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NEUTRALITY

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Originally appearing in Volume V19, Page 447 of the 1911 Encyclopedia Britannica.
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NEUTRALITY, the state or condition of being neutral (Lat. neuter, neither of two), of not being on or inclined to one side or another, particularly, in international law, the condition of a state which abstains from taking part in a dispute between other states. Neutrality is the most progressive branch of modern International Law. It is also that branch of International Law in which the practice of self-restraint takes the place of the direct sanctions of domestic law most effectively. The rapid changes it is undergoing are in fact bringing the state-system of the modern world nearer to the realization of the dream of many great writers and thinkers, of a community of nations just as much governed by legal methods as any community of civilized men. While the right of war was simply the right of the stronger, there was no room for neutral rights, for, without going back to the time of the ancients, the so-called rights of war and conquest are nothing but survivals of the right of brute strength. No nation or community down to comparatively recent times was treated as having a right to what it could not keep. It is the growth of a law of neutrality, through the modern possibility of concerted action among neutral states, which is bringing about improvement, and, though the signs of our times are not always reassuring, we have taken a long stride forward since Molloy, in his De Jure maritimo et navali (1680), wrote: " As a neuter neither purchases friends nor frees himself from enemies, so commonly he proves a prey to the victor; hence it is held more advantage to hazard in a conquest with a companion than to remain in a state wherein he is in all probability of being ruined by the one or the other." It was the great commercial communities, the Hansa in the north and Venice and the Mediterranean maritime republics in the south, which were first able to insist on some sort of regulation of the usages of war for their own protection. With the growth of intercourse among nations a further advance was made, by treaty stipulations entered into in time of peace, to provide rules for their guidance in the event of war, but it is only in our own time that the idea of a substantive neutral right has obtained recognition. To our own time belongs the final acceptance of the principle that the neutral flag protects an enemy's goods except contraband, the conception of neutralization of territory, the abolition of fictitious blockades, the practice of declarations of neutrality, the detachment from the high sea and neutralization of the zone called territorial waters, and the Areopagus of nations called the European Concert, in which the right of neutrals is asserted as a brake upon the operation of the still venerated right of conquest. The rights of neutrals have received their most recent affirmation in several of the decisions of the Hague Peace Conferences. International trade and intercourse have become so intricate that war can no longer be waged without causing the most serious loss to neutral nations, which, moreover, suffer from it without any of the possible contingent benefits it may procure for the immediate parties. So much is it so, that most great powers have found it necessary for their self-protection to enter into defensive alliances with others, the direct object of which is the preservation of European peace by the threat of making war so gigantic a venture that no state will again embark on it " with a light heart." The next step will probably be alliances between states which, by their nature or by their having reached the limit of their expansion, have nothing further to gain by war with each other, for the purpose of securing perpetual peace as between themselves. Different attempts have been made to define neutrality, but the word defines itself, so far as a succinct definition serves any purpose. The subject covers too wide and varied a and scope. an area of matter to be condensed into a short state- ment ment of any kind. Neutrality entails rights and duties on both the belligerent and the neutral sides. Theoretically, neutrality, to be complete, would require the neutral to abstain from everything which could even remotely be of assistance to either belligerent. To this obligation would theoretically correspond that the belligerent should carry on the war without doing anything which could even remotely disturb or interfere with the neutral state or the free activity of its citizens. Neither the one nor the other is found to be practicable. It is not even easy for the belligerent to observe absolutely the duty of doing no direct injury to neutral territory. A battle may be fought to the very edge of the neutral frontier, and shells may explode in any neutral town within the firing range of modern artillery. The present respect paid by belligerents to territorial waters is a palliative in the case of a seaboard frontier; but even the three-mile limit acknowledged by most countries would permit belligerent vessels with present range of artillery to fire land-wards far into neutral territory. Compensation—it is true, would be due for any damage done, but this does not alter the fact that acts of war can produce direct consequences on neutral territory which have the character of carrying war into a neutral state. The neutral state, moreover, is obliged to incur heavy expenditure to protect its frontier from being traversed by either belligerent, and thus avoid itself being exposed to claims for compensation for an act which it would otherwise be powerless to prevent. In the case of a maritime war, the neutral state is also bound to exercise strict supervision to prevent its ports from being used by either belligerent for the purpose of increasing its military strength. In short, war cannot be carried on without heavy expense and inconvenience to neighbouring neutral states. The inconvenience to the intercourse of neutral citizens is still greater. Their ships are liable to be taken out of their course, and their cargoes to be discharged to the bottom of the hold in search of articles which are contraband according to circumstances over which they have no control,. and they may be confiscated without recourse by judges appointed by one of the interested parties. Even their whole trade with specific ports of the one belligerent may be stopped by the ships of the other belligerent without indemnity. On the other hand, a great deal of vital assistance can be given by neutral citizens to the one or the other belligerent in money, or by supplies of arms, ammunition, food and other commodities, which it is not at present the duty of neutral states to interfere with. The respective rights and duties of belligerents and neutrals in current practice may be subdivided as follows:- 1. Belligerent duty to respect neutral territory and neutral territorial waters. 