International Law. A Treatise Volume Ii Part 42

(3) In 1848, during war between Germany and Denmark, Great Britain, fulfilling a treaty obligation towards Denmark, prohibited the exportation of arms to Germany, whereas such exportation to Denmark remained undisturbed.[571]

(4) In 1900, during the South African War, Portugal, for the purpose of complying with a treaty obligation[572] towards Great Britain regarding the pa.s.sage of British troops through Portuguese territory in South Africa, allowed such pa.s.sage to an English force which had landed at Beira[573] and was destined for Rhodesia.

[Footnote 569: See Wheaton, -- 425, and Phillimore, III. -- 139.]

[Footnote 570: See Phillimore, III. -- 140.]

[Footnote 571: See Geffcken in Holtzendorff, VI. p. 610, and Rivier, II.

p. 379.]

[Footnote 572: Article 11 of the treaty between Great Britain and Portugal concerning the delimitation of spheres of influence in Africa.

(Martens, _N.R.G._ 2nd Ser. XVIII. p. 185.)]

[Footnote 573: See below, -- 323; Baty, _International Law in South Africa_ (1900), p. 75; and _The Times' History of the War in South Africa_, vol. IV. p. 366.]

IV

COMMENCEMENT AND END OF NEUTRALITY

Hall, -- 207--Phillimore, I. ---- 392-392A, III. ---- 146-149--Taylor, ---- 610-611--Wheaton, ---- 437-439, and Dana's note 215--Heffter, -- 145--Bonfils, Nos. 1445-1446--Despagnet, No. 689--Pradier-Fodere, VIII. Nos. 3234-3237--Rivier, II. pp. 379-381--Martens, II. -- 138--Kleen, I. ---- 5, 36-42.

[Sidenote: Neutrality commences with Knowledge of the War.]

-- 307. Since neutrality is an att.i.tude of impartiality deliberately taken up by a State not implicated in a war, neutrality cannot begin before the outbreak of war becomes known. It is only then that third States can make up their minds whether or not they intend to remain neutral. They are supposed to remain neutral, and the duties deriving from neutrality are inc.u.mbent upon them so long as they do not _expressis verbis_ or by unmistakable acts declare that they will be parties to the war. It had long been the usual practice on the part of belligerents to notify the outbreak of war to third States for the purpose of enabling them to take up the necessary att.i.tude of impartiality, but such notification was not formerly in strict law necessary. The mere fact of the knowledge of the outbreak of war which had been obtained in any way gave a third State an opportunity of making up its mind regarding the att.i.tude which it intended to take up, and, if it remained neutral, its neutrality was to be dated from the time of its knowledge of the outbreak of war. But it is apparent that an immediate notification of the war on the part of belligerents is of great importance, as thereby all doubt and controversy regarding the knowledge of the outbreak of war are excluded. For the fact must always be remembered that a neutral State may in no way be made responsible for acts of its own or of its subjects which have been performed before it knew of the war, although the outbreak of war might be expected. For this reason article 2 of Convention III. of the Second Peace Conference enacts that belligerents must without delay send a notification of the outbreak of war, which may even be made by telegraph, to neutral Powers, and that the condition of war shall not take effect in regard to neutral Powers until after receipt of a notification, unless it be established beyond doubt that they were in fact aware of the outbreak of war.[574]

[Footnote 574: See above, ---- 94 and 95.]

[Sidenote: Commencement of Neutrality in Civil War.]

-- 308. As civil war becomes real war through recognition of the insurgents as a belligerent Power, neutrality during a civil war begins for every foreign State from the moment recognition is granted. That recognition might be granted or refused by foreign States independently of the att.i.tude of the legitimate Government has been stated above in -- 298, where also an explanation is given of the consequences of recognition granted either by foreign States alone or by the legitimate Government alone.

[Sidenote: Establishment of Neutrality by Declarations.]

-- 309. Neutrality being an att.i.tude of States creating rights and duties, active measures on the part of a neutral state are required for the purpose of preventing its officials and subjects from committing acts incompatible with its duty of impartiality. Now, the manifes...o...b.. which a neutral State orders its organs and subjects to comply with the att.i.tude of impartiality adopted by itself is called a declaration of neutrality in the special sense of the term. Such declaration of neutrality must not, however, be confounded, on the one hand, with manifestoes of the belligerents proclaiming to neutrals the rights and duties devolving upon them through neutrality, or, on the other hand, with the a.s.sertions made by neutrals to belligerents or _urbi et orbi_ that they will remain neutral, although these manifestoes and a.s.sertions are often also called declarations of neutrality.[575]

[Footnote 575: See above, -- 293.]

