Volume 2 / Part 3 — 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—Mérignhac, pp. 339-342—Pillet, pp. 273-275.

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.

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 attitude 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 attitude of impartiality; and, secondly, not to suppress their intercourse, and in especial their commerce, with the enemy.[583]

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 attitude 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.

Rights and Duties of Neutrals contested.

§ 315. Some writers[584] maintain that no rights derive from neutrality for neutrals, and, consequently, no duties for belligerents, because everything which must be left undone by a belligerent regarding his relations with a neutral must likewise be left undone in time of peace. But this opinion has no foundation. Indeed, it is true that the majority of the acts which belligerents must leave undone in consequence of their duty to respect neutrality must likewise be left undone in time of peace in consequence of the territorial supremacy of every State. However, there are several acts which do not belong to this class—for instance, the non-appropriation of enemy goods on neutral vessels. And those acts which do belong to this class fall nevertheless at the same time under another category. Thus, a violation of neutral territory on the part of a belligerent for military and naval purposes of the war is indeed an act prohibited in time of peace, because every State has to respect the territorial supremacy of other States; but it is at the same time a violation of neutrality, and therefore totally different from other violations of foreign territorial supremacy. This becomes quite apparent when the true inwardness of such acts is regarded. For every State has a right to demand reparation for an ordinary violation of its territorial supremacy, but it need not take any notice of it, and it has no duty to demand reparation. Yet in case a violation of its territorial supremacy constitutes at the same time a violation of its neutrality, the neutral State has not only a right to demand reparation, but has a duty[585] to do so. For, if it did not, this would contain a violation of its duty of impartiality, because it would be favouring one belligerent to the detriment of the other.[586]

On the other hand, it has been asserted[587] that, apart from conventional neutrality, from which treaty obligations arise, it is incorrect to speak of duties deriving from neutrality, since at any moment during the war neutrals could throw up neutrality and become parties to the war. I cannot agree with this opinion either. That a hitherto neutral can at any moment throw up neutrality and take part in the war, is just as true as that a belligerent can at any moment during the war declare war against a hitherto neutral State. Yet this only proves that there is no duty to remain neutral, and no duty for a belligerent to abstain from declaring war against a hitherto neutral State. This is a truism which ought not to be doubted, and is totally different from the question as to what duties derive from neutrality so long as a certain State remains neutral at all. The assertion that such duties derive from neutrality is in no way inconsistent with the fact that neutrality itself can at any moment during the war come to an end through the beginning of war by either a neutral or a belligerent. This assertion only states the fact that, so long as neutrals intend neutrality and so long as belligerents intend to recognise such neutrality of third States, duties derive from neutrality for both belligerents and neutrals.

Contents of Duty of Impartiality.

§ 316. It has already been stated above, in § 294, that impartiality excludes such assistance and succour to one of the belligerents as is detrimental to the other, and, further, such injuries to one of the belligerents as benefit the other, and that it includes active measures on the part of neutrals for the purpose of preventing belligerents from making use of neutral territories and neutral resources for their military and naval purposes. But all this does not exhaust the contents of the duty of impartiality.

It must, on the one hand, be added that according to the present strict conception of neutrality the duty of impartiality of a neutral excludes all facilities whatever for military and naval operations of the belligerents, even if granted to both belligerents alike. In former times assistance was not considered a violation of neutrality, provided it was given to both belligerents in the same way, and States were considered neutral although they allowed an equal number of their troops to fight on the side of each belligerent. To-day this could no longer happen. From Conventions V. and XIII. of the Second Peace Conference, which deal with neutrality in land and sea warfare respectively, it becomes quite apparent that any facility whatever directly concerning military or naval operations, even if it consists only in granting passage over neutral territory to belligerent forces, is illegal, although granted to both belligerents alike. The duty of impartiality to-day comprises abstention from any active or passive co-operation with belligerents.

On the other hand, it must be added that the duty of impartiality includes the equal treatment of both belligerents regarding such facilities as do not directly concern military or naval operations, and which may, therefore, be granted or not to belligerents, according to the discretion of a neutral. If a neutral grants such facilities to one belligerent, he must grant them to the other in the same degree. If he refuses them to the one, he must likewise refuse them to the other.[588] Thus, since it does not, according to the International Law of the present day, constitute a violation of neutrality if a neutral allows his subjects to supply either belligerent with arms and ammunition in the ordinary way of trade, it would constitute a violation of neutrality to prohibit the export of arms destined for one of the belligerents only. Thus, further, if a neutral allows men-of-war of one of the belligerents to bring their prizes into neutral ports, he must grant the same facility to the other belligerent.

Duty of Impartiality continuously growing more intense.

§ 317. Although neutrality has already for centuries been recognised as an attitude of impartiality, it has taken two hundred years for the duty of impartiality to attain its present range and intensity. Now this continuous development has by no means ceased. It is slowly and gradually going on, and there is no doubt that during the twentieth century the duty of impartiality will become much more intense than it is at present. The fact that the intensity of this duty is the result of gradual development bears upon many practical questions regarding the conduct of neutrals. It is therefore necessary to discuss separately the relations between neutrals and belligerents in order to ascertain what line of conduct must be followed by neutrals.

Neutrality Conventions of the Second Peace Conference.

§ 317a. The Second Peace Conference has produced two Conventions concerning neutrality:—

(1) The Convention (V.) respecting the rights and duties of neutral Powers and persons in war on land,[589] which comprises twenty-five articles and has been signed by all the Powers represented at the Conference, except China and Nicaragua; both, however, acceded later. Many Powers have already ratified. Great Britain entered a reservation[590] against articles 16-18, and Argentina against article 18.

(2) The Convention (XIII.) respecting the rights and duties of neutral Powers in maritime war,[591] which comprises thirty-three articles and has been signed by all the Powers represented at the Conference, except the United States of America, China, Cuba, Nicaragua, and Spain; but America, China, and Nicaragua acceded later. Many Powers have already ratified, but there are a number of reservations; they will be dealt with in due course when the points concerned are being discussed.

Both Conventions deal comprehensively with the rights and duties of neutrals, but it is not convenient in a treatise on International Law either to treat separately of the duties of neutrals in war on land and on sea, or to dispense with any distinction in the treatment of the several points concerned. The arrangement of topics in the sections of this chapter will, therefore, be independent of the arrangement of topics in the two Conventions, and will be as follows:—Neutrals and Military Operations (§§ 320-328); Neutrals and Military Preparations (§§ 329-335); Neutral Asylum to Soldiers and War Materials (§§ 336-341); Neutral Asylum to Naval Forces (§§ 342-348); Supplies and Loans to Belligerents (§§ 349-352); Services to Belligerents (§§ 353-356).

Contents of Duty of Belligerents to treat Neutrals in accordance with their Impartiality.

§ 318. Whereas the relations between neutrals and belligerents require detailed discussion with regard to the duty of impartiality incumbent upon neutrals, the contents of the duty of belligerents to treat neutrals in accordance with their impartiality are so manifest that elaborate treatment is unnecessary. Such duty excludes, firstly, any violation of neutral territory for military or naval purposes of the war;[592] and, secondly, the appropriation of neutral goods, contraband excepted, on enemy vessels.[593] On the other hand, such duty includes, firstly, due treatment of neutral diplomatic envoys accredited to the enemy and found on occupied enemy territory; and, secondly, due treatment of neutral subjects and neutral property on enemy territory. A belligerent who conquers enemy territory must at least grant to neutral envoys accredited to the enemy the right to quit the occupied territory unmolested.[594] And such belligerent must likewise abstain from treating neutral subjects and property established on enemy territory more harshly than the laws of war allow; for, although neutral subjects and property have, by being established on enemy territory, acquired enemy character, they have nevertheless not lost the protection of their neutral home State.[595] And such belligerent must, lastly, pay full damages in case he makes use of his right of angary[596] against neutral property in course of transit through enemy territory.

Contents of Duty not to suppress Intercourse between Neutrals and the Enemy.