2. Neutral right of official representation and mediation; of intercourse of neutral citizens with citizens of either belligerent; of convoy, &c. 3. Belligerent right of blockade, angary, visit and search, capture and confiscation of contraband of war. 4. Neutral duties: (absolute) of abstention from any direct corporate assistance to either belligerent, of enforcement of respect by both belligerents for neutral territory; (relative) of prevention of any recruiting for either belligerent, or arming or equipping of vessels for their service; and (contingent) of allowing commercial access to the one or other belligerent without distinction, and of granting impartially to one or the other belligerent any rights, advantages or privileges, which, according to the usages recognized among nations, are not considered as an intervention in the struggle. This subdivision, we believe, covers the whole ground of neutrality. We shall follow it in this article. Belligerent Duty.—It is now universally recognized among European states that a belligerent army must make no use of its strength in the field to carry its operations into Duty to neutral territory or into neutral waters. Belligerent respect forces entering neutral territory are by the practice neveral of nations bound to surrender their arms to the neutral territory. state, and remain hors de combat till the close of the war. (Compare arts. 11 and 12 of the Hague Convention relating to the " Rights and Duties of Neutral Powers and persons in case of war on land " 18th of October 1907.) Through territorial waters belligerent vessels are allowed to pass freely as in time of peace. Nor does the usage of nations forbid a belligerent vessel from entering a neutral port. Access to Motives of humanity have sanctioned this distinction and duty between territorial and maritime warfare. The Ad- to respect miralty Instructions (1893) set out the rights of bel- terretortat ligerents as Great Britain views them as follows: ports. trsaad " Subject to any limit which the neutral authorities may place upon the number of belligerent cruisers to be admitted into any one of their ports at the same time, the captain, by the comity of nations, may enter a neutral port with his ship for the purpose of taking shelter from the enemy or from the weather, or of obtaining provisions or repairs that may be pressingly necessary (I. section 592). He is bound to submit to any regulations which the local authorities may make respecting the place of anchorage, the limitation of the length of stay in the port, the interval to elapse after a hostile cruiser has left the port before his ship may leave in pursuit, &c. (I. section 593)• He must abstain from any acts of hostility towards the subjects, cruisers, vessels or other property of the enemy which he may find in the neutral port (section 594). He must also abstain from increasing the number of his guns, from procuring military stores, and from augmenting his crew even by the enrolment of British subjects " (section 595). Nor may the commander of a British warship take a capture into a neutral port against the will of the local authorities (Holland, Manual of Naval Prize Law, 1888, section 299). This subject was one of those dealt with at the Hague Conference of 1907. (See art. 18 of the " Convention relating to the rights and duties of neutral powers in naval war.") Neutral Rights.—Neutral powers have the right to remain, as far as possible, unaffected by the war operations, and, therefore, continue their diplomatic relations with the belligerent Rent of states. The immunities and exterritoriality of their tegattoa. diplomatic agents attach to them as 'in time of peace, subject only to necessity of war, which may entitle a belligerent to place restrictions on this intercourse. d Thus, during the Franco-German War, on the surrounding of Paris, foreign diplomatists in the besieged city were refused by the German authorities all possibility of corresponding with their governments, except by letters left open for their inspection. Neutral legations may also undertake the representation of private interests of subjects of the one belligerent on the territory of the other. Thus in the Franco-German War of 1871 the Germans in France were placed under the protection of the United States legation, and the French in Germany under that of the British legation; in the war of 1898 between the United States and Spain, American interests in Spain were committed to the care of the British legation, and those of Spaniards in the United States to that of the Austro-Hungarian legation. By legations are understood both diplomatic and consular authorities. The protection granted is in the nature of mere mediation. It confers no rights on the belligerent subjects in question, nor does it give the neutral legation any right to protect a belligerent subject or his property against any ordinary rights of war. Good offices, properly speaking, are a mild form of mediation or tentative mediation, i.e. mediation before it has been accepted Rtght of by the parties. Article 3 of the Hague Convention offering for the pacific settlement of international disputes good of October 18, 1907, however, provides that " powers, offices and strangers to the dispute, have the right to offer mediation. good offices or mediation, even during the course of hostilities," and that " the exercise of this right can never be regarded by one or other of the parties in conflict as an unfriendly act." The Hague Convention puts an end to the doubt whether a neutral power can mediate without involving itself in some way with the one or the other side in the dispute. Mediation had already been provided for in several existing treaties, such as the Treaty of Paris (3oth March 1856), which provides that " if any dissension should arise between the Sublime Porte and one or more of the other signatory powers and threaten the maintenance of their good relations, the Sublime Porte and each of these powers before resorting to force shall give an opportunity to the other contracting parties in order to prevent such extreme measures " (article 8); the Treaty of Yedo between the United States and Japan (29th July 1858) stipulating that in the case of difference between Japan or any other state, " the president of the United States, at the request of the Japanese government, will act as a friendly mediator in such matters of difference as may arise between the government of Japan and any other European power " (article 2); and the General Act of Berlin relating to West Africa (1885), which provides that " in the case of a serious dissension having arisen on the subject of, or within the territories" in question, between the signatory powers, they undertake, before taking up arms, to have recourse to the mediation of one or more of the friendly powers (article 12). In the Venezuela-Guiana boundary question, the