VII. END OF WAR, AND POSTLIMINIUM
I
ON TERMINATION OF WAR IN GENERAL
Hall, § 197--Lawrence, § 217--Phillimore, III. § 510--Taylor, § 580--Moore, VII. § 1163--Heffter, § 176--Kirchenheim in Holtzendorff, IV. pp. 791-792--Ullmann, § 198--Bonfils, No. 1692--Despagnet, No. 605--Calvo, V. § 3115--Fiore, III. No. 1693--Martens, II. § 128--Longuet, § 155.
[Sidenote: War a Temporary Condition.]
§ 260. The normal condition between two States being peace, war can never be more than a temporary condition; whatever may have been the cause or causes of a war, the latter cannot possibly last for ever. For either the purpose of war will be realised and one belligerent will be overpowered by the other, or both will sooner or later be so exhausted by their exertions that they will desist from the struggle. Nevertheless wars may last for many years, although of late European wars have gradually become shorter. The shortening of European wars in recent times has resulted from several causes, the more important of which are:--conscription, the foundation of the armies of all the great European Powers, Great Britain excepted; the net of railways which extends over all European countries, and which enables a much quicker transport of troops on enemy territory; and lastly, the vast numbers of the opposing forces which usually hasten a decisive battle.
[Sidenote: Three Modes of Termination of War.]
§ 261. Be that as it may, a war may be terminated in three different ways. Belligerents may, first, abstain from further acts of war and glide into peaceful relations without expressly making peace through a special treaty. Or, secondly, belligerents may formally establish the condition of peace through a special treaty of peace. Or, thirdly, a belligerent may end the war through subjugation of his adversary.[494]
[Footnote 494: That a civil war may come to an end through simple cessation of hostilities or through a treaty of peace need hardly be mentioned. But it is of importance to state the fact that there is a difference between civil war and other war concerning the third mode of ending war, namely subjugation. For to terminate a civil war, conquest and annexation, which together make subjugation, is unnecessary (see below, § 264), but conquest alone is sufficient.]
II
SIMPLE CESSATION OF HOSTILITIES
Hall, § 203--Phillimore, III. § 511--Halleck, II. p. 468--Taylor, § 584--Bluntschli, § 700--Heffter, § 177--Kirchenheim in Holtzendorff, IV. p. 793--Ullmann, § 198--Bonfils, No. 1693--Despagnet, No. 605--Rivier, II. pp. 435-436--Calvo, V. § 3116--Fiore, III. No. 1693--Martens, II. § 128--Longuet, § 155--Mérignhac, p. 323--Pillet, p. 370.
[Sidenote: Exceptional Occurrence of simple Cessation of Hostilities.]
§ 262. The regular modes of termination of war are treaties of peace or subjugation, but cases have occurred in which simple cessation of all acts of war on the part of both belligerents has actually and informally brought the war to an end. Thus ended in 1716 the war between Sweden and Poland, in 1720 the war between Spain and France, in 1801 the war between Russia and Persia, in 1867 the war between France and Mexico. And it may also be mentioned that, whereas the war between Prussia and several German States in 1866 came to an end through subjugation of some States and through treaties of peace with others, Prussia has never concluded a treaty of peace with the Principality of Lichtenstein, which was also a party to the war. Although such termination of war through simple cessation of hostilities is for many reasons inconvenient, and is, therefore, as a rule avoided, it may nevertheless in the future as in the past occasionally occur.
[Sidenote: Effect of Termination of War through simple Cessation of Hostilities.]
§ 263. Since in the case of termination of war through simple cessation of hostilities no treaty of peace embodies the conditions of peace between the former belligerents, the question arises whether the status which existed between the parties before the outbreak of war, the status quo ante bellum, should be revived, or the status which exists between the parties at the time when they simply ceased hostilities, the status quo post bellum (the uti possidetis), can be upheld. The majority of publicists[495] correctly maintain that the status which exists at the time of cessation of hostilities becomes silently recognised through such cessation, and is, therefore, the basis of the future relations of the parties. This question is of the greatest importance regarding enemy territory militarily occupied by a belligerent at the time hostilities cease. According to the correct opinion such territory can be annexed by the occupier, the adversary through the cessation of hostilities having dropped all rights he possessed over such territory. On the other hand, this termination of war through cessation of hostilities contains no decision regarding such claims of the parties as have not been settled by the actual position of affairs at the termination of hostilities, and it remains for the parties to settle them by special agreement or to let them stand over.
[Footnote 495: See, however, Phillimore, III. § 511, who maintains that the status quo ante bellum has to be revived.]
III
SUBJUGATION
Vattel, III. §§ 199-203--Hall, §§ 204-205--Lawrence, § 77--Phillimore, III. § 512--Halleck, I. pp. 467-498--Taylor, §§ 220, 585-588--Moore, I. § 87--Walker, § 11--Wheaton, § 165--Bluntschli, §§ 287-289, 701-702--Heffter, § 178--Kirchenheim in Holtzendorff, IV. p. 792--Liszt, § 10--Ullmann, §§ 92, 97, and 197--Bonfils, Nos. 535 and 1694--Despagnet, Nos. 387-390, 605--Rivier, II. pp. 436-441--Calvo, V. §§ 3117-3118--Fiore, II. Nos. 863, III. No. 1693, and Code, Nos. 1078-1089--Martens. I. § 91, II. § 128--Longuet, § 155--Mérignhac, p. 324--Pillet, p. 371--Holtzendorff, Eroberung und Eroberungsrecht (1871)--Heimburger, Der Erwerb der Gebietshoheit (1888), pp. 121-132--Westlake, in The Law Quarterly Review, XVII. (1901), p. 392.
[Sidenote: Subjugation in contradistinction to Conquest.]
§ 264. Subjugation must not be confounded with conquest, although there can be no subjugation without conquest. Conquest is taking possession of enemy territory by military force. Conquest is completed as soon as the territory concerned is effectively[496] occupied. Now it is obvious that conquest of a part of enemy territory has nothing to do with subjugation, because the enemy may well reconquer it. But even the conquest of the whole of the enemy territory need not necessarily include subjugation. For, first, in a war between more than two belligerents the troops of one of them may evacuate their country and join the army of allies, so that the armed contention is continued, although the territory of one of the allies is completely conquered. Again, a belligerent, although he has annihilated the forces, conquered the whole of the territory of his adversary, and thereby actually brought the armed contention to an end,[497] may nevertheless not choose to exterminate the enemy State by annexing the conquered territory, but may conclude a treaty of peace with the expelled or imprisoned head of the defeated State, re-establish the latter's Government, and hand the whole or a part of the conquered territory over to it. Subjugation takes place only when a belligerent, after having annihilated the forces and conquered the territory of his adversary, destroys his existence by annexing the conquered territory. Subjugation may, therefore, correctly be defined as extermination in war of one belligerent by another through annexation[498] of the former's territory after conquest, the enemy forces having been annihilated.[499]
[Footnote 496: The conditions of effective occupation have been discussed above in § 167. Regarding subjugation as a mode of acquisition of territory, see above, vol. I. §§ 236-241.]
[Footnote 497: The continuation of guerilla war after the termination of a real war is discussed above in § 60.]
[Footnote 498: That conquest alone is sufficient for the termination of civil wars has been pointed out above, § 261, p. 323, note 1.]
[Footnote 499: It should be mentioned that a premature annexation can become valid through the occupation in question becoming soon afterwards effective. Thus, although the annexation of the South African Republic, on September 1, 1900, was premature, it became valid through the occupation becoming effective in 1901. See above, § 167, p. 209, note 1.]
[Sidenote: Subjugation a formal End of War.]
§ 265. Although complete conquest, together with annihilation of the enemy forces, brings the armed contention, and thereby the war, actually to an end, the formal end of the war is thereby not yet realised, as everything depends upon the resolution of the victor regarding the fate of the vanquished State. If he be willing to re-establish the captive or expelled head of the vanquished State, it is a treaty of peace concluded with the latter which terminates the war. But if he desires to acquire the whole of the conquered territory for himself, he annexes it, and thereby formally ends the war through subjugation. That the expelled head of the vanquished State protests and keeps up his claims, matters as little eventually as protests on the part of neutral States. These protests may be of political importance for the future, legally they are of no importance at all.
History presents numerous instances of subjugation. Although no longer so frequent as in former times, subjugation is not at all of rare occurrence. Thus, modern Italy came into existence through the subjugation by Sardinia in 1859 of the Two Sicilies, the Grand Dukedom of Tuscany, the Dukedoms of Parma and Modena, and in 1870 the Papal States. Thus, further, Prussia subjugated in 1866 the Kingdom of Hanover, the Dukedom of Nassau, the Electorate of Hesse-Cassel, and the Free Town of Frankfort-on-the-Main. And Great Britain annexed in 1900 the Orange Free State and the South African Republic.[500]
[Footnote 500: Since Great Britain annexed these territories in 1900, the agreement of 1902, regarding "Terms of Surrender of the Boer Forces in the Field"--see Parliamentary Papers, South Africa, 1902, Cd. 1096--is not a treaty of peace, and the South African War came formally to an end through subjugation, although--see above, § 167, p. 209, note 1--the proclamation of the annexation was somewhat premature. The agreement embodying the terms of surrender of the routed remnants of the Boer forces has, therefore, no internationally legal basis (see also below, § 274, p. 334, note 2). The case would be different if the British Government had really--as Sir Thomas Barclay asserts in The Law Quarterly Review, XXI. (1905), pp. 303 and 307--recognised the existence of the Government of the South African Republic down to May 31, 1902.]
IV
TREATY OF PEACE
Grotius, III. c. 20--Vattel, IV. §§ 9-18--Phillimore, III. §§ 513-516--Halleck, I. pp. 306-324--Taylor, §§ 590-592--Moore, VII. § 1163--Wheaton, §§ 538-543--Bluntschli, §§ 703-707--Heffter, § 179--Kirchenheim in Holtzendorff, IV. pp. 794-804--Ullmann, § 198--Bonfils, Nos. 1696-1697, 1703-1705--Despagnet, Nos. 606-611--Rivier, II. pp. 443-453--Nys, III. pp. 719-734--Calvo, V. §§ 3119-3136--Fiore, III. Nos. 1694-1700, and Code, Nos. 1931-1941--Martens, II. § 128--Longuet, §§ 156-164--Mérignhac, pp. 324-329--Pillet, pp. 372-375.
[Sidenote: Treaty of Peace the most frequent End of War.]
§ 266. Although occasionally war ends through simple cessation of hostilities, and although subjugation is not at all rare or irregular, the most frequent end of war is a treaty of peace. Many publicists correctly call a treaty of peace the normal mode of terminating war. On the one hand, simple cessation of hostilities is certainly an irregular mode. Subjugation, on the other hand, is in most cases either not within the scope of the intention of the victor or not realisable. And it is quite reasonable that a treaty of peace should be the normal end of war. States which are driven from disagreement to war will, sooner or later, when the fortune of war has given its decision, be convinced that the armed contention ought to be terminated. Thus a mutual understanding and agreement upon certain terms is the normal mode of ending the contention. And it is a treaty of peace which embodies such understanding.
[Sidenote: Peace Negotiations.]
