International Law. A Treatise Volume Ii Part 50

The case is different when a belligerent intends to arrange the transmitting of messages through a submarine cable purposely laid over neutral territory or through telegraph and telephone wires purposely erected on neutral territory. This would seem to be an abuse of neutral territory, and the neutral must prevent it. Accordingly, when in 1870, during the Franco-German War, France intended to lay a telegraph cable from Dunkirk to the North of France, the cable to go across the Channel to England and from there back to France, Great Britain refused her consent on account of her neutrality. And again in 1898, during war between Spain and the United States of America, when the latter intended to land at Hong Kong a cable proposed to be laid from Manila, Great Britain refused her consent.[704]

[Footnote 704: See Lawrence, _War_, p. 219.]

The case is likewise different when a belligerent intends to erect in a neutral country, or in a neutral port or neutral waters, a wireless telegraphy station or any apparatus intended as a means of communication with belligerent forces on land or sea, or to make use of any installation of this kind established by him before the outbreak of war for purely military purposes, and not previously opened for the service of the public generally. According to articles 3 and 5 of Convention V.

and article 5 of Convention XIII., a neutral is bound to prohibit this.

The case which occurred in 1904, during the Russo-j.a.panese War and the siege of Port Arthur, when the Russians installed an apparatus for wireless telegraphy in Chifu and communicated thereby with the besieged, const.i.tuted a violation of neutrality.

(4) It is obvious that his duty of impartiality must prevent a neutral from allowing belligerents to establish intelligence bureaux on his territory. On the other hand, a neutral is not obliged to prevent his subjects from giving information to belligerents, be it by letter, telegram, telephone, or wireless telegraphy. In especial a neutral is not obliged to prevent his subjects from giving information to belligerents by wireless telegraphy apparatus installed on a neutral merchantman. Such individuals run, however, the risk of being punished as spies, provided they act clandestinely or under false pretences, and the vessel concerned is subject to the risk of being captured and confiscated for rendering unneutral service.

Stress must be laid on the fact that newspaper correspondents making use of wireless telegraphy from on board neutral merchantmen for the purpose of sending news to their papers,[705] may not be treated as spies, and the merchantmen concerned may not be confiscated, although belligerents need by no means allow the presence of such vessels at the seat of war.

Thus, during the Russo-j.a.panese War, the _Haimun_, a vessel fitted with a wireless telegraphy apparatus for the service of the _Times_, was ordered away by the j.a.panese. But, of course, an individual can at the same time be a correspondent for a neutral newspaper and a spy, and he may then be punished for espionage.

[Footnote 705: See Lawrence, _War_, pp. 84-88. On newspaper correspondents generally in naval warfare, see Higgins, _War and the Private Citizen_ (1912), pp. 91-114, and in _Z.V._ VI. (1912), pp.

19-28, and the literature and cases there cited.]

VIII

VIOLATION OF NEUTRALITY

Hall, ---- 227-229--Lawrence, ---- 233, 238, 239--Phillimore, III. ---- 151A-151B--Taylor, ---- 630 and 642--Wharton, III. ---- 402, 402A--Wheaton, ---- 429-433--Moore, VII. ---- 1319-1328, 1334-1335--Bluntschli, ---- 778-782--Heffter, -- 146--Geffcken in Holtzendorff, IV. pp. 667-676, 700-709--Ullmann, -- 191--Bonfils, No. 1476--Despagnet, No. 697--Pradier-Fodere, No. 3235--Rivier, II. pp. 394-395--Calvo, IV. ---- 2654-2666--Fiore, III. Nos.

1567-1570--Martens, II. -- 138--Kleen, I. -- 25--Dupuis, Nos.

332-337.

[Sidenote: Violation of Neutrality in the narrower and in the wider sense of the Term.]

-- 357. Many writers who speak of violation of neutrality treat under this head only of violations of the duty of impartiality inc.u.mbent upon neutrals. And indeed such violations only are meant, if one speaks of violation of neutrality in the narrower sense of the term. However, it is necessary for obvious reasons to discuss not only violations of the duty of impartiality of neutrals, but violations of all duties deriving from neutrality, whether they are inc.u.mbent upon neutrals or upon belligerents. In the wider sense of the term violation of neutrality comprises, therefore, every performance or omission of an act contrary to the duty of a neutral towards either belligerent as well as contrary to the duty of either belligerent towards a neutral. Everywhere in this treatise the term is used in its wider sense.