mediation of the United States government was declined by Great Britain, but its good offices were accepted. In the difficulty which arose between Germany and Spain in connexion with the hoisting of the German flag on one of the Caroline Islands, Spain did not consider arbitration consistent with the sovereign power she claimed to exercise over the island in question, but she accepted the mediation of the pope, and the matter was settled by protocols, signed at Rome (17th December 1885). These incidents show the uses of variety and gradation in the methods of diplomacy. Neutral subjects have the right to carry on trade and inter-course with belligerent subjects in so far as they do not interfere Rights of with the operations or necessities of war, and it is no neutral violation of the neutral character that this trade or subjects on intercourse is of benefit to either side. This is subject belligerent always to the belligerent right to capture and confiscate 'att. contraband of war (see below). On the other hand, the property of subjects and citizens of neutral states follows the fortune of the belligerent state within whose territorial jurisdiction it is situated. It is liable to the same charges as that of native subjects and citizens, and in case of military contributions neutral subjects on belligerent soil can claim no protection or exemption (see below, Angary). They have also the same rights to all indemnities for loss as are granted to native subjects and citizens. The position of neutral public ships and the relative assimilation to them of mail steamers has been the subject of some controversy. A public ship is a ship having an official character. It includes not only warships, but also any ships affected toany specific and exclusive government purpose. Public ships in this sense are invested with an extra-territorial character, and the state to which they belong is directly responsible for their acts. They are therefore not liable to visit and search for contraband of war, and are exempt from territorial jurisdiction even in belligerent waters. As regards vessels which are engaged partly in private traffic and partly on public service, such as mail steamers and government packets, the position is necessarily different. Under the Japanese Prize Law, adopted in view of the Chino-Japanese campaign, any vessel carrying contraband of war, whose destination is hostile, may be detained, without exception being made for mail steamers. The United States proclamation of April 1898 in connexion with the Spanish War stated that mail steamers would only be stopped in case of grave suspicion of their carrying contraband or of their violating a blockade. On the arrest of the German mail steamers " Bundesrath " and " General " during the South African War, the German government represented to the British government that "it was highly desirable " that steamers flying the German mail-flag should not be stopped, and the British government thereupon issued orders not to stop them on suspicion only (Parliamentary Papers, Africa, No. 1, 1900). This was a precedent of the greatest importance. It would have practically assimilated mail steamers to public ships. Yet the mere circumstance of carrying the mails does not manifestly per se change the character cf the ship. Both this subject and the position of packets• under state owner-ship, which may carry on trade and may consequently transport contraband, require deliberate adjustment by treaty. The convention between Great Britain and France respecting postal communications (3oth August 1890) provides that " in the case of war between the two nations the packets of the two administrations shall continue their navigation, without impediment or molestation until a notification is made on the part of either of the two governments of the discontinuance of postal communications, in which case they shall be permitted to return freely to their respective ports " (article 9). The position of either as neutral is not dealt with. The tendency seems to be towards exemption, but in this case there should be official certification that the ships in question carry nothing in the nature of contraband. Meanwhile the Hague Conference of 1907 has adopted rules under which postal correspondence of neutrals or belligerents is inviolable, whether it be official or private, or the carrying vessel be neutral or an enemy vessel, but in Convoy. so far as mail ships are concerned they are not otherwise exempt from the application of the rules of war affecting merchant ships generally (see Convention on restrictions on the exercise of the right of capture in maritime war, October, 1907). Connected with the position of public ships is the question of the right of convoy. Neutral merchant ships travelling under the escort of a warship or warships of their own flag are held by some authorities to be exempt from visit and search. The Japanese Prize Law, which is largely based on English practice, following on this point the recommendations of the Institute of Inter-national Law (see Reglement des prises maritimes, Annuaire 1888, p. 221), provides that "when the commander of a neutral convoy declares that there is no contraband of war on board the vessels under convoy, and that all the papers are in order in these vessels, the vessels shall not be visited" (article 23).1 The United States, 1 At the outset of the Chino-Japanese War, Vice-Admiral Sir E. R. Fremantle sent a note to the Japanese admiral requesting him to " give orders to the ships under his command not to board, visit or interfere in any way with British merchant vessels, observing that the British admiral had directed all British ships under his orders to afford protection to such merchant vessels, and not to allow them to be molested in any way." Professor Takahashi, in his International Law of the Chino-Japanese War, relates that the Japanese admiral replied that " as the matters demanded by the British admiral belonged to the sphere of international diplomacy, and consequently were outside his official responsibility, they should be communicated directly to the Japanese Department of Foreign Affairs." " The idea of the British admiral," observes Professor Takahashi, " seemed to be not only to claim a right of convoy, which has never been recognized The rights of neutral public ships and mail steamers. in treaties with Mexico (5th April 1831), Venezuela (loth January 1836), Peru (6th Sept. 1870), Salvador (6th December 187o) and Italy (26th February 1871), have agreed to accept the commander's declaration as provided in the Japanese Prize Law. Wharton quotes in his International Law Digest a passage from a despatch of Mr Secretary Forsyth (18th May 1837) in which he states that " it is an ordinary duty of the naval force of a neutral during either civil or foreign wars to convoy merchant vessels of the nation to which it belongs to the ports of the belligerents. This, however, should not be done in contravention of belligerent rights as defined by the law of nations or by treaty." The Spanish Naval Instructions (24th April 1898) in the war with the United States granted unconditional exemption to convoyed neutral ships (article 11). The subject has now been dealt with by the Declaration of London (1908-1909), which requires the commander of a convoy to give a statement in writing as to the character of the vessels and cargoes (see CONVOY). A neutral merchant ship, travelling under enemy's convoy, places itself, with the assistance of the belligerent force, beyond the application of the belligerent right of visit and search, and thus commits a breach of neutrality. Belligerent Rights.