§ 267. However, as the outbreak of war interrupts all regular non-hostile intercourse between belligerents, negotiations for peace are often difficult of initiation. Each party, although willing to negotiate, may have strong reasons for not opening negotiations. Good offices and mediation on the part of neutrals, therefore, always are of great importance, as thereby negotiations are called into existence which otherwise might have been long delayed. But it must be emphasised that neither formal nor informal peace negotiations do ipso facto bring hostilities to a standstill, although a partial or general armistice may be concluded for the purpose of such negotiations. The fact that peace negotiations are going on directly between belligerents does not create any non-hostile relations between them apart from those negotiations themselves. Such negotiations can take place by the exchange of letters between the belligerent Governments, or through special negotiators who may meet on neutral territory or on the territory of one of the belligerents. In case they meet on belligerent territory, the enemy negotiators are inviolable and must be treated on the same footing as bearers of flags of truce, if not as diplomatic envoys. For it can happen that a belligerent receives an enemy diplomatic envoy for the purpose of peace negotiations. Be that as it may, negotiations, wherever taking place and by whomsoever conducted, may always be broken off before an agreement is arrived at.
[Sidenote: Preliminaries of Peace.]
§ 268. Although ready to terminate the war through a treaty of peace, belligerents are frequently not able to settle all the terms of peace at once. In such cases hostilities are usually brought to an end through so-called preliminaries of peace, the definite treaty, which has to take the place of the preliminaries, being concluded later on. Such preliminaries are a treaty in themselves, embodying an agreement of the parties regarding such terms of peace as are essential. Preliminaries are as binding as any other treaty, and therefore they need ratification. Very often, but not necessarily, the definitive treaty of peace is concluded at a place other than that at which the preliminaries were settled. Thus, the war between Austria, France, and Sardinia was ended by the Preliminaries of Villafranca of July 11, 1859, yet the definitive treaty of peace was concluded at Zurich on November 10, 1859. The war between Austria and Prussia was ended by the Preliminaries of Nickolsburg of July 26, 1866, yet the definitive treaty of peace was concluded at Prague on August 23. In the Franco-German War the Preliminaries of Versailles of February 26, 1871, were the precursor of the definitive treaty of peace concluded at Frankfort on May 10, 1871.[501]
[Footnote 501: No preliminaries of peace were agreed upon at the end of the Russo-Japanese war. After negotiations at Portsmouth (New Hampshire) had led to a final understanding on August 29, 1905, the treaty of peace was signed on September 5, and ratified on October 16.]
The purpose for which preliminaries of peace are agreed upon makes it obvious that such essential terms of peace as are stipulated by the Preliminaries are the basis of the definitive treaty of peace. It may happen, however, that neutral States protest for the purpose of preventing this. Thus, when the war between Russia and Turkey had been ended through the Preliminaries of San Stefano of March 3, 1878, Great Britain protested, a Congress met at Berlin, and Russia had to be content with less favourable terms of peace than those stipulated at San Stefano.
[Sidenote: Form and Parts of Peace Treaties.]
§ 269. International Law does not contain any rules regarding the form of peace treaties; they may, therefore, be concluded verbally or in writing. But the importance of the matter makes the parties always conclude a treaty of peace in writing, and there is no instance of a verbally concluded treaty of peace.
According to the different points stipulated, it is usual to distinguish different parts within a peace treaty. Besides the preamble, there are general, special, and separate articles. General articles are those which stipulate such points as are to be agreed upon in every treaty of peace, as the date of termination of hostilities, the release of prisoners of war, and the like. Special articles are those which stipulate the special terms of the agreement of peace in question. Separate articles are those which stipulate points with regard to the execution of the general and special articles, or which contain reservations and other special remarks of the parties. Sometimes additional articles occur. Such are stipulations agreed upon in a special treaty following the treaty of peace and comprising stipulations regarding such points as have not been mentioned in the treaty of peace.
[Sidenote: Competence to conclude Peace.]
§ 270. As the treaty-making Power is according to the Law of Nations in the hands of the head[502] of the State, it is he who is competent to conclude peace. But just as constitutional restrictions imposed upon heads of States regarding their general power of concluding treaties[503] are of importance for International Law, so constitutional restrictions imposed upon heads of States regarding their competence to make peace are of similar importance. And, therefore, such treaties of peace concluded by heads of States as violate constitutional restrictions are not binding upon the States concerned, because the heads have exceeded their powers. The Constitutions of the several States settle the matter differently, and it is not at all necessary that the power of declaring war and that of making peace should be vested by a Constitution in the same hands. In Great Britain the power of the Crown to declare war and to make peace is indeed unrestricted. But in the German Empire, for instance, it is different; for whereas the Emperor, the case of an attack on German territory excepted, may declare war only with the consent of the Bundesrath, his power of making peace is unrestricted.[504]
[Footnote 502: See above, vol. I. § 495.]
[Footnote 503: See above, vol. I. § 497.]
[Footnote 504: See more examples in Rivier, II. p. 445.]
The controverted question as to whether the head of a State who is a prisoner of war is competent to make peace ought to be answered in the negative. The reason is that the head of a constitutional State, although he does not by becoming a prisoner of war lose his position, he nevertheless thereby loses the power of exercising the rights connected with his position.[505]
[Footnote 505: See Vattel, IV. § 13.]
[Sidenote: Date of Peace.]
§ 271. Unless the treaty provides otherwise, peace commences with the signing of the peace treaty. Should the latter not be ratified, hostilities may be recommenced, and the unratified peace treaty is considered as an armistice. Sometimes, however, the peace treaty fixes a future date for the commencement of peace, stipulating that hostilities must cease on a certain future day. This is the case when war is waged in several or widely separated parts of the world, and when, therefore, it is impossible at once to inform the opposing forces of the conclusion of peace.[506] It may even occur that different dates are stipulated for the termination of hostilities in different parts of the world.
[Footnote 506: The ending of the Russo-Japanese war was quite peculiar. Although the treaty of peace was signed on September 5, 1905, the agreement concerning an armistice pending ratification of the peace treaty was not signed until September 14, and hostilities went on till September 16.]
The question has arisen as to whether, in case a peace treaty provides a future date for the termination of hostilities in distant parts, and in case the forces in these parts hear of the conclusion of peace before such date, they must abstain at once from further hostilities. Most publicists correctly answer this question in the affirmative. But the French Prize Courts in 1801 condemned as a good prize the English vessel Swineherd which was captured by the French privateer Bellona in the Indian Seas within the period of five months fixed by the Peace of Amiens for the termination of hostilities in these seas.[507]
[Footnote 507: The details of this case are given by Hall, § 199; see also Phillimore, III. § 521.]
V
EFFECTS OF TREATY OF PEACE
Grotius, III. c. 20--Vattel, IV. §§ 19-23--Hall, §§ 198-202--Lawrence, § 218--Phillimore, III. §§ 518-528--Halleck, I. pp. 312-324--Taylor, §§ 581-583--Wheaton, §§ 544-547--Bluntschli, §§ 708-723--Heffter, §§ 180-183, 184A--Kirchenheim in Holtzendorff, IV. pp. 804-817--Ullmann, § 199--Bonfils, Nos. 1698-1702--Despagnet, No. 607--Rivier, II. pp. 454-461--Calvo, V. §§ 3137-3163--Fiore, III. Nos. 1701-1703, and Code, Nos. 1942-1962--Martens, II. § 128--Longuet, §§ 156-164--Mérignhac, pp. 330-336--Pillet, pp. 375-377.
[Sidenote: Restoration of Condition of Peace.]
§ 272. The chief and general effect of a peace treaty is restoration of the condition of peace between the former belligerents. As soon as the treaty is ratified, all rights and duties which exist in time of peace between the members of the family of nations are ipso facto and at once revived between the former belligerents.
On the one hand, all acts legitimate in warfare cease to be legitimate. Neither contributions and requisitions, nor attacks on members of the armed forces or on fortresses, nor capture of ships, nor occupation of territory are any longer lawful. If forces, ignorant of the conclusion of peace, commit such hostile acts, the condition of things at the time peace was concluded must as far as possible be restored.[508] Thus, ships captured must be set free, territory occupied must be evacuated, members of armed forces taken prisoners must be liberated, contributions imposed and paid must be repaid.
[Footnote 508: The Mentor (1799), 1 C. Rob. 179. Matters are, of course, different in case a future date--see above, § 271--is stipulated for the termination of hostilities.]
On the other hand, all peaceful intercourse between the former belligerents as well as between their subjects is resumed as before the war. Thus diplomatic intercourse is restored, and consular officers recommence their duties.[509]
[Footnote 509: The assertion of many writers, that such contracts between subjects of belligerents as have been suspended by the outbreak of war revive ipso facto by the conclusion of peace is not the outcome of a rule of International Law. But just as Municipal Law may suspend such contracts ipso facto by the outbreak of war, so it may revive them ipso facto by the conclusion of peace. See above, § 101.]
Attention must be drawn to the fact that the condition of peace created by a peace treaty is legally final in so far as the order of things set up and stipulated by the treaty of peace is the settled basis of future relations between the parties, however contentious the matters concerned may have been before the outbreak of war. In concluding peace the parties expressly or implicitly declare that they have come to an understanding regarding such settled matters. They may indeed make war against each other in future on other grounds, but they are legally bound not to go to war over such matters as have been settled by a previous treaty of peace. That the practice of States does not always comply with this rule is a well-known fact which, although it discredits this rule, cannot shake its theoretical validity.
[Sidenote: Principle of Uti Possidetis.]
§ 273. Unless the parties stipulate otherwise, the effect of a treaty of peace is that conditions remain as at the conclusion of peace. Thus, all moveable State property, as munitions, provisions, arms, money, horses, means of transport, and the like, seized by an invading belligerent remain his property, as likewise do the fruits of immoveable property seized by him. Thus further, if nothing is stipulated regarding conquered territory, it remains in the hands of the possessor, who may annex it. But it is nowadays usual, although not at all legally necessary, for the conqueror desirous of retaining conquered territory to stipulate cession of such territory in the treaty of peace.
[Sidenote: Amnesty.]
§ 274. Since a treaty of peace is considered a final settlement of the war, one of the effects of every peace treaty is the so-called amnesty--that is, an immunity for all wrongful acts done by the belligerents themselves, the members of their forces, and their subjects during the war, and due to political motives.[510] It is usual, but not at all necessary, to insert an amnesty clause in a treaty of peace. So-called war crimes[511] which were not punished before the conclusion of peace may no longer be punished after its conclusion. Individuals who have committed such war crimes and have been arrested for them must be liberated.[512] International delinquencies committed intentionally by belligerents through violation of the rules of legitimate warfare are considered condoned. Formerly even claims for reparation of damages caused by such acts could not be raised after the conclusion of peace, unless the contrary was expressly stipulated, but the matter is different now in accordance with article 3 of Convention IV. of the Second Peace Conference.[513] On the other hand, the amnesty has nothing to do with ordinary crimes or with debts incurred during war. A prisoner of war who commits murder during captivity may be tried and punished after the conclusion of peace, just as a prisoner who runs into debt during captivity may be sued after the conclusion of peace, or an action may be brought on ransom bills after peace has been restored.