It is important to remember that violations of neutrality on the part of belligerents must not be confounded with violations of the laws of war by which subjects of neutral States suffer damage. If, for instance, an occupant levies excessive contributions from subjects of neutral States domiciled in enemy country in contravention of article 49 of the Hague Regulations, this is a violation of the Laws of War, for which, according to article 3 of Convention IV., the belligerent concerned must pay compensation, but it is not a violation of neutrality.

[Sidenote: Violation in contradistinction to End of Neutrality.]

-- 358. Violation of neutrality must not be confounded with the ending of neutrality,[706] for neither a violation on the part of a neutral[707]

nor a violation on the part of a belligerent brings _ipso facto_ neutrality to an end. If correctly viewed, the condition of neutrality continues to exist between a neutral and a belligerent in spite of a violation of neutrality. It must be emphasised that a violation of neutrality contains nothing more than a breach of a duty deriving from the condition of neutrality. This applies not only to violations of neutrality by negligence, but also to those by intention. Even in an extreme case in which the violation of neutrality is so great that the offended party considers war the only adequate measure in answer to it, it is not the violation which brings neutrality to an end, but the determination of the offended party. For there is no violation of neutrality so great as to oblige the offended party to make war in answer to it, such party having always the choice whether it will keep up the condition of neutrality or not.

[Footnote 706: See above, -- 312.]

[Footnote 707: But this is almost everywhere a.s.serted, as the distinction between the violation of the duty of impartiality inc.u.mbent upon neutrals on the one hand, and on the other, the ending of neutrality, is usually not made.]

But this applies only to mere violations of neutrality, and not to hostilities. The latter are acts of war and bring neutrality to an end; they have been characterised in contradistinction to mere violations above in -- 320.

[Sidenote: Consequences of Violations of Neutrality.]

-- 359. Violations of neutrality, whether committed by a neutral against a belligerent or by a belligerent against a neutral, are international delinquencies.[708] They may at once be repulsed, the offended party may require the offender to make reparation, and, if this is refused, it may take such measures as it thinks adequate to exact the necessary reparation.[709] If the violation is only slight and unimportant, the offended State will often merely complain. If, on the other hand, the violation is very substantial and grave, the offended State will perhaps at once declare that it considers itself at war with the offender. In such case it is not the violation of neutrality which brings neutrality to an end, but the declaration of the offended State that it considers the violation of so grave a character as to oblige it to regard itself at war with the offender.

[Footnote 708: See above, vol. I. -- 151.]

[Footnote 709: See above, vol. I. -- 156.]

That a violation of neutrality can only, like any other international delinquency, be committed by malice or culpable negligence,[710] and that it can be committed through a State's refusing to comply with the consequences of its "vicarious" responsibility for acts of its agents or subjects,[711] is a matter of course. Thus, if a belligerent fleet attacks enemy vessels in neutral territorial waters without an order from its Government, the latter bears "vicarious" responsibility for this violation of neutral territory on the part of its fleet. If the Government concerned refuses to disown the act of its fleet and to make the necessary reparation, this "vicarious" responsibility turns into "original" responsibility, for a case of violation of neutrality and an international delinquency has then arisen. And the same is valid if an agent of a neutral State without an order of his Government commits such an act as would const.i.tute a violation of neutrality in case it were ordered by the Government; for instance, if the head of a province of a neutral, without thereto being authorised by his Government, allows forces of a belligerent to march through this neutral territory.

[Footnote 710: See above, vol. I. -- 154.]

[Footnote 711: See above, vol. I. -- 150.]

[Sidenote: Neutrals not to acquiesce in Violations of Neutrality committed by a Belligerent.]