—Since the declaration of Paris providing that blockades in order to be binding must be effective, that is Blockade. to say, must be maintained by a force sufficient really to prevent access to the enemy's coast, the tendency has been to give a precise form to all the obligations of the blockading belligerent. Thus it is now generally agreed that notification to the neutral should be sufficiently detailed to enable neutral vessels to estimate, with practical accuracy, the extent of their risks. French writers consider a general notification, though desirable, as insufficient, and hold an individual notification to each neutral ship which presents itself at the line of blockade as requisite. This theory was applied by France in the. Franco-German War, and earlier by the Northern States in the American Civil War. The new Japanese Prize Law (1894) does not attempt to prescribe any such notification to each ship, but sets out that notice of blockade to each ship is either actual or constructive. " Actual " it describes as being when the master is shown to have had knowledge of the blockade, in whatever way he may have acquired such knowledge, whether by direct warning from a Japanese warship or from any other source; " constructive," when a notification of its existence has been made to the proper authorities of the state to which the vessel belongs, and sufficient time has elapsed for such authorities to communicate the notification to the subjects of that nation, whether or not they have in fact communicated it. No blockade, however, was attempted by the Japanese government, and the application of the rules was not put to the test. In the war with Spain the United States proclamation of the investment of Cuba stated that an efficient force would be posted, so as to prevent the entrance and exit of vessels from the blockaded ports, and that any neutral vessel approaching or attempting to leave any of them, " without notice or know-ledge" of the establishment of the blockade, would be duly warned by the commander of the blockading forces, who would endorse on her register the fact and date of such warning, and where such endorsement was made. The words " without notice or knowledge " were explained fully in the instructions to blockading vessels (loth June 1898). " Neutral vessels," said these instructions, " are entitled to notification of a blockade before they can be made prize for its attempted violation." " The character of this notification is not material. It may be actual, as by a vessel of the blockading force, or constructive, as by a proclamation of the government maintaining the blockade, or by common notoriety. If a neutral vessel can be shown to have notice of the blockade in any way, by British prize courts, but also to extend it over all waters of the Far East, where British warships were not actually engaging in convoy. Soon afterwards the matter was settled without any difficulty. On 11th August the under-Secretary of the Japanese Foreign Office received a letter from the British Minister in Taky8 stating that there must be some misunderstanding, and that the British government would never try to interfere with belligerent right." she is good prize" and should be sent in for adjudication; but should the formal notice not have been given, the rule of constructive knowledge arising from notoriety should be construed in a manner liberal to the neutral." Thus the United States government abandoned the system of individual notification inserted in the proclamation of loth April 1861, which was only-found practicable in the case of vessels which had presumably sailed without knowledge. In such cases it was provided by the more recent instructions that they should be boarded by an officer, who should enter the notice in the ship's log, such entry to include the name of the blockading vessel giving notice, the extent of the blockade, and the date and place, verified by his official signature. The vessel was then to be set free, with a warning that, should she again attempt to enter the same or any other blockaded port, she would be good prize. The Declaration of London (1908–1909) exhaustively treats of this subject and has regulated it with a leaning towards continental views (see BLOCKADE). Angry, or Droit d'Angarie, is a contingent belligerent right, arising out of necessity of war, to dispose over, use and destroy, if need be, property belonging to neutral states.' Aoga,y. During the Franco-German War imminent necessity was pleaded by the German government, as the justification of using force to seize and sink six British coal-ships in the Seine to prevent French gun-boats from running up the river and interfering with the tactics of the German army operating on its banks. The captains of the vessels refused to enter into any agreement with the commanding German general, and the vessels were then sunk by being fired upon. The British government raised no objection to the exercise of the right, and confined itself to demanding compgnsation for the owners, which the German government decl'ared itself ready to pay. Count Bismarck evidently felt the' use which might be made against Germany, as a neutral power, of such an extreme measure, and took care in the correspondence with the British government to emphasize the pressing character of the danger, which could not be other-wise parried. A case given in the text-books as another one of angary during the same war was the temporary seizure and conversion to war purposes of Swiss and Austrian rolling-stock in Alsace, without any apparent military necessity.