[Footnote 510: Stress must be laid on the fact that this immunity is only effective in regard to the other party to the war. For instance, the occupant of enemy territory may not, after the conclusion of peace, punish war criminals. Nothing, however, prevents a belligerent from punishing members of his own forces or any of his own subjects who during war committed violations of the laws of war, e.g. killed wounded enemy soldiers and the like.]
[Footnote 511: See above, §§ 251-257. Clause 4 of the "Terms of Surrender of the Boer Forces in the Field"--see Parliamentary Papers, South Africa, 1902, Cd. 1096--seems to contradict this assertion, as it expressly excludes from the amnesty "certain acts, contrary to usages of war, which have been notified by the Commander-in-Chief to the Boer Generals, and which shall be tried by court-martial immediately after the close of hostilities." But it will be remembered--see above, § 265, p. 327, note 1--that the agreement embodying these terms of surrender does not bear the character of a treaty of peace, the Boer War having been terminated through subjugation.]
[Footnote 512: This applies to such individuals only as have not yet been convicted. Those who are undergoing a term of imprisonment need not be liberated at the conclusion of peace; see above, § 257.]
[Footnote 513: See above, § 259_a_.]
But it is important to remember here again that the amnesty grants immunity only for wrongful acts done by the subjects of one belligerent against the other. Such wrongful acts as have been committed by the subjects of a belligerent against their own Government are not covered by the amnesty. Therefore treason, desertion, and the like committed during the war by his own subjects may be punished by a belligerent after the conclusion of peace, unless the contrary has been expressly stipulated in the treaty of peace.[514]
[Footnote 514: Thus Russia stipulated by article 17 of the Preliminaries of San Stefano, in 1878--see Martens, N.R.G. 2nd Ser. III. p. 252--that Turkey must accord an amnesty to such of her own subjects as had compromised themselves during the war.]
[Sidenote: Release of Prisoners of War.]
§ 275. A very important effect of a treaty of peace is termination of the captivity of prisoners of war.[515] This, however, does not mean that with the conclusion of peace all prisoners of war must at once be released. It only means--to use the words of article 20 of the Hague Regulations--that "After the conclusion of peace, the repatriation of prisoners of war shall take place as speedily as possible." The instant release of prisoners at the very place where they were detained, would be inconvenient not only for the State which kept them in captivity, but also for themselves, as in most cases they would not possess means to pay for their journey home. Therefore, although with the conclusion of peace they cease to be captives in the technical sense of the term, prisoners of war remain as a body under military discipline until they are brought to the frontier and handed over to their Government. That prisoners of war may be detained after the conclusion of peace until they have paid debts incurred during captivity seems to be an almost generally[516] recognised rule. But it is controversial whether such prisoners of war may be detained as are undergoing a term of imprisonment imposed upon them for offences against discipline. After the Franco-German War in 1871 Germany detained such prisoners,[517] whereas Japan after the Russo-Japanese War in 1905 released them.
[Footnote 515: See above, § 132.]
[Footnote 516: See, however, Pradier-Fodéré, VII. No. 2839, who objects to it.]
[Footnote 517: See Pradier-Fodéré, VII. No. 2840; Beinhauer, Die Kriegsgefangenschaft (1910), p. 79; Payrat, Le prisonnier de Guerre (1910), pp. 364-370.]
[Sidenote: Revival of Treaties.]
§ 276. The question how far a peace treaty has the effect of reviving treaties concluded between the parties before the outbreak of war is much controverted. The answer depends upon the other question, how far the outbreak of war cancels existing treaties between belligerents.[518] There can be no doubt that all such treaties as have been cancelled by the outbreak of war do not revive. On the other hand, there can likewise be no doubt that such treaties as have only become suspended by the outbreak of war do revive. But no certainty or unanimity exists regarding such treaties as do not belong to the above two classes, and it must, therefore, be emphasised that no rule of International Law exists concerning these treaties. It is for the parties to make such special stipulations in the peace treaty as will settle the matter.
[Footnote 518: See the very detailed discussion of the question in Phillimore, III. §§ 529-538; see also above, § 99.]
VI
PERFORMANCE OF TREATY OF PEACE
Grotius, III. c. 20--Vattel, IV. §§ 24-34--Phillimore, III. § 597--Halleck, I. pp. 322-324--Taylor, §§ 593-594--Wheaton, §§ 548-550--Bluntschli, §§ 724-726--Heffter, § 184--Kirchenheim in Holtzendorff, IV. pp. 817-822--Ullmann, § 199--Bonfils, Nos. 1706-1709--Despagnet, Nos. 612 and 613--Rivier, II. pp. 459-461--Calvo, V. §§ 3164-3168--Fiore, III. Nos. 1704-1705--Martens, II. § 128--Longuet, §§ 156-164--Mérignhac, pp. 336-337.
[Sidenote: Treaty of Peace, how to be carried out.]
§ 277. The general rule, that treaties must be performed in good faith, applies to peace treaties as well as to others. The great importance, however, of a treaty of peace and its special circumstances and conditions make it necessary to draw attention to some points connected with the performance of treaties of peace. Occupied territory may have to be evacuated, a war indemnity to be paid in cash, boundary lines of ceded territory may have to be drawn, and many other tasks performed. These tasks often necessitate the conclusion of numerous treaties for the purpose of performing details of the peace treaty concerned, and the appointment of commissioners who meet in conference to inquire into details and prepare a compromise. Difficulties may arise in regard to the interpretation[519] of certain stipulations of the peace treaty which arbitration will settle if the parties cannot agree.
[Footnote 519: See above, vol. I. §§ 553-554.] Arrangements may have to be made for the case in which a part or the whole of the territory occupied during the war remains, according to the peace treaty, for some period under military occupation, such occupation to serve as a means of securing the performance of the peace treaty.[520] One can form an idea of the numerous points of importance to be dealt with during the performance of a treaty of peace if one takes into consideration the fact that, after the Franco-German War was terminated in 1871 by the Peace of Frankfort, more than a hundred Conventions were successively concluded between the parties for the purpose of carrying out this treaty of peace.
[Footnote 520: See above, vol. I. § 527.]
[Sidenote: Breach of Treaty of Peace.]
§ 278. Just as is the performance, so is the breach of peace treaties of great importance. A peace treaty can be violated in its entirety or in one of its stipulations only. Violation by one of the parties does not ipso facto cancel the treaty, but the other party may cancel it on the ground of violation. Just as in connection with violation of treaties in general, so in violations of treaties of peace, some publicists maintain that a distinction must be drawn between essential and non-essential stipulations, and that violation of essential stipulations only creates a right of cancelling the treaty of peace. It has been shown above, Vol. I. § 547, that the majority of publicists rightly oppose the distinction.
But a distinction must be made between violation during the period in which the conditions of the peace treaty have to be fulfilled, and violation after such period. In the first case, the other party may at once recommence hostilities, the war being considered not to have terminated through the violated peace treaty. The second case, which might happen soon or several years after the period for the fulfilment of the peace conditions, is in no way different from violation of any treaty in general. And if a party cancels the peace treaty and wages war against the offender who violated it, this war is a new war, and in no way a continuation of the previous war which was terminated by the violated treaty of peace. It must, however, be specially observed that, just as in case of violation of a treaty in general, so in case of violation of a peace treaty, the offended party who wants to cancel the treaty on the ground of its violation must do this in reasonable time after the violation has taken place, otherwise the treaty remains valid, or at least the non-violated parts of it. A mere protest neither constitutes a cancellation nor reserves the right of cancellation.[521]
[Footnote 521: See above, vol. I. § 547.]
VII
POSTLIMINIUM
Grotius, III. c. 9--Bynkershoek, Quaest. jur. publ. I. c. 15 and 16--Vattel, III. §§ 204-222--Hall, §§ 162-166--Manning, pp. 190-195--Phillimore, III. §§ 568-590--Halleck, II. pp. 500-526--Taylor, § 595--Wheaton, § 398--Bluntschli, §§ 727-741--Heffter, §§ 188-192--Kirchenheim in Holtzendorff, IV. pp. 822-836--Bonfils, No. 1710--Despagnet, No. 611--Nys, III. pp. 738-739--Rivier, II. pp. 314-316--Calvo, V. §§ 3169-3226--Fiore, III. Nos. 1706-1712--Martens, II. § 128--Pillet, p. 377.
[Sidenote: Conception of Postliminium.]
§ 279. The term "postliminium" is originally one of Roman Law derived from post and limen (i.e. boundary). According to Roman Law the relations of Rome with a foreign State depended upon the fact whether or not a treaty of friendship[522] existed. If such a treaty was not in existence, Romans entering the foreign State concerned could be enslaved, and Roman goods taken there could be appropriated. Now, jus postliminii denoted the rule, firstly, that such an enslaved Roman, should he ever return into the territory of the Roman Empire, became ipso facto a Roman citizen again with all the rights he possessed previous to his capture, and, secondly, that Roman property, appropriated after entry into the territory of a foreign State, should at once upon being taken back into the territory of the Roman Empire ipso facto revert to its former Roman owner. Modern International and Municipal Law have adopted the term for the purpose of indicating the fact that territory, individuals, and property, after having come in time of war under the sway of the enemy, return either during the war or with the end of the war under the sway of their original Sovereign. This can occur in different ways. An occupied territory can voluntarily be evacuated by the enemy and then at once be reoccupied by the owner. Or it can be reconquered by the legitimate Sovereign. Or it can be reconquered by a third party and restored to its legitimate owner. Conquered territory can also be freed through a successful levy en masse. Property seized by the enemy can be retaken, but it can also be abandoned by the enemy and subsequently revert to the belligerent from whom it was taken. And, further, conquered territory can in consequence of a treaty of peace be restored to its legitimate Sovereign. In all cases concerned, the question has to be answered what legal effects the postliminium has in regard to the territory, the individuals thereon, or the property concerned.
[Footnote 522: See above, vol. I. § 40.]
[Sidenote: Postliminium according to International Law, in contradistinction to Postliminium according to Municipal Law.]
§ 280. Most writers confound the effects of postliminium according to Municipal Law with those according to International Law. For instance: whether a private ship which is recaptured reverts ipso facto to its former owner;[523] whether the former laws of a reconquered State revive ipso facto by the reconquest; whether sentences passed on criminals during the time of an occupation by the enemy should be annulled--these and many similar questions treated in books on International Law have nothing at all to do with International Law, but have to be answered exclusively by the Municipal Law of the respective States. International Law can deal only with such effects of postliminium as are international. These international effects of postliminium may be grouped under the following heads: revival of the former condition of things, validity of legitimate acts, invalidity of illegitimate acts.
[Footnote 523: See above, § 196.]
[Sidenote: Revival of the Former Condition of Things.]
§ 281. Although a territory and the individuals thereon come through military occupation in war under the actual sway of the enemy, neither such territory nor such individuals, according to the rules of International Law of our times, fall under the sovereignty of the invader. They rather remain, if not acquired by the conqueror through subjugation, under the sovereignty of the other belligerent, although the latter is in fact prevented from exercising his supremacy over them. Now, the moment the invader voluntarily evacuates such territory, or is driven away by a levy en masse, or by troops of the other belligerent or of his ally, the former condition of things ipso facto revives; the territory and individuals concerned being at once, so far as International Law is concerned, considered to be again under the sway of their legitimate Sovereign. For all events of international importance taking place on such territory the legitimate Sovereign is again responsible towards third States, whereas during the time of occupation the occupant was responsible for such events.
