CHAPTER XXIII

RELATIONS OF NEUTRAL STATES AND BELLIGERENT STATES

125. +General Principles of the Relations between States.+

126. +Neutral Territorial Jurisdiction.+

127. +Regulation of Neutral Relations.+ (_a_) To belligerent troops. (_b_) Asylum for vessels. (_c_) Ordinary entry. (_d_) Sojourn of vessels.

128. +No Direct Assistance by Neutral.+ (_a_) Military. (_b_) Supplies. (_c_) Loans. (_d_) Enlistment.

129. +Positive Obligations of a Neutral State.+

§ 125. General Principles of the Relations between States

Of the general principle Wheaton says, "The right of every independent state to remain at peace whilst other states are engaged in war is an incontestable attribute of sovereignty."[410] Equally incontestable is the right of a belligerent state to demand that a state not a party to the war shall refrain from all participation in the contest, whether it be direct or indirect.

The modern tendency is to remove from the neutral all possible inconveniences which might result from war between states with which the neutral is at peace. The normal relations between neutral and neutral are unimpaired. As the neutral is at peace with the belligerents, the relations between the neutral and the belligerents are affected only so far as the necessities of belligerent operations demand. "Every restriction, however, upon the rights of a neutral or belligerent must have a clear and undoubted rule and reason. The burden of proof lies upon the restraining government."[411]

§ 126. Neutral Territorial Jurisdiction

One of the earliest principles to receive the sanction of theory and practice was that of the inviolability of territorial jurisdiction of neutrals. This principle has been liberally interpreted in recent times, and the tendency has been to make increasingly severe the penalties for its violation.

(_a_) The troops of a belligerent may not engage in hostilities in the land of a neutral.

(_b_) Belligerent persons who enter neutral land for warlike purposes, whether actually committing hostilities or merely organized for such purpose, should be interned "at points as far removed as possible from the theater of war." Those entering for asylum to escape death or captivity should be similarly treated.

Formerly it was held that the right of passage might be granted by a neutral to both belligerents on the same terms, or to one of the belligerents if in accord with an agreement entered into before the war. There are many examples of this practice before the nineteenth century, but at the present time it is the rule that a belligerent body of troops may not pass through neutral territory. In the Franco-German War of 1870 the application of Germany to transport its wounded by railway across Belgium was denied. It was claimed that the grant of this privilege would enable Germany to use its own lines of railway for strictly hostile purposes in the way of the transportation of troops, war supplies, etc., thus relieving Germany of a part of the burdens of war.

(_c_) The rules applicable to the maritime jurisdiction of a neutral are somewhat different from those of the land. The neutral does not control with the same absolute authority the waters washing its shores and the land within its boundaries. That portion of the sea which is within the three-mile limit is for the purposes of peaceful navigation a part of the open sea. The simple passage of ships of war through these waters is permitted. All belligerent acts within the maritime jurisdiction of a neutral are forbidden.[412]

The waters which appertain more strictly to the exclusive jurisdiction of the neutral, such as harbors, ports, enclosed bays, and the like, are subject to the municipal laws of the neutral.[413] Asylum in case of imminent danger is, however, not to be denied; otherwise these waters are open to belligerent ships of war only on condition that they observe the regulations prescribed by the neutral. Such regulations must of course be impartial. These regulations are now often announced in the proclamations of neutrality, as was the case in the war of the United States and Spain in 1898.

(_d_) Neutral territory may not be used as the base of military operations or for the organization or fitting out of warlike expeditions.

Sir W. Scott said in the case of the _Twee Gebroeders_ that, "no proximate acts of war are in any manner to be allowed to originate on neutral grounds."[414] This would without doubt apply to filibustering expeditions. Many acts are of such nature as to make it impossible to determine whether this principle is violated until the actor is beyond the jurisdiction of the neutral. In such cases the neutral sovereignty is "violated constructively."[415] A second act of this kind might constitute the neutral territory a base of military operations.

It is difficult to distinguish in some cases between those expeditions which have a warlike character and those which cannot at the time of departure be so classed.

In 1828, during the revolution in Portugal, certain troops took refuge in England. In 1829 these men, unarmed but under military command, set out from Plymouth in unarmed vessels, ostensibly for Brazil. Arms for their use had been shipped elsewhere as merchandise. Off the island of Terceira, belonging to Portugal, they were stopped by English vessels within Portuguese waters, and taken back to a point a few hundred miles from the English Channel. The Portuguese then put into a French port. Most authorities are agreed that the expedition was warlike, but that the British ministers should have prevented the departure of the expedition from British waters where they had jurisdiction, instead of coercing it in Portuguese waters.[416]

During the Franco-German War of 1870 a large body of Frenchmen left New York in French vessels bound for France. These vessels also carried large quantities of rifles and cartridges. The Frenchmen were not organized, the arms were proper articles of commerce, and the two were not so related as to render them immediately effective for war. The American Secretary held that this was not a warlike expedition. In discussing this case Hall says, "The uncombined elements of an expedition may leave a neutral state in company with one another, provided they are incapable of proximate combination into an organized whole."[417]

In order, therefore, that an expedition may be warlike there must be an organized body of men, under military or naval direction, and intending to engage in war in the near future.

