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CHAPTER XI.

NEUTRALITY.—RIGHTS AND DUTIES OF NEUTRALS.-BELLIG

ERENT ACTS NOT PERMISSIBLE IN NEUTRAL TERRITORY.

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Neutrality.—Rights and duties of neutrals.—“The right of every independent state," says Wheaton, “to remain at peace, whilst other states are engaged in war, is an incontestable attribute of sovereignty. It is, however, obviously impossible that neutral nations should be wholly unaffected by the existence of war between those communities with whom they continue to maintain their accustomed relations of friendship and commerce. The rights of neutrality are connected with correspondent duties. Among these duties is that of impartiality between the contending parties. The neutral is the common friend of both parties, and consequently not at liberty to favor one party to the detriment of the other.”

Neutrality may then be defined as the position occupied by those states which in time of war do not take part therein, but continue friendly relations and proper intercourse with the belligerents. This is in its broad sense state neutrality, and is not only a right but a duty. It is also voluntary neutrality, as distinguished from conventional neutrality, the latter being the neutrality required by special compact or conventions from neutralized states, such as Switzerland and Belgium. It may be said that neutrality is in a certain sense the continuance of the previously existing state of affairs so far as the non-belligerents are concerned. But, as a result of experience, by growth and evolution, international law has assigned to the condition of neutrality certain rights and obligations which exist only with a state of war. Limitations

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are placed upon the use of neutral ports by belligerent cruisers, some supplies are denied to them, others are given in a sparing manner.

The neutral government enforces respect for the neutrality of its waters and territory, and military or naval expeditions cannot be recruited in or based from its territory. On the other hand, commercial intercourse of the subjects of neutral states becomes subject to certain kinds of loss and punishment from the belligerent who suffers by his action.

These examples show some of the changes in conditions that may be caused to neutrals by the existence of a state of war. Notwithstanding that international law, in its treatment of the rights and duties of neutrals, is occupied entirely in setting forth the changes, every restriction upon the rights of the neutral must have a clear and undoubted rule and reason. The burden of proof lies upon the restraining government.

Neutrality defined by Vattel in 18th century.—Neutrality as a theory and practice has been a matter of slow growth, and it was not until the 18th century that it began to appear as a tangible and impartial rule of international law. Vattel during this period gave the following definition of neutrality: “ Neutral nations during a war are those who take no one's part, remaining friends common to both parties, and not favoring the armies of one of them to the prejudice of the other.” 1

Development of neutrality in the 19th century. The rules of neutrality were, however, more rapid in their development during the 19th century for several reasons; first, on account of the attitude of the United States towards neutrality in the early part of the century; second, on account of the permanent neutralization of Switzerland and Belgium, and their faithful observance of impartiality towards all belligerents during the century; third, the adoption very generally of the Declaration of Paris, with the extension of protection towards neutral goods and ships and neutral rights with respect to blockades; and fourth, the general development of armaments so that neutrals feared belligerents and belligerents feared neutrals, and both avoided offense accordingly.

1 Vattel, III, Sec. 103.

In 20th century.--Neutrality, as it has been developed up to the present time in the 20th century, may be defined as the impartial attitude and practice of the non-belligerent states towards the belligerents in time of war. While remaining at peace the non-belligerent states continue friendly relations and proper intercourse with both or all of the belligerents.

Holland on obligations of neutrality.- Professor Holland, one of the leading, if not the principal authority upon international law in Great Britain, considers the obligations of a neutral state as being of three classes, involving, respectively abstention, prevention and acquiescence.

I. “ The first of these, abstention, is of a negative character, It consists of restrictions upon the free action of the neutral state, by which it is, for instance, bound not to supply armed forces to a belligerent; not to grant passage to such forces; and not to sell to him ships or munitions of war, even when the sale takes place in the ordinary course of getting rid of superfluous or obsolete equipment."

II. Prevention.-" The second class of neutral obligations is of much wider scope than the first, and gives rise to a greater number of debatable questions. It is positive in character, imposing on the neutral state duties of interference with the action of belligerents and of its own subjects."

III. Acquiescence.—“The third head of neutral duty is of a negative character, obliging the neutral state to acquiesce in acts on the part of belligerents which, but for the existence of war, would be unlawful and ground for redress.” ?

2 Holland.

See Transactions of the British Academy, Vol. II,

p. 58.

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Rights and duties of neutrals.

The rights and duties of neutrals are linked together, especially so far as state acts are concerned.

For instance, the great right of sovereignty of a state gives a right which is but another phase of sovereignty applicable in war time, i. e., the right of inviolability of territory.

As to its duties they are also founded upon the general sovereign rights of a state, hence it may be well to limit our discussion to such duties arising from war conditions which are mutual upon the part of the neutrals and of the belligerents, and that are defined by international law in a general sense and made part of the municipal law by state action.

Belligerent acts not permissible in neutral territory. It is .a duty on the part of the hostile states to avoid committing such acts, while it is a corresponding duty on the part of the neutral to forbid and prevent such belligerent actions.

The most important of the duties that arise in this connection are grouped under the general statement that belligerent acts are not permissible in neutral territory.

Hostilities may be carried on properly in the territory of either belligerent and upon the high seas. Within the territorial land and waters of a neutral no such hostilities can be permitted.

Any territory which is not in the possession of a state is held to be in the same category as the high seas.

Proclamation of neutrality.-While it is not a duty on the part of a neutral state to issue any proclamation of neutrality, it has become customary to do so when commercial or other interests may be involved.

The practice of issuing such proclamation has several advantages; it calls the attention of the subjects or citizens of the state to the neutrality or corresponding laws, to the obligations and penalties of citizens arising from a state of war, and supplements the neutrality laws by announcing the attitude of the government towards the belligerents, and to its own rules, particularly those as to the entry and use of its ports and waters by belligerent cruisers.

Proclamations of this kind have been issued by the Presidents of the United States from the latter part of the last century down to that of President Roosevelt in 1904 during the Russo-Japanese War, giving the duties of the nation and its citizens arising therefrom.

Passage of belligerents over neutral territory.- A permission given for the passage of troops of a belligerent through a neutral territory, though sanctioned by earlier writers upon international law, is now considered a warlike act and is not permitted. Given to one belligerent it is an act of partiality and favor to one of the belligerents. Given to both it is a matter which is almost if not quite impossible to arrange impartially, no matter how just may be the ideas of the neutral in the matter. As Lawrence says, “In the crisis of a great war it may be a matter of life and death to one belligerent to pass a body of troops across the outlying portion of neutral territory, whereas the other may never be placed in a similar position through the whole course of hostilities. It would be little consolation to him in the midst of defeat and ruin to be told that he would have received the same privileges as his adversary had the conditions been reversed. Moreover, the permission is of necessity given to further a warlike end, and is therefore inconsistent with the fundamental principle of state neutrality.” :

In 1870 the Swiss Republic refused to allow bodies of Alsatian recruits for the French army to cross her frontiers. In 1879 we made the action of the Mexican Government in pursuing some insurgents into our territory a subject of serious remonstrance.

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3 Principles of Int. Law, 3d edn., pp. 525-526.

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