[Sidenote: Munic.i.p.al Neutrality Laws.]

-- 310. International Law leaves the provision of necessary measures for the establishment of neutrality to the discretion of each State. Since in const.i.tutional States the powers of Governments are frequently so limited by Munic.i.p.al Law that they may not take adequate measures without the consent of their Parliaments, and since it is, so far as International Law is concerned, no excuse for a Government if it is by its Munic.i.p.al Law prevented from taking adequate measures, several States have once for all enacted so-called Neutrality Laws, which prescribe the att.i.tude to be taken up by their officials and subjects in case the States concerned remain neutral in a war. These Neutrality Laws are latent in time of peace, but their provisions become operative _ipso facto_ by the respective States making a declaration of neutrality to their officials and subjects.

[Sidenote: British Foreign Enlistment Act.]

-- 311. After the United States of America had on April 20, 1818, enacted[576] a Neutrality Law, Great Britain followed the example in 1819 with her Foreign Enlistment Act,[577] which was in force till 1870.

As this Act did not give adequate powers to the Government, Parliament pa.s.sed on August 9, 1870, a new Foreign Enlistment Act,[578] which is still in force. This Act, in the event of British neutrality, prohibits--(1) The enlistment by a British subject in the military or naval service of either belligerent, and similar acts (sections 4-7); (2) the building, equipping,[579] and despatching[580] of vessels for employment in the military or naval service of either belligerent (sections 8-9); (3) the increase, on the part of any individual living on British territory, of the armament of a man-of-war of either belligerent being at the time in a British port (section 10); (4) the preparing or fitting out of a naval or military expedition against a friendly State (section 11).

[Footnote 576: Printed in Phillimore, I. pp. 667-672.]

[Footnote 577: 59 Geo. III. c. 69.]

[Footnote 578: 33 and 34 Vict. c. 90. See Sibley in the _Law Magazine and Review_, XXIX. (1904), pp. 453-464, and x.x.x. (1905), pp. 37-53.]

[Footnote 579: According to section 30, the Interpretation Clause of the Act, "equipping" includes "the furnis.h.i.+ng of a s.h.i.+p with any tackle, apparel, furniture, provisions, arms, munitions, or stores, or any other thing which is used in or about a s.h.i.+p for the purpose of fitting or adapting her for the sea or for naval service." It is, therefore, not lawful for British s.h.i.+ps, in case Great Britain is neutral, to supply a belligerent fleet direct with coal, a point which became of interest during the Russo-j.a.panese War. German steamers laden with coal followed the Russian fleet on her journey to the Far East, and British s.h.i.+powners were prevented from doing the same by the Foreign Enlistment Act. And it was in application of this Act that the British Government ordered, in 1904, the detention of the German steamer _Captain W. Menzel_, which took in Welsh coal at Cardiff for the purpose of carrying it to the Russian fleet _en route_ to the Far East. See below, -- 350.]

[Footnote 580: An interesting case which ought here to be mentioned occurred in October 1904, during the Russo-j.a.panese War. Messrs. Yarrow & Co., the s.h.i.+pbuilders, possessed a partly completed vessel, the _Caroline_, which could be finally fitted up either as a yacht or as a torpedo-boat. In September 1904, a Mr. Sinnet and the Hon. James Burke Roche called at the s.h.i.+pbuilding yard of Messrs. Yarrow, bought the _Caroline_, and ordered her to be fitted up as a high-speed yacht. The required additions were finished on October 3. On October 6 the vessel left Messrs. Yarrow's yard and was navigated by a Captain Ryder, _via_ Hamburg, to the Russian port of Libau, there to be altered into a torpedo-boat. That section 8 of the Foreign Enlistment Act applies to this case there is no doubt. But there is no doubt either that it is this Act, and not the rules of International Law, which required the prosecution of Messrs. Sinnet and Roche on the part of the British Government. For, if viewed from the basis of International Law, the case is merely one of contraband. See below, ---- 321, 334, and 397.]

