 322. Although several States, as Great Britain[608] and the United States of America, by their Munic.i.p.al Law prohibit their subjects from enlisting in the military or naval service of belligerents, the duty of impartiality inc.u.mbent upon neutrals does not at present include any necessity for such prohibition, provided the individuals concerned cross the frontier singly[609] and not in a body. But a neutral must recall his military and naval officers who may have been serving in the army or navy of either belligerent before the outbreak of war. A neutral must, further, retain military and naval officers who want to resign their commissions for the obvious purpose of enlisting in the service of either belligerent. Therefore, when in 1877, during war between Turkey and Servia, Russian officers left the Russian and entered the Servian Army as volunteers with permission of the Russian Government, there was a violation of the duty of impartiality on the part of neutral Russia.

[Footnote 608: See Section 4 of the Foreign Enlistment Act, 1870.]

[Footnote 609: See article 6 of Convention V.]

On the other hand, there is no violation of neutrality in a neutral allowing surgeons and such other non-combatant members of his army as are vested with a character of inviolability according to the Geneva Convention to enlist or to remain in the service of either belligerent.

[Sidenote: Pa.s.sage of Troops and War Material through Neutral Territory.]

-- 323. In contradistinction to the practice of the eighteenth century,[610] it is now generally recognised that a violation of the duty of impartiality is involved when a neutral allows a belligerent the pa.s.sage of troops or the transport of war material over his territory.[611] And it matters not whether a neutral gives such permission to one of the belligerents only, or to both alike. The practice of the eighteenth century was a necessity, since many German States consisted of parts distant one from another, so that their troops had to pa.s.s through other Sovereigns' territories for the purpose of reaching outlying parts. At the beginning of the nineteenth century the pa.s.sing of belligerent troops through neutral territory still occurred.

Prussia, although she at first repeatedly refused it, at last entered in 1805 into a secret convention with Russia granting Russian troops pa.s.sage through Silesia during war with France. On the other hand, even before Russia had made use of this permission, Napoleon ordered Bernadotte to march French troops through the then Prussian territory of Ans.p.a.ch without even asking the consent of Prussia. In spite of the protest of the Swiss Government, Austrian troops pa.s.sed through Swiss territory in 1813, and when in 1815 war broke out again through the escape of Napoleon from the Island of Elba and his return to France, Switzerland granted to the allied troops pa.s.sage through her territory.[612] But since that time it has become universally recognised that all pa.s.sage of belligerent troops through neutral territory must be prohibited, and the Powers declared _expressis verbis_ in the Act of November 20, 1815, which neutralised Switzerland, and was signed at Paris,[613] that "no inference unfavourable to the neutrality and inviolability of Switzerland can and must be drawn from the facts which have caused the pa.s.sage of the allied troops through a part of the territory of the Swiss Confederation." The few instances[614] in which during the nineteenth century States pretended to remain neutral, but nevertheless allowed the troops of one of the belligerents pa.s.sage through their territory, led to war between the neutral and the other belligerent.

[Footnote 610: See Vattel, III. ---- 119-132.]

[Footnote 611: See Dumas in _R.G._ XVI. (1909), pp. 289-316.]

[Footnote 612: See Wheaton, ---- 418-420.]

[Footnote 613: See Martens, _N.R._ II. p. 741.]

[Footnote 614: See Heilborn, _Rechte_, pp. 8-9.]

[Sidenote: Pa.s.sage of Wounded through Neutral Territory.]

However, just as in the case of furnishing troops so in the case of pa.s.sage, it is a moot point whether pa.s.sage of troops can be granted without thereby violating the duty of impartiality inc.u.mbent 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 a qualified neutrality is no longer admissible, the question must be answered in the negative.[615]

[Footnote 615: See above, ---- 305 and 306, and also above, vol. I. -- 207.

Clauss, _Die Lehre von den Staatsdienstbarkeiten_ (1894), pp. 212-217, must likewise be referred to. See also Dumas in _R.G._ XVI. (1909), pp.

286-316.]

-- 324. The pa.s.sage of wounded soldiers is different from that of troops.

If a neutral allows the pa.s.sage of wounded soldiers, he certainly does not render direct a.s.sistance to the belligerent concerned. But it may well be that indirectly it is of a.s.sistance on account of the fact that a belligerent, thereby relieved from transport of 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 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 created to the lines of communication in the hands of the Germans would be an a.s.sistance to the military operations of the German Army. Belgium, on the advice of Great Britain, did not grant the request made by Germany, but Luxemburg granted it.[616]

[Footnote 616: See Hall, -- 219, and Geffcken in Holtzendorff, IV. p.

664.]

According to article 14 of Convention V. a neutral Power _may_ grant the pa.s.sage of wounded or sick to a belligerent. If he does grant it, 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 concerned, must there be guarded by the neutral Government, and must, after having recovered, be prevented from returning to their home State and rejoining their corps. By the stipulation of article 14 it is left to the consideration of a neutral whether or no he will allow the pa.s.sage of wounded and sick to a belligerent; he will, therefore, have to investigate every case and come to a conclusion according to its merits. It should be stated that, according to article 15 of Convention V., the "Geneva Convention applies to the sick and wounded interned in neutral territory."

