International Law. A Treatise Volume Ii Part 49

[Footnote 688: See Wharton, III. -- 391, and Moore, VII. -- 1309.]

[Sidenote: Supply on the part of Subjects of Neutrals.]

-- 350. In contradistinction to supply to belligerents by neutrals, such supply by subjects of neutrals is lawful, and neutrals are not, therefore, obliged according to their duty of impartiality to prevent such supply. Article 7 of Convention V. and article 7 of Convention XIII. concur in enacting the old customary rule that "A neutral Power is not bound to prevent the export or transit, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or fleet." And article 18[689] of Convention V. recognises the fact that the furnishing of supplies to a belligerent by such subjects of neutrals as do not live on the territory of the other party, or on the territory occupied by that party, does not invest these individuals with enemy character. When in August 1870, during the Franco-German War, Germany lodged complaints with the British Government for not prohibiting its subjects from supplying arms and ammunition to the French Government, Great Britain correctly replied that she was not by International Law under the obligation to prevent her subjects from committing such acts. Of course, such neutral as is anxious to avoid all controversy and friction can by his Munic.i.p.al Law order his subjects to abstain from such acts, as for instance Switzerland and Belgium did during the Franco-German War. But such injunctions arise from political prudence, and not from any obligation imposed by International Law.

[Footnote 689: That Great Britain has entered a reservation against article 18, and the portent of this reservation, has been pointed out above, in -- 88, p. 109, note 1.]

The endeavour to make a distinction between supply in single cases and on a small scale on the one hand, and, on the other, supply on a large scale, and to consider only the former lawful,[690] has neither in theory nor in practice found recognition. As International Law stands, belligerents may make use of visit, search, and seizure to protect themselves against conveyance of contraband by sea to the enemy by subjects of neutrals. But so far as their neutral home State is concerned, such subjects may, at the risk of having their property seized during such conveyance, supply either belligerent with any amount of arms, ammunition, coal, provisions, and even with armed ships,[691]

provided always that they deal with the belligerents in the ordinary way of commerce.

[Footnote 690: See Bluntschli, -- 766.]

[Footnote 691: See above, -- 334, and below, -- 397.]

The case is different when there is no ordinary commerce with a belligerent Government and when subjects of neutrals directly supply a belligerent army or navy, or parts of them. If, for instance, a belligerent fleet is cruising outside the maritime belt of a neutral, the latter must prevent vessels of his subjects from bringing coal, arms, ammunition, and provisions to that fleet, for otherwise he would allow the belligerent to make use of neutral resources for naval operations.[692] But he need not prevent vessels of his subjects from bringing coal, arms, ammunition, and provisions to belligerent ports, although the supply is destined for the navy and the army of the belligerent. He need not prevent belligerent merchantmen from coming into his ports and carrying arms and the like, bought from his subjects, over to the ports of their home State. And he need not prevent vessels of his subjects from following a belligerent fleet and supplying it _en route_[693] with coal, ammunition, provisions, and the like, provided such supply does not take place in the neutral maritime belt.

[Footnote 692: See above, -- 333 (4).]

[Footnote 693: See above, -- 311, p. 375, note 4.]

There is no doubt that, as the law stands at present, neutrals need not prevent their subjects from supplying belligerents with arms and ammunition. Yet, on the other hand, there is no doubt either that such supply is apt to prolong a war which otherwise would come to an end at an earlier date. But it will be a long time, if ever it happens, before it is made a duty of neutrals to prevent such supply as far as is in their power, and to punish such of their subjects as engage in it. The profit derived from such supply being enormous, the members of the Family of Nations are not inclined to cripple the trade of their subjects by preventing it. And belligerents want to have the opportunity of replenishing with arms and ammunition if they run short of them during war. The question is merely one of the standard of public morality.[694] If this standard rises, and it becomes the conviction of the world at large that supply of arms and ammunition by subjects of neutrals is apt to lengthen wars, the rule will appear that neutrals must prevent such supply.

[Footnote 694: See above, vol. I. -- 51 (6) p. 83.]

[Sidenote: Loans and Subsidies on the part of Neutrals.]

-- 351. His duty of impartiality must prevent a neutral from granting a loan to either belligerent. Vattel's (III. -- 110) distinction between such loans as are granted on interest and such as are not so granted, and his a.s.sertion that loans on the part of neutrals are lawful if they are granted on interest with the pure intention of making money, have not found favour with other writers. Nor do I know any instance of such loan on interest having occurred during the nineteenth century.

What is valid regarding a loan is all the more valid regarding subsidies in money granted to a belligerent on the part of a neutral. Through the granting of subsidies a neutral becomes as much the ally of the belligerent as he would by furnishing him with a number of troops.[695]

[Footnote 695: See above, ---- 305, 306, 321.]