But it must be specially observed that the case in which the occupant of a territory is driven out of it by the forces of a third State not allied with the legitimate Sovereign of such territory is not a case of postliminium, and that consequently the former state of things does not revive, unless the new occupant hands the territory over to the legitimate Sovereign. If this is not done, the military occupation of the new occupant takes the place of that of the previous occupant.
[Sidenote: Validity of Legitimate Acts.]
§ 282. Postliminium has no effect upon such acts of the former military occupant connected with the occupied territory and the individuals and property thereon as were legitimate acts of warfare. On the contrary, the State into whose possession such territory has reverted must recognise all such legitimate acts of the former occupant, and the latter has by International Law a right to demand such recognition. Therefore, if the occupant has collected the ordinary taxes, has sold the ordinary fruits of immoveable property, has disposed of such moveable state property as he was competent to appropriate, or has performed other acts in conformity with the laws of war, this may not be ignored by the legitimate Sovereign after he has again taken possession of the territory.
However, only those consequences of such acts must be recognised which have occurred during the occupation. A case which illustrates this happened after the Franco-German War. In October 1870, during occupation by German troops of the Départements de la Meuse and de la Meurthe, a Berlin firm entered into a contract with the German Government to fell 15,000 oak trees in the State forests of these départements, paying in advance £2250. The Berlin firm sold the contract rights to others, who felled 9000 trees and sold, in March 1871, their right to fell the remaining 6000 trees to a third party. The last-named felled a part of these trees during the German occupation, but, when the French Government again took possession of the territory concerned, the contractors were without indemnity prevented from further felling of trees.[524] The question whether the Germans had a right at all to enter into the contract is doubtful. But even if they had such right, it covered the felling of trees during their occupation only, and not afterwards.
[Footnote 524: The Protocol of Signature added to the Additional Convention to the Peace Treaty of Frankfort, signed on December 11, 1871--see Martens, N.R.G. XX. p. 868--comprises a declaration stating the fact that the French Government does not recognise any liability to pay indemnities to the contractors concerned.]
[Sidenote: Invalidity of Illegitimate Acts.]
§ 283. If the occupant has performed acts which are not legitimate acts of warfare, postliminium makes their invalidity apparent. Therefore, if the occupant has sold immoveable State property, such property may afterwards be claimed from the acquirer, whoever he is, without any indemnity. If he has given office to individuals, they may afterwards be dismissed. If he has appropriated and sold such private or public property as may not legitimately be appropriated by a military occupant, it may afterwards be claimed from the acquirer without payment of damages.
[Sidenote: No Postliminium after Interregnum.]
§ 284. Cases of postliminium occur only when a conquered territory comes either during or at the end of the war again into the possession of the legitimate Sovereign. No case of postliminium arises when a territory, ceded to the enemy by the treaty of peace or conquered and annexed without cession at the end of a war which was terminated through simple cessation of hostilities,[525] later on reverts to its former owner State, or when the whole of the territory of a State which was conquered and subjugated regains its liberty and becomes again the territory of an independent State. Such territory has actually been under the sovereignty of the conqueror; the period between the conquest and the revival of the previous condition of things was not one of mere military occupation during war, but one of interregnum during time of peace, and therefore the revival of the former condition of things is not a case of postliminium. An illustrative instance of this is furnished by the case of the domains of the Electorate of Hesse-Cassel.[526] This hitherto independent State was subjugated in 1806 by Napoleon and became in 1807 part of the Kingdom of Westphalia constituted by Napoleon for his brother Jerome, who governed it up to the end of 1813, when, with the downfall of Napoleon, the Kingdom of Westphalia fell to pieces and the former Elector of Hesse-Cassel was reinstated. Jerome had during his reign sold many of the domains of Hesse-Cassel. The Elector, however, on his return, did not recognise these contracts, but deprived the owners of their property without indemnification, maintaining that a case of postliminium had arisen, and that Jerome had no right to sell the domains. The Courts of the Electorate pronounced against the Elector, denying that a case of postliminium had arisen, since Jerome, although a usurper, had been King of Westphalia during an interregnum, and since the sale of the domains was therefore no wrongful act. But the Elector, who was absolute in the Electorate, did not comply with the verdict of his own courts, and the Vienna Congress, which was approached in the matter by the unfortunate proprietors of the domains, refused its intervention, although Prussia strongly took their part. It is generally recognised by all writers on International Law that this case was not one of postliminium, and the attitude of the Elector cannot therefore be defended by appeal to International Law.
[Footnote 525: See above, § 263.]
[Footnote 526: See Phillimore, III. §§ 568-574, and the literature there quoted.]
I. ON NEUTRALITY IN GENERAL
I
DEVELOPMENT OF THE INSTITUTION OF NEUTRALITY
Hall, §§ 208-214--Lawrence, § 223--Westlake, II. pp. 169-177--Phillimore, III. §§ 161-226--Twiss, II. §§ 208-212--Taylor, §§ 596-613--Walker, History, pp. 195-203, and Science, pp. 374-385--Geffcken in Holtzendorff, IV. pp. 614-634--Ullmann, § 190--Bonfils, Nos. 1494-1521--Despagnet, No. 687--Rivier, II. pp. 370-375--Nys, III. pp. 558-567--Calvo, IV. §§ 2494-2591--Fiore, III. Nos. 1503-1535--Martens, II. § 130--Dupuis, Nos. 302-307--Mérignhac, pp. 339-342--Boeck, Nos. 8-153--Kleen, I. pp. 1-70--Cauchy, Le droit maritime international (1862), vol. II. pp. 325-430--Gessner, pp. 1-69--Bergbohm, Die bewaffnete Neutralität 1780-1783 (1884)--Fauchille, La diplomatie française et la ligue des neutres 1780 (1893)--Schweizer, Geschichte der schweizerischen Neutralitaet (1895), I. pp. 10-72.
[Sidenote: Neutrality not practised in Ancient Times.]
§ 285. Since in antiquity there was no notion of an International Law,[527] it is not to be expected that neutrality as a legal institution should have existed among the nations of old. Neutrality did not exist even in practice, for belligerents never recognised an attitude of impartiality on the part of other States. If war broke out between two nations, third parties had to choose between the belligerents and become allies or enemies of one or other. This does not mean that third parties had actually to take part in the fighting. Nothing of the kind was the case. But they had, if necessary, to render assistance; for example, to allow the passage of belligerent forces through their country, to supply provisions and the like to the party they favoured, and to deny all such assistance to the enemy. Several instances are known of efforts[528] on the part of third parties to take up an attitude of impartiality, but belligerents never recognised such impartiality.
[Footnote 527: See above, vol. I. § 37.]
[Footnote 528: See Geffcken in Holtzendorff, IV. pp. 614-615.]
[Sidenote: Neutrality during the Middle Ages.]
§ 286. During the Middle Ages matters changed in so far only as, in the latter part of this period, belligerents did not exactly force third parties to a choice; but legal duties and rights connected with neutrality did not exist. A State could maintain that it was no party to a war, although it furnished one of the belligerents with money, troops, and other kinds of assistance. To prevent such assistance, which was in no way considered illegal, treaties were frequently concluded, during the latter part of the Middle Ages, for the purpose of specially stipulating that the parties were not to assist each other's enemies in any way during time of war, and were to prevent their subjects from rendering such assistance. Through the influence of such treaties the difference between a really and feigned impartial attitude of third States during war became recognised, and neutrality, as an institution of International Law, gradually developed during the sixteenth century.
Of great importance was the fact that the Swiss Confederation, in contradistinction to her policy during former times, made it a matter of policy from the end of the sixteenth century always to remain neutral during wars between other States. Although this former neutrality of the Swiss can in no way be compared with modern neutrality, since Swiss mercenaries for centuries afterwards fought in all European wars, the Swiss Government itself succeeded in each instance in taking up and preserving such an attitude of impartiality as complied with the current rules of neutrality.
It should be mentioned that the collection of rules and customs regarding Maritime Law which goes under the name of Consolato del Mare made its appearance about the middle of the fourteenth century. One of the rules there laid down, that in time of war enemy goods on neutral vessels may be confiscated, but that, on the other hand, neutral goods on enemy vessels must be restored, became of great importance, since Great Britain acted accordingly from the beginning of the eighteenth century until the outbreak of the Crimean War in 1854.[529]
[Footnote 529: See above, § 176.]
[Sidenote: Neutrality during the Seventeenth Century.]
§ 287. At the time of Grotius, neutrality was recognised as an institution of International Law, although such institution was in its infancy only and needed a long time to reach its present range. Grotius did not know, or at any rate did not make use of, the term neutrality.[530] He treats neutrality in the very short seventeenth chapter of the Third Book on the Law of War and Peace, under the head De his, qui in bello medii sunt, and establishes in § 3 two doubtful rules only. The first is that neutrals shall do nothing which may strengthen a belligerent whose cause is unjust, or which may hinder the movements of a belligerent whose cause is just. The second rule is that in a war in which it is doubtful whose cause is just, neutrals shall treat both belligerents alike, in permitting the passage of troops, in supplying provisions for the troops, and in not rendering assistance to persons besieged.
[Footnote 530: That the term was known at the time of Grotius may be inferred from the fact that Neumayr de Ramsla in 1620 published his work Von der Neutralität und Assistenz ... in Kriegszeiten; see Nys in R.I. XVII. (1885), p. 78.]
The treatment of neutrality by Grotius shows, on the one hand, that apart from the recognition of the fact that third parties could remain neutral, not many rules regarding the duties of neutrals existed, and, on the other hand, that the granting of passage to troops of belligerents and the supply of provisions to them was not considered illegal. And the practice of the seventeenth century furnishes numerous instances of the fact that neutrality was not really an attitude of impartiality, and that belligerents did not respect the territories of neutral States. Thus, although Charles I. remained neutral, the Marquis of Hamilton and six thousand British soldiers were fighting in 1631 under Gustavus Adolphus. "In 1626 the English captured a French ship in Dutch waters. In 1631 the Spaniards attacked the Dutch in a Danish port; in 1639 the Dutch were in turn the aggressors, and attacked the Spanish Fleet in English waters; again, in 1666 they captured English vessels in the Elbe...; in 1665 an English fleet endeavoured to seize the Dutch East India Squadron in the harbour of Bergen, but were beaten off with the help of the forts; finally, in 1693, the French attempted to cut some Dutch ships out of Lisbon, and on being prevented by the guns of the place from carrying them off, burnt them in the river."[531]
[Footnote 531: See Hall, § 209, p. 604.]
[Sidenote: Progress of Neutrality during the Eighteenth Century.]