[Sidenote: Pa.s.sage of Men-of-War.]

-- 325. In contradistinction to pa.s.sage of troops through his territory, the duty of impartiality inc.u.mbent upon a neutral does not require him to forbid the pa.s.sage of belligerent men-of-war 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 compromise_) by the mere pa.s.sage of belligerent men-of-war and their prizes." Since, as stated above in Vol. I. -- 188, every littoral State may even in time of peace prohibit the pa.s.sage of foreign men-of-war through its maritime belt provided such belt does not form a part of the highways for international traffic, it may certainly prohibit the pa.s.sage of belligerent men-of-war in time of war. However, no duty exists for a neutral to prohibit such pa.s.sage in time of war, and he need not exclude belligerent men-of-war from his ports either, although he may do this likewise. The reason is that such pa.s.sage and such admittance into ports contain very little a.s.sistance indeed, and are justified by the character of the sea as an international high road.

But it is, on the other hand, obvious that belligerent men-of-war must not commit any hostilities against enemy vessels during their pa.s.sage, and must not use the neutral maritime belt and neutral ports as a basis for their operations against the enemy.[617]

[Footnote 617: See below, -- 333.]

[Sidenote: Occupation of Neutral Territory by Belligerents.]

-- 326. In contradistinction to the practice of the eighteenth century,[618] the duty of impartiality must nowadays prevent a neutral from permitting belligerents to occupy a neutral fortress or any other part of neutral territory. If a treaty previously entered into stipulates such occupation, it cannot be granted without violation of neutrality.[619] On the contrary, the neutral must even use force to prevent belligerents from occupying any part of his neutral territory.

The question as to whether such occupation on the part of a belligerent would be excusable in case of extreme necessity 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-preservation must be considered as an excuse.[620]

[Footnote 618: See Kleen, I. -- 116.]

[Footnote 619: See Kluber, -- 281, who a.s.serts the contrary.]

[Footnote 620: 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.--There is a difference between this case and the case which arose at the outbreak of the Russo-j.a.panese War, when both belligerents invaded Korea, for, as was explained above in -- 320, Korea and Manchuria fell within the region and the theatre of war.]

[Sidenote: Prize Courts on Neutral Territory.]

-- 327. It has long been universally recognised that the duty of impartiality must prevent a neutral from permitting a belligerent to set up Prize Courts on neutral territory. The intention of a belligerent in setting up a court on neutral territory can only be to facilitate the plundering by his men-of-war of the commerce of the enemy. A neutral tolerating such Prize Courts would, therefore, indirectly a.s.sist the belligerent in his naval operations. During the eighteenth century it was not considered illegitimate on the part of neutrals to allow the setting up of Prize Courts on their territory. The _Reglement du Roi de France concernant les prises qui seront conduites dans les ports etrangers, et des formalites que doivent remplir les Consuls de S.M. qui y sont etablis_ of 1779, furnishes a striking proof of it. But since in 1793 the United States of America disorganised the French Prize Courts set up by the French envoy Genet on her territory,[621] it became recognised that such Prize Courts are inconsistent with the duty of impartiality inc.u.mbent upon a neutral, and article 4 of Convention XIII.

enacts this formerly customary rule.

[Footnote 621: See above, -- 291 (1.)]

[Sidenote: Belligerent's Prizes in Neutral Ports.]

-- 328. It would, no doubt, be an indirect a.s.sistance to the naval operations of a belligerent if a neutral allowed him to organise on neutral territory the safekeeping of prizes or their sale.

But the case of a temporary stay of a belligerent man-of-war with her prize in a neutral port is different. Neutral Powers may--although most maritime States no longer do it--allow prizes to be brought temporarily into their ports. Articles 21 and 22 of Convention XIII. lay down the following rules in the matter: A prize may only be brought into a neutral port on account of unseaworthiness, stress of weather, or want of fuel or provisions; it must leave as soon as the circ.u.mstances which justified its entry are at an end, and if it does not, the neutral Power must order it to leave at once and must, in case of disobedience, employ the means at disposal to release the prize with its officers and crew, and to intern the prize-crew; a prize brought into a neutral port for reasons other than unseaworthiness, stress of weather, or want of fuel or provisions, must forthwith be released by the respective neutral Power.

The question requires attention as to whether a prize whose unseaworthiness is so great that it cannot be repaired, may be allowed to remain in the neutral port and be there sold[622] after the competent Prize Court has condemned it. Since article 21 enacts that an admitted prize must leave the neutral port as soon as the circ.u.mstances which justified its entry are at an end, there is no doubt that it may remain if it cannot by repair be made seaworthy. And there ought, consequently, to be no objection to its sale in the neutral port, provided it has previously been condemned by the proper Prize Court.