§ 319. The duty of either belligerent not to suppress intercourse of neutrals with the enemy requires no detailed discussion either. It is a duty which is in accordance with the development of the institution of neutrality. It is of special importance with regard to commerce of subjects of neutrals with belligerents, since formerly attempts were frequently made to intercept all neutral trade with the enemy. A consequence of the now recognised freedom of neutral commerce with either belligerent is, firstly, the rule, enacted by the Declaration of Paris of 1856, that enemy goods, with the exception of contraband, on neutral vessels on the Open Sea or in enemy territorial waters may not be appropriated by a belligerent,[597] and, secondly, the rule, enacted by article 1 of Convention XI. of the Second Peace Conference, that the postal correspondence of neutrals or belligerents, except correspondence destined for or proceeding from a blockaded port, which may be found on a neutral or enemy vessel, is inviolable.[598] But the recognised freedom of neutral commerce necessitates, on the other hand, certain measures on the part of belligerents. It would be unreasonable to impose on a belligerent a duty not to prevent the subjects of neutrals from breaking a blockade, from carrying contraband, and, lastly, from rendering unneutral service to the enemy. International Law gives, therefore, a right to either belligerent to forbid all such acts to neutral merchantmen, and, accordingly, to visit, search, capture, and punish them.[599]

II NEUTRALS AND MILITARY OPERATIONS

Vattel, III. §§ 105, 118-135—Hall, §§ 215, 219, 220, 226—Westlake, II. pp. 179-183—Lawrence, §§ 229, 234-240—Manning, pp. 225-227, 245-250—Twiss, II. §§ 217, 218, 228—Halleck, II. pp. 146, 165, 172—Taylor, §§ 618, 620, 632, 635—Walker, §§ 55, 57, 59-61—Wharton, III. §§ 397-400—Moore, VII. §§ 1293-1303—Wheaton, §§ 426-429—Bluntschli, §§ 758, 759, 763, 765, 769-773—Heffter, §§ 146-150—Geffcken in Holtzendorff, IV. pp. 657-676—Ullmann, § 191—Bonfils, Nos. 1449-1457, 1460, 1469, 1470—Despagnet, Nos. 690-692—Rivier, II. pp. 395-408—Calvo, IV. §§ 2644-2664, 2683—Fiore, III. Nos. 1546-1550, 1574-1575, 1582-1584—Martens, II. §§ 131-134—Kleen, I. §§ 70-75, 116-122—Mérignhac, pp. 352-380—Pillet, pp. 284-289—Perels, § 39—Testa, pp. 173-180—Heilborn, Rechte, pp. 4-12—Dupuis, Nos. 308-310, 315-317, and Guerre, Nos. 277-294—Land Warfare, §§ 465-471.

Hostilities by and against Neutrals.

§ 320. The duty of impartiality incumbent upon a neutral must obviously prevent him from committing hostilities against either belligerent. This would need no mention were it not for the purpose of distinction between hostilities on the one hand, and, on the other, military or naval acts of force by a neutral for the purpose of repulsing violations of his neutrality committed by either belligerent. Hostilities of a neutral are acts of force performed for the purpose of attacking a belligerent. They are acts of war, and they create a condition of war between such neutral and the belligerent concerned. If, however, a neutral does not attack a belligerent, but only repulses him by force when he violates or attempts to violate the neutrality of the neutral, such repulse does not comprise hostilities. Thus, if men-of-war of a belligerent attack an enemy vessel in a neutral port and are repulsed by neutral men-of-war, or if belligerent forces try to make their way through neutral territory and are forcibly prevented by neutral troops, no hostilities have been committed by the neutral, who has done nothing else than fulfil his duty of impartiality. Article 10 of Convention V. enacts categorically that "the fact of a neutral Power repelling, even by force, attacks on its neutrality, cannot be considered as a hostile act." And stress must be laid on the fact that it is no longer legitimate for a belligerent to pursue[600] military or naval forces who take refuge on neutral territory; should, nevertheless, a belligerent do this, he must, if possible, be repulsed by the neutral.

It is, on the other hand, likewise obvious that hostilities against a neutral on the part of either belligerent are acts of war, and not mere violations of neutrality. If, however, belligerent forces attack enemy forces which have taken refuge on neutral territory or which are there for other purposes, such acts are not hostilities against the neutral, but mere violations of neutrality which must be repulsed or for which reparation must be made, as the case may be.

Quite a peculiar condition arose at the outbreak of and during the Russo-Japanese War. The ends for which Japan went to war were the expulsion of the Russian forces from the Chinese Province of Manchuria and the liberation of Korea, which was at the time an independent State, from the influence of Russia. Manchuria and Korea became therefore the theatre of war, although both were neutral territories and although neither China nor Korea became parties to the war. The hostilities which occurred on these neutral territories were in no wise directed against the neutrals concerned. This anomalous condition of matters arose out of the inability of both China and Korea to free themselves from Russian occupation and influence. And Japan considered her action, which must be classified as an intervention, justified on account of her vital interests. The Powers recognised this anomalous condition by influencing China not to take part in the war, and by influencing the belligerents not to extend military operations beyond the borders of Manchuria. Manchuria and Korea having become the theatre of war,[601] the hostilities committed there by the belligerents against one another cannot be classified as a violation of neutrality. The case of the Variag and the Korietz on the one hand, and, on the other, the case of the Reshitelni, may illustrate the peculiar condition of affairs:—

(1) On February 8, 1904, a Japanese squadron under Admiral Uriu entered the Korean harbour of Chemulpo and disembarked Japanese troops. The next morning Admiral Uriu requested the commanders of two Russian ships in the harbour of Chemulpo, the Variag and the Korietz, to leave the harbour and engage him in battle outside, threatening attack inside the harbour in case they would not comply with his request. But the Russian ships did comply, and the battle took place outside the harbour, but within Korean territorial waters.[602] The complaint made by Russia, that in this case the Japanese violated Korean neutrality, would seem to be unjustified, since Korea fell within the region and the theatre of war.

(2) The Russian destroyer Reshitelni, one of the vessels that escaped from Port Arthur on August 10, 1904, took refuge in the Chinese harbour of Chifu. On August 12, two Japanese destroyers entered the harbour, captured the Reshitelni, and towed her away.[603] There ought to be no doubt that this act of the Japanese comprises a violation of neutrality,[604] since Chifu does not belong to the part of China which fell within the region of war.

Furnishing Troops and Men-of-War to Belligerents.

§ 321. If a State remains neutral, it violates its impartiality by furnishing a belligerent with troops or men-of-war. And it matters not whether a neutral renders such assistance to one of the belligerents or to both alike. Whereas Convention V. does not mention the furnishing of troops to belligerents on the part of neutrals, article 6 of Convention XIII. enacts that "the supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of warships, ammunition, or war material of any kind whatever, is forbidden."

However, the question is controversial as to whether a neutral State, which in time of peace concluded a treaty with one of the belligerents to furnish him in case of war with a limited number of troops, would violate its neutrality by fulfilling its treaty obligation. Several writers[605] have answered the question in the negative, and there is no doubt that during the eighteenth century such cases happened. But no case happened during the nineteenth century, and there ought to be no doubt that nowadays the answer must be in the affirmative, since a qualified neutrality[606] is no longer admissible.

As regards furnishing men-of-war to belligerents, the question arose during the Russo-Japanese War as to whether a neutral violates his duty of impartiality by not preventing his national steamship companies from selling to a belligerent such of their liners as are destined in case of war to be incorporated as cruisers in the national navy. The question was discussed on account of the sale to Russia of the Augusta Victoria and the Kaiserin Maria Theresia by the North German Lloyd, and the Fürst Bismarck and the Columbia by the Hamburg-American Line, vessels which were at once enrolled in the Russian Navy as second-class cruisers, re-named as the Kuban, Ural, Don, and Terek. Had these vessels, according to an arrangement with the German Government, really been auxiliary cruisers to the German Navy, and had the German Government given its consent to the transaction, a violation of neutrality would have been committed by Germany. But the German Press maintained that these vessels had not been auxiliary cruisers to the Navy, and Japan did not lodge a protest with Germany on account of the sale. If these liners were not auxiliary cruisers to the German Navy, their sale to Russia was a legitimate sale of articles of contraband.[607]

Subjects of Neutrals fighting among Belligerent Forces.

§ 322. Although several States, as Great Britain[608] and the United States of America, by their Municipal Law prohibit their subjects from enlisting in the military or naval service of belligerents, the duty of impartiality incumbent upon neutrals does not at present include any necessity for such prohibition, provided the individuals concerned cross the frontier singly[609] and not in a body. But a neutral must recall his military and naval officers who may have been serving in the army or navy of either belligerent before the outbreak of war. A neutral must, further, retain military and naval officers who want to resign their commissions for the obvious purpose of enlisting in the service of either belligerent. Therefore, when in 1877, during war between Turkey and Servia, Russian officers left the Russian and entered the Servian Army as volunteers with permission of the Russian Government, there was a violation of the duty of impartiality on the part of neutral Russia.

On the other hand, there is no violation of neutrality in a neutral allowing surgeons and such other non-combatant members of his army as are vested with a character of inviolability according to the Geneva Convention to enlist or to remain in the service of either belligerent.

Passage of Troops and War Material through Neutral Territory.

§ 323. In contradistinction to the practice of the eighteenth century,[610] it is now generally recognised that a violation of the duty of impartiality is involved when a neutral allows a belligerent the passage of troops or the transport of war material over his territory.[611] And it matters not whether a neutral gives such permission to one of the belligerents only, or to both alike. The practice of the eighteenth century was a necessity, since many German States consisted of parts distant one from another, so that their troops had to pass through other Sovereigns' territories for the purpose of reaching outlying parts. At the beginning of the nineteenth century the passing of belligerent troops through neutral territory still occurred. Prussia, although she at first repeatedly refused it, at last entered in 1805 into a secret convention with Russia granting Russian troops passage through Silesia during war with France. On the other hand, even before Russia had made use of this permission, Napoleon ordered Bernadotte to march French troops through the then Prussian territory of Anspach without even asking the consent of Prussia. In spite of the protest of the Swiss Government, Austrian troops passed through Swiss territory in 1813, and when in 1815 war broke out again through the escape of Napoleon from the Island of Elba and his return to France, Switzerland granted to the allied troops passage through her territory.[612] But since that time it has become universally recognised that all passage of belligerent troops through neutral territory must be prohibited, and the Powers declared expressis verbis in the Act of November 20, 1815, which neutralised Switzerland, and was signed at Paris,[613] that "no inference unfavourable to the neutrality and inviolability of Switzerland can and must be drawn from the facts which have caused the passage of the allied troops through a part of the territory of the Swiss Confederation." The few instances[614] in which during the nineteenth century States pretended to remain neutral, but nevertheless allowed the troops of one of the belligerents passage through their territory, led to war between the neutral and the other belligerent.