It must be specially observed that the British Foreign Enlistment Act goes beyond the requirements of International Law in so far as it tries to prohibit and penalises a number of acts which, according to the present rules of International Law, a neutral State is not required to prohibit and penalise. Thus, for instance, a neutral State need not prohibit its private subjects from enlisting in the service of a belligerent; from supplying coal, provisions, arms, and ammunition direct to a belligerent fleet, provided such fleet is not within or just outside the territorial waters of the neutral concerned; from selling s.h.i.+ps to a belligerent although it is known that they will be converted into cruisers or used as transport s.h.i.+ps. For article 7 of Convention VII. as well as of Convention XIII. of the Second Peace Conference categorically enacts that "a neutral Power is not bound to prevent the export or transit, on behalf of either belligerent, of arms, munitions of war, or, in general, of anything which could be of use to an army or fleet."

[Sidenote: End of Neutrality.]

-- 312. Neutrality ends with the war, or through the commencement of war by a hitherto neutral State against one of the belligerents, or through one of the belligerents commencing war against a hitherto neutral State.

Since, apart from a treaty obligation, no State has by International Law the duty to remain neutral in a war between other States,[581] or, if it is a belligerent, to allow a hitherto neutral State to remain neutral,[582] it does not const.i.tute a violation of neutrality on the part of a hitherto neutral to declare war against one of the belligerents, and on the part of a belligerent to declare war against a neutral. Duties of neutrality exist so long only as a State remains neutral. They come to an end _ipso facto_ by a hitherto neutral State throwing up its neutrality, or by a belligerent beginning war against a hitherto neutral State. But the ending of neutrality must not be confounded with violation of neutrality. Such violation does not _ipso facto_ bring neutrality to an end, as will be shown below in -- 358.

[Footnote 581: See above, -- 293.]

[Footnote 582: See above, -- 299.]

CHAPTER II

RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS

I

RIGHTS AND DUTIES DERIVING FROM NEUTRALITY

Vattel, III. -- 104--Hall, -- 214--Phillimore, III. ---- 136-138--Twiss, II. -- 216--Heffter, -- 146--Geffcken in Holtzendorff, IV. pp. 656-657--Gareis, -- 88--Liszt, -- 42--Ullmann, -- 191--Bonfils, Nos. 1441-1444--Despagnet, Nos. 684 and 690--Rivier, II. pp. 381-385--Nys, III. pp. 582-639--Calvo, IV. ---- 2491-2493--Fiore, III. Nos. 1501, 1536-1540, and Code, Nos.

1776-1778, 1784--Martens, II. -- 131--Kleen, I. ---- 45-46--Merignhac, pp. 339-342--Pillet, pp. 273-275.

[Sidenote: Conduct in General of Neutrals and Belligerents.]

-- 313. Neutrality can be carried out only if neutrals as well as belligerents follow a certain line of conduct in their relations with one another. It is for this reason that from neutrality derive rights and duties, as well for belligerents as for neutrals, and that, consequently, neutrality can be violated as well by belligerents as by neutrals. These rights and duties are correspondent: the duties of neutrals correspond to the rights of either belligerent, and the duties of either belligerent correspond to the rights of the neutrals.

[Sidenote: What Rights and Duties of Neutrals and of Belligerents there are.]

-- 314. There are two rights and two duties deriving from neutrality for neutrals, and likewise two for belligerents.

Duties of neutrals are, firstly, to act toward belligerents in accordance with their att.i.tude of impartiality; and, secondly, to acquiesce in the exercise of either belligerent's right to punish neutral merchantmen for breach of blockade, carriage of contraband, and rendering unneutral service to the enemy, and, accordingly, to visit, search, and eventually capture them.

The duties of either belligerent are, firstly, to act towards neutrals in accordance with their att.i.tude of impartiality; and, secondly, not to suppress their intercourse, and in especial their commerce, with the enemy.[583]

[Footnote 583: All writers on International Law resolve the duty of impartiality inc.u.mbent upon neutrals into many several duties, and they do the same as regards the duty of belligerents--namely, to act toward neutrals in accordance with the latter's impartiality. In this way quite a large catalogue of duties and corresponding rights are produced, and the whole matter is unnecessarily complicated.]

Either belligerent has a right to demand impartiality from neutrals, whereas, on the other hand, neutrals have a right to demand such behaviour from either belligerent as is in accordance with their att.i.tude of impartiality. Neutrals have a right to demand that their intercourse, and in especial their commerce, with the enemy shall not be suppressed; whereas, on the other hand, either belligerent has the right to punish subjects of neutrals for breach of blockade, carriage of contraband, and unneutral service, and, accordingly, to visit, search, and capture neutral merchantmen.