CHAP. XXXIII Sale of neutral vessels New conventional rules belligerent status of these vessels was beyond dispute. On the other hand, there appeared to be no reason for preventing a citizen who owned a merchant vessel from arming and otherwise equipping it and selling it in the neutral port or sending it abroad for sale to one or other of the belligerents.1 Such a vessel might be contraband of war, and subject to capture on the high seas, but it was not in itself the equivalent of a hostile expedition. Again, it was not thought necessary to prevent citizens or others from building a vessel to the order of a belligerent in a neutral port without any intent on their part other than to reap the profits of the industry in which they were engaged. By 1861 conditions had changed. Confederate cruisers, notably the Alabama, built to order in British ports and armed after their departure from port, inflicted such heavy losses upon the commerce of the United States that it was seen that the commercial intent of the builders was no excuse for the neutral state in the eyes of the injured belligerent. The United States pressed a claim upon Great Britain for damages. Arbitration was resorted to, and in view of the dispute as to the question of law involved, it was agreed beforehand, in the Treaty of Washington of 1871, that a neutral state was bound "to use due diligence" to prevent the fitting out, arming, or equipping within its jurisdiction of "any vessel" which it had reasonable ground to believe was intended to carry on war against a power with which it was at peace. This newly formulated rule was in keeping with the fact that vessels of war, even though unarmed at the time of leaving port, had developed such potentialities of inflicting injury upon an enemy as to be equivalent to a hostile expedition in themselves. At the Second Hague Conference the rule was adopted in substance in the convention concerning neutral rights and duties, with the change, however, that the somewhat indefinite phrase "due diligence" was replaced by the phrase, "a neutral government is bound to employ the means at its disposal" to prevent the acts in question. The rule of 1871, as well as that of 1907, would appear by inference to require a neutral state to prohibit the sale and transfer within See the decision of the Supreme Court of the United States in the case of the Santissima Trinidad, 7 Wheaton, 283 (1827). Scott, Cases, 823; Evans, 788. 2 For the text of the "Three Rules of the Treaty of Washington," see Moore, Digest, VII, 1330; Malloy, Treaties, I, 703. For a study of the Alabama controversy, see Papers Relating to the Treaty of Washington. Moore, International Arbitrations, I, 495 ff. a " Art. 8. XXXIII its ports to a belligerent of all vessels, whether actually armed or CHAP. not, which are capable of being converted into warships or used as auxiliaries in the belligerent navy. combatants A second form of hostile expedition which a neutral state must Corps of prevent from departing from its territory is an organized body of armed combatants. Whether the expedition has planned to depart across the land boundary or from one of the ports of the neutral state is a point of no consequence. It would appear to be essential, however, to constitute a military expedition that the body of men be under the command of officers, that they have a common hostile intent, and that they be armed. Such at least has been the application given to the Neutrality Laws of the United States. The provisions of the Fifth Hague Convention state that "corps of combatants cannot be formed nor recruiting offices opened on the territory of a neutral Power to assist the belligerents." The phrase "corps of combatants" is somewhat indefinite and might or might not be held to include the equipment of arms. In 1870 the United States did not feel called upon to prevent the departure from its territory of a large body of Frenchmen who took passage upon two French steamers, the men not being organized and the arms and ammunition which were shipped at the same time not being in their personal possession. On the other hand, Great Britain in 1829 prevented the landing at Terceira of a party of Portuguese soldiers who had left England unarmed, but so organized as to be capable of immediate action as soon as their arms were delivered to them.4 sible acts of individuals Apart from acts falling within the above two classes neutral g Permis states are not obligated to prevent their citizens or other persons within their territory from maintaining relations with the belligerents whether directly through their agents or indirectly through private business firms located in belligerent territory. International custom has long given sanction to a distinction in this re See United States v. Hart, 74 Fed. Rep., 724; United States v. Wiborg, 163 U. S., 632 (1896). Art. 4. See Hall, International Law, § 222. • Ibid. 'It should be noted that neutral responsibility is limited to acts committed upon the territory of the neutral state. Acts of a directly hostile character, such as entering a neutral merchant vessel in the service of a belligerent or fighting in the ranks of a belligerent, may be committed by its citizens outside the jurisdiction of the neutral state without raising any question of responsibility. The fact that a state may for domestic reasons choose to punish such acts of its citizens does not imply an obligation to do so at international law. CHAP. XXXIII Expressions of opinion Loans to belligerents spect between acts of the state in its corporate capacity as a sovereign power and acts of individual citizens of the state undertaken upon their own initiative. Acts which the state itself may not commit without compromising its neutrality may be freely committed by its citizens or others within its territory. The line between the permissible activities of individuals and other activities, described above, which the neutral state is called upon to prevent represents a compromise between neutrals and belligerents which, while it may be criticized in point of logic and expediency, has been fairly clearly defined by custom. Neutral states are under no obligation to prevent individuals from giving expression to opinions or criticisms unfavorable to one or other of the belligerents or favorable to insurgents in revolt against a de jure government. On several occasions the United States has refused to take action, as, for example, at the request of Great Britain in 1866 with respect to the agitation of Fenians,1 to suppress propaganda directed against a friendly government. In consequence the appeal of President Wilson to the American people, issued shortly after the neutrality proclamations of 1914, to be "impartial in thought as well as in action," and to put a curb upon "sentiments" as well as upon "every transaction that might be construed as a preference of one party to the struggle before another' 2 was in excess of the requirements of international law, whether or not justifiable as a matter of domestic policy. Nor is the neutral state called upon to prevent individuals from making loans of money to either of the belligerents upon such terms as may be agreed upon between the parties. Certain continental publicists have condemned the practice, but international practice sanctions it. The same is true of voluntary subscriptions made by neutral citizens to a belligerent state. On the other hand, neutral governments may, as a matter of policy, forbid or discourage such loans, either directly by penal legislation, or indirectly by refusing to lend their aid to secure the payment of the debt. In 1824, in the case of De Wutz v. Hendricks a British court of com 'See Moore, Digest, VII, § 1313. 