Passage of Wounded through Neutral Territory.

However, just as in the case of furnishing troops so in the case of passage, it is a moot point whether passage of troops can be granted without thereby violating the duty of impartiality incumbent upon a neutral, in case a neutral is required to grant it in consequence of an existing State-servitude or of a treaty previous to the war. There ought to be no doubt that, since nowadays a qualified neutrality is no longer admissible, the question must be answered in the negative.[615]

§ 324. The passage of wounded soldiers is different from that of troops. If a neutral allows the passage of wounded soldiers, he certainly does not render direct assistance to the belligerent concerned. But it may well be that indirectly it is of assistance on account of the fact that a belligerent, thereby relieved from transport of his wounded, can now use the lines of communication for the transport of troops, war material, and provisions. Thus, when in 1870 after the battles of Sedan and Metz, Germany applied to Belgium and Luxemburg to allow her wounded to be sent through their territories, France protested on the ground that the relief thereby created to the lines of communication in the hands of the Germans would be an assistance to the military operations of the German Army. Belgium, on the advice of Great Britain, did not grant the request made by Germany, but Luxemburg granted it.[616]

According to article 14 of Convention V. a neutral Power may grant the passage of wounded or sick to a belligerent. If he does grant it, the trains bringing them must carry neither combatants nor war material, and those of the wounded and sick who belong to the army of the other belligerent must remain on the neutral territory concerned, must there be guarded by the neutral Government, and must, after having recovered, be prevented from returning to their home State and rejoining their corps. By the stipulation of article 14 it is left to the consideration of a neutral whether or no he will allow the passage of wounded and sick to a belligerent; he will, therefore, have to investigate every case and come to a conclusion according to its merits. It should be stated that, according to article 15 of Convention V., the "Geneva Convention applies to the sick and wounded interned in neutral territory."

Passage of Men-of-War.

§ 325. In contradistinction to passage of troops through his territory, the duty of impartiality incumbent upon a neutral does not require him to forbid the passage of belligerent men-of-war through the maritime belt forming part of his territorial waters. Article 10 of Convention XIII. categorically enacts that "the neutrality of a Power is not violated (n'est pas compromise) by the mere passage of belligerent men-of-war and their prizes." Since, as stated above in Vol. I. § 188, every littoral State may even in time of peace prohibit the passage of foreign men-of-war through its maritime belt provided such belt does not form a part of the highways for international traffic, it may certainly prohibit the passage of belligerent men-of-war in time of war. However, no duty exists for a neutral to prohibit such passage in time of war, and he need not exclude belligerent men-of-war from his ports either, although he may do this likewise. The reason is that such passage and such admittance into ports contain very little assistance indeed, and are justified by the character of the sea as an international high road. But it is, on the other hand, obvious that belligerent men-of-war must not commit any hostilities against enemy vessels during their passage, and must not use the neutral maritime belt and neutral ports as a basis for their operations against the enemy.[617]

Occupation of Neutral Territory by Belligerents.

§ 326. In contradistinction to the practice of the eighteenth century,[618] the duty of impartiality must nowadays prevent a neutral from permitting belligerents to occupy a neutral fortress or any other part of neutral territory. If a treaty previously entered into stipulates such occupation, it cannot be granted without violation of neutrality.[619] On the contrary, the neutral must even use force to prevent belligerents from occupying any part of his neutral territory. The question as to whether such occupation on the part of a belligerent would be excusable in case of extreme necessity on account of the neutral's inability to prevent the other belligerent from making use of the neutral territory as a base for his military operations must, I think, be answered in the affirmative, since an extreme case of necessity in the interest of self-preservation must be considered as an excuse.[620]

Prize Courts on Neutral Territory.

§ 327. It has long been universally recognised that the duty of impartiality must prevent a neutral from permitting a belligerent to set up Prize Courts on neutral territory. The intention of a belligerent in setting up a court on neutral territory can only be to facilitate the plundering by his men-of-war of the commerce of the enemy. A neutral tolerating such Prize Courts would, therefore, indirectly assist the belligerent in his naval operations. During the eighteenth century it was not considered illegitimate on the part of neutrals to allow the setting up of Prize Courts on their territory. The Règlement du Roi de France concernant les prises qui seront conduites dans les ports étrangers, et des formalités que doivent remplir les Consuls de S.M. qui y sont établis of 1779, furnishes a striking proof of it. But since in 1793 the United States of America disorganised the French Prize Courts set up by the French envoy Genêt on her territory,[621] it became recognised that such Prize Courts are inconsistent with the duty of impartiality incumbent upon a neutral, and article 4 of Convention XIII. enacts this formerly customary rule.

Belligerent's Prizes in Neutral Ports.

§ 328. It would, no doubt, be an indirect assistance to the naval operations of a belligerent if a neutral allowed him to organise on neutral territory the safekeeping of prizes or their sale.

But the case of a temporary stay of a belligerent man-of-war with her prize in a neutral port is different. Neutral Powers may—although most maritime States no longer do it—allow prizes to be brought temporarily into their ports. Articles 21 and 22 of Convention XIII. lay down the following rules in the matter: A prize may only be brought into a neutral port on account of unseaworthiness, stress of weather, or want of fuel or provisions; it must leave as soon as the circumstances which justified its entry are at an end, and if it does not, the neutral Power must order it to leave at once and must, in case of disobedience, employ the means at disposal to release the prize with its officers and crew, and to intern the prize-crew; a prize brought into a neutral port for reasons other than unseaworthiness, stress of weather, or want of fuel or provisions, must forthwith be released by the respective neutral Power.

The question requires attention as to whether a prize whose unseaworthiness is so great that it cannot be repaired, may be allowed to remain in the neutral port and be there sold[622] after the competent Prize Court has condemned it. Since article 21 enacts that an admitted prize must leave the neutral port as soon as the circumstances which justified its entry are at an end, there is no doubt that it may remain if it cannot by repair be made seaworthy. And there ought, consequently, to be no objection to its sale in the neutral port, provided it has previously been condemned by the proper Prize Court.

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 assistance to the naval operations of the belligerent concerned. For this reason, Great Britain as well as Japan 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—Mérignhac, pp. 358-360—Pillet, pp. 288-290—Dupuis, Nos. 322-331, and Guerre, Nos. 290-294—Land Warfare, §§ 472-476.

Depôts 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 depôts and factories of arms, ammunition, and military provisions. However, belligerents can easily evade this by not keeping depôts 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]

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.

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]

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.

Passage of Bodies of Men intending to Enlist.

§ 331. A neutral is not obliged by his duty of impartiality to interdict passage 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 passage of whole bodies of volunteers through her neutral territory was more or less equal to a passage of troops.

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 (isolément) 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.

Organisation of Hostile Expeditions.

§ 332. If the levy and passage of troops, and the forming of corps of combatants, must be prevented by a neutral, he is all the more required to prevent the organisation of a hostile expedition from his territory against either belligerent. Such organisation takes place when a band of men combine under a commander for the purpose of starting from the neutral territory and joining the belligerent forces. The case, however, is different, if a number of individuals, not organised into a body under a commander, start in company from a neutral State for the purpose of enlisting with one of the belligerents. Thus in 1870, during the Franco-German War, 1200 Frenchmen started from New York in two French steamers for the purpose of joining the French Army. Although the vessels carried also 96,000 rifles and 11,000,000 cartridges, the United States did not interfere, since the men were not organised in a body, and since, on the other hand, the arms and ammunition were carried in the way of ordinary commerce.[630]

Use of Neutral Territory as Base of Naval Operations.

§ 333. Although a neutral is not required by his duty of impartiality to prohibit[631] the passage of belligerent men of-war through his maritime belt, or the temporary stay of such vessels in his ports, it is universally recognised that he must not allow admitted vessels to make the neutral maritime belt and neutral ports the base of their naval operations against the enemy. And article 5 of Convention XIII. enacts that "belligerents are forbidden to use neutral ports and waters as a base of naval operations against their adversaries." The following rules may be formulated as emanating from the principle:—

(1) A neutral must, so far as is in his power, prevent belligerent men-of-war from cruising within his portion of the maritime belt for the purpose of capturing enemy vessels as soon as they leave this belt. It must, however, be specially observed that a neutral is not required to prevent this beyond his power. It is absolutely impossible to prevent such cruising under all circumstances and conditions, especially in the case of neutrals who own possessions in distant parts of the globe. How many thousands of vessels would be necessary, if Great Britain, for instance, were unconditionally obliged to prevent such cruising in every portion of the maritime belt of all her numerous possessions scattered over all parts of the globe?