[Sidenote: Loans and Subsidies on the part of Subjects of Neutrals.]

-- 352. It was formerly a moot point in the theory of International Law whether a neutral is obliged by his duty of impartiality to prevent his subjects from granting subsidies and loans to belligerents for the purpose of enabling them to continue the war. Several writers[696]

maintained either that a neutral was obliged to prevent such loans and subsidies altogether, or at least that he must prohibit a public subscription on neutral territory for such loans and subsidies. On the other hand, a number of writers a.s.serted that, since money is just as much an article of commerce as goods, a neutral was in no wise obliged to prevent on his territory public subscription by his subjects to loans for the belligerents. In contradistinction to the theory of International Law, the practice of the States has beyond doubt established the fact that neutrals need not prevent on their territory subscription to loans for belligerents. Thus in 1854, during the Crimean War, France protested in vain against a Russian loan being raised in Amsterdam, Berlin, and Hamburg. In 1870, during the Franco-German War, a French loan was raised in London. In 1877, during the Russo-Turkish War, no neutral prevented his subjects from subscribing to the Russian loan.

Again, in 1904, during the Russo-j.a.panese War, j.a.panese loans were raised in London and Berlin, and Russian loans in Paris and Berlin. The Second Peace Conference, by enacting in article 7 of Convention V. that a neutral is not bound to prevent the export ... of anything which can be of use to an army or fleet, has indirectly recognised that a neutral need not prevent the subscription on his territory to loans for belligerents.

[Footnote 696: See Phillimore, III. -- 151; Bluntschli, -- 768; Heffter, -- 148; Kleen, I. -- 68. The case of _De Wutz_ v. _Hendricks_ (9 Moore, 586) quoted by Phillimore in support of his a.s.sertion that neutrals must prevent their subjects from subscribing to a loan for belligerents, is not decisive, for Lord Chief Justice Best declared only "that it was contrary to the Law of Nations for persons residing in this country to enter into any agreements to raise money by way of a loan for the purpose of _supporting subjects of a foreign State in arms against a Government in alliance with our own_."]

But matters differ somewhat in regard to subsidies to belligerents by subjects of neutrals. A neutral is not indeed obliged to prevent individual subjects from granting subsidies to belligerents, just as he is not obliged to prevent them from enlisting with either belligerent.

But if he were to allow on his territory a public appeal for subscriptions to such subsidy, he would certainly violate his duty of impartiality; for loans are a matter of commerce, subsidies are not. It must, however, be emphasised that public appeals for subscriptions of money for charitable purposes in favour of the wounded, the prisoners, and the like, need not be prevented, even if they are only made in favour of one of the belligerents.

The distinction between loans and subsidies is certainly correct as the law stands at present. But there is no doubt that the fact of belligerents having the opportunity of getting loans from subjects of neutrals is apt to lengthen wars. The Russo-j.a.panese War, for instance, would have come to an end much sooner if either belligerent could have been prevented from borrowing money from subjects of neutrals.

Therefore, what has been said above in -- 350 with regard to the supply of arms and ammunition on the part of subjects of neutrals applies likewise to loans: they will no longer be considered lawful when the standard of public morality rises.

VII

SERVICES TO BELLIGERENTS

Westlake, II. pp. 219-220--Despagnet, No. 696 _bis_--Bonfils, No.

1475[1]--Ullmann, -- 192--Rivier, II. pp. 388-391--Calvo, IV. ---- 2640-2641--Martens, II. -- 134--Perels, -- 43--Kleen, I. ---- 103-108--Lawrence, _War_, pp. 83-92, 218-220--Scholz, _Drahtlose Telegraphie und Neutralitat_ (1905), _pa.s.sim_, and _Krieg und Seekabel_ (1904), pp. 122-133--_Land Warfare_, ---- 481-484--Kebedgy, in _R.I._ 2nd Ser. IV. (1904), pp. 445-451.

[Sidenote: Pilotage.]

-- 353. Since pilots are in the service of littoral States the question as to whether neutrals may permit their pilots to render services to belligerent men-of-war and transport vessels, is of importance. Article 11[697] of Convention XIII. enacts that "a neutral Power may allow belligerent war-ships to employ its licensed pilots." Since, therefore, everything is left to the discretion of neutrals, they will have to take the merits and needs of every case into account. There would certainly be no objection to a neutral allowing belligerent vessels to which asylum is legitimately granted, to be piloted into his ports, and likewise such vessels to be piloted through his maritime belt if their pa.s.sage is not prohibited. But a belligerent might justly object to the men-of-war of his adversary being piloted on the Open Sea by pilots of a neutral Power, except in a case of distress.

[Footnote 697: Germany has entered a reservation against article 11.]

