CHAPTER XXX

THE RELATION OF NEUTRAL STATES TO BELLIGERENTS

trality:

The procedure of war is, as has been seen, a legally recognized a. General principles means of coercion for the maintenance of rights or the redress of neuof wrongs. In the absence of a recognition of collective responsi- neutral rights bility on the part of the community of nations, and of an organization to give effect to it, each state may determine for itself the conditions under which resort to such procedure is expedient, as well as legal, and its action in so doing is restricted only by the general sanctions of international law against arbitrary conduct.1 Resort to the procedure of war, however, necessarily brings the parties to the conflict, plaintiff and defendant states alike, into new relations with third states. On the one hand, international law recognizes the right of third states to remain aloof from the conflict. While it is their option to take sides with one or other of the belligerents if they find it to their essential interest to do so, it is also their right to declare that the war is one in which they have no legal concern. In taking this latter position third states acquire the inferential right to have their position of neutrality respected by the belligerents, together with a number of subordinate rights necessary to the enjoyment of their primary right. These rights of neutral states obviously give rise to corresponding duties on the part of belligerents to observe them.

rights

On the other hand, international law recognizes the right of the Belligerent belligerent state to hold third states to the observance of certain duties corresponding to the position of neutrality they have assumed. The claim of the neutral state to have its neutrality respected must be accompanied, not only by a negative attitude of non-interference, but by positive measures to prevent the commission within its territory of acts which have come to be regarded

'See above, p. 381.

66

This attitude is formally taken by the publication of a 'proclamation of neutrality," setting forth the fact that certain states are at war, and that the neutral state is on terms of friendship with them and proposes to remain so. American proclamations include a summary of the obligations incumbent upon the citizen body in pursuance of the laws enacted for the maintenance of neutrality. For a sample proclamation, see Am. Journal, IX (1915), Supp., 110.

CHAP.

CHAP

b. Conflict between belligerent and neutral rights

as in contravention of neutrality. Belligerent right and neutral duty are here correlative; but in consequence of the greater convenience to governments of discussing neutral conduct in terms of positive acts, international practice has defined the scope of belligerent rights of this character in terms of neutral duties.1

In addition to the belligerent right to hold the neutral to its position of neutrality, international law has recognized that a belligerent cannot carry on war effectively without interfering in some degree with the normal intercourse between neutral citizens and the enemy state. It therefore calls upon neutral states to acquiesce in the imposition upon their citizens of certain restrictions in their commercial and social relations with the enemy state which are incidental to the successful prosecution of hostilities by the belligerent. These restrictions are principally the result of the application of the belligerent right to blockade enemy ports and to prevent the carriage to the enemy of contraband goods."

The conflict between belligerents and neutrals as to their respective rights and duties fills a large place in the history of international relations of the past two centuries. Belligerents, on their part, have been reluctant to observe the rights of neutral states. Until the seventeenth century, when the conception of sovereignty began to take more definite shape, acts of war were freely committed within the territory of weaker neutral states; and even when the theory of neutral rights came to be generally accepted the practice of belligerents failed to conform to it. Ships were attacked in neutral territorial waters, belligerent troops were marched through neutral territory, and defeated were pursued into it.*

3

enemy troops

At the same time, neutral states on their part had but an inadequate conception of the obligations now regarded as legally consequent upon the status of neutrality. Grotius devoted but a brief chapter to the status of those whom he described by the expressions, qui in bello medii sunt; qui extra bellum sunt positi. It seemed consistent to him that a state might remain neutral, and yet pass upon the justice of the war in progress and modify its neutral conduct accordingly. During this period the duties of a

'See below, Chap. XXXIII.

'See below, Chap. XXXII.

'For instances, see Hall, International Law, § 209.