(2) A neutral must prevent a belligerent man-of-war from leaving a neutral port at the same time as an enemy man-of-war or an enemy merchantman, or must make other arrangements which prevent an attack so soon as both reach the Open Sea.[632] Article 16 of Convention XIII. enacts that there must be an interval of at least twenty-four hours between the departure of a belligerent warship and a ship of the other belligerent.

(3) A neutral must prevent a belligerent man-of-war, whose crew is reduced from any cause whatever, from enrolling sailors in his neutral ports, with the exception of such few hands as are necessary for the purpose of safely navigating the vessel to the nearest port of her home State.[633]

(4) A neutral must prevent belligerent men-of-war admitted to his ports or maritime belt from taking in such a quantity of provisions and coal as would enable them to continue their naval operations, for otherwise he would make it possible for them to cruise on the Open Sea near his maritime belt for the purpose of attacking enemy vessels.

There is, however, no unanimity of the Powers concerning the quantity of provisions and coal which belligerent men-of-war may be allowed to take in. Articles 19 and 20 of Convention XIII. of the Second Peace Conference enact the following:—

Article 19: "Belligerent war-ships may only revictual in neutral ports or roadsteads to bring up their supplies to the peace standard. Similarly these vessels may only ship sufficient fuel to enable them to reach the nearest port in their own country. They may, on the other hand, fill up their bunkers built to carry fuel, when in neutral countries which have adopted this method of determining the amount of fuel to be supplied. If in accordance with the law of the neutral Power, the ships are not supplied with coal within twenty-four hours of their arrival, the duration of their permitted stay is extended by twenty-four hours."

Article 20: "Belligerent war-ships which have shipped fuel in a port belonging to a neutral Power may not within the succeeding three months replenish their supply in a port of the same Power."

Great Britain, Japan, and Siam, while they have accepted article 20,[634] have entered a reservation against article 19. Great Britain upholds her rule that belligerent warships shall not be allowed to take in more provisions and fuel in neutral ports than is necessary to bring them safely to the nearest port of their own country.

While, therefore, the matter is not settled, it is agreed that it makes no difference whether the man-of-war concerned intends to buy provisions and coal on land or to take them in from transport vessels which accompany or meet her in neutral waters.

(5) A neutral must prevent belligerent men-of-war admitted into his ports or maritime belt from replenishing with ammunition and armaments, and from adding to their armaments, as otherwise he would indirectly assist them in preparing for hostilities (article 18 of Convention XIII.). And it makes no difference whether the ammunition and armaments are to come from the shore or are to be taken in from transport vessels.

Similarly a neutral must prevent belligerent men-of-war in his ports and roadsteads from carrying out such repairs as would add in any manner whatever to their fighting force. The local authorities of the neutral Power must decide what repairs are absolutely necessary to make these vessels seaworthy, and such repairs are allowed, but they must be carried out with the least possible delay (article 17 of Convention XIII.).

(6) A neutral must prevent belligerent men-of-war admitted into his ports from remaining there longer than is necessary for ordinary and legitimate purposes.[635] It cannot be said that the rule adopted in 1862 by Great Britain, and followed by some other maritime States, not to allow a longer stay than twenty-four hours, is a rule of International Law. It is left to the consideration of neutrals to adopt by their Municipal Law any rule they think fit so long as the admitted men-of-war do not prolong their stay for any other than ordinary and legitimate purposes. Article 12 of Convention XIII. prescribes the twenty-four hours rule only for those neutral countries which have not special provisions to the contrary in their Municipal Laws.[636] But it is agreed—and article 14 of Convention XIII. enacts it—that belligerent men-of-war, except those exclusively for the time devoted to religious, scientific, or philanthropic purposes, must not prolong their stay in neutral ports and waters beyond the time permitted, except on account of damage or stress of weather. A neutral would certainly violate his duty of impartiality if he were to allow belligerent men-of-war to winter in his ports or to stay there for the purpose of waiting for other vessels of the fleet or transports.

The rule that a neutral must prevent belligerent men-of-war from staying too long in his ports or waters, became of considerable importance during the Russo-Japanese War, when the Russian Baltic Fleet was on its way to the Far East. Admiral Rojdestvensky is said to have stayed in the French territorial waters of Madagascar from December 1904 till March 1905, for the purpose of awaiting there a part of the Baltic Fleet that had set out at a later date. The Press likewise reported a prolonged stay by parts of the Baltic Fleet during April 1905 at Kamranh Bay and Hon-kohe Bay in French Indo-China. Provided the reported facts be true, France would seem to have violated her duty of impartiality by not preventing such an abuse of her neutral ports.

(7) A neutral must prevent more than three men-of-war belonging to the same belligerent from being simultaneously in one of his ports or roadsteads unless his Municipal Law provides the contrary (article 15 of Convention XIII.).

(8) At the outbreak of war a neutral must warn all belligerent men-of-war which were in his ports or roadsteads or in his territorial waters before the outbreak of war, to depart within twenty-four hours or within such time as the local law prescribes (article 13[637] of Convention XIII.).

Building and Fitting-out of Vessels intended for Naval Operations.

§ 334. Whereas a neutral is in no[638] wise obliged by his duty of impartiality to prevent his subjects from selling armed vessels to the belligerents, such armed vessels being merely contraband of war, a neutral is bound to employ the means at his disposal to prevent his subjects from building, fitting out, or arming, to the order of either belligerent, vessels intended to be used as men-of-war, and to prevent the departure from his jurisdiction of any vessel which, by order of either belligerent, has been adapted to warlike use.[639] The difference between selling armed vessels to belligerents, on the one hand, and building them to order, on the other hand, is usually defined in the following way:—

An armed ship, being contraband of war, is in no wise different from other kinds of contraband, provided she is not manned in a neutral port so that she can commit hostilities at once after having reached the Open Sea. A subject of a neutral who builds an armed ship or arms a merchantman, not to order of a belligerent but intending to sell her to a belligerent, does not differ from a manufacturer of arms who intends to sell them to a belligerent. There is nothing to prevent a neutral from allowing his subjects to sell armed vessels, and to deliver them to belligerents, either in a neutral port or in a port of the belligerent. In the case of the La Santissima Trinidad[640] (1822), as in that of the Meteor[641] (1866), American courts have recognised this.[642]

On the other hand, if a subject of a neutral builds armed ships to order of a belligerent, he prepares the means of naval operations, since the ships on sailing outside the territorial waters of the neutral and taking in a crew and ammunition can at once commit hostilities. Thus, through carrying out the order of the belligerent, the neutral territory concerned has been made the base of naval operations. And as the duty of impartiality includes the obligation of the neutral to prevent either belligerent from making neutral territory the base of military or naval operations, a neutral violates his neutrality by not preventing his subjects from carrying out an order of a belligerent for the building and fitting out of men-of-war.

This distinction, although of course logically correct, is hair-splitting. It only shows that neutral States ought[643] to be required to prevent their subjects from supplying arms, ammunition, and the like, to belligerents. But so long as this progress is not made, the above distinction will probably continue to be drawn, in spite of its hair-splitting character.

The Alabama Case and the Three Rules of Washington.

§ 335. The movement for recognition of the fact that the duty of impartiality requires a neutral to prevent his subjects from building and fitting out to order of belligerents vessels intended for naval operations, began with the famous case of the Alabama. It is not necessary to go into all the details[644] of this case. It suffices to say that in 1862, during the American Civil War, the attention of the British Government was drawn by the Government of the United States to the fact that a vessel for warlike purposes was built in England to order of the insurgents. This vessel, afterwards called the Alabama, left Liverpool in July 1862 unarmed, but was met at the Azores by three other vessels, also coming from England, which supplied her with guns and ammunition, so that she could at once begin to prey upon the merchantmen of the United States. On the conclusion of the Civil War, the United States claimed damages from Great Britain for the losses sustained by her merchant marine through the operations of the Alabama and other vessels likewise built in England. Negotiations went on for several years, and finally the parties entered, on May 8, 1871, into the Treaty of Washington[645] for the purpose of having their difference settled by arbitration, five arbitrators to be nominated—Great Britain, the United States, Brazil, Italy, and Switzerland, each choosing one. The treaty contained three rules, since then known as "The Three Rules of Washington," to be binding upon the arbitrators, namely:[646]—

"A neutral Government is bound—

"Firstly. To use due diligence to prevent the fitting out, arming, or equipping within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or carry on war against a Power with which it is at peace, and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted in whole or in part, within such jurisdiction, to warlike use.

"Secondly. Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.

"Thirdly. To exercise due diligence in its waters, and as to all persons within its jurisdiction, to prevent any violations of the foregoing obligations and duties."

In consenting that these rules should be binding upon the arbitrators, Great Britain expressly declared that, in spite of her consent, she maintained that these rules were not recognised rules of International Law at the time when the case of the Alabama occurred, and the treaty contains also the stipulation that the parties—

"Agree to observe these rules as between themselves in future, and to bring them to the knowledge of other Maritime Powers, and to invite them to accede to them."

The appointed arbitrators[647] met at Geneva in 1871, held thirty-two conferences there, and gave decision[648] on September 14, 1872, according to which England had to pay 15,500,000 dollars damages to the United States.