§ 127. Regulation of Neutral Relations

The relations between the belligerent and the neutral may in some respects be regulated by the neutral. Such regulations find expression in neutrality laws, in proclamations of neutrality, and in special regulations issued under exceptional circumstances or by joint agreement of several states.

(_a_) While it is admitted that the =belligerent troops= may not use the land of a neutral, yet the neutral is under obligation to offer asylum to those seeking refuge to escape death or captivity. It is the duty of a neutral state, within whose territory commands, or individuals, have taken refuge, to intern them at points as far removed as possible from the theater of war. Interned troops may be guarded in camps, or fortified places. The expenses occasioned by the internment are reimbursed to the neutral state by the belligerent state to whom the interned troops belong.[418]

(_b_) In general a belligerent vessel has the =right of asylum= in a neutral port. It may enter to escape the perils of the sea or to purchase provisions, and to make repairs indispensable to the continuance of the voyage. A vessel entering a neutral port after defeat by the enemy is not disarmed, as would be the case with land forces under similar conditions, though the neutral may prescribe the conditions of its sojourn and departure.[419]

(_c_) =Ordinary entry= depends upon the will of the neutral, and is subject to conditions imposed upon all belligerents alike.[420] These conditions usually allow a vessel to take on necessary provisions and supplies to enable her to reach the nearest home port. A regulation of the Netherlands as to the vessels of the Spanish-American War of 1898 prescribes that "Coal shall not be supplied them so long as they are in possession of prizes," otherwise a supply sufficient to bring the vessel to a home port or to the port of an ally was allowed.

(_d_) =The time of sojourn= is usually limited to twenty-four hours, unless a longer time is necessary for taking on supplies, completing necessary repairs, or from stress of weather. Regulations as to the time of departure of hostile vessels from a neutral port were quite fully outlined in President Grant's proclamations of Aug. 22 and of Oct. 8, 1870, during the Franco-Prussian War.[421] He declared that no vessel of war of either belligerent should leave the

"waters subject to the jurisdiction of the United States from which a vessel of the other belligerent ... shall have previously departed, until after the expiration of at least twenty-four hours from the departure of such last-mentioned vessel beyond the jurisdiction of the United States. If any ship of war or privateer of either belligerent shall, after the time this notification takes effect, enter any ... waters of the United States, such vessel shall be required ... to put to sea within twenty-four hours after her entrance into such ... waters, except in case of stress of weather or of her requiring provisions or things necessary for the subsistence of her crew, or for repairs; in either of which cases the authorities ... shall require her to put to sea as soon as possible after the expiration of such period of twenty-four hours, without permitting her to take in supplies beyond what may be necessary for her immediate use; and no such vessel ... shall continue within such ... waters ... for a longer period than twenty-four hours after her necessary repairs shall have been completed, unless within such twenty-four hours a vessel ... of the other belligerent, shall have departed therefrom, in which case the time limited for the departure ... shall be extended so far as may be necessary to secure an interval not less than twenty-four hours between such departure and that of any ... ship of the other belligerent which may have previously quit the same ... waters. No ship of war ... of either belligerent shall be detained in any ... waters of the United States more than twenty-four hours, by reason of the successive departures from such ... waters of more than one vessel of the other belligerent. But if there be several vessels of each or either of the two belligerents in the same ... waters, the order of their departure therefrom shall be so arranged as to afford the opportunity of leaving alternately to the vessels of the respective belligerents, and to cause the least detention consistent with the objects of this proclamation. No ship of war ... of either belligerent shall be permitted, while in any ... waters within the jurisdiction of the United States, to take in any supplies except provisions and such other things as may be requisite for the subsistence of her crew, and except so much coal only as may be sufficient to carry such vessel, if without sail power, to the nearest European port of her own country; or in case the vessel is rigged to go under sail, and may also be propelled by steam power, then with half the quantity of coal which she would be entitled to receive if dependent upon steam alone; and no coal shall be again supplied to any such ship of war ... in the same or in any other ... waters of the United States, without special permission, until after the expiration of three months from the time when such coal may have been last supplied to her within the waters of the United States, unless such ship of war ... shall, since last supplied, have entered a European port of the government to which she belongs."[422]

The tendency at the present time is to make regulations which shall guard most effectively against any possible use of neutral maritime jurisdiction for hostile purposes. In the Spanish-American War of 1898, Brazil provided that in case of two belligerent vessels:--"If the vessel leaving, as well as that left behind, be a steamer, or both be sailing vessels, there shall remain the interval of twenty-four hours between the sailing of one and the other. If the one leaving be a sailing vessel and that remaining a steamer, the latter may only leave seventy-two hours thereafter."[423] Many states have adopted the practice of absolutely refusing entrance within their waters to belligerent vessels with prizes, except in case of distress. Some states prescribe that, in such cases, the prizes should be liberated. There are examples of this refusal in the neutrality proclamations of 1898. All forms of sale or disposal of prize in neutral jurisdiction is of course generally forbidden.