§ 288. It was not until the eighteenth century that theory and practice agreed upon the duty of neutrals to remain impartial, and the duty of belligerents to respect the territories of neutrals. Bynkershoek and Vattel formulated adequate conceptions of neutrality. Bynkershoek[532] does not use the term "neutrality," but calls neutrals non hostes, and he describes them as those who are of neither party--qui neutrarum partium sunt--in a war, and who do not, in accordance with a treaty, give assistance to either party. Vattel (III. § 103), on the other hand, makes use of the term "neutrality," and gives the following definition:--"Neutral nations, during a war, are those who take no one's part, remaining friends common to both parties, and not favouring the armies of one of them to the prejudice of the other." But although Vattel's book appeared in 1758, twenty-one years after that of Bynkershoek, his doctrines are in some ways less advanced than those of Bynkershoek. The latter, in contradistinction to Grotius, maintained that neutrals had nothing to do with the question as to which party to a war had a just cause; that neutrals, being friends to both parties, have not to sit as judges between these parties, and, consequently, must not give or deny to one or other party more or less in accordance with their conviction as to the justice or injustice of the cause of each. Vattel, however, teaches (III. § 135) that a neutral, although he may generally allow the passage of troops of the belligerents through his territory, may refuse this passage to such belligerent as is making war for an unjust cause.
[Footnote 532: Quaest. jur. publ. I. c. 9.]
Although the theory and practice of the eighteenth century agreed upon the duty of neutrals to remain impartial, the impartiality demanded was not at all a strict one. For, firstly, throughout the greater part of the century a State was considered not to violate neutrality in case it furnished one of the belligerents with such limited assistance as it had previously promised by treaty.[533] In this way troops could be supplied by a neutral to a belligerent, and passage through neutral territory could be granted to his forces. And, secondly, the possibility existed for either belligerent to make use of the resources of neutrals. It was not considered a breach of neutrality on the part of a State to allow one or both belligerents to levy troops on its territory, or to grant Letters of Marque to vessels belonging to its commercial fleet. During the second half of the eighteenth century, theory and practice became aware of the fact that neutrality was not consistent with these and other indulgences. But this only led to the distinction between neutrality in the strict sense of the term and an imperfect neutrality.
[Footnote 533: See examples in Hall, § 211.]
As regards the duty of belligerents to respect neutral territory, progress was also made in the eighteenth century. Whenever neutral territory was violated, reparation was asked and made. But it was considered lawful for the victor to pursue the vanquished army into neutral territory, and, likewise, for a fleet to pursue[534] the defeated enemy fleet into neutral territorial waters.
[Footnote 534: See below, §§ 320 and 347 (4).]
[Sidenote: First Armed Neutrality.]
§ 289. Whereas, on the whole, the duty of neutrals to remain impartial and the duty of belligerents to respect neutral territory became generally recognised during the eighteenth century, the members of the Family of Nations did not come to an agreement during this period regarding the treatment of neutral vessels trading with belligerents. It is true that the right of visit and search for contraband of war and the right to seize the latter was generally recognised, but in other respects no general theory and practice was agreed upon. France and Spain upheld the rule that neutral goods on enemy ships as well as neutral ships carrying enemy goods could be seized by belligerents. Although England granted from time to time, by special treaties with special States, the rule "Free ship, free goods," her general practice throughout the eighteenth century followed the rule of the Consolato del Mare, according to which enemy goods on neutral vessels may be confiscated, whereas neutral goods on enemy vessels must be restored. England, further, upheld the principle that the commerce of neutrals should in time of war be restricted to the same limits as in time of peace, since most States in time of peace reserved cabotage and trade with their colonies to vessels of their own merchant marine. It was in 1756 that this principle first came into question. In this year, during war with England, France found that on account of the naval superiority of England she was unable to carry on her colonial trade by her own merchant marine, and she, therefore, threw open this trade to vessels of the Netherlands, which had remained neutral. England, however, ordered her fleet to seize all such vessels with their cargoes on the ground that they had become incorporated with the French merchant marine, and had thereby acquired enemy character. From this time the above principle is commonly called the "rule[535] of 1756." England, thirdly, followed other Powers in the practice of declaring enemy coasts to be blockaded and condemning captured neutral vessels for breach of blockade, although the blockades were by no means always effective.
[Footnote 535: See Phillimore, III. §§ 212-222; Hall, § 234; Manning, pp. 260-267; Westlake, II. p. 254; Moore, VII. § 1180; Boeck, No. 52: Dupuis, Nos. 131-133. Stress must be laid on the fact that the original meaning of the rule of 1756 is different from the meaning it received by its extension in 1793. From that year onwards England not only considered those neutral vessels which embarked upon the French coasting and colonial trade thrown open to them during the war with England, as having acquired enemy character, but likewise those neutral vessels which carried neutral goods from neutral ports to ports of a French colony. This extension of the rule of 1756 was clearly unjustified, and it is not possible to believe that it will ever be revived.]
As privateering was legitimate and in general use, neutral commerce was considerably disturbed during every war between naval States. Now in 1780, during war between Great Britain, her American colonies, France, and Spain, Russia sent a circular[536] to England, France, and Spain, in which she proclaimed the following five principles: (1) That neutral vessels should be allowed to navigate from port to port of belligerents and along their coasts; (2) that enemy goods on neutral vessels, contraband excepted, should not be seized by belligerents; (3) that, with regard to contraband, articles 10 and 11 of the treaty of 1766 between Russia and Great Britain should be applied in all cases; (4) that a port should only be considered blockaded if the blockading belligerent had stationed vessels there, so as to create an obvious danger for neutral vessels entering the port; (5) that these principles should be applied in the proceedings and judgments on the legality of prizes. In July and August 1780, Russia[537] entered into a treaty, first with Denmark and then with Sweden, for the purpose of enforcing those principles by equipping a number of men-of-war. Thus the "Armed Neutrality" made its appearance. In 1781, the Netherlands, Prussia, and Austria, in 1782 Portugal, and in 1783 the Two Sicilies joined the league. France, Spain, and the United States of America accepted the principles of the league without formally joining. The war between England, the United States, France, and Spain was terminated in 1783, and the war between England and the Netherlands in 1784, but in the treaties of peace the principles of the "Armed Neutrality" were not mentioned. This league had no direct practical consequences, since England retained her former standpoint. Moreover, some of the States that had joined the league acted contrary to some of its principles when they themselves went to war--as did Sweden during her war with Russia 1788-1790, and France and Russia in 1793--and some of them concluded treaties in which were stipulations at variance with those principles. Nevertheless, the First Armed Neutrality has proved of great importance, because its principles have furnished the basis of the Declaration of Paris of 1856.
[Footnote 536: Martens, R. III. p. 158.]
[Footnote 537: Martens, R. III. pp. 189 and 198.]
[Sidenote: The French Revolution and the Second Armed Neutrality.]
§ 290. The wars of the French Revolution showed that the time was not yet ripe for the progress aimed at by the First Armed Neutrality. Russia, the very same Power which had initiated the Armed Neutrality in 1780 under the Empress Catharine II. (1762-1796), joined Great Britain in 1793 in order to interdict all neutral navigation into ports of France, with the intention of subduing France by famine. Russia and England justified their attitude by the exceptional character of their war against France, which country had proved to be the enemy of the security of all other nations. The French Convention answered with an order to the French fleet to capture all neutral ships carrying provisions to enemy ports or carrying enemy goods.
But although Russia herself had acted in defiance of the principles of the First Armed Neutrality, she called a second into existence in 1800, during the reign of the Emperor Paul. The Second Armed Neutrality was caused by the refusal of England to concede immunity from visit and search to neutral merchantmen under convoy.[538] Sweden was the first to claim in 1653, during war between Holland and Great Britain, that the belligerents should not visit and search Swedish merchantmen under convoy of Swedish men-of-war, provided a declaration was made by the men-of-war that the merchantmen had no contraband on board. Other States later raised the same claim, and many treaties were concluded which stipulated the immunity from visit and search of neutral merchantmen under convoy. But Great Britain refused to recognise the principle, and when, in July 1800, a British squadron captured a Danish man-of-war and her convoy of several merchantmen for having resisted visit and search, Russia invited Sweden, Denmark, and Prussia to renew the "Armed Neutrality," and to add to its principles the further one, that belligerents should not have a right of visit and search in case the commanding officer of the man-of-war, under whose convoy neutral merchantmen were sailing, should declare that the convoyed vessels did not carry contraband of war. In December 1800 Russia concluded treaties with Sweden, Denmark, and Prussia consecutively, by which the "Second Armed Neutrality" became a fact.[539] But it lasted only a year on account of the assassination of the Emperor Paul of Russia on March 23, and the defeat of the Danish fleet by Nelson on April 2, 1801, in the battle of Copenhagen. Nevertheless, the Second Armed Neutrality likewise proved of importance, for it led to a compromise in the "Maritime Convention" concluded by England and Russia under the Emperor Alexander I. on June 17, 1801, at St. Petersburg.[540] By article 3 of this treaty, England recognised, as far as Russia was concerned, the rules that neutral vessels might navigate from port to port and on the coasts of belligerents, and that blockades must be effective. But in the same article England enforced recognition by Russia of the rule that enemy goods on neutral vessels may be seized, and she did not recognise the immunity of neutral vessels under convoy from visit and search, although, by article 4, she conceded that the right of visit and search should be exercised only by men-of-war, and not by privateers, in case the neutral vessels concerned sailed under convoy.
[Footnote 538: See below, § 417.]
[Footnote 539: Martens, R. VII. pp. 127-171. See also Martens, Causes Célèbres, IV. pp. 218-302.]
[Footnote 540: Martens, R. VII. p. 260.]
But this compromise did not last long. When in November 1807 war broke out between Russia and England, the former in her declaration of war[541] annulled the Maritime Convention of 1801, proclaimed again the principles of the First Armed Neutrality, and asserted that she would never again drop these principles. Great Britain proclaimed in her counter-declaration[542] her return to those principles against which the First and the Second Armed Neutrality were directed, and she was able to point out that no Power had applied these principles more severely than Russia under the Empress Catharine II. after the latter had initiated the First Armed Neutrality.
[Footnote 541: Martens, R. VIII. p. 706.]
[Footnote 542: Martens, R. VIII. p. 710.]
Thus all progress made by the Maritime Convention of 1801 fell to the ground. Times were not favourable to any progress. After Napoleon's Berlin decrees in 1806 ordering the boycott of all English goods, England declared all French ports and all the ports of the allies of France blockaded, and ordered her fleet to capture all ships destined to these ports. And Russia, which had in her declaration of war against England in 1807 solemnly asserted that she would never again drop the principles of the First Armed Neutrality, by article 2 of the Ukase[543] published on August 1, 1809, violated one of the most important of these principles by ordering that neutral vessels carrying enemy (English) goods were to be stopped, the enemy goods seized, and the vessels themselves seized if more than the half of their cargoes consisted of enemy goods.
[Footnote 543: Martens, N.R. I. p. 484.]
[Sidenote: Neutrality during the Nineteenth Century.]
§ 291. The development of the rules of neutrality during the nineteenth century was due to four factors.