The arbitrators put a construction upon the term due diligence[649] and asserted other opinions in their decision which are very much contested and to which Great Britain never consented. Thus, Great Britain and the United States, although they agreed upon the three rules, did not at all agree upon the interpretation thereof, and they could, therefore, likewise not agree upon the contents of the communication to other maritime States stipulated by the Treaty of Washington. It ought not, therefore, to be said that the Three Rules of Washington[650] have literally become universal rules of International Law. Nevertheless, they were the starting-point of the movement for the universal recognition of the fact that the duty of impartiality obliges neutrals to prevent their subjects from building and fitting out, to order of belligerents, vessels intended for warlike purposes, and to prevent the departure from their jurisdiction of any vessel, which, by order of a belligerent, has been adapted to warlike use. Particular attention must be paid to the fact that, although article 8 of Convention XIII. in other respects copies almost verbally the first of the Three Rules of Washington, it differs from it in so far as it replaces the words "to use due diligence" by "to employ the means at its disposal." For this reason the construction put by the Geneva arbitrators upon the term due diligence cannot find application to the rule of article 8, the employment of the means at the disposal of a neutral to prevent the acts concerned being a mere question of fact.

IV NEUTRAL ASYLUM TO LAND FORCES AND WAR MATERIAL

Vattel, III. §§ 132-133—Hall, §§ 226 and 230—Halleck, II. p. 150—Taylor, § 621—Wharton, III. § 394—Moore, VII. §§ 1314-1318—Bluntschli, §§ 774, 776-776A, 785—Heffter, § 149—Geffcken in Holtzendorff, IV. pp. 662-665—Ullmann, § 191—Bonfils, Nos. 1461-1462—Rivier, II. pp. 395-398—Calvo, IV. §§ 2668-2669—Fiore, III. Nos. 1576, 1582, 1583—Martens, II. § 133—Mérignhac, pp. 370-376—Pillet, pp. 286-287—Kleen, II. §§ 151-157—Holland, War, Nos. 131-133—Zorn, pp. 316-352—Heilborn, Rechte und Pflichten der neutralen Staaten in Bezug auf die während des Krieges auf ihr Gebiet übertretenden Angehörigen einer Armee und das dorthingebrachte Kriegsmaterial der kriegführenden Parteien (1888), pp. 12-83—Rolin-Jaequemyns in R.I. III. (1871), pp. 352-366—Land Warfare, §§ 485-501.

On Neutral Asylum in general.

§ 336. Neutral territory, being outside the region of war,[651] offers an asylum to members of belligerent forces, to the subjects of the belligerents and their property, and to war material of the belligerents. Since, according to the present rules of International Law, the duty of either belligerent to treat neutrals according to their impartiality must—the case of extreme necessity for self-preservation excepted—prevent them from violating the territorial supremacy of neutrals, enemy persons as well as enemy goods are perfectly safe on neutral territory. It is true that neither belligerent has a right to demand from a neutral[652] such asylum for his subjects, their property, and his State property. But neither has he, on the other hand, any right to demand that a neutral refuse such asylum to the enemy. The territorial supremacy of the neutral enables him to use his discretion, and either to grant or to refuse asylum. However, the duty of impartiality incumbent upon him must induce a neutral granting asylum to take all such measures as are necessary to prevent his territory from being used as a base of hostile operations.

Now, neutral territory may be an asylum, first, for private enemy property; secondly, for public enemy property, especially war material, cash, and provisions; thirdly, for private subjects of the enemy; fourthly, for enemy land forces; and, fifthly, for enemy naval forces. Details, however, need only be given with regard to asylum to land forces, war material, and naval forces. For with regard to private property and private subjects it need only be mentioned that private war material brought into neutral territory stands on the same footing as public war material of a belligerent brought there, and, further, that private enemy subjects are safe on neutral territory even if they are claimed by a belligerent for the committal of war crimes.

Only asylum to land forces and war material will be discussed here in §§ 337-341, asylum to naval forces being reserved for separate discussion in §§ 342-348. As regards asylum to land forces, a distinction must be made between (1) prisoners of war, (2) single fugitive soldiers, and (3) troops or whole armies pursued by the enemy and thereby induced to take refuge on neutral territory.

Neutral Territory and Prisoners of War.

§ 337. Neutral territory is an asylum to prisoners of war of either belligerent in so far as they become free ipso facto by their coming into neutral territory. And it matters not in which way they come there, whether they escape from a place of detention and take refuge on neutral territory, or whether they are brought as prisoners into such territory by enemy troops who themselves take refuge there.[653]

The principle that prisoners of war regain their liberty by coming into neutral territory has been generally recognised for centuries. An illustration occurred in 1558, when several Turkish and Barbary captives escaped from one of the galleys of the Spanish Armada which was wrecked near Calais, and, although the Spanish Ambassador claimed them, France considered them to be freed by the fact of their coming on her territory, and sent them to Constantinople.[654] But has the neutral on whose territory a prisoner has taken refuge the duty to retain such fugitives and thereby prevent them from rejoining the enemy army? Formerly this question was not settled. In 1870, during the Franco-German War, Belgium answered the question in the affirmative, and detained a French non-commissioned officer who had been a prisoner in Germany and had escaped into Belgian territory with the intention of rejoining at once the French forces. Whereas this case was controversial,[655] all writers agreed that the case was different if escaped prisoners wanted to remain on the neutral territory. As such refugees might at any subsequent time wish to rejoin their forces, the neutral was by his duty of impartiality considered to be obliged to take adequate measures to prevent their so doing. There was likewise no unanimity regarding prisoners brought into neutral territory by enemy forces taking refuge there. It was agreed that such prisoners became free by being brought into neutral territory; but whereas some writers[656] maintained that they could not be detained in case they intended at once to leave the neutral territory, others asserted that they must always be detained and that they must comply with such measures as the neutral considers necessary to prevent them from rejoining their forces.

Article 13 of Convention V. settles the controversy by enacting that a neutral who receives prisoners of war who have escaped or who are brought there by troops of the enemy taking refuge on neutral territory, shall leave them at liberty, but that, if he allows them to remain on his territory, he may—he need not!—assign them a place of residence so as to prevent them from rejoining their forces. Since, therefore, everything is left to the discretion of the neutral, he will have to take into account the merits and needs of every case and to take such steps as he thinks adequate. But so much is certain that a belligerent may not in every case categorically demand from a neutral who receives escaped prisoners, or such as have been brought there by troops who take refuge, that he should detain them.

The case of prisoners who, with the consent of the neutral, are transported through neutral territory is different. Such prisoners do not become free on entering the neutral territory, but there is no doubt that a neutral, by consenting to the transport, violates his duty of impartiality, because such transport is equal to passage of troops through neutral territory (article 2 of Convention V.).

Attention must, lastly, be drawn to the case where enemy soldiers are amongst the wounded whom a belligerent is allowed by a neutral to transport through neutral territory. Such wounded prisoners become free, but they must, according to article 14 of Convention V., be guarded by the neutral so as to insure their not again taking part in military operations.[657]

Fugitive Soldiers on Neutral Territory.

§ 338. A neutral may grant asylum to single soldiers of belligerents who take refuge on his territory, although he need not do so, and may at once send them back to the place they came from. If he grants such asylum, his duty of impartiality obliges him to disarm the fugitives and to take such measures as are necessary to prevent them from rejoining their forces. But it must be emphasised that it is practically impossible for a neutral to be so watchful as to detect every single fugitive who enters his territory. It will always happen that such fugitives steal into neutral territory and leave it again later on to rejoin their forces without the neutral being responsible. And, before he can incur responsibility for not doing so, a neutral must actually be in a position to detain such fugitives. Thus Luxemburg, during the Franco-German War, could not prevent hundreds of French soldiers, who, after the capitulation of Metz, fled into her territory, from rejoining the French forces; because, according to the condition[658] of her neutralisation, she is not allowed to keep an army, and therefore, in contradistinction to Switzerland and Belgium, was unable to mobilise troops for the purpose of fulfilling her duty of impartiality.

Neutral Territory and Fugitive Troops.

§ 339. On occasions during war large bodies of troops, or even a whole army, are obliged to cross the neutral frontier for the purpose of escaping captivity. A neutral need not permit this, and may repulse them on the spot, but he may also grant asylum. It is, however, obvious that the presence of such troops on neutral territory is a danger for the other party. The duty of impartiality incumbent upon a neutral obliges him, therefore, to disarm such troops at once, and to guard them so as to insure their not again performing military acts against the enemy during the war. Convention V. enacts the following rules:—

Article 11: "A neutral Power which receives in its territory troops belonging to the belligerent armies shall detain them, if possible, at some distance from the theatre of war. It may keep them in camps, and even confine them in fortresses or localities assigned for the purpose. It shall decide whether officers are to be left at liberty on giving their parole that they will not leave the neutral territory without authorisation."

Article 12: "In the absence of a special Convention, the neutral Power shall supply the interned with the food, clothing, and relief which the dictates of humanity prescribe. At the conclusion of peace, the expenses caused by internment shall be made good."

It is usual for troops who are not actually pursued by the enemy—for if pursued they have no time for it—to enter through their commander into a convention with the representative of the neutral concerned, stipulating the conditions upon which they cross the frontier and give themselves into the custody of the neutral. Such conventions are valid without needing ratification, provided they contain only such stipulations as do not disagree with International Law and as concern only the requirements of the case.

