a. Inviolability of neutral territory CHAPTER XXXI NEUTRAL RIGHTS By direct inference from the right of a state to remain neutral in a given war is the right to maintain the integrity of its territory as against the commission therein of acts of hostility by either of the belligerents. This right, as has been seen, is implicit in the conception of sovereignty. Both the Hague Conventions confirm the customary law in this respect. The Convention (V) concerning the Rights and Duties of Neutral Powers and Persons in War on Land declares that "the territory of neutral Powers is inviolable"; while the Convention (XIII) respecting the Rights and Duties of Neutral Powers in Naval War lays down the same rule in terms of the duty of the belligerent "to respect the sovereign rights of neutral Powers" and to abstain "from any act which would, if knowingly permitted by any Power, constitute a violation of neutrality." In both conventions the right of the neutral to resist by force attempts to violate its neutrality is specifically declared not to constitute a hostile act. Where violations of neutral territory have been perpetrated by belligerent commanders, reparation by way of apology and redress is due from the belligerent state. In the case of the Confederate cruiser Florida, which in 1864 was captured in Brazilian waters by the United States man-of-war Wachusett, the United States admitted that the capture was "an unauthorized, unlawful, and indefensible exercise of the naval force of the United States, within a foreign country, in defiance of its established and duly recognized government." Due apology was made, the commander of the Wachusett was sent before a court martial, and the crew of the Florida were set at liberty. As the vessel itself had foundered in Hampton Roads, it could not be restored, but no obligation to make substitution or pecuniary compensation was recognized. In the case of the Chesapeake, a passenger steamer which had been captured in 1865 by certain persons acting in the interest of the XXXI Confederate States, and was subsequently seized in British terri- CHAP. torial waters by a United States cruiser, the United States disclaimed "any exercise whatever of authority, by its agents, within the waters or on the soil of Nova Scotia.”’1 2 of neutral in self Under what circumstances the right of self-defense might justify Violations a belligerent in committing an act of hostility within neutral terri- territory tory is a political rather than a legal question. During the Russo- defense Japanese War, Manchuria and Korea became the actual theater of war, although both were technically neutral territory. Japan's justification was that neither China nor Korea was able to protect herself from the control by Russia which it was the very object of Japan in the war to break. More doubtful was the justification offered by Japan for the violation of Chinese neutrality during the attack upon Kiau-chau in 1914. Whether, under other conditions, such as the massing of large numbers of French troops upon the western boundary of Belgium in 1914, Germany would have been justified in anticipating an attack from that quarter, is a question outside the range of international law. An exceptional case in maritime warfare is to be seen in the demand made by the British Government upon Denmark in 1807 for the surrender of the neutral Danish fleet to Great Britain to prevent it from being used by Napoleon against Great Britain. Upon the failure of Denmark to comply with the request, orders were given to seize the fleet. Less grave instances of the violation of neutral territorial waters in self-defense are those in which belligerent commanders have acted upon their own responsibility and have subsequently been supported by their governments. 1814 the American privateer General Armstrong defended itself in Portuguese territorial waters against the attack of a British vessel, and the United States not only considered the act justifiable but pressed a claim against Portugal for damages for failure to give protection." 'Ibid., II, § 210, where further cases in illustration may be found. 2 In The case of the Caroline has already been cited in illustration of an emergency arising in time of domestic rebellion. See above, p. 144. As Oppenheim points out, Manchuria and Korea had become the theater of war, so that hostilities committed there by the belligerents against one another could not be classified as violations of neutrality. Hence he excuses the attack by the Japanese fleet upon two Russian ships, the Variag and the Korietz, in the territorial waters of Korea, but condemns the capture of the Reshitelni in the harbor of Chefoo. International Law, II, § 320. C. B. Elliott, "The Shantung Question,'' Am. Journal, XIII (1919), 706. The claim was, however, disallowed by decision of the Emperior Napoleon CHAP. XXXI Cases during the World War b. Acts short of hostilities During the World War two British cruisers, the Kent and the Glasgow, attacked on March 14, 1915, the German warship Dresden within the territorial waters of Chile surrounding an island off the mainland. While an apology was promptly offered by the British foreign secretary, it was explained that the Dresden was itself abusing the neutrality of Chile by a pretense of internment that was being made to cover an opportunity to commence hostilities anew.1 In September, 1916, several German and Austro-Hungarian merchant vessels were captured by Allied warships in Greek territorial waters, and the captures were justified by the French Prize Council on the ground that acts of the enemy had already transformed the territorial waters of Greece into a "theater of war. 2 3 What acts other than hostilities are to be regarded as in violation of neutral territory is a question that has raised numerous points of controversy. International practice has, however, found it more convenient to discuss these issues under the heading of neutral duties. In general, the prohibitions of the two Hague conventions, dealing respectively with the rights and duties of neutral powers in war on land and in naval war, embody previously existing usages together with extensions to meet new conditions. In war on land belligerents are forbidden to move troops or to transport munitions of war or other supplies across the territory of a neutral power. They are likewise forbidden to erect wireless telegraph stations or other apparatus upon neutral territory, or to use any such apparatus set up by them before the war for military purposes.5 Corps of combatants may not be formed nor recruiting offices established in neutral territory. Defeated belligerent troops may not take refuge in neutral territory unless the neutral state consents to receive them, in which case they are under obligation to observe the rules prescribed by the neutral state in pursuance of its own obligations of neutrality." In naval war similar prohibitions apply. The exercise by a belligerent of the right of visit and search of merchant vessels is 1 See Garner, International Law and the World War, II, § 562. 