(1) The most prominent and influential factor is the attitude of the United States of America towards neutrality from 1793 to 1818. When in 1793 England joined the war which had broken out in 1792 between the so-called First Coalition and France, Genêt, the French diplomatic envoy accredited to the United States, granted Letters of Marque to American merchantmen manned by American citizens in American ports. These privateers were destined to cruise against English vessels, and French Prize Courts were set up by the French Minister in connection with French consulates in American ports. On the complaint of Great Britain, the Government of the United States ordered these privateers to be disarmed and the French Prize Courts to be disorganised.[544] As the trial of Gideon Henfield,[545] who was acquitted, proved that the Municipal Law of the United States did not prohibit the enlistment of American citizens in the service of a foreign belligerent, Congress in 1794 passed an Act temporarily forbidding American citizens to accept Letters of Marque from a foreign belligerent and to enlist in the army or navy of a foreign State, and forbidding the fitting out and arming of vessels intended as privateers for foreign belligerents. Other Acts were passed from time to time. Finally, on April 20, 1818, Congress passed the Foreign Enlistment Act, which deals definitely with the matter, and is still in force,[546] and which afforded the basis of the British Foreign Enlistment Act of 1819. The example of the United States initiated the present practice, according to which it is the duty of neutrals to prevent the fitting out and arming on their territory of cruisers for belligerents, to prevent enlistment on their territory for belligerents, and the like.
[Footnote 544: See Wharton, III. §§ 395-396.]
[Footnote 545: Concerning this trial, see Taylor, § 609.]
[Footnote 546: See Wheaton, §§ 434-437; Taylor, § 610; Lawrence, § 223.]
(2) Of great importance for the development of neutrality during the nineteenth century became the permanent neutralisation of Switzerland and Belgium. These States naturally adopted and retained throughout every war an exemplary attitude of impartiality towards the belligerents. And each time war broke out in their vicinity they took effectual military measures for the purpose of preventing belligerents from making use of their neutral territory and resources.
(3) The third factor is the Declaration of Paris of 1856, which incorporated into International Law the rule "Free ship, free goods," the rule that neutral goods on enemy ships cannot be appropriated, and the rule that blockade must be effective.
(4) The fourth and last factor is the general development of the military and naval resources of all members of the Family of Nations. As all the larger States were, during the second half of the nineteenth century, obliged to keep their armies and navies at every moment ready for war, it followed as a consequence that, whenever war broke out, each belligerent was anxious not to injure neutral States in order to avoid their taking the part of the enemy. On the other hand, neutral States were always anxious to fulfil the duties of neutrality for fear of being drawn into the war. Thus the general rule, that the development of International Law has been fostered by the interests of the members of the Family of Nations, applies also to the special case of neutrality. But for the fact that it is to the interest of belligerents to remain during war on good terms with neutrals, and that it is to the interest of neutrals not to be drawn into war, the institution of neutrality would never have developed so favourably as it actually did during the nineteenth century.
[Sidenote: Neutrality in the Twentieth Century.]
§ 292. And this development has continued during the first decade of the twentieth century. The South African and Russo-Japanese wars produced several incidents which gave occasion for the Second Peace Conference of 1907 to take the matter of neutrality within the range of its deliberations and to agree upon the Convention (V.) concerning the rights and duties of neutral Powers and persons in war on land, as well as upon the Convention (XIII.) concerning the rights and duties of neutral Powers in maritime war. And some of the other Conventions agreed upon at this Conference, although they do not directly concern neutral Powers, are indirectly of great importance to them. Thus the Convention (VII.) respecting the conversion of merchantmen into men-of-war indirectly concerns neutral trade as well as the Convention (VIII.) respecting the laying of submarine mines, and the Convention (XI.) concerning restrictions on the exercise of the right of capture. Of the greatest importance, however, is the fact that by the as yet unratified Convention XII. the Conference agreed upon the establishment of an International Prize Court to serve as a Court of Appeal in such prize cases decided by the Prize Courts of either belligerent as concern the interests of neutral Powers or their subjects. To enable this proposed Court to find its verdicts on the basis of a generally accepted prize law the Naval Conference of London met in 1908 and produced, in 1909, the Declaration of London concerning the laws of naval war, which represents a code comprising the rules respecting blockade, contraband, unneutral service, destruction of neutral prizes, transfer to neutral flag, enemy character, convoy, resistance to search, and compensation. Although the Declaration of London has been signed by only ten Powers, none of which has as yet ratified,[547] there is no doubt that sooner or later, perhaps with some slight modifications, it will either be expressly ratified, or become customary law by the fact that maritime Powers which go to war will carry out its rules.[548] Be that as it may, the Declaration of London is a document of epoch-making character and the future historian of International Law will reckon its development from the Declaration of Paris (1856) to the Declaration of London[549] (1909).
[Footnote 547: See Smith, International Law, 4th ed. by Wylie (1911), pp. 353-371, where the chief points against ratification, and the answers made thereto, are impartially set forth.]
[Footnote 548: Thus both Italy and Turkey, although the latter is not even a signatory Power, during the Turco-Italian War, complied with the rules of the Declaration of London.]
[Footnote 549: As regards the literature in favour and against the ratification, on the part of Great Britain, of the Declaration of London, see above, vol. I. § 568_b_, p. 595, note 1, and as regards the value of the Report of the Drafting Committee of the Naval Conference of London, see above, vol. I. § 554, No. 7.]
II
CHARACTERISTICS OF NEUTRALITY
Grotius, III. c. 17, § 3--Bynkershoek, Quaest. jur. publ. I. c. 9--Vattel, III. §§ 103-104--Hall, §§ 19-20--Lawrence, § 222--Westlake, II. pp. 161-169--Phillimore, III. §§ 136-137--Halleck, II. p. 141--Taylor, § 614--Moore, VII. §§ 1287-1291--Walker, § 54--Wheaton, § 412--Bluntschli, §§ 742-744--Heffter, § 144--Geffcken in Holtzendorff, IV. pp. 605-606--Gareis, § 87--Liszt, § 42--Ullmann, § 190--Bonfils, Nos. 1441 and 1443--Despagnet, No. 686--Rivier, II. pp. 368-370--Pradier-Fodéré, VIII. Nos. 3222-3224, 3232-3233--Nys, III. pp. 570-581--Calvo, IV. §§ 2491-2493--Fiore, III. Nos. 1536-1541, and Code, Nos. 1768-1775--Martens, II. § 129--Dupuis, No. 316--Mérignhac, pp. 349-351--Pillet, pp. 272-274--Heilborn, System, pp. 336-351--Perels, § 38--Testa, pp. 167-172--Kleen, I. §§ 1-4--Hautefeuille, I. pp. 195-200--Gessner, pp. 22-23--Schopfer, _Le principe juridique de la neutralité et son évolution dans l'histoire de la guerre_ (1894).
[Sidenote: Conception of Neutrality.]
§ 293. Such States as do not take part in a war between other States are neutrals.[550] The term "neutrality" is derived from the Latin neuter. Neutrality may be defined as the attitude of impartiality adopted by third States towards belligerents and recognised by belligerents, such attitude creating rights and duties between the impartial States and the belligerents. Whether or not a third State will adopt and preserve an attitude of impartiality during war is not a matter for International Law but for International Politics. Therefore, unless a previous treaty stipulates it expressly, no duty exists for a State, according to International Law, to remain neutral in war. On the other hand, it ought not to be maintained, although this is done by some writers,[551] that every State has by the Law of Nations a right not to remain neutral. The fact is that every Sovereign State, as an independent member of the Family of Nations, is master of its own resolutions, and that the question of remaining neutral or not is, in absence of a treaty stipulating otherwise, one of policy and not of law. However, all States which do not expressly declare the contrary by word or action, are supposed to be neutral, and the rights and duties arising from neutrality come into and remain in existence through the mere fact that a State takes up and preserves an attitude of impartiality and is not drawn into the war by the belligerents themselves. A special assertion of intention to remain neutral is not therefore legally necessary on the part of neutral States, although they often expressly and formally proclaim[552] their neutrality.
[Footnote 550: Grotius (III. c. 17) calls them medii in bello; Bynkershoek (I. c. 9) non hostes qui neutrarum partium sunt.]
[Footnote 551: See, for instance, Vattel, III. § 106, and Bonfils, No. 1443.]
[Footnote 552: See below, § 309.]
[Sidenote: Neutrality an Attitude of Impartiality.]
§ 294. Since neutrality is an attitude of impartiality, it excludes such assistance and succour to one of the belligerents as is detrimental to the other, and, further, such injuries to the one as benefit the other. But it requires, on the other hand, active measures from neutral States. For neutrals must prevent belligerents from making use of their neutral territories and of their resources for military and naval purposes during the war. This concerns not only actual fighting on neutral territories, but also transport of troops, war materials, and provisions for the troops, the fitting out of men-of-war and privateers, the activity of Prize Courts, and the like.
But it is important to remember that the necessary attitude of impartiality is not incompatible with sympathy with one and antipathy against the other belligerent, so long as such sympathy and antipathy are not realised in actions violating impartiality. Thus, not only public opinion and the Press of a neutral State, but also the Government,[553] may show their sympathy to one party or another without thereby violating neutrality. And it must likewise be specially observed that acts of humanity on the part of neutrals and their subjects, such as the sending of doctors, medicine, provisions, dressing material, and the like, to military hospitals, and the sending of clothes and money to prisoners of war, can never be construed as acts of partiality, although these comforts are provided for the wounded and the prisoners of one of the belligerents only.
[Footnote 553: See, however, Geffcken in Holtzendorff, IV. p. 656, and Frankenbach, Die Rechtsstellung von neutralen Staatsangehörigen in kriegführenden Staaten (1910), p. 53, who assert the contrary.]
[Sidenote: Neutrality an Attitude creating Rights and Duties.]
§ 295. Since neutrality is an attitude during the condition of war only, this attitude calls into existence special rights and duties which do not generally obtain. They come into existence by the fact that the outbreak of war has been notified or has otherwise[554] unmistakably become known to third States who take up an attitude of impartiality, and they expire ipso facto by the termination of the war.
[Footnote 554: See article 2 of Convention III. of the Second Peace Conference.]
Rights and duties deriving from neutrality do not exist before the outbreak of war, although such outbreak may be expected every moment. Even so-called neutralised States, as Switzerland and Belgium, have during time of peace no duties connected with neutrality, although as neutralised States they have even in time of peace certain duties. These duties are not duties connected with neutrality, but duties imposed upon the neutralised States as a condition of their neutralisation. They include restrictions for the purpose of safeguarding the neutralised States from being drawn into war.[555]
[Footnote 555: See above, vol. I. § 96.]
[Sidenote: Neutrality an Attitude of States.]
§ 296. As International Law is a law between States only and exclusively, neutrality is an attitude of impartiality on the part of States, and not on the part of individuals.[556] Individuals derive neither rights nor duties, according to International Law, from the neutrality of those States whose subjects they are. Neutral States are indeed obliged by International Law to prevent their subjects from committing certain acts, but the duty of these subjects to comply with such injunctions of their Sovereigns is a duty imposed upon them by Municipal, not by International Law. Belligerents, on the other hand, are indeed permitted by International Law to punish subjects of neutrals for breach of blockade, for carriage of contraband and for rendering unneutral service to the enemy; but the duty of subjects of neutrals to comply with these injunctions of belligerents is a duty imposed upon them by these very injunctions of the belligerents, and not by International Law. Although as a rule a State has no jurisdiction over foreign subjects on the Open Sea,[557] either belligerent has, exceptionally, by International Law, the right to punish foreign subjects by confiscation of cargo, and eventually of the vessel itself, in case their vessels break blockade, carry contraband, or render unneutral service to the enemy; but punishment is threatened and executed by the belligerents, not by International Law. Therefore, if neutral merchantmen commit such acts, they neither violate neutrality nor do they act against International Law, but they simply violate injunctions of the belligerents concerned. If they choose to run the risk of punishment in the form of losing their property, this is their own concern, and their neutral home State need not prevent them from doing so. But to the right of belligerents to punish subjects of neutrals for the acts specified corresponds the duty of neutral States to acquiesce on their part in the exercise of this right by either belligerent.