Stress must be laid on the fact that, although the detained troops are not prisoners of war captured by the neutral, they are nevertheless in his custody, and therefore under his disciplinary power, just as prisoners of war are under the disciplinary power of the State which keeps them in captivity. They do not enjoy the exterritoriality—see above, Vol. I. § 445—due to armed forces abroad because they are disarmed. As the neutral is required to prevent them from escaping, he must apply stern measures, and he may punish severely every member of the detained force who attempts to frustrate such measures or does not comply with the disciplinary rules regarding order, sanitation, and the like.

The most remarkable instance known in history is the asylum granted by Switzerland during the Franco-German War to a French army of 85,000 men with 10,000 horses which crossed the frontier on February 1, 1871.[659] France had, after the conclusion of the war, to pay about eleven million francs for the maintenance of this army in Switzerland during the rest of the war.

Neutral Territory and Non-combatant Members of Belligerent Forces.

§ 340. The duty of impartiality incumbent upon a neutral obliges him to detain in the same way as soldiers such non-combatant[660] members of belligerent forces as cross his frontier. He may not, however, detain army surgeons and other non-combatants who are privileged according to article 2 of the Geneva Convention.

Neutral Territory and War Material of Belligerents.

§ 341. It can happen during war that war material belonging to one of the belligerents is brought into neutral territory for the purpose of saving it from capture by the enemy. Such war material can be brought by troops crossing the neutral frontier for the purpose of evading captivity, or it can be purposely sent there by order of a commander. Now, a neutral is by no means obliged to admit such material, just as he is not obliged to admit soldiers of belligerents. But if he admits it, his duty of impartiality obliges him to seize and retain it till after the conclusion of peace. War material includes, besides arms, ammunition, provisions, horses, means of military transport such as carts and the like, and everything else that belongs to the equipment of troops. But means of military transport belong to war material only so far as they are the property of a belligerent. If they are hired or requisitioned from private individuals, they may not be detained by the neutral.

It can likewise happen during war that war material, originally the property of one of the belligerents but seized and appropriated by the enemy, is brought by the latter into neutral territory. Does such material, through coming into neutral territory, become free, and must it be restored to its original owner, or must it be retained by the neutral and after the war be restored to the belligerent who brought it into the neutral territory? In analogy with prisoners of war who become free through being brought into neutral territory, it is maintained[661] that such war material becomes free and must be restored to its original owner. To this however, I cannot agree.[662] Since war material becomes through seizure by the enemy his property and remains his property unless the other party re-seizes and thereby re-appropriates it, there is no reason for its reverting to its original owner upon transportation into neutral territory.[663]

V NEUTRAL ASYLUM TO NAVAL FORCES

Vattel, III. § 132—Hall, § 231—Twiss, II. § 222—Halleck, II. p. 151—Taylor, §§ 635, 636, 640—Wharton, III. § 394—Wheaton, § 434—Moore, VII. §§ 1314-1318—Bluntschli, §§ 775-776B—Heffter, § 149—Geffcken in Holtzendorff, IV. pp. 665-667, 674—Ullmann, § 191—Bonfils, No. 1463—Despagnet, No. 692 ter—Rivier, II. p. 405—Calvo, IV. §§ 2669-2684—Fiore, III. Nos. 1576-1581, 1584, and Code, Nos. 1788-1792—Martens, II. § 133—Kleen, II. § 155—Pillet, pp. 305-307—Perels, § 39, p. 231—Testa, pp. 173-187—Dupuis, Nos. 308-314, and Guerre, Nos. 304-328—Ortolan, II. pp. 247-291—Hautefeuille, I. pp. 344-405—Takahashi, pp. 418-484—Bajer in R.I. 2nd Ser. II. (1900), pp. 242-244—Lapradelle in R.G. XI. (1904), p. 531.

Asylum to Naval Forces in contradistinction to Asylum to Land Forces.

§ 342. Whereas asylum granted by a neutral to land forces and single members of them is conditioned by the obligation of the neutral to disarm such forces and to detain them for the purpose of preventing them from joining in further military operations, a neutral may grant temporary asylum to men-of-war of belligerents without being obliged to disarm and detain them.[664] The reason is that the sea is considered an international highway, that the ports of all nations serve more or less the interests of international traffic on the sea, and that the conditions of navigation make a certain hospitality of ports to vessels of all nations a necessity. Thus the rules of International Law regarding asylum of neutral ports to men-of-war of belligerents have developed on somewhat different lines from the rules regarding asylum to land forces. But the rule, that the duty of impartiality incumbent upon a neutral must prevent him from allowing belligerents to use his territory as a base of operations of war, is nevertheless valid regarding asylum granted to their men-of-war.

Neutral Asylum to Naval Forces optional.

§ 343. Although a neutral may grant asylum to belligerent men-of-war in his ports, he has no duty to do so. He may prohibit all belligerent men-of-war from entering any of his ports, whether these vessels are pursued by the enemy or desire to enter for other reasons. However, his duty of impartiality must prevent him from denying to the one party what he grants to the other, and he may not, therefore, allow entry to men-of-war of one belligerent without giving the same permission to men-of-war of the other belligerent (article 9 of Convention XIII.). Neutrals as a rule admit men-of-war of both parties, but they frequently exclude all men-of-war of both parties from entering certain ports. Thus Austria prohibited during the Crimean War all belligerent men-of-war from entering the port of Cattaro. Thus, further, Great Britain prohibited during the American Civil War the access of all belligerent men-of-war to the ports of the Bahama Islands, the case of stress of weather excepted.

Be that as it may, since a neutral must prevent belligerents from making his territory the base of military operations, he must not allow an unlimited number of men-of-war belonging to one of the belligerents to stay simultaneously in one of his ports. Article 15 of Convention XIII. limits the number of such men-of-war to three, unless there are special provisions to the contrary in the Municipal Law of the neutral concerned.

Asylum to Naval Forces in Distress.

§ 344. To the rule that a neutral need not admit men-of-war of the belligerents to neutral ports there is no exception in strict law. However, there is an international usage that belligerent men-of-war in distress should never be prevented from making for the nearest port. In accordance with this usage vessels in distress have always been allowed entry even to such neutral ports as were totally closed to belligerent men-of-war. There are even instances known of belligerent men-of-war in distress having asked for and been granted asylum by the enemy in an enemy port.[665]

Exterritoriality of Men-of-War during Asylum.

§ 345. The exterritoriality, which according to a universally recognised rule of International Law men-of-war must enjoy[666] in foreign ports, obtains even in time of war during their stay in neutral ports. Therefore, prisoners of war on board do not become free by coming into the neutral port[667] so long as they are not brought on shore, nor do prizes[668] brought into neutral ports by belligerents. On the other hand, belligerent men-of-war are expected to comply with all orders which the neutral makes for the purpose of preventing them from making his ports the base of their operations of war, as, for instance, with the order not to leave the ports at the same time as vessels of the other belligerent. And, if they do not comply voluntarily, they may be made to do so through application of force, for a neutral has the duty to prevent by all means at hand the abuse of the asylum granted.

Special provision is made by article 24 of Convention XIII. for the case of a belligerent man-of-war which refuses to leave a neutral port. This article enacts:—"If, notwithstanding the notification of the neutral Power, a belligerent ship of war does not leave a port where it is not entitled to remain, the neutral Power is entitled to take such measures as it considers necessary to render the ship incapable of putting to sea so long as the war lasts, and the commanding officer of the ship must facilitate the execution of such measures. When a belligerent ship is detained by a neutral Power, the officers and crew are likewise detained. The officers and crew so detained may be left in the ship or kept either on another vessel or on land, and may be subjected to such measures of restriction as it may appear necessary to impose upon them. A sufficient number of men must, however, be always left on board for looking after the vessel. The officers may be left at liberty on giving their word not to quit neutral territory without permission."

If a vessel is granted asylum for the whole time of the war—see below, § 347 (3 and 4)—and is, therefore, dismantled, she loses the character of a man-of-war, no longer enjoys the privilege of exterritoriality due to men-of-war in foreign waters, and prisoners on board become free, although they must be detained by the neutral concerned.

Facilities to Men-of-War during Asylum.

§ 346. A belligerent man-of-war, to which asylum is granted in a neutral port, is not only not disarmed and detained, but facilities may even be rendered to her as regards slight repairs, and the supply of provisions and coal. However, a neutral may only allow small repairs of the vessel herself and not of her armaments;[669] for he would render assistance to one of the belligerents, to the detriment of the other, if he were to allow the damaged armaments of a belligerent man-of-war to be repaired in a neutral port. And, further, a neutral may only allow a limited amount of provisions and coal to be taken in by a belligerent man-of-war in neutral ports;[670] for, if he did otherwise, he would allow the belligerent to use the neutral ports as a base for operations of war. And, lastly, a neutral may allow a belligerent man-of-war in his ports to enrol only such a small number of sailors as is necessary to navigate her safely to the nearest port of her home State.[671]

Abuse of Asylum to be prohibited.

§ 347. It would be easy for belligerent men-of-war to which asylum is granted in neutral ports to abuse such asylum if neutrals were not required to prohibit such abuse.