- Ordinary private neutral property on belligerent soil, it must be remembered, follows the fate of private property generally. The only distinction between the right of angary and the right of assimilating private neutral property to private property generally on belligerent 'soil which seems based on reason is that, whereas private property of neutrals generally which has remained on belligerent soil is sedentary, or, so to speak, domiciled there, neutral vessels are mere visitors with a distinct external domicile. The writer thinks the assimilation of neutral railway carriages to neutral vessels in this respect not unreason-able? - A neutral state in its corporate capacity, we have seen, must abstain from acts which can be of assistance to either belligerent, and it is bound' to exercise reasonable diligence to prevent its territory being used as a base for belligerent conaa- Lana. operations. The duties of a neutral state as a state go no further. Commercial acts of its citizens, even the export of arms and munitions of war to a belligerent country, do not, in the present state of international usage, so long as both belligerents are free to profit by such acts alike, involve liability on the part of the neutral state. But relief from the obligation of repressing breaches of neutrality by contraband traffic of subjects has its counterpart in the right granted to belligerent warships of visit and search of neutral merchant vessels, and in the possible condemnation, according to circumstances, of the ship and confiscation of goods held to be contraband. ' Angaria (from ayyapos, a messenger), a post station. The French word hangar or shed is probably of the same origin. ' Treaties between the Zollverein and Spain (3oth March 1868) and between Germany and Portugal (2nd March 1872) contain special provisions for the fixing of indemnities in case of any forced utilization by either state of private property of the citizens of the other. Contraband is of two kinds—absolute contraband, such as I Britain, as above stated, put in force her practice of treating arms of all kinds, machinery for manufacturing arms, ammuni- coal as contraband, and thereupon France exercised her corretion, and any materials which are of direct application in naval sponding belligerent right of searching British vessels. The or military armaments; and conditional contraband, consisting closing of British coaling stations to French warships was a of articles which are fit for, but not necessarily of direct, applica- serious inconvenience to France, and she proclaimed " that in tion to hostile uses. The British Admiralty Manual of Prize the circumstances in which war was being carried on " the Law (1888), following this distinction, enumerates as absolutely cargoes of rice which were being shipped to the northern Chinese contraband: arms of all kinds and machinery for manufacturing ports were contraband. By depriving the Chinese government arms; ammunition and materials for ammunition, including of part of the annual tribute sent from the southern provinces lead, sulphate of potash, muriate of potash, chlorate of potash in the form of rice she hoped to bring pressure on the Peking and nitrate of soda; gunpowder and its materials, saltpetre government. This was a manifest stretching of the sense and brimstone; also guncotton; military equipments and of conditional contraband. Besides, no distinction was made clothing; military stores, naval stores, such as masts, spars, as to destination. The British government protested, but no rudders, and ship-timber, hemp and cordage, sailcloth, pitch cases were brought into the French prize courts, and the and tar, copper fit for sheathing vessels, marine engines and legality of the measure has never been judicially examined. the component parts thereof, including screw propellers, paddle The controversy during the South African War was confined wheels, cylinders, cranks, shafts, boilers, tubes for boilers, to theory. In practice no stoppage of food-stuffs seems to have boiler plates and fire-bars, marine-cement and the material taken place, though the fact that the whole able-bodied populaused in the manufacture thereof, blue Has and Portland cements; tion of the enemy states formed the fighting force opposed to iron in any of the following forms—anchors, rivet iron, angle Great Britain made it clear that the free import of food supplies iron, round bars of iron of from s toe of an inch diameter, rivets, from abroad helped the farmer-soldiers to carry on warfare strips of iron, sheets, plate iron exceeding ; of an inch, and without the immediate care of raising food crops. Low Moor and Bowling plates;—and as conditionally contraband: The two cases cited show the great difficulty of fixing the provisions and liquors fit for the consumption of army or character of conditional contraband in a way to prevent arbitrary navy, money, telegraphic materials, such as wire, porous cups, seizures. During the Russo-Japanese War (1904–1905) there was platina, sulphuric acid, materials for the construction of a a warm controversy between the British and Russian govern-railway, such as iron bars, sleepers and so forth, coal, hay, ments on the scope of the belligerent right to declare horses, rosin, tallow, timber.1 certain articles contraband. The Conference of London (1908–9), The classing of coal as conditional contraband has given by enumerating the articles which are absolute contraband, rise to much controversy. Great Britain has consistently held limiting those which may be declared contraband, and fixing coat it to be so. During the war of 1870 the French and certain articles which can in no case be declared contraband, German warships were only allowed to take at English has endeavoured to meet the difficulties which arise in practice ports enough to return to a French or German port respectively. (see CONTRABAND). In 1885, during the Franco-Chinese campaign, after protest Trade between neutrals has a prima facie right to go on, in by the Chinese government, Great Britain applied the same spite of war, without molestation. But if the ultimate destinarule at Hong-Kong and Singapore. During the Spanish-American tion of goods, though shipped first to a. neutral port, War neither belligerent seems to have treated coal as contraband. is enemy's territory, then, according to the " doctrine uou. In the case of the coal-ships which were prevented from landing of continuous voyages," the goods may be treated as if voyage.. their cargoes at Cuba, the prevention seems to have been con- they had been shipped to the enemy's territory direct. nected with the blockade only. At the West African conference This doctrine, though Anglo-Saxon in its origin and develop-of 1884 Russia declared that she would " categorically refuse ment, has been put in force by an Italian court in the case of the her consent to any articles in any treaty, convention or instru- Doelwijk, a Dutch vessel which was adjudged good prize on the ment whatever which would imply " the recognition of coal ground that, although bound for Jibouti, a French colonial port, as contraband of war (Parliamentary Papers, Africa, No. 4, it was laden with a provision of arms of a model which had. 1885). Coal, however, is so essential to the prosecution of war gone out of use, and which could only be intended for use by that it is impossible to avoid classing it as conditional contra- the Abyssinians, with whom Italy was at war. The subject has band, so long as such contraband is recognized. The alternative, been fully discussed by the Institute of International Law, by of course, would be to allow both belligerents freely to supply whom the following rule has been adopted: " Destination to themselves at neutral ports, and neutral vessels freely to supply the enemy is presumed where the shipment is to one of the belligerent coaling stations. enemy's ports, or to a neutral port, if it is unquestionably proved During the Franco-Chinese campaign of 1885 and the South by the facts that the neutral port was only a stage (etape) towards African War there was controversy as to the legality of treating the enemy as the final destination of a single commercial Fooa- food-stuffs as conditional contraband. During the operation." 