[Footnote 556: It should be specially observed that it is an inaccuracy of language to speak (as is commonly done in certain cases) of individuals as being neutral. Thus, article 16 of Convention V. of the Second Peace Conference designates the nationals of a State which is not taking part in a war as "neutrals." Thus, further, belligerents occupying enemy territory frequently make enemy individuals who are not members of the armed forces of the enemy take a so-called oath of neutrality.]
[Footnote 557: See above, vol. I. § 146.]
Moreover, apart from carriage of contraband, breach of blockade, and unneutral service to the enemy, which a belligerent may punish by capturing and confiscating the vessels or goods concerned, subjects of neutrals are perfectly unhindered in their movements, and neutral States have in especial no duty to prevent their subjects from selling arms, munitions, and provisions to a belligerent, from enlisting in his forces, and the like.
[Sidenote: No Cessation of Intercourse during Neutrality between Neutrals and Belligerents.]
§ 297. Neutrality as an attitude of impartiality involves the duty of abstaining from assisting either belligerent either actively or passively, but it does not include the duty of breaking off all intercourse with the belligerents. Apart from certain restrictions necessitated by impartiality, all intercourse between belligerents and neutrals takes place as before, a condition of peace prevailing between them in spite of the war between the belligerents. This applies particularly to the working of treaties, to diplomatic intercourse, and to trade. But indirectly, of course, the condition of war between belligerents may have a disturbing influence upon intercourse between belligerents and neutrals. Thus the treaty-rights of a neutral State may be interfered with through occupation of enemy territory by a belligerent; its subjects living on such territory bear in a sense enemy character; its subjects trading with the belligerents are hampered by the right of visit and search, and the right of the belligerents to capture blockade-runners and contraband of war.
[Sidenote: Neutrality an Attitude during War (Neutrality in Civil War).]
§ 298. Since neutrality is an attitude during war, the question arises as to the necessary attitude of foreign States during civil war. As civil war becomes real war through recognition[558] of the insurgents as a belligerent Power, a distinction must be made as to whether recognition has taken place or not. There is no doubt that a foreign State commits an international delinquency by assisting insurgents in spite of its being at peace with the legitimate Government. But matters are different after recognition. The insurgents are now a belligerent Power, and the civil war is now real war. Foreign States can either become a party to the war or remain neutral, and in the latter case all duties and rights of neutrality devolve upon them. Since, however, recognition may be granted by foreign States independently of the attitude of the legitimate Government, and since recognition granted by the latter is not at all binding upon foreign Governments, it may happen that insurgents are granted recognition on the part of the legitimate Government, whereas foreign States refuse it, and vice versa.[559] In the first case, the rights and duties of neutrality devolve upon foreign States as far as the legitimate Government is concerned. Men-of-war of the latter may visit and search merchantmen of foreign States for contraband; a blockade declared by the legitimate Government is binding upon foreign States, and the like. But no rights and duties of neutrality devolve upon foreign States as regards the insurgents. A blockade declared by them is not binding, their men-of-war may not visit and search merchantmen for contraband. On the other hand, if insurgents are recognised by a foreign State but not by the legitimate Government, such foreign State has all rights and duties of neutrality so far as the insurgents are concerned, but not so far as the legitimate Government is concerned.[560] In practice, however, recognition of insurgents on the part of foreign States will, if really justified, always have the effect of causing the legitimate Government to grant its recognition also.
[Footnote 558: See above, §§ 59 and 76, and Rougier, Les guerres civiles et le droit des gens (1903), pp. 414-447.]
[Footnote 559: See above, § 59.]
[Footnote 560: See the body of nine rules regarding the position of foreign States in case of an insurrection, adopted by the Institute of International Law at its meeting at Neuchâtel in 1900 (Annuaire, XVIII. p. 227). The question as to whether, in case foreign States refuse recognition to insurgents, although the legitimate Government has granted it, the legitimate Government has a right of visit and search for contraband is controversial; see Annuaire, XVIII. pp. 213-216.]
[Sidenote: Neutrality to be recognised by the Belligerents.]
§ 299. Just as third States have no duty to remain neutral in a war, so they have no right[561] to demand that they be allowed to remain neutral. History reports many cases in which States, although they intended to remain neutral, were obliged by one or both belligerents to make up their minds and choose the belligerent with whom they would throw in their lot. For neutrality to come into existence it is, therefore, not sufficient for a third State at the outbreak of war to take up an attitude of impartiality, but it is also necessary that the belligerents recognise this attitude by acquiescing in it and by not treating such third State as a party to the war. This does not mean, as has been maintained,[562] that neutrality is based on a contract concluded either expressis verbis or by unmistakable actions between the belligerents and third States, and that, consequently, a third State might at the outbreak of war take up the position of one which is neither neutral nor a party to the war, reserving thereby for itself freedom in its future resolutions and actions. Since the normal relation between members of the Family of Nations is peace, the outbreak of war between some of the members causes the others to become neutrals ipso facto by their taking up an attitude of impartiality and by their not being treated by the belligerents as parties to the war. Thus, it is not a contract that calls neutrality into existence, but this condition is rather a legal consequence of a certain attitude on the part of third States at the outbreak of war, on the one hand, and, on the other, on the part of the belligerents themselves.
[Footnote 561: But many writers assert the existence of such a right; see, for instance, Vattel, III. § 106; Wheaton, § 414; Kleen, I. § 2; Bonfils, No. 1443.]
[Footnote 562: See Heilborn, System, pp. 347 and 350.]
III
DIFFERENT KINDS OF NEUTRALITY
Vattel, III. §§ 101, 105, 107, 110--Phillimore, III. §§ 138-139--Halleck, II. p. 142--Taylor, § 618--Wheaton, §§ 413-425--Bluntschli, §§ 745-748--Geffcken in Holtzendorff, IV. pp. 634-636--Ullmann, § 190--Despagnet, No. 685--Pradier-Fodéré, VIII. Nos. 3225-3231--Rivier, II. pp. 370-379--Calvo, IV. §§ 2592-2642--Fiore, III. Nos. 1542-1545--Mérignhac, pp. 347-349--Pillet, pp. 277-284--Kleen, I. §§ 6-22.
[Sidenote: Perpetual Neutrality.]
§ 300. The very first distinction to be made between different kinds of neutrality is that between perpetual or other neutrality. Perpetual or permanent is the neutrality of States which are neutralised by special treaties of the members of the Family of Nations, as at the present time that of Switzerland, Belgium, and Luxemburg. Apart from duties arising from the fact of their neutralisation which are to be performed in time of peace as well as in time of war, the duties and rights of neutrality are the same for neutralised as for other States. It must be specially observed that this concerns not only the obligation not to assist either belligerent, but likewise the obligation to prevent them from making use of the neutral territory for their military purposes. Thus, Switzerland in 1870 and 1871, during the Franco-German War, properly prevented the transport of troops, recruits, and war material of either belligerent over her territory, disarmed the French army which had saved itself by crossing the Swiss frontier, and detained the members of this army until the conclusion of peace.[563]
[Footnote 563: See below, § 339.]
[Sidenote: General and Partial Neutrality.]
§ 301. The distinction between general and partial neutrality derives from the fact that a part of the territory of a State may be neutralised,[564] as are, for instance, the Ionian Islands of Corfu and Paxo, which are now a part of the territory of the Kingdom of Greece. Such State has the duty to remain always partially neutral--namely, as far as its neutralised part is concerned. In contradistinction to such partial neutrality, general neutrality is the neutrality of States no part of whose territory is neutralised by treaty.
[Footnote 564: See above, § 72.]
[Sidenote: Voluntary and Conventional Neutrality.]
§ 302. A third distinction is that between voluntary and conventional neutrality. Voluntary (or simple or natural) is the neutrality of such State as is not bound by a general or special treaty to remain neutral in a certain war. Neutrality is in most cases voluntary, and States whose neutrality is voluntary may at any time during the war give up their attitude of impartiality and take the part of either belligerent. On the other hand, the neutrality of such State as is by treaty bound to remain neutral in a war is conventional. Of course, the neutrality of neutralised States is in every case conventional. Yet not-neutralised States can likewise by treaty be obliged to remain neutral in a certain war, just as in other cases they can by treaty of alliance be compelled not to remain neutral, but to take the part of one of the belligerents.
[Sidenote: Armed Neutrality.]
§ 303. One speaks of an armed neutrality when a neutral State takes military measures for the purpose of defending its neutrality against possible or probable attempts of either belligerent to make use of the neutral territory. Thus, the neutrality of Switzerland during the Franco-German War was an armed neutrality. In another sense of the term, one speaks of an armed neutrality when neutral States take military measures for the purpose of defending the real or pretended rights of neutrals against threatening infringements on the part of either belligerent. The First and Second Armed Neutrality[565] of 1780 and 1800 were armed neutralities in the latter sense of the term.
[Footnote 565: See above, §§ 289 and 290.]
[Sidenote: Benevolent Neutrality.]
§ 304. Treaties stipulating neutrality often stipulate a "benevolent" neutrality of the parties regarding a certain war. The term is likewise frequently used during diplomatic negotiations. However, at present there is no distinction between benevolent neutrality and neutrality pure and simple. The idea dates from earlier times, when the obligations imposed by neutrality were not so stringent, and neutral States could favour one of the belligerents in many ways without thereby violating their neutral attitude. If a State remained neutral in the then lax sense of the term, but otherwise favoured a belligerent, its neutrality was called benevolent.
[Sidenote: Perfect and Qualified Neutrality.]
§ 305. A distinction of great practical importance was in former times that between perfect, or absolute, and qualified, or imperfect, neutrality. The neutrality of a State was qualified if it remained neutral on the whole, but actively or passively, directly or indirectly, gave some kind of assistance to one of the belligerents in consequence of an obligation entered into by a treaty previous to the war, and not for the special war exclusively. On the other hand, a neutrality was termed perfect if a neutral State neither actively nor passively, and neither directly nor indirectly, favoured either belligerent. There is no doubt that in the eighteenth century, when it was recognised that a State could be considered neutral, although it was by a previous treaty bound to render more or less limited assistance to one of the belligerents, this distinction between neutrality perfect and qualified was justified. But during the second half of the nineteenth century it became controversial whether a so-called qualified neutrality was neutrality at all, and whether a State, which, in fulfilment of a treaty obligation, rendered some assistance to one of the belligerents, violated its neutrality. The majority of modern writers[566] maintained, correctly I think, that a State was either neutral or not, and that a State violated its neutrality in case it rendered any assistance whatever to one of the belligerents from any motive whatever. For this reason, a State which had entered into such obligations as those just mentioned would in time of war frequently be in a conflict of duties. For, in fulfilling its treaty obligations, it would frequently be obliged to violate its duty of neutrality, and vice versa. Several writers,[567] however, maintained that such fulfilment of treaty obligations would not contain a violation of neutrality. All doubt in the matter ought now to be removed, since article 2 of Convention V. of the Second Peace Conference categorically enacts that "belligerents are forbidden to move across the territory of a neutral Power troops or convoys either of munitions of war or of supplies." The principle at the back of this enactment no doubt is that a qualified neutrality has no longer any raison d'être, and that neutrality must in every case be perfect.[568]
[Footnote 566: See, for instance, Ullmann, § 190; Despagnet, No. 685; Rivier, II. p. 378; Calvo, IV. § 2594; Taylor, § 618; Fiore, III. No. 1541; Kleen, I. § 21; Hall, § 215 (see also Hall, § 219, concerning passage of troops). Phillimore, III. § 138, goes with the majority of publicists, but in § 139 he thinks that it would be too rigid to consider acts of "minor" partiality which are the result of conventions previous to the war as violations of neutrality.]
[Footnote 567: See, for instance, Heffter, § 144; Manning, p. 225; Wheaton, §§ 425-426; Bluntschli, § 746; Halleck, II. p. 142.]
[Footnote 568: See above, § 77, where it has been pointed out that a neutral who takes up an attitude of qualified neutrality may nowadays be considered as an accessory belligerent party to the war.]
[Sidenote: Some Historical Examples of Qualified Neutrality.]
§ 306. For the purpose of illustration the following instances of qualified neutrality may be mentioned:--
(1) By a treaty of amity and commerce concluded in 1778 between the United States of America and France, the former granted for the time of war to French privateers and their prizes the right of admission to American ports, and entered into the obligation not to admit the privateers of the enemies of France. When subsequently, in 1793, war was waged between England and France, and England complained of the admission of French privateers to American ports, the United States met the complaint by advancing their treaty obligations.[569]
(2) Denmark had by several treaties, especially by one of 1781, undertaken the obligation to furnish Russia with a certain number of men-of-war and troops. When, in 1788, during war between Russia and Sweden, Denmark fulfilled her obligations towards Russia, she nevertheless declared herself neutral. And although Sweden protested against the possibility of such qualified neutrality, she acquiesced in the fact and did not consider herself to be at war with Denmark.[570]
(3) In 1848, during war between Germany and Denmark, Great Britain, fulfilling a treaty obligation towards Denmark, prohibited the exportation of arms to Germany, whereas such exportation to Denmark remained undisturbed.[571]
(4) In 1900, during the South African War, Portugal, for the purpose of complying with a treaty obligation[572] towards Great Britain regarding the passage of British troops through Portuguese territory in South Africa, allowed such passage to an English force which had landed at Beira[573] and was destined for Rhodesia.
[Footnote 569: See Wheaton, § 425, and Phillimore, III. § 139.]
[Footnote 570: See Phillimore, III. § 140.]
[Footnote 571: See Geffcken in Holtzendorff, VI. p. 610, and Rivier, II. p. 379.]
[Footnote 572: Article 11 of the treaty between Great Britain and Portugal concerning the delimitation of spheres of influence in Africa. (Martens, N.R.G. 2nd Ser. XVIII. p. 185.)]
[Footnote 573: See below, § 323; Baty, International Law in South Africa (1900), p. 75; and The Times' History of the War in South Africa, vol. IV. p. 366.]
IV
COMMENCEMENT AND END OF NEUTRALITY
Hall, § 207--Phillimore, I. §§ 392-392A, III. §§ 146-149--Taylor, §§ 610-611--Wheaton, §§ 437-439, and Dana's note 215--Heffter, § 145--Bonfils, Nos. 1445-1446--Despagnet, No. 689--Pradier-Fodéré, VIII. Nos. 3234-3237--Rivier, II. pp. 379-381--Martens, II. § 138--Kleen, I. §§ 5, 36-42.
[Sidenote: Neutrality commences with Knowledge of the War.]
§ 307. Since neutrality is an attitude of impartiality deliberately taken up by a State not implicated in a war, neutrality cannot begin before the outbreak of war becomes known. It is only then that third States can make up their minds whether or not they intend to remain neutral. They are supposed to remain neutral, and the duties deriving from neutrality are incumbent upon them so long as they do not expressis verbis or by unmistakable acts declare that they will be parties to the war. It had long been the usual practice on the part of belligerents to notify the outbreak of war to third States for the purpose of enabling them to take up the necessary attitude of impartiality, but such notification was not formerly in strict law necessary. The mere fact of the knowledge of the outbreak of war which had been obtained in any way gave a third State an opportunity of making up its mind regarding the attitude which it intended to take up, and, if it remained neutral, its neutrality was to be dated from the time of its knowledge of the outbreak of war. But it is apparent that an immediate notification of the war on the part of belligerents is of great importance, as thereby all doubt and controversy regarding the knowledge of the outbreak of war are excluded. For the fact must always be remembered that a neutral State may in no way be made responsible for acts of its own or of its subjects which have been performed before it knew of the war, although the outbreak of war might be expected. For this reason article 2 of Convention III. of the Second Peace Conference enacts that belligerents must without delay send a notification of the outbreak of war, which may even be made by telegraph, to neutral Powers, and that the condition of war shall not take effect in regard to neutral Powers until after receipt of a notification, unless it be established beyond doubt that they were in fact aware of the outbreak of war.[574]
[Footnote 574: See above, §§ 94 and 95.]
[Sidenote: Commencement of Neutrality in Civil War.]
§ 308. As civil war becomes real war through recognition of the insurgents as a belligerent Power, neutrality during a civil war begins for every foreign State from the moment recognition is granted. That recognition might be granted or refused by foreign States independently of the attitude of the legitimate Government has been stated above in § 298, where also an explanation is given of the consequences of recognition granted either by foreign States alone or by the legitimate Government alone.
[Sidenote: Establishment of Neutrality by Declarations.]
§ 309. Neutrality being an attitude of States creating rights and duties, active measures on the part of a neutral state are required for the purpose of preventing its officials and subjects from committing acts incompatible with its duty of impartiality. Now, the manifesto by which a neutral State orders its organs and subjects to comply with the attitude of impartiality adopted by itself is called a declaration of neutrality in the special sense of the term. Such declaration of neutrality must not, however, be confounded, on the one hand, with manifestoes of the belligerents proclaiming to neutrals the rights and duties devolving upon them through neutrality, or, on the other hand, with the assertions made by neutrals to belligerents or urbi et orbi that they will remain neutral, although these manifestoes and assertions are often also called declarations of neutrality.[575]
[Footnote 575: See above, § 293.]
[Sidenote: Municipal Neutrality Laws.]
§ 310. International Law leaves the provision of necessary measures for the establishment of neutrality to the discretion of each State. Since in constitutional States the powers of Governments are frequently so limited by Municipal Law that they may not take adequate measures without the consent of their Parliaments, and since it is, so far as International Law is concerned, no excuse for a Government if it is by its Municipal Law prevented from taking adequate measures, several States have once for all enacted so-called Neutrality Laws, which prescribe the attitude to be taken up by their officials and subjects in case the States concerned remain neutral in a war. These Neutrality Laws are latent in time of peace, but their provisions become operative ipso facto by the respective States making a declaration of neutrality to their officials and subjects.
[Sidenote: British Foreign Enlistment Act.]
§ 311. After the United States of America had on April 20, 1818, enacted[576] a Neutrality Law, Great Britain followed the example in 1819 with her Foreign Enlistment Act,[577] which was in force till 1870. As this Act did not give adequate powers to the Government, Parliament passed on August 9, 1870, a new Foreign Enlistment Act,[578] which is still in force. This Act, in the event of British neutrality, prohibits--(1) The enlistment by a British subject in the military or naval service of either belligerent, and similar acts (sections 4-7); (2) the building, equipping,[579] and despatching[580] of vessels for employment in the military or naval service of either belligerent (sections 8-9); (3) the increase, on the part of any individual living on British territory, of the armament of a man-of-war of either belligerent being at the time in a British port (section 10); (4) the preparing or fitting out of a naval or military expedition against a friendly State (section 11).
[Footnote 576: Printed in Phillimore, I. pp. 667-672.]
[Footnote 577: 59 Geo. III. c. 69.]
[Footnote 578: 33 and 34 Vict. c. 90. See Sibley in the Law Magazine and Review, XXIX. (1904), pp. 453-464, and XXX. (1905), pp. 37-53.]
[Footnote 579: According to section 30, the Interpretation Clause of the Act, "equipping" includes "the furnishing of a ship with any tackle, apparel, furniture, provisions, arms, munitions, or stores, or any other thing which is used in or about a ship for the purpose of fitting or adapting her for the sea or for naval service." It is, therefore, not lawful for British ships, in case Great Britain is neutral, to supply a belligerent fleet direct with coal, a point which became of interest during the Russo-Japanese War. German steamers laden with coal followed the Russian fleet on her journey to the Far East, and British shipowners were prevented from doing the same by the Foreign Enlistment Act. And it was in application of this Act that the British Government ordered, in 1904, the detention of the German steamer Captain W. Menzel, which took in Welsh coal at Cardiff for the purpose of carrying it to the Russian fleet en route to the Far East. See below, § 350.]
[Footnote 580: An interesting case which ought here to be mentioned occurred in October 1904, during the Russo-Japanese War. Messrs. Yarrow & Co., the shipbuilders, possessed a partly completed vessel, the Caroline, which could be finally fitted up either as a yacht or as a torpedo-boat. In September 1904, a Mr. Sinnet and the Hon. James Burke Roche called at the shipbuilding yard of Messrs. Yarrow, bought the Caroline, and ordered her to be fitted up as a high-speed yacht. The required additions were finished on October 3. On October 6 the vessel left Messrs. Yarrow's yard and was navigated by a Captain Ryder, via Hamburg, to the Russian port of Libau, there to be altered into a torpedo-boat. That section 8 of the Foreign Enlistment Act applies to this case there is no doubt. But there is no doubt either that it is this Act, and not the rules of International Law, which required the prosecution of Messrs. Sinnet and Roche on the part of the British Government. For, if viewed from the basis of International Law, the case is merely one of contraband. See below, §§ 321, 334, and 397.]
It must be specially observed that the British Foreign Enlistment Act goes beyond the requirements of International Law in so far as it tries to prohibit and penalises a number of acts which, according to the present rules of International Law, a neutral State is not required to prohibit and penalise. Thus, for instance, a neutral State need not prohibit its private subjects from enlisting in the service of a belligerent; from supplying coal, provisions, arms, and ammunition direct to a belligerent fleet, provided such fleet is not within or just outside the territorial waters of the neutral concerned; from selling ships to a belligerent although it is known that they will be converted into cruisers or used as transport ships. For article 7 of Convention VII. as well as of Convention XIII. of the Second Peace Conference categorically enacts that "a neutral Power is not bound to prevent the export or transit, on behalf of either belligerent, of arms, munitions of war, or, in general, of anything which could be of use to an army or fleet."
[Sidenote: End of Neutrality.]
§ 312. Neutrality ends with