5 ས "Under date of August 18, 1914. Am. White Book, II, 17. In 1823 the law officers of the British crown advised against the legality of "subscriptions" while admitting the legality of "loans"; but their opinion was not adopted as a rule of conduct by their government. Scott, Cases, 900, n., quoting Phillimore. 2 Bing., 314, Scott, Cases, 892. 1 XXXIII mon pleas held that a contract in connection with a proposed loan CHAP. to the Greek insurrectionists in their war with Turkey was contrary to international law; and a similar decision was rendered by the Supreme Court of the United States in 1852 in the case of Kennett v. Chambers 1 which involved a loan to a Texan general in 1836 before Texas had been recognized as an independent state. In September, 1914, the United States Department of State announced that loans by American bankers to belligerents were "inconsistent with the true spirit of neutrality." At the beginning of the World War President Wilson expressed a wish that loans of money should not be made to the belligerents, the reason, as subsequently asserted, being that they were "inconsistent with the spirit of neutrality"; 2 but no attempt was made to prevent them, and the attitude of the government appears to have been based upon expediency rather than upon international law. A more difficult problem is presented by the sale of munitions of war by neutral citizens to the belligerents. The traditional rule upon this subject represents, as in other cases, a compromise between neutrals and belligerents. On the one hand, neutral states have been unwilling to restrict the ordinary commercial relations of their citizens with the belligerents, partly from inability to control their conduct, and partly from unwillingness to impose undue burdens upon them. On the other hand, the belligerents are recognized by the neutral state as having the right to put a check upon such commerce by the confiscation of contraband goods captured on their way to the enemy state and by the establishment of effective blockades. It is a matter of no consequence from the point of view of international law whether the contracts for such sales be made in neutral or belligerent territory, or whether delivery of the munitions be made in neutral or in belligerent 3 3 114 Howard, 38. Ibid., 893; Evans, 794. Am. White Book, II, 57, 61. Jefferson's reply to Great Britain and France in 1793 has been widely quoted: "We have answered that our citizens have always been free to make, vend, and export arms; that it is the constant occupation and livelihood of some of them. To suppress their callings, the only means, perhaps, of their subsistence, because a war exists in foreign and distant countries, in which we have no concern, would scarcely be expected. It would be hard in principle and impossible in practice. The law of nations, therefore, respecting the rights of those at peace, has not required from them such an internal derangement in their occupations. It is satisfied with the external penalty pronounced in the President's proclamation, that of confiscation of such portion of these arms as shall fall into the hands of any of the belligerent Powers on their way to the ports of their enemies." Am. State Papers, For. Rel., I, 147. Sale of of war munitions CHAP. XXXIII Situation during the World War merchant vessels. The question has arisen, however, whether an exception to the general rule should not be made when belligerent merchant vessels carry on in neutral ports such an extensive trade in articles of war as to make the neutral territory directly subservient to the effective conduct of hostilities. If, it has been asserted, belligerent warships may not make neutral ports a base of operations by the frequent renewal of their supplies, was it consistent that belligerent merchant vessels should be allowed to accomplish practically the same object? In 1871 the United States argued at Geneva that Great Britain should not have permitted its neutral soil to be used by the Confederate States as "the main, if not the only, base" of their military supplies.2 The Fifth and Thirteenth Hague conventions went no further than to lay down. the general rule that "a neutral Power is not called upon to prevent the export or transport, 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 a fleet." 3 During the World War the situation was presented in which one of the belligerent groups drew heavily upon the United States for its military supplies while the other was, by reason of the superior navy of the enemy, almost entirely cut off from them. Moreover, the trade in arms was maintained not only by the munition factories already in existence at the time the war broke out,* but by numerous other factories built or reconstructed to meet the unprecedented demand. Under these circumstances the German Government pointed out, on April 4, 1915, that if it was the will of the American people that there should be "a true neutrality” the United States would find means of preventing this "onesided supply," or at least of making use of it to force Great Britain to desist from interfering with the legitimate neutral trade with Germany. A similar protest was entered by the AustroHungarian Government on June 29, 1915, which pointed out that the arms industry had "soared to unimagined heights," and that the Thirteenth Hague Convention contemplated a change in existing law to meet new conditions." 1 1 Delivery cannot, of course, be made to belligerent warships while in neutral ports, for this would constitute an addition to their fighting force. See above, p. 558. "Papers Relating to the Treaty of Washington, I, 125-6. Article 7 of the Fifth Convention is verbally identical in the French text with Article 7 of the Thirteenth Convention. Such was the situation which Jefferson had in mind in 1793. See above, p. 567, n. 3. • Ibid., II, 193. |