§ 128. No Direct Assistance by the Neutral

The neutral state may not furnish to a belligerent any assistance in military forces, supplies of war, loans of money, or in any similar manner.

(_a_) Formerly =military assistance= was often furnished to one of the belligerents by a state claiming to be neutral on the ground that such action was justified by a treaty obligation entered into before the war could be foreseen. This position was supported by some of the ablest of the authorities of the nineteenth century,[424] but is denied by the latest writers.

(_b_) It is generally held that a neutral state may not furnish to one or both of the belligerents =supplies of war=. As Hall says, "The general principle that a mercantile act is not a violation of a state of neutrality, is pressed too far when it is made to cover the sale of munitions or vessels of war by a state."[425]

A case that aroused discussion was occasioned by the action of the authorities of the United States conformably to a joint resolution of Congress of July 20, 1868, by which the Secretary of War was to cause "to be sold, after offer at public sale on thirty days' notice, ... the old cannon, arms, and other ordnance stores ... damaged or otherwise unsuitable for the United States military service, etc."[426] Complaint was made that sales made under this act during the time of the Franco-German War were in violation of neutrality. A committee appointed by the United States Senate to investigate these charges reported that sales "were not made under such circumstances as to violate the obligations of our government as a neutral power; and this, to recapitulate, for three reasons: (1) The Remingtons [the alleged purchasing agents of the French government] were not, in fact, agents of France during the time when sales were made to them; (2) if they were such agents, such fact was neither known nor suspected by our government at the time the sales were made; and (3) if they had been such agents, and that fact had been known to our government, or if, instead of sending agents, Louis Napoleon or Frederick William had personally appeared at the War Department to purchase arms, it would have been lawful for us to sell to either of them, in pursuance of a national policy adopted by us prior to the commencement of hostilities."[427] This last statement does not accord with the best opinion and doubtless would not be maintained at the present time. The first and second claims might justify the sale, though it would be in better accord with a strict neutrality for a state to refrain from all sale of supplies of war during the period of war between two states, toward which states it professes to maintain a neutral attitude. This, of course, does not affect the rights of commerce in arms on the part of the citizens of a neutral state.

(_c_) The authorities are practically agreed that =loans of money= to a belligerent state may not be made or guaranteed by a neutral state. This does not, however, affect the commerce in money which may be carried on by the citizens of a neutral state.

(_d_) A neutral may not permit the =enlistment of troops= for belligerent service within its jurisdiction. This applies to such action as might assume the proportions of recruiting. The citizens or subjects of a neutral state may enter the service of one of the belligerents in a private manner.

§ 129. Positive Obligations of a Neutral State

Not only must a neutral state refrain from direct assistance of either belligerent, but it must also put forth positive efforts to prevent acts which would assist a belligerent. If a state has neutrality laws, it is under obligations to enforce these laws, and is also under obligation to see that the principles generally recognized by international law are observed. Most states make provision for the enforcement of neutrality. In the United States the President is authorized to employ the land and naval forces or militia to execute the law.[428] Jefferson said that, "If the United States have a right to refuse the permission to arm vessels and raise men within their ports and territories, they are bound by the laws of neutrality to exercise that right, and to prohibit such armaments and enlistments."[429] There can be no difference of opinion upon the proposition that a neutral state is bound to restrain within its jurisdiction all overt acts of a character hostile to either belligerent.

There are, however, many acts which in themselves have no necessarily warlike character. Whether such acts are in violation of neutrality must be determined by inference as to their purpose. By such acts, as Hall says, "the neutral sovereignty is only violated constructively."[430] These acts vary so much in character and are of so wide a range that the determination of their true nature often imposes severe burdens upon the neutral attempting to prevent them. The destination of a vessel that is in the course of construction may determine its character so far as the laws of neutrality are concerned. If it is for a friendly state which is at peace with all the world, no objection to its construction and sale can be raised. If a subject of a neutral state builds a vessel for one of the belligerents, such an act has sometimes been regarded as a legitimate business transaction, at other times as an act in violation of neutrality. As a business transaction, the vessel after leaving neutral territory is liable to the risk of seizure as contraband. As an act in violation of neutrality, the neutral state is bound to prevent the departure of the vessel by a reasonable amount of care. The line of demarcation which determines what acts a neutral state is under obligation to prevent, and what acts it may allow its subjects to perform at their own risk, is not yet clearly drawn. It is certain that a state is bound to use "due diligence" to prevent the violation of its neutrality. In the case of the _Alabama_,[431] this phrase was given different meanings by the representatives of the United States and Great Britain. The arbitrators declared that "due diligence" should be "in exact proportion to the risks to which either of the belligerents may be exposed from a failure to fulfill the obligations of neutrality on their part."[432] This definition is not satisfactory, and the measure of care required still depends upon the circumstances of each individual case, and is therefore a matter of doubt.