-- 360. It is entirely within the discretion of a belligerent whether he will acquiesce in a violation of neutrality committed by a neutral in favour of the other belligerent. On the other hand, a neutral may not exercise the same discretion regarding a violation of neutrality committed by one belligerent and detrimental to the other. His duty of impartiality rather obliges him in the first instance to prevent, with the means at his disposal, the belligerent concerned from committing such violation; for instance, to repulse an attack of men-of-war of a belligerent on enemy vessels in neutral ports. Thus article 3 of Convention XIII. enacts:--"When a ship has been captured in the territorial waters of a neutral Power, such Power must, if the prize is still within its jurisdiction, employ the means at its disposal to release the prize with its officers and crew, and to intern the prize crew." And in case he could not prevent and repulse a violation of his neutrality, the same duty obliges him to exact due reparation from the offender,[712] for otherwise he would favour the one party to the detriment of the other. If a neutral neglects this obligation, he is thereby committing a violation of neutrality on his part for which he may be made responsible by such belligerent as has suffered through the violation of neutrality committed by the other belligerent and acquiesced in by the neutral. For instance, if belligerent men-of-war seize enemy vessels in ports of a neutral, and if the neutral, who could not or did not prevent this, exacts no reparation from the belligerent concerned, the other party may make the neutral responsible for the losses sustained.

[Footnote 712: See articles 25 and 26 of Convention XIII. This duty is nowadays universally recognised, but before the nineteenth century it did not exist, although the rule that belligerents must not commit hostilities on neutral territory, and in especial in neutral ports and waters, was well recognised. That in spite of its recognition this rule was in the eighteenth century frequently infringed by commanders of belligerent fleets, may be ill.u.s.trated by many cases. Thus, for instance, in 1793, the French frigate _Modeste_ was captured in the harbour of Genoa by two British men-of-war (see Hall, -- 220). And in 1801, during war against Sweden, a British frigate captured the _Freden_ and three other Swedish vessels in the Norwegian harbour of Oster-Risoer (see Ortolan, II. pp. 413-418).]

[Sidenote: Case of the _General Armstrong_.]

-- 361. Some writers[713] maintain that a neutral is freed from responsibility for a violation of neutrality through a belligerent attacking enemy forces in neutral territory, in case the attacked forces, instead of trusting for protection or redress to the neutral, defend themselves against the attack. This rule is adopted from the arbitral award in the case of the _General Armstrong_. In 1814, during war between Great Britain and the United States of America, the American privateer _General Armstrong_, lying in the harbour of Fayal, an island belonging to the Portuguese Azores, defended herself against an attack of an English squadron, but was nevertheless captured. The United States claimed damages from Portugal because the privateer was captured in a neutral Portuguese port. Negotiations went on for many years, and the parties finally agreed in 1851 upon arbitration to be given by Louis Napoleon, then President of the French Republic. In 1852 Napoleon gave his award in favour of Portugal, maintaining that, although the attack on the privateer in neutral waters comprised a violation of neutrality, Portugal could not be made responsible, on account of the fact that the attacked privateer chose to defend herself instead of demanding protection from the Portuguese authorities.[714] It is, however, not at all certain that the rule laid down in this award will find general recognition in theory and practice.[715]

[Footnote 713: See, for instance, Hall, -- 228, and Geffcken in Holtzendorff, IV. p. 701.]

[Footnote 714: See Moore, _Arbitrations_, II. pp. 1071-1132; Calvo, IV.

-- 2662; and Dana's note 208 in Wheaton, -- 429.]

[Footnote 715: The case of the _Res.h.i.telni_, which occurred in 1904, during the Russo-j.a.panese War, and is somewhat similar to that of the _General Armstrong_, is discussed above in -- 320 (2). That no violation of neutrality took place in the case of the _Variag_ and _Korietz_, is shown above in -- 320 (1).]

[Sidenote: Mode of exacting Reparation from Belligerents for Violations of Neutrality.]