2 studs. former the subject-matter was rice, and the circum- The question of the legality of the doctrine was raised by stances were exceptional. The hostilities being at Chancellor von Billow during the South African War in connexion the outset reprisals, and not actual war, France at first exercised with the stopping of German ships bound for Delagoa Bay, a no right of search over British merchant ships. Great Britain, neutral port. He contended that such vessels were quite, on her side, for the same reason did not object to French war 2 The only person in that eminent assemblage who raised an vessels coaling, victualling and repairing at British ports. objection to the principle of the doctrine was the distinguished French On China protesting against this indulgence to France, Great writer on maritime law, M. Desjardins, who declined to acknowledge that any theory of continuous voyages was, or could be, consistently with the existing law of neutrality, juridically known to International Law. He admitted, at the same time, that penalties of contraband would be incurred if the shipping to a neutral port were effected merely in order " to deceive the belligerent as to the real destination of the cargo." This was the French ruling in the Frau Houwina case (26th May 1855). He proposed to restrict the operation of the doctrine to this condition, but was opposed by three Italian professors of international law, Professors Fusinato, Catellani and Buzzati, on the ground that it would exclude, as it obviously would do, the contingency of goods shipped to a neutral port, not for the purpose of defrauding the belligerent, but for that of being ultimately delivered to a belligerent not in possession of a seaport. The article as quoted in the text was also supported by the greatest German authority pn International Maritime Law, Director Perels of the German admiralty. 1 The Japanese Prize Law (21st August 1894) makes the following distinction: (i) Arms of all kinds, brimstone, dynamite, nitrate of potash, and all goods fit for the purpose of war exclusively; the above-mentioned goods are contraband when they are on board a vessel which either has a hostile destination or calls at any port of the enemy. (2) Provisions and liquors, money, telegraphic materials, such as wire, platinum, sulphuric acid and zinc, porous cups, materials for the construction of a railway, as iron bars, sleepers, &c., coal, timber and so forth: the above-mentioned goods are contraband goods when the destination of the vessel is either the enemy's fleet at sea or a hostile port, used exclusively or mainly for naval or military equipment. When it is clearly known that, though goods detailed in the above sections 1 and 2 are found on board a vessel, they are merely for her own use, they cannot be deemed contraband goods. at all times, outside belligerent jurisdiction, and that only the authorities of the neutral port were entitled to stop contraband on its way to a belligerent force. He did not, however, press the point, and only reserved the right of raising it at a future date.' It was fully discussed at the London Conference of 1908–1909. In order to effect a compromise between conflicting theories and practice, a distinction was made in the declaration between absolute and conditional contraband, the doctrine of continuous voyages not being applicable to conditional contraband when documented to be discharged at a neutral port, except where the enemy country has no seaboard (Declaration of London, arts. 30 to 36). Unneutral Service.—Under this heading the London Conference of 1908–1909, concerning the laws of naval war, dealt with analogues of contraband, and neutral vessels assisting or in the service of the enemy. The articles adopted are as follows: A neutral vessel will be condemned and will, in a general way, receive the same treatment as a neutral vessel liable to condemnation for carriage of contraband: (1) If she is on a voyage specially under-taken with a view to the transport of individual passengers who are embodied in the armed forces of the enemy, or with a view to the transmission of intelligence in the interest of the enemy. (2) If, to the knowledge of either the owner, the charterer, or the master, she is transporting a military detachment of the enemy, or one or more persons who, in the course of the voyage, directly assist the operations of the enemy. In the cases specified under the above heads, goods belonging to the owner of the vessel are likewise liable to condemnation. The provisions of the present article do not apply if the vessel is encountered at sea while unaware of the outbreak of hostilities, or if the master, after becoming aware of the outbreak of hostilities, has had no opportunity of disembarking the passengers. The vessel is deemed to be aware of the existence of a state of war if she left an enemy port subsequently to the outbreak of hostilities, or a neutral port subsequently to the notification of the outbreak of hostilities to the power to which such port belongs, provided that such notification was made in sufficient time. (Art. 45.) A neutral vessel will be condemned and, in a general way, receive the same treatment as would be applicable to her if she were an enemy merchant vessel: (i) If she takes a direct part in the hostilities; (2) If she is under the orders or control of an agent placed on board by the enemy government; (3) If she is in the exclusive employment of the enemy government; (4) If she is exclusively engaged at the time either in the transport of enemy troops or in the transmission of intelligence in the interest of the enemy. In the cases covered by the present article, goods belonging to the owner of the vessel are likewise liable to condemnation. (Art. 46.) Any individual embodied in the armed forces of the enemy who is found on board a neutral merchant vessel may be made a prisoner of war, even though there be no ground for the capture of the vessel. (Art. 47.) The procedure employed to ascertain whether a neutral vessel carries contraband or not is called Visit and Search (see SEARCH), a belligerent right universally recognized Vises and and justified by the considerations that merchant search. ships of the enemy might evade capture by hoisting a neutral flag, if the belligerent had not the right of ascertaining the real character of the ship, and that private neutral vessels might carry contraband goods and generally help the enemy, if the belligerent had not the right of