(1) A belligerent man-of-war can abuse asylum, firstly, by ascertaining whether and what kind of enemy vessels are in the same neutral port, accompanying them when they leave, and attacking them immediately they reach the Open Sea. To prevent such abuse, in the eighteenth century several neutral States arranged that, if belligerent men-of-war or privateers met enemy vessels in a neutral port, they were not to be allowed to leave together, but an interval of at least twenty-four hours was to elapse between the sailing of the vessels. During the nineteenth century this so-called twenty-four hours rule was enforced by the majority of States, and the Second Peace Conference, by article 16 of Convention XIII., has made it a general rule[672] by enacting:—"When war-ships belonging to both belligerents are present simultaneously in a neutral port or roadstead, a period of not less than twenty-four hours must elapse between the departure of the ship belonging to one belligerent and the departure of the ship belonging to the other. The order of departure is determined by the order of arrival, unless the ship which arrived first is so circumstanced that an extension of its stay is permissible. A belligerent war-ship may not leave a neutral port or roadstead until twenty-four hours after the departure of a merchant ship flying the flag of its adversary."

(2) Asylum can, secondly, be abused by wintering in a port in order to wait for other vessels of the same fleet, or by similar intentional delay. There is no doubt that neutrals must prohibit this abuse by ordering such belligerent men-of-war to leave the neutral ports. Following the example set by Great Britain in 1862,[673] several maritime States have adopted the rule of not allowing a belligerent man-of-war to stay in their neutral ports for more than twenty-four hours, except on account of damage or stress of weather. Other States, such as France, do not, however, object to a more prolonged stay in their ports. Article 12 of Convention XIII. prescribes the twenty-four hours rule only for those neutral countries which have not special provisions to the contrary in their Municipal Laws.[674]

(3) Asylum can, thirdly, be abused by repairing a belligerent man-of-war which has become unseaworthy. Although small repairs are allowed,[675] a neutral would violate his duty of impartiality by allowing such repairs as would make good the unseaworthiness of a belligerent man-of-war. During the Russo-Japanese War this was generally recognised, and the Russian men-of-war Askold and Grossovoi in Shanghai, the Diana in Saigon, and the Lena in San Francisco had therefore to be disarmed and detained. The crews of these vessels had likewise to be detained for the time of the war.

(4) Asylum can, lastly, be abused by remaining in a neutral port an undue length of time in order to escape attack and capture by the other belligerent. Neutral territorial waters are in fact an asylum for men-of-war which are pursued by the enemy, but, since nowadays a right of pursuit into neutral waters, as asserted by Bynkershoek,[676] is no longer recognised, it would be an abuse of asylum if the escaped vessel were allowed to make a prolonged stay in the neutral waters. A neutral who allowed such abuse of asylum would violate his duty of impartiality, for he would assist one of the belligerents to the disadvantage of the other.[677] Therefore, when after the battle off Port Arthur in August 1904 the Russian battleship Cesarewitch, the cruiser Novik, and three destroyers escaped, and took refuge in the German port of Tsing-Tau in Kiao-Chau, the Novik, which was uninjured, had to leave the port after a few hours,[678] whereas the other vessels, which were too damaged to leave the port, were disarmed and, together with their crews, detained till the conclusion of peace. And when, at the end of May 1905, after the battle of Tsu Shima, three injured Russian men-of-war, the Aurora, Oleg, and Jemchug, escaped into the harbour of Manila, the United States of America ordered them to be disarmed and, together with their crews, to be detained during the war.

Neutral Men-of-War as an Asylum.

§ 348. It can happen during war that neutral men-of-war pick up and save from drowning soldiers and sailors of belligerent men-of-war sunk by the enemy, or that they take belligerent marines on board for other reasons. Such neutral men-of-war being an asylum for the rescued marines, the question has arisen whether such rescued marines must be given up to the enemy, or must be detained during the war, or may be brought to their home country. Two cases are on record which illustrate this matter.

(1) At the beginning of the Chino-Japanese War, on July 25, 1894, after the Japanese cruiser Naniwa had sunk the British ship Kow-shing, which served as transport carrying Chinese troops,[679] forty-five Chinese soldiers who clung to the mast of the sinking ship were rescued by the French gunboat Lion and brought to the Korean harbour of Chemulpo. Hundreds of others saved themselves on some islands near the spot where the incident occurred, and 120 of these were taken on board the German man-of-war Iltis and brought back to the Chinese port of Tientsin.[680]

(2) At the beginning of the Russo-Japanese War, on February 9, 1904, after the Russian cruisers Variag and Korietz had accepted the challenge[681] of a Japanese fleet, fought a battle outside the harbour of Chemulpo, and returned, crowded with wounded, to Chemulpo, the British cruiser Talbot, the French Pascal, and the Italian Elba received large numbers of the crews of the disabled Russian cruisers. The Japanese demanded that the neutral ships should give up the rescued men as prisoners of war, but the neutral commanders demurred, and an arrangement was made according to which the rescued men were handed over to the Russians under the condition that they should not take part in hostilities during the war.[682]

The Second Peace Conference has settled the question, for article 13 of Convention X. enacts:—"If wounded, sick, or shipwrecked are taken on board a neutral man-of-war, precaution must be taken, so far as possible, that they do not again take part in the operations of the war."

Neutral Territory and Shipwrecked Soldiers.

§ 348a. Just as in war on land members of the belligerent forces may find themselves on neutral territory, so in war on sea shipwrecked or wounded or sick belligerent soldiers can be brought into neutral territory. Two cases of this kind must be distinguished:—

(1) According to article 14 of Convention X. it is left to the belligerent man-of-war who captures shipwrecked, wounded, or sick enemy soldiers to send them to a neutral port. The neutral Power concerned need not receive them, but, on the other hand, may grant them asylum. If asylum is granted, the neutral Power is, according to article 15 of Convention X., obliged—unless there is an arrangement to the contrary between the neutral Power and both belligerents—to guard them so as to prevent them from again taking part in the war,[683] the expenses for tending and interning them to be paid by the belligerent to whom they belong.

(2) Neutral merchantmen[684] can either of their own accord have rescued wounded, sick, or shipwrecked men, or they can have taken them on board on appeal by belligerent men-of-war. The surrender of these men may, according to article 12 of Convention X., be demanded at any time by any belligerent man-of-war. But if such demand be not made and the men be brought into a neutral port, they need not be detained by the neutral concerned.

VI SUPPLIES AND LOANS TO BELLIGERENTS

Vattel, III. § 110—Hall, §§ 216-217—Lawrence, § 235—Westlake, II. pp. 217-219—Phillimore, III. § 151—Twiss, II. § 227—Halleck, II. p. 163—Taylor, §§ 622-625—Walker, § 67—Wharton, III. §§ 390-391—Moore, VII. §§ 1307-1312—Bluntschli, §§ 765-768—Heffter, § 148—Geffcken in Holtzendorff, IV. pp. 687-700—Ullmann, §§ 191-192—Bonfils, Nos. 1471-1474—Despagnet, Nos. 693-694—Rivier, II. pp. 385-411—Calvo, IV. §§ 2624-2630—Fiore, III. Nos. 1559-1563—Martens, II. § 134—Kleen, I. §§ 66-69, 96-97—Mérignhac, pp. 360-364—Pillet, pp. 289-293—Dupuis, Nos. 317-319—Land Warfare, §§ 477-480.

Supply on the part of Neutrals.

§ 349. The duty of impartiality must prevent a neutral from supplying belligerents with arms, ammunition, vessels, and military provisions.[685] And it matters not whether such supply takes place for money or gratuitously. A neutral who sold arms and ammunition to a belligerent at a profit would violate his duty of impartiality as also would one who transferred such arms and ammunition to a belligerent as a present. This is a settled rule so far as direct transactions regarding such supply between belligerents and neutrals are concerned. The case is different where a neutral does not directly and knowingly deal with a belligerent, although he may, or ought to, be aware that he is indirectly supplying a belligerent. Different States have during neutrality taken up different attitudes regarding such cases. Thus in 1825, during the War of Independence which the Spanish South American Colonies waged against their mother country, the Swedish Government sold three old men-of-war, the Försigtigheten, Euridice, and Camille to two merchants, who on their part sold them to English merchants, representatives of the Government of the Mexican insurgents. When Spain complained, Sweden rescinded the contract.[686] Further, the British Government in 1863, during the American Civil War, after selling an old gunboat, the Victor, to a private purchaser and subsequently finding that the agents of the Confederate States had obtained possession of her, gave the order that during the war no more Government ships should be sold.[687] On the other hand, the Government of the United States of America, in pursuance of an Act passed by Congress in 1868 for the sale of arms which the end of the Civil War had rendered superfluous, sold in 1870, notwithstanding the Franco-German War, thousands of arms and other war material which were shipped to France.[688] This attitude of the United States is now generally condemned, and article 6 of Convention XIII. may be quoted against a repetition of such a practice on the part of a neutral State. This article prohibits the supply in any manner, directly or indirectly, by a neutral to a belligerent, of warships, ammunition, or war material of any kind whatever.

Supply on the part of Subjects of Neutrals.