-- 362. It is obvious that the duty of a neutral not to acquiesce in violations of neutrality committed by one belligerent to the detriment of the other obliges him to repair, so far as he can, the result of such wrongful acts. Thus, he must liberate[716] a prize taken in his neutral waters, or prisoners made on his territory, and the like. In so far, however, as he cannot, or not sufficiently, undo the wrong done, he must exact reparation from the offender. Now, no general rule can be laid down regarding the mode of exacting such reparation, since everything depends upon the merits of the individual case. Only as regards capture of enemy vessels in neutral waters has a practice grown up, which must be considered binding, and according to which the neutral must claim the prize, and eventually damages, from the belligerent concerned, and must restore her to the other party. Thus in 1800, during war between Great Britain and the Netherlands, Prussia claimed before the British Prize Court the _Twee Gebroeders_,[717] a Dutch vessel captured by the British cruiser _L'Espiegle_ in the neutral maritime belt of Prussia. Sir William Scott ordered restoration of the vessel, yet he refused costs and damages, because the captor had not violated Prussian neutrality intentionally but only by mistake and misapprehension. Thus again, in 1805, during war between Great Britain and Spain, the United States claimed before the British Prize Court the _Anna_,[718] a Spanish vessel captured by the English privateer _Minerva_ within their neutral maritime belt. Thus, further, in 1864, during the American Civil War, when the Confederate cruiser _Florida_ was captured by the Federal cruiser _Wachuset_ in the neutral Brazilian port of Bahia, Brazil claimed the prize. As the latter had sunk while at anchor in Hampton Roads, she could not be restored, but the United States expiated the violation of neutrality committed by her cruiser by court-martialing the commander; further, by dismissing her Consul at Bahia for having advised the capture; and, finally, by sending a man-of-war to the spot where the violation of neutrality had taken place for the special purpose of delivering a solemn salute to the Brazilian flag.[719]

[Footnote 716: See article 3 of Convention XIII.]

[Footnote 717: 3 C. Rob. 162.]

[Footnote 718: 5 C. Rob. 373. See above, vol. I. -- 234.]

[Footnote 719: See Moore, VII. -- 1334, p. 1090.]

[Sidenote: Negligence on the part of Neutrals.]

-- 363. Apart from intentional violations of neutrality, a neutral can be made responsible only for such acts favouring or damaging a belligerent as he could by due diligence have prevented, and which by culpable negligence he failed to prevent. It is by no means obligatory for a neutral to prevent such acts under all circ.u.mstances and conditions.

This is in fact impossible, and it becomes more obviously so the larger a neutral State, and the longer its boundary lines. So long as a neutral exercises due diligence for the purpose of preventing such acts, he is not responsible in case they are nevertheless performed. However, the term _due diligence_ has become controversial through the definition proffered by the United States of America in interpreting the Three Rules of Washington, and through the Geneva Court of Arbitration adopting such interpretation.[720] According to this interpretation the _due diligence_ of a neutral _must be in proportion to the risks to which either belligerent may be exposed from failure to fulfil the obligations of neutrality on his part_. Had this interpretation been generally accepted, the most oppressive obligations would have become inc.u.mbent upon neutrals. But no such general acceptance has taken place.

The fact is that _due diligence_ in International Law can have no other meaning than it has in Munic.i.p.al Law. It means _such diligence as can reasonably be expected when all the circ.u.mstances and conditions of the case are taken into consideration_.

[Footnote 720: See above, -- 335.]

Be that as it may, the Second Peace Conference has taken a step which certainly excludes for the future the continuation of the controversy regarding the interpretation of _due diligence_, for articles 8 and 25 of Convention XIII., instead of stipulating due diligence on the part of neutrals, stipulate _the employment of the means at their disposal_.

[Sidenote: Laying of Submarine Contact Mines by Neutrals.]

-- 363_a_. In order to defend themselves against possible violations of their neutral territory, neutrals may lay automatic contact mines off their coasts. If they do this, they must, according to article 4 of Convention VIII., observe the same rules and take the same precautions as are imposed upon belligerents, and as have been expounded above, -- 182_a_. Moreover they must, according to paragraph 2 of article 4 of Convention VIII., give notice in advance to mariners of the place where automatic contact mines have been laid, and this notice must be communicated at once to the Governments through the diplomatic channels.

Convention VIII. is quite as unsatisfactory in its rules concerning mines laid by neutrals as in its rules concerning mines laid by belligerents, and the danger to neutral shipping created by mines laid by neutrals is very great, all the more as the laying of mines by neutrals is not restricted to their maritime belt. For article 4 of Convention VIII. speaks of the laying of contact mines on the part of neutral Powers _off their coasts_, without limiting the laying within the three-mile wide maritime belt as was proposed at the Second Peace Conference, and as article 6[721] of the _Reglementation internationale de l'Usage des Mines sous-marines et torpilles_ of the Inst.i.tute of International Law likewise proposes.