examining their cargo. All neutral private vessels in time of war are liable to visit by belligerent warships on the high seas and in the territorial waters of the belligerents, but not in the territorial waters of neutral states. Neutral public ships are not liable to visit (see above as to neutral public ships, mail ships, and convoy). Visit and search must be effected at every stage with " as much consideration as possible " (Herr von Billow, in Reichstag, 19th January 1900). The visiting officer first examines the ship's papers. If satisfied that the vessel is not liable to detention, he immediately quits her. If not so satisfied, he proceeds to search her. If in the course of the search he is satisfied that the vessel is not liable to detention, the search is immediately discontinued. The visiting officer has the right to inspect any lockers, stores or boxes, and in case of refusal to open them he is justified in using such coercive measure as the case warrants. If after the visit and search the commander has reason to entertain suspicion he gives the master an opportunity of explanation, and if the Pad. Papers, Africa, No. r (1900), pp. 14, 25.explanation is unsatisfactory he detains the vessel. If the seizure turns out after all not to have been justified, the ship and cargo are immediately released and compensation is due for the loss through the detention. In the case of the stoppage and search of German vessels during the South African War, the German government proposed the appointment of arbitrators to decide upon the claims for compensation but this was an innovation to which the British government did not assent. Resistance to search entails consequences which Art. 63 of the Declaration of London (1908–1909) has expressed as follows: Forcible resistance to the legitimate exercise of the right of stoppage, search and capture involves in all cases the condemnation of the vessel. The cargo is liable to the same treatment as the cargo of an enemy vessel. Goods belonging to the master or owner of the vessel are treated as enemy goods. The consequence of carrying contraband are capture, trial by a belligerent prize court, and possible confiscation of the ship and cargo, or of the cargo alone or of a part of the cargo, according to the facts of the case. All are capture, agreed as to articles which are absolute contraband nn°pplsa being liable to capture. As regards conditional con- traband, British law,2 in so far, at least, as concerns "naval and victualling stores," is less severe, the Lords of the Admiralty being entitled to purchase such stores without cgndemnation in a prize court. In practice such purchases are made at the market value of the goods, with an additional 1o% for loss of profit. This proceeding is known in International Law as the right of pre-emption. It is not, however, as yet officially recognized on the continent of Europe, though the need of some palliative for confiscation, in certain cases, is felt, and some continental jurists, moved by the same desire to distinguish unmistakable from so to speak constructive contraband, and protect trade against the vexation of uncertainty, have tried to argue conditional contraband away altogether. The tendency, however, among the majority of continental authorities is seen in the rule drawn up in 1895, after several years of discussion, by the Institute of International Law, a body composed exclusively of international jurists of acknowledged standing. The majority which adopted it represents authoritative opinion in Germany, Denmark, Italy, Holland and France, showing that the old antagonism between the British and continental views on conditional contraband has ceased to exist. To prevent confusion the Institute declares conditional contraband abolished, and then adds that " nevertheless, the belligerent has, at his option and on condition of paying an equitable indemnity, a right of sequestration or pre-emption as to articles (objets) which, on their way to a port of the enemy, may serve equally for use in war or in peace." The proposed rule goes beyond the directions of the British Prize Act, and it could only come into operation under a verbal alteration of the Declaration of Paris, under which " contraband " alone is excepted from the protection of the neutral flag, a fact which seems to have escaped the notice of the Institute. British prize law is at present governed by the Prize Act of 1864. This act must be overhauled to meet the requirements of the new international law of the subject; the creation of an International Court of Appeal and the new rules adopted by the conferences of the Hague and London will make many changes necessary. Absolute Duties of Neutrals.—The very sense of neutrality obviously implies abstention from direct corporate assistance. The duty of neutral states to enforce respect for their territory has become a very serious one. A belligerent meat of cannot be allowed to cross the neutral frontier or carry respect for on war operations in neutral waters, without the same neatrd right being granted to the other belligerent. Pursuit of territory one force by the other would amount to waging war on the neutral territory. It is agreed among nations that the avoidance of such a contingency is in the interest of them all. During the Franco-German War both France and Germany, 2 The Naval Prize Act 1864, sect. 38. such a manner as to render it impossible for them to take any further part in the hostilities. In the case of territorial waters, as has already been pointed out, the neutral state is not in the same position as on land, all ships without distinction having a right of innocent passage through them. Belligerent ships also have the right to enter neutral ports, but the neutral authority is bound to take precautions to prevent any favour being shown to the one party or the other? i The right of way claimed and acceded to under the Anglo-Portuguese Treaty of llth June 1891 was a mere right of transit for merchandise, and could not in any way be construed as diminishing the neutral obligation to a belligerent who was no party to the treaty. a The rules laid down on this subject by the British authorities during the Spanish-American War were as follows: Rule 1.-During the continuance of the present state of war all ships of war of either belligerent are prohibited from. making use of any port or roadstead in the United Kingdom, the Isle of Man or the Channel Islands, or of any of Her Majesty's colonies or foreign possessions or dependencies, or of any waters subject to the territorial jurisdiction of the British crown, as a station or place of resort for any warlike purpose, or for the purpose of obtaining any facilities for warlike equipment; and no ship of war of either belligerent shall hereafter be permitted to leave such port, roadstead or waters from which any vessel of the other belligerent (whether the same shall be a ship of war or a merchant ship) shall have previously departed until after the expiration of at least twenty-four hours from the departure of such last-mentioned vessel beyond the territorial jurisdiction of Her Majesty. Rule 2.