4 Compare Vattel's vague rules, Bk. III, § § 119-135.

It is the duty of neutrals," he said, "to do nothing to strengthen those who are prosecuting an unjust cause, or which may impede the movements of him who is carrying on a just war. But if the cause is a doubtful one they must manifest an impartial attitude towards both sides, in permitting them to

XXX

neutral state were for the most part determined, not by fixed in- CHAP. ternational custom, but by treaties between individual states, by which each state sought to prevent third parties from giving help to the enemy in the event of a possible war.1

3

regard for

rights

By the middle of the eighteenth century the increasing recog- Increasing nition of the principle of territorial sovereignty resulted in fewer neutral instances of the commission of hostilities by belligerents in neutral territory, and publicists were explicit in affirming a rule of law upon the subject. On the other hand, the conception of neutral duty was still defective. Bynkershoek, writing in 1737, thought that "the purchase of soldiers among a friendly people is as lawful as the purchase of munitions of war"; while Vattel, writing in 1758, thought that a sovereign might give to a belligerent "the moderate assistance which he owes in virtue of a former defensive alliance" without thereby becoming a party to the war. Moreover, levies of troops might be permitted and loans of money made in favor of one belligerent as against the other where the neutral nation believed that it had good reasons for the discrimination.* Apart from these exceptions, Vattel formulated clearly the two fundamental principles of neutral duty, (1) that in all matters connected with the war a neutral state must abstain from helping either party, and (2) that in matters not connected with the war a neutral state must not refuse to one of the belligerents what it grants to the other."

state of

From the time of Vattel down to the present day the inviola- c. Present bility of neutral territory has been clearly recognized in principle, the law though occasionally violated in practice. On the side of neutral duty there has been a gradual strengthening of the obligation of the neutral state, not only to refrain in its corporate capacity from rendering assistance to either party, but to take active measures to restrain its citizens and those within its jurisdiction from performing acts which would compromise its neutrality. In this latter respect the Neutrality Act passed by the United States in 1794 is conspicuous for its clear formulation of neutral obligations." As against this consistent development of the law there has been a constant struggle between belligerents and neutrals with respect pass through the country, in supplying their troops with provisions, and in not relieving the besieged." Bk. III, Chap. XVII, 3.

1

For a list of such treaties, see Hall, op. cit., § 208.

CHAP. XXX

d. Neutrality

under the Covenant of the League

of Nations

to the legality of the interference by belligerents with neutral commerce. Belligerents with powerful navies have endeavored to extend the scope of the rules of blockade and contraband in order to bring the sharpest possible economic pressure to bear upon the enemy. On the other hand, the growth of commercial relations has made neutrals more than ever reluctant to submit to the restraints imposed upon their commerce by a war in which they have no immediate concern.1

It remains to be seen how far the establishment of the League of Nations will modify the fundamental principles of the law of neutrality. A number of the provisions of the Covenant, taken in their literal bearing, run counter to the primary conception of neutrality. The principle of the collective responsibility of the League as a whole for the maintenance of international peace negatives the traditional right of a sovereign state to use its individual judgment with respect to the issues of the war and to stand apart from the conflict if it should find it to its interest to do so.2 Article 11 of the Covenant states that "any war or threat of war, whether immediately affecting any of the high contracting parties or not, is hereby declared to be a matter of concern to the whole League, and the League shall take any action that may be deemed wise and effectual to safeguard the peace of nations." While the obligation of collective intervention here assumed is not absolute, it gives to such intervention a legal character, and it makes the neutrality of the individual state dependent in principle, if not in fact, upon the decision of the League rather than upon its own personal judgment.

More explicit abandonment of the right of individual neutrality is seen in the case, provided for in Article 16, in which a member of the League resorts to war in violation of the agreement to arbitrate contained in Article 12 of the Covenant. Such a state shall thereby "ipso facto be deemed to have committed an act of war against all other members of the League," and the latter shall forthwith discontinue trade and financial relations with the offending state. Again, the obligation assumed by Article 10, "to respect and preserve as against external aggression the territorial integrity and existing political independence of all members of the League" is incompatible with neutrality in the event of wars re

1 For general comment, see M. W. Graham, Jr., "Neutrality and the World War," Am. Journal, XVII (1923), 704.

See above, p. 48.

XXX

garded as coming within the terms of the agreement. In view, CHAP. however, of the uncertain practical effectiveness of the League of Nations, because of the individual veto power of its members, and in view of the technical loopholes of escape left between its several articles, legal as well as illegal resort to war is still possible. In consequence, neutrality may be still a legal attitude both for members of the League and for states not members of the League but governed by the old customary law.