Volume Ii Part 41 (1/2)

-- 295. Since neutrality is an att.i.tude during the condition of war only, this att.i.tude calls into existence special rights and duties which do not generally obtain. They come into existence by the fact that the outbreak of war has been notified or has otherwise[554] unmistakably become known to third States who take up an att.i.tude of impartiality, and they expire _ipso facto_ by the termination of the war.

[Footnote 554: See article 2 of Convention III. of the Second Peace Conference.]

Rights and duties deriving from neutrality do not exist before the outbreak of war, although such outbreak may be expected every moment.

Even so-called neutralised States, as Switzerland and Belgium, have during time of peace no duties connected with neutrality, although as neutralised States they have even in time of peace certain duties. These duties are not duties connected with neutrality, but duties imposed upon the neutralised States as a condition of their neutralisation. They include restrictions for the purpose of safeguarding the neutralised States from being drawn into war.[555]

[Footnote 555: See above, vol. I. -- 96.]

[Sidenote: Neutrality an Att.i.tude of States.]

-- 296. As International Law is a law between States only and exclusively, neutrality is an att.i.tude of impartiality on the part of States, and not on the part of individuals.[556] Individuals derive neither rights nor duties, according to International Law, from the neutrality of those States whose subjects they are. Neutral States are indeed obliged by International Law to prevent their subjects from committing certain acts, but the duty of these subjects to comply with such injunctions of their Sovereigns is a duty imposed upon them by Munic.i.p.al, not by International Law. Belligerents, on the other hand, are indeed permitted by International Law to punish subjects of neutrals for breach of blockade, for carriage of contraband and for rendering unneutral service to the enemy; but the duty of subjects of neutrals to comply with these injunctions of belligerents is a duty imposed upon them by these very injunctions of the belligerents, and not by International Law. Although as a rule a State has no jurisdiction over foreign subjects on the Open Sea,[557] either belligerent has, exceptionally, by International Law, the right to punish foreign subjects by confiscation of cargo, and eventually of the vessel itself, in case their vessels break blockade, carry contraband, or render unneutral service to the enemy; but punishment is threatened and executed by the belligerents, not by International Law. Therefore, if neutral merchantmen commit such acts, they neither violate neutrality nor do they act against International Law, but they simply violate injunctions of the belligerents concerned. If they choose to run the risk of punishment in the form of losing their property, this is their own concern, and their neutral home State need not prevent them from doing so. But to the right of belligerents to punish subjects of neutrals for the acts specified corresponds the duty of neutral States to acquiesce on their part in the exercise of this right by either belligerent.

[Footnote 556: It should be specially observed that it is an inaccuracy of language to speak (as is commonly done in certain cases) of individuals as being neutral. Thus, article 16 of Convention V. of the Second Peace Conference designates the nationals of a State which is not taking part in a war as ”neutrals.” Thus, further, belligerents occupying enemy territory frequently make enemy individuals who are not members of the armed forces of the enemy take a so-called oath of neutrality.]

[Footnote 557: See above, vol. I. -- 146.]

Moreover, apart from carriage of contraband, breach of blockade, and unneutral service to the enemy, which a belligerent may punish by capturing and confiscating the vessels or goods concerned, subjects of neutrals are perfectly unhindered in their movements, and neutral States have in especial no duty to prevent their subjects from selling arms, munitions, and provisions to a belligerent, from enlisting in his forces, and the like.

[Sidenote: No Cessation of Intercourse during Neutrality between Neutrals and Belligerents.]

-- 297. Neutrality as an att.i.tude of impartiality involves the duty of abstaining from a.s.sisting either belligerent either actively or pa.s.sively, but it does not include the duty of breaking off all intercourse with the belligerents. Apart from certain restrictions necessitated by impartiality, all intercourse between belligerents and neutrals takes place as before, a condition of peace prevailing between them in spite of the war between the belligerents. This applies particularly to the working of treaties, to diplomatic intercourse, and to trade. But indirectly, of course, the condition of war between belligerents may have a disturbing influence upon intercourse between belligerents and neutrals. Thus the treaty-rights of a neutral State may be interfered with through occupation of enemy territory by a belligerent; its subjects living on such territory bear in a sense enemy character; its subjects trading with the belligerents are hampered by the right of visit and search, and the right of the belligerents to capture blockade-runners and contraband of war.

[Sidenote: Neutrality an Att.i.tude during War (Neutrality in Civil War).]