2 The Tinos, and other cases. French Prize Council, 1917. Scott, Cases, 855. 'See below, Chap. XXXIII. Art. 2, Convention respecting the Rights and Duties of Neutral Powers and Persons in War on Land. Art. 3. See further, the rules drawn up by the Commission of Jurists at the Hague in 1923 concerning the control of radio in time of war. "General Report, Part I. Am. Journal, XVII (1923), Supp., 242. XXXI forbidden, being included in acts of hostility.1 Prize-courts may CHAP. not be set up by a belligerent in neutral territory.2 Belligerents are forbidden to use neutral ports and waters as a base of naval operations, and to erect wireless stations for communication with belligerent forces on land or sea. Moreover, belligerents are in general under obligation to observe the restrictions imposed by the neutral state upon belligerent warships and their prizes in respect to admission into its ports, including the repairs that may be made, the supplies that may be taken on, the time of stay in port, the order of departure for vessels of the opposing belligerents, etc. Any violation of these conditions and restrictions constitutes a violation of the neutrality of the state, greater or less in degree according to the circumstances. During the World War belligerent warships on a number of occasions violated the conditions attending the hospitality of neutral ports. In a note of December 24, 1914, the American secretary of state justified the action of port officials in denying clearance to German merchant vessels carrying supplies or fuel to German warships on the ground that the "repeated departure" of such vessels made the port a base of naval operations for the belligerent. Again, on March 27, 1915, the United States requested the British Government to prevent the recurrence of "violations of the territorial waters of the United States" by British cruisers taking on coal and other supplies along the coast of California. Cases during the World War Appam A conspicuous case was that of the Appam, a British merchant Case of the vessel captured by the German cruiser Moewe and brought on February 1, 1916, by a prize-crew to the port of Norfolk to be interned. The question was raised as to the status of the Appam under the Prussian-American treaties of 1799 and 1828, as well as under the existing rules of international law. Interpreting the provisions of the treaties strictly, the Department of State held that they did not grant the privilege of indefinite asylum in the United States. Libel proceedings were begun against the vessel on the ground that its presence in port was in violation of the neutrality of the United States, a fact, which, it was claimed, 7 1Art. 2, Convention concerning the Rights and Duties of Neutral Powers in Naval Warfare. 'Art. 12-21. 3 Art. 5. 2 Art. 4. * See Stowell and Munro, International Cases, II, 290. Am. White Book, II, 31. Am. White Book, II, 33. For other instances of a similar character, see Stowell and Munro, International Cases, II, 290-321. Am. White Book, III, 335-337. CHAP. c. Right of neutral state to protect its citizens and their property Liability of neutral aliens to military service operated to defeat the title of the captors and restore the vessel to its original owners. Upon appeal to the Supreme Court, it was held by that body that the effort "to make of an American port a depository of captured vessels with a view to keeping them there indefinitely" was a breach of neutrality as tested by the traditional policy of the United States and by the provisions of the Hague Convention concerning the Right and Duties of Neutral Powers in Naval War.1 While the right of a neutral state in respect to the inviolability of its territory is absolute, provided only that it enforces its neutrality against both belligerents impartially, the further right of the neutral state to protect its citizens resident in one or other of the belligerent states, or resident at home and maintaining commercial relations with one or the other of the belligerents, is limited and restricted by the right of the belligerent states to conduct the operations of war. Within this field have arisen, during the past two centuries, numerous conflicts between neutral and belligerent claims which have been the cause of acute controversies, often leading to war, and which still for the most part await the adoption of a constructive rule of law. These conflicts of claims relate in war on land to the status of neutral persons and their property within belligerent territory under the control of the de jure government or under occupation of the enemy. In maritime war they relate primarily to the effect upon neutral persons and property of the belligerent right to capture and destroy enemy vessels, and to the effect upon neutral property of the belligerent right to maintain blockade and to capture contraband goods.3 As a general rule, a neutral state cannot demand that its citizens permanently resident in the territory of a belligerent shall enjoy any exemption from the additional burdens which the belligerent state may find it necessary to impose upon its own subjects. Practice appears to sanction the right of the neutral to protect its nationals from being drafted against their will into the military service of the belligerent; but this right appears to be contingent Berg v. B. and A. Steam Navigation Co., 243 U. S., 124 (1917). The provisions of the Hague convention referred to were Art. 21-22, eliminating Art. 23 to which the United States had entered a reservation. See below, p. 559, n. 2. For further instances presenting similar facts raising the question of neutral duties rather than neutral rights, see below, p. 557. 'See below, p. 529. See above, p. 496; below, pp. 537, 547. For the special question of the right of a neutral state to require the innocent passage through belligerent territory of diplomatic officers coming to it from the other belligerent, see above, p. 367. |