It is worth mentioning that Great Britain during the Franco-German War in 1870, prohibited her pilots from conducting German and French men-of-war which were outside the maritime belt, except when in distress.

[Sidenote: Transport on the part of Neutrals.]

-- 354. It is generally recognised that the duty of impartiality inc.u.mbent upon a neutral obliges him to prevent his men-of-war and other public vessels from rendering transport services to either belligerent.

Therefore, such vessels must neither carry soldiers nor sailors belonging to belligerent forces, nor their prisoners of war, nor ammunition, military or naval provisions, nor despatches. The question as to how far such vessels are prevented from carrying enemy subjects other than members of the forces depends upon the question whether by carrying those individuals they render such service to one of the belligerents as is detrimental to the other. Thus, when the Dutch Government in 1901, during the South African War, intended to send a man-of-war, the _Gelderland_, to President Kruger for the purpose of conveying him to Europe, they made sure in advance that Great Britain did not object.

The question has been raised[698] as to whether a neutral whose rolling stock runs on the railway lines of a belligerent, may continue to leave such rolling stock there although it is being used for the transport of troops, war material, and the like. The answer, I believe, ought to be in the negative, for there is no doubt that, if the rolling stock remains on the railway lines of a belligerent, the neutral concerned is indirectly rendering transport services to the belligerent. It is for this reason that article 19 of Convention V. enacts that railway material coming from the territory of neutrals shall not be requisitioned or used by a belligerent except in the case and to the extent required by absolute necessity.[699]

[Footnote 698: See Nowacki, _Die Eisenbahnen im Kriege_ (1906), p. 126.]

[Footnote 699: See below, -- 365.]

[Sidenote: Transport on the part of Neutral Merchantmen and by neutral rolling stock.]

-- 355. Just as a neutral is not obliged to prevent his merchantmen from carrying contraband, so he is not obliged to prevent them from rendering services to belligerents by carrying in the way of trade enemy troops, and the like, and enemy despatches. Neutral merchantmen rendering such services to belligerents do so at their own risk, for these are unneutral services for which the merchantmen may be punished[700] by the belligerents, but for which the neutral State under whose flag such merchantmen sail bears no responsibility whatever.

[Footnote 700: See below, ---- 407-413.]

And the same is valid with regard to rolling stock belonging to private railway companies of a neutral State. That such rolling stock may not, without the consent of the companies owning it, be made use of by a belligerent for the transport of troops, war material, and the like, except in the case of and to the extent required by absolute necessity, follows from article 19 of Convention V. But, if a private railway company gives its consent, and if its rolling stock is made use of for warlike purposes, it acquires enemy character, article 19 of Convention V. does not apply, and the other belligerent may seize and appropriate it as though it were the property of the enemy State.[701]

[Footnote 701: See Nowacki, _Die Eisenbahnen im Kriege_ (1906), p. 128.]

[Sidenote: Information regarding Military and Naval Operations.]

-- 356. Information regarding military and naval operations may be given and obtained in so many various ways that several cases must be distinguished:--

(1) It is obvious that the duty of impartiality inc.u.mbent upon a neutral obliges him to prevent his men-of-war from giving any information to a belligerent concerning naval operations of the other party. But a neutral bears no responsibility whatever for private vessels sailing under his flag which give such information. Such vessels run, however, the risk of being punished for rendering unneutral service.[702]

[Footnote 702: See below, ---- 409 and 410, and articles 45, Nos. 1 and 2, and 46, No. 4, of the Declaration of London.]

(2) It is likewise obvious that his duty of impartiality must prevent a neutral from giving information concerning the war to a belligerent through his diplomatic envoys, couriers, and the like. But the question has been raised as to whether a neutral is obliged to prevent couriers[703] from carrying despatches for a belligerent over his neutral territory. I believe the answer must be in the negative, at least so far as those couriers in the service of diplomatic envoys and such agents as carry despatches from a State to its head or to diplomatic envoys abroad are concerned. Since they enjoy--as stated above, Vol. I. ---- 405 and 457--inviolability for their persons and official papers, a neutral cannot interfere and find out whether these individuals carry information to the disadvantage of the enemy.

[Footnote 703: See Calvo, -- 2640.]

(3) According to article 8 of Convention V. "a neutral Power is not bound to forbid or restrict the employment, on behalf of belligerents, of telegraph or telephone cables, or of wireless telegraphy apparatus whether belonging to it, or to companies, or to private individuals."

Since, therefore, everything is left to the discretion of the neutral concerned, he will have to take the merits and needs of every case into consideration, and act accordingly. But so much is certain that a belligerent may not categorically request neutrals to forbid or restrict such employment of their telegraph wires and the like on the part of his adversary.