-If there is now in any such port, roadstead or waters subject to the territorial jurisdiction of the British crown any ship of war of either belligerent, such ship shall leave such port, roadstead, or waters within such time, not less than twenty-four hours, as shall be reasonable, having regard to all the circumstances and the condition of such ship as to repairs, provisions or things necessary for the subsistence of her crew; and if after the date hereof any ship of war of either belligerent shall enter any such port, roadstead or waters subject to the territorial jurisdiction of the British crown, such ship shall depart and put to sea within twenty-four hours after her entrance into any such port, roadstead or waters, except in case of stress of weather, or of her requiring provisions or things necessary for the subsistence of her crew, or repairs; in either of such cases the authorities of the port, or the nearest port (as the case may be), 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 any supplies beyond what may be necessary for her immediate use; and no such vessel which may have been allowed to remain within British waters for the purpose of repair shall continue in any such port, roadstead or waters for a longer period than twenty-four hours after her necessary repairs shall have been completed. Provided, nevertheless, that in all cases in which there shall be any vessels (whether ships of war or merchant ships) of both the said belligerent parties in the same port, roadstead or waters within the territorial jurisdiction of Her Majesty, there shall be an interval of not less than twenty-four hours between the departure therefrom of any such vessel (whether a ship of war or merchant ship) of the one belligerent and the subsequent departure therefrom of any ship of war of the other belligerent; and the time hereby limited for the departure of such ships of war respectively shall always, in case of necessity, be extended so far as may be requisite for giving effect to this proviso, but no further or otherwise. Rule 3.-No ship of war of either belligerent shall hereafter be permitted, while in any such port, roadstead or waters subject to the territorial jurisdiction of Her Majesty, to take in any supplies, except provisions and such other things as may be requisite for the sub- Relative Duties of Neutrals.—Relative duties embrace those duties which citizens are bound to observe and for which states incur a relative responsibility. It was the non-observance of these relative duties that led to difficulties ealForeist- lga between Great Britain and the United States at the meat, &a. close of the American Civil War and which brought the two countries themselves to the verge of conflict. The Treaty of Washington (8th May 1871) referring these difficulties to arbitration defined the scope of the duties in question for all future purposes between the two peoples (see below, " Proclamations of Neutrality "). Under this treaty the parties bind themselves to use " due diligence," where they have " reasonable ground " to believe that any acts have a belligerent character, in " preventing " them. They are bound to prevent (I) Fitting out, arming, or equipping any vessel; (2) The departure from their jurisdiction of any vessel, having been specially adapted in whole or in part within such jurisdiction to warlike uses; (3) The making use by a belligerent of their ports or waters as a base of naval operations against the other; (4) The making use thereof for the purpose of the renewal or augmenting of military supplies or arms; (5) The making use thereof for the recruitment of men. The contracting states undertook to bring the rules they adopted on this subject to the knowledge of other maritime powers, and to invite them to adopt them also, but nothing was ever done to get them accepted among other states. Pro-vision had already been made to enable the government to carry them out in the Foreign Enlistment Act( 9th August 1870). This act, which repealed the previous one of 1819 on the same subject, is minute in its provisions to prevent enlisting or recruiting men, or the building or the equipping of vessels; for the military service " of a foreign state at war with a friendly state." Other states, except the United States (which adopted a similar act), have not followed the example of Great Britain, but leave it to their governments to deal with the cases, when they may arise, as matters of public safety .3 There was evident reluctance among foreign states to commit themselves to the obligation of exercising " due diligence." It is clear that the duty of a state to forbear from committing any act which may be of assistance to either belligerent can never be formulated as an absolute one in regard to the acts of private persons, merely within the neutral jurisdiction. In recent times• it has certainly become possible for states to exercise a more effective control than formerly over these acts; but at the present moment, though a much greater latitude is left to neutral subjects and citizens than is consistent with the idea of strict neutrality, there is no movement to alter the usages to the disadvantage of neutral interests. That the Geneva Arbitral Tribunal found in favour of the United States in the " Alabama " case in no way implied that International Law had undergone any change. The tribunal was bound by the antecedent fixation of the Washington rules, and laid down no new principle. On the other hand, the magnitude of the Geneva award was not likely to promote change in the direction of increasing neutral duties, except as part of a general regulation of neutral and belligerent rights. The whole subject was laid before the Hague Conference of 1907, which adopted the main principles of the rules enunciated in the Treaty of Washington (see Art. 8 of the Convention relating to the rights and duties of neutral states in maritime war). sistence of her crew, and except so much coal only as may be sufficient to carry such vessel to the nearest port of her own country or to some nearer destination; and no coal shall again be supplied to any such ship of war in the same or any other port, roadstead or waters subject to the territorial jurisdiction of Her Majesty, without special permission, until after the expiration of three months from the time when such coal may have been last supplied to her within British waters as aforesaid. Rule 4.—Armed ships of either belligerent are interdicted from carrying prizes made by them into the ports, harbours, roadsteads or waters of the United Kingdom, the Isle of Man, the Channel Islands, or any of Her Majesty's colonies or possessions abroad. The French Penal Code, however, contains the following clauses covering the government's powers in this respect :
End of Article: NEUTRALITY
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