-- 298. Since neutrality is an att.i.tude during war, the question arises as to the necessary att.i.tude of foreign States during civil war. As civil war becomes real war through recognition[558] of the insurgents as a belligerent Power, a distinction must be made as to whether recognition has taken place or not. There is no doubt that a foreign State commits an international delinquency by a.s.sisting insurgents in spite of its being at peace with the legitimate Government. But matters are different after recognition. The insurgents are now a belligerent Power, and the civil war is now real war. Foreign States can either become a party to the war or remain neutral, and in the latter case all duties and rights of neutrality devolve upon them. Since, however, recognition may be granted by foreign States independently of the att.i.tude of the legitimate Government, and since recognition granted by the latter is not at all binding upon foreign Governments, it may happen that insurgents are granted recognition on the part of the legitimate Government, whereas foreign States refuse it, and _vice versa_.[559] In the first case, the rights and duties of neutrality devolve upon foreign States as far as the legitimate Government is concerned. Men-of-war of the latter may visit and search merchantmen of foreign States for contraband; a blockade declared by the legitimate Government is binding upon foreign States, and the like. But no rights and duties of neutrality devolve upon foreign States as regards the insurgents. A blockade declared by them is not binding, their men-of-war may not visit and search merchantmen for contraband. On the other hand, if insurgents are recognised by a foreign State but not by the legitimate Government, such foreign State has all rights and duties of neutrality so far as the insurgents are concerned, but not so far as the legitimate Government is concerned.[560] In practice, however, recognition of insurgents on the part of foreign States will, if really justified, always have the effect of causing the legitimate Government to grant its recognition also.

[Footnote 558: See above, ---- 59 and 76, and Rougier, _Les guerres civiles et le droit des gens_ (1903), pp. 414-447.]

[Footnote 559: See above, -- 59.]

[Footnote 560: See the body of nine rules regarding the position of foreign States in case of an insurrection, adopted by the Inst.i.tute of International Law at its meeting at Neuchatel in 1900 (_Annuaire_, XVIII. p. 227). The question as to whether, in case foreign States refuse recognition to insurgents, although the legitimate Government has granted it, the legitimate Government has a right of visit and search for contraband is controversial; see _Annuaire_, XVIII. pp. 213-216.]

[Sidenote: Neutrality to be recognised by the Belligerents.]

-- 299. Just as third States have no duty to remain neutral in a war, so they have no right[561] to demand that they be allowed to remain neutral. History reports many cases in which States, although they intended to remain neutral, were obliged by one or both belligerents to make up their minds and choose the belligerent with whom they would throw in their lot. For neutrality to come into existence it is, therefore, not sufficient for a third State at the outbreak of war to take up an att.i.tude of impartiality, but it is also necessary that the belligerents recognise this att.i.tude by acquiescing in it and by not treating such third State as a party to the war. This does not mean, as has been maintained,[562] that neutrality is based on a contract concluded either _expressis verbis_ or by unmistakable actions between the belligerents and third States, and that, consequently, a third State might at the outbreak of war take up the position of one which is neither neutral nor a party to the war, reserving thereby for itself freedom in its future resolutions and actions. Since the normal relation between members of the Family of Nations is peace, the outbreak of war between some of the members causes the others to become neutrals _ipso facto_ by their taking up an att.i.tude of impartiality and by their not being treated by the belligerents as parties to the war. Thus, it is not a contract that calls neutrality into existence, but this condition is rather a legal consequence of a certain att.i.tude on the part of third States at the outbreak of war, on the one hand, and, on the other, on the part of the belligerents themselves.

[Footnote 561: But many writers a.s.sert the existence of such a right; see, for instance, Vattel, III. -- 106; Wheaton, -- 414; Kleen, I. -- 2; Bonfils, No. 1443.]

[Footnote 562: See Heilborn, _System_, pp. 347 and 350.]

III

DIFFERENT KINDS OF NEUTRALITY

Vattel, III. ---- 101, 105, 107, 110--Phillimore, III. ---- 138-139--Halleck, II. p. 142--Taylor, -- 618--Wheaton, ---- 413-425--Bluntschli, ---- 745-748--Geffcken in Holtzendorff, IV. pp.

634-636--Ullmann, -- 190--Despagnet, No. 685--Pradier-Fodere, VIII.

Nos. 3225-3231--Rivier, II. pp. 370-379--Calvo, IV. ---- 2592-2642--Fiore, III. Nos. 1542-1545--Merignhac, pp.

347-349--Pillet, pp. 277-284--Kleen, I. ---- 6-22.

[Sidenote: Perpetual Neutrality.]