§ 350. In contradistinction to supply to belligerents by neutrals, such supply by subjects of neutrals is lawful, and neutrals are not, therefore, obliged according to their duty of impartiality to prevent such supply. Article 7 of Convention V. and article 7 of Convention XIII. concur in enacting the old customary rule that "A neutral Power is not bound to prevent the export or transit, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or fleet." And article 18[689] of Convention V. recognises the fact that the furnishing of supplies to a belligerent by such subjects of neutrals as do not live on the territory of the other party, or on the territory occupied by that party, does not invest these individuals with enemy character. When in August 1870, during the Franco-German War, Germany lodged complaints with the British Government for not prohibiting its subjects from supplying arms and ammunition to the French Government, Great Britain correctly replied that she was not by International Law under the obligation to prevent her subjects from committing such acts. Of course, such neutral as is anxious to avoid all controversy and friction can by his Municipal Law order his subjects to abstain from such acts, as for instance Switzerland and Belgium did during the Franco-German War. But such injunctions arise from political prudence, and not from any obligation imposed by International Law.

The endeavour to make a distinction between supply in single cases and on a small scale on the one hand, and, on the other, supply on a large scale, and to consider only the former lawful,[690] has neither in theory nor in practice found recognition. As International Law stands, belligerents may make use of visit, search, and seizure to protect themselves against conveyance of contraband by sea to the enemy by subjects of neutrals. But so far as their neutral home State is concerned, such subjects may, at the risk of having their property seized during such conveyance, supply either belligerent with any amount of arms, ammunition, coal, provisions, and even with armed ships,[691] provided always that they deal with the belligerents in the ordinary way of commerce.

The case is different when there is no ordinary commerce with a belligerent Government and when subjects of neutrals directly supply a belligerent army or navy, or parts of them. If, for instance, a belligerent fleet is cruising outside the maritime belt of a neutral, the latter must prevent vessels of his subjects from bringing coal, arms, ammunition, and provisions to that fleet, for otherwise he would allow the belligerent to make use of neutral resources for naval operations.[692] But he need not prevent vessels of his subjects from bringing coal, arms, ammunition, and provisions to belligerent ports, although the supply is destined for the navy and the army of the belligerent. He need not prevent belligerent merchantmen from coming into his ports and carrying arms and the like, bought from his subjects, over to the ports of their home State. And he need not prevent vessels of his subjects from following a belligerent fleet and supplying it en route[693] with coal, ammunition, provisions, and the like, provided such supply does not take place in the neutral maritime belt.

There is no doubt that, as the law stands at present, neutrals need not prevent their subjects from supplying belligerents with arms and ammunition. Yet, on the other hand, there is no doubt either that such supply is apt to prolong a war which otherwise would come to an end at an earlier date. But it will be a long time, if ever it happens, before it is made a duty of neutrals to prevent such supply as far as is in their power, and to punish such of their subjects as engage in it. The profit derived from such supply being enormous, the members of the Family of Nations are not inclined to cripple the trade of their subjects by preventing it. And belligerents want to have the opportunity of replenishing with arms and ammunition if they run short of them during war. The question is merely one of the standard of public morality.[694] If this standard rises, and it becomes the conviction of the world at large that supply of arms and ammunition by subjects of neutrals is apt to lengthen wars, the rule will appear that neutrals must prevent such supply.

Loans and Subsidies on the part of Neutrals.

§ 351. His duty of impartiality must prevent a neutral from granting a loan to either belligerent. Vattel's (III. § 110) distinction between such loans as are granted on interest and such as are not so granted, and his assertion that loans on the part of neutrals are lawful if they are granted on interest with the pure intention of making money, have not found favour with other writers. Nor do I know any instance of such loan on interest having occurred during the nineteenth century.

What is valid regarding a loan is all the more valid regarding subsidies in money granted to a belligerent on the part of a neutral. Through the granting of subsidies a neutral becomes as much the ally of the belligerent as he would by furnishing him with a number of troops.[695]

Loans and Subsidies on the part of Subjects of Neutrals.

§ 352. It was formerly a moot point in the theory of International Law whether a neutral is obliged by his duty of impartiality to prevent his subjects from granting subsidies and loans to belligerents for the purpose of enabling them to continue the war. Several writers[696] maintained either that a neutral was obliged to prevent such loans and subsidies altogether, or at least that he must prohibit a public subscription on neutral territory for such loans and subsidies. On the other hand, a number of writers asserted that, since money is just as much an article of commerce as goods, a neutral was in no wise obliged to prevent on his territory public subscription by his subjects to loans for the belligerents. In contradistinction to the theory of International Law, the practice of the States has beyond doubt established the fact that neutrals need not prevent on their territory subscription to loans for belligerents. Thus in 1854, during the Crimean War, France protested in vain against a Russian loan being raised in Amsterdam, Berlin, and Hamburg. In 1870, during the Franco-German War, a French loan was raised in London. In 1877, during the Russo-Turkish War, no neutral prevented his subjects from subscribing to the Russian loan. Again, in 1904, during the Russo-Japanese War, Japanese loans were raised in London and Berlin, and Russian loans in Paris and Berlin. The Second Peace Conference, by enacting in article 7 of Convention V. that a neutral is not bound to prevent the export ... of anything which can be of use to an army or fleet, has indirectly recognised that a neutral need not prevent the subscription on his territory to loans for belligerents.

But matters differ somewhat in regard to subsidies to belligerents by subjects of neutrals. A neutral is not indeed obliged to prevent individual subjects from granting subsidies to belligerents, just as he is not obliged to prevent them from enlisting with either belligerent. But if he were to allow on his territory a public appeal for subscriptions to such subsidy, he would certainly violate his duty of impartiality; for loans are a matter of commerce, subsidies are not. It must, however, be emphasised that public appeals for subscriptions of money for charitable purposes in favour of the wounded, the prisoners, and the like, need not be prevented, even if they are only made in favour of one of the belligerents.

The distinction between loans and subsidies is certainly correct as the law stands at present. But there is no doubt that the fact of belligerents having the opportunity of getting loans from subjects of neutrals is apt to lengthen wars. The Russo-Japanese War, for instance, would have come to an end much sooner if either belligerent could have been prevented from borrowing money from subjects of neutrals. Therefore, what has been said above in § 350 with regard to the supply of arms and ammunition on the part of subjects of neutrals applies likewise to loans: they will no longer be considered lawful when the standard of public morality rises.

VII SERVICES TO BELLIGERENTS

Westlake, II. pp. 219-220—Despagnet, No. 696 bis—Bonfils, No. 1475[1]—Ullmann, § 192—Rivier, II. pp. 388-391—Calvo, IV. §§ 2640-2641—Martens, II. § 134—Perels, § 43—Kleen, I. §§ 103-108—Lawrence, War, pp. 83-92, 218-220—Scholz, Drahtlose Telegraphie und Neutralität (1905), passim, and Krieg und Seekabel (1904), pp. 122-133—Land Warfare, §§ 481-484—Kebedgy, in R.I. 2nd Ser. IV. (1904), pp. 445-451.

Pilotage.

§ 353. Since pilots are in the service of littoral States the question as to whether neutrals may permit their pilots to render services to belligerent men-of-war and transport vessels, is of importance. Article 11[697] of Convention XIII. enacts that "a neutral Power may allow belligerent war-ships to employ its licensed pilots." Since, therefore, everything is left to the discretion of neutrals, they will have to take the merits and needs of every case into account. There would certainly be no objection to a neutral allowing belligerent vessels to which asylum is legitimately granted, to be piloted into his ports, and likewise such vessels to be piloted through his maritime belt if their passage is not prohibited. But a belligerent might justly object to the men-of-war of his adversary being piloted on the Open Sea by pilots of a neutral Power, except in a case of distress.

It is worth mentioning that Great Britain during the Franco-German War in 1870, prohibited her pilots from conducting German and French men-of-war which were outside the maritime belt, except when in distress.

Transport on the part of Neutrals.

§ 354. It is generally recognised that the duty of impartiality incumbent upon a neutral obliges him to prevent his men-of-war and other public vessels from rendering transport services to either belligerent. Therefore, such vessels must neither carry soldiers nor sailors belonging to belligerent forces, nor their prisoners of war, nor ammunition, military or naval provisions, nor despatches. The question as to how far such vessels are prevented from carrying enemy subjects other than members of the forces depends upon the question whether by carrying those individuals they render such service to one of the belligerents as is detrimental to the other. Thus, when the Dutch Government in 1901, during the South African War, intended to send a man-of-war, the Gelderland, to President Kruger for the purpose of conveying him to Europe, they made sure in advance that Great Britain did not object.

The question has been raised[698] as to whether a neutral whose rolling stock runs on the railway lines of a belligerent, may continue to leave such rolling stock there although it is being used for the transport of troops, war material, and the like. The answer, I believe, ought to be in the negative, for there is no doubt that, if the rolling stock remains on the railway lines of a belligerent, the neutral concerned is indirectly rendering transport services to the belligerent. It is for this reason that article 19 of Convention V. enacts that railway material coming from the territory of neutrals shall not be requisitioned or used by a belligerent except in the case and to the extent required by absolute necessity.[699]