Volume Ii Part 45 (1/2)

[Footnote 622: See Kleen, vol. I. -- 115.]

While the stipulation of article 21 cannot meet with any objection, the stipulation of article 23 of Convention XIII. is of a very doubtful character. This article enacts that a neutral Power may allow prizes to enter its ports, whether under convoy or not, when they are brought there to be sequestrated pending the decision of a Prize Court. And it is of importance to state the fact that the restriction of article 21 does not apply to prizes brought into a neutral port under the rule of article 23. This rule actually enables a belligerent to safeguard all his prizes against recapture, and a neutral Power which allows belligerent prizes access to its ports under the rule of article 23 would indirectly render a.s.sistance to the naval operations of the belligerent concerned. For this reason, Great Britain as well as j.a.pan and Siam entered a reservation against article 23. Be that as it may, those Powers which have accepted article 23 will not, I believe, object to the sale in the neutral port concerned of such sequestrated prizes, provided they have previously been condemned by the proper Prize Court.

III

NEUTRALS AND MILITARY PREPARATIONS

Hall, ---- 217-218, 221-225--Lawrence, ---- 234-240--Westlake, II. pp.

181-198--Manning, pp. 227-244--Phillimore, III. ---- 142-151B--Twiss, II. ---- 223-225--Halleck, II. pp. 152-163--Taylor, ---- 616, 619, 626-628--Walker, ---- 62-66--Wharton, III. ---- 392, 395-396--Wheaton, ---- 436-439--Moore, VII. ---- 1293-1305--Heffter, ---- 148-150--Geffcken in Holtzendorff, IV. pp. 658-660, 676-684--Ullmann, -- 191--Bonfils, Nos. 1458-1459, 1464-1466--Despagnet, Nos. 692-693--Rivier, II. pp.

395-408--Calvo, IV. ---- 2619-2627--Fiore, III. Nos.

1551-1570--Kleen, I. ---- 76-89, 114--Merignhac, pp.

358-360--Pillet, pp. 288-290--Dupuis, Nos. 322-331, and _Guerre_, Nos. 290-294--_Land Warfare_, ---- 472-476.

[Sidenote: Depots and Factories on Neutral Territory.]

-- 329. Although according to the present intense conception of the duty of impartiality neutrals need not[623] prohibit their subjects from supplying belligerents with arms and the like in the ordinary way of trade, a neutral must[624] prohibit belligerents from erecting and maintaining on his territory depots and factories of arms, ammunition, and military provisions. However, belligerents can easily evade this by not keeping depots and factories, but contracting with subjects of the neutral concerned in the ordinary way of trade for any amount of arms, ammunition, and provisions.[625]

[Footnote 623: See below, -- 350.]

[Footnote 624: See Bluntschli, -- 777, and Kleen, I. -- 114.]

[Footnote 625: The distinction made by some writers between an occasional supply on the one hand, and, on the other, an organised supply in large proportions by subjects of neutrals, and the a.s.sertion that the latter must be prohibited by the neutral concerned, is not justified. See below, -- 350.]

[Sidenote: Levy of Troops, and the like.]

-- 330. In former centuries neutrals were not required to prevent belligerents from levying troops on their neutral territories, and a neutral often used to levy troops himself on his territory for belligerents without thereby violating his duty of impartiality as understood in those times. In this way the Swiss Confederation frequently used to furnish belligerents, and often both parties, with thousands of recruits, although she herself always remained neutral. But at the end of the eighteenth century a movement was started which tended to change this practice. In 1793 the United States of America interdicted the levy of troops on her territory for belligerents, and by-and-by many other States followed the example. During the nineteenth century the majority of writers maintained that the duty of impartiality must prevent a neutral from allowing the levy of troops. The few[626]

writers who differed made it a condition that a neutral, if he allowed such levy at all, must allow it to both belligerents alike. The controversy is now finally settled, for articles 4 and 5 of Convention V. lay down the rules that corps of combatants may not be formed, nor recruiting offices opened, on the territory of a neutral Power, and that neutral Powers must not allow these acts.

[Footnote 626: See, for instance, Twiss, II. -- 225, and Bluntschli, -- 762.]

The duty of impartiality must likewise prevent a neutral from allowing a belligerent man-of-war reduced in her crew to enrol sailors in his ports, with the exception of such few men as are absolutely necessary to navigate the vessel to the nearest home port.[627]

[Footnote 627: See article 18 of Convention XIII. and below, -- 333 (3), and -- 346.]

A pendant to the levy of troops on neutral territory was the granting of Letters of Marque to vessels belonging to the merchant marine of neutrals. Since privateering has practically disappeared, the question as to whether neutrals must prohibit their subjects from accepting Letters of Marque from a belligerent,[628] need not be discussed.

[Footnote 628: See above, -- 83. With the a.s.sertion of many writers that a subject of a neutral who accepts Letters of Marque from a belligerent may be treated as a pirate, I cannot agree. See above, vol. I. -- 273.]

[Sidenote: Pa.s.sage of Bodies of Men intending to Enlist.]

-- 331. A neutral is not obliged by his duty of impartiality to interdict pa.s.sage through his territory to men either singly or in numbers who intend to enlist. Thus in 1870 Switzerland did not object to Frenchmen travelling through Geneva for the purpose of reaching French corps or to Germans travelling through Basle for the purpose of reaching German corps, under the condition, however, that these men travelled without arms and uniform. On the other hand, when France during the Franco-German War organised an office[629] in Basle for the purpose of sending bodies of Alsatian volunteers through Switzerland to the South of France, Switzerland correctly prohibited this on account of the fact that this _official_ organisation of the pa.s.sage of whole bodies of volunteers through her neutral territory was more or less equal to a pa.s.sage of troops.

[Footnote 629: See Bluntschli, -- 770.]

The Second Peace Conference has sanctioned this distinction, for article 6 of Convention V. enacts that ”the responsibility of a neutral Power is not involved by the mere fact that persons cross the frontier individually (_isolement_) in order to offer their services to one of the belligerents.” An _argumentum e contrario_ justifies the conclusion that the responsibility of a neutral _is_ involved in case it does allow men to cross the frontier in a body in order to enlist in the forces of a belligerent.

[Sidenote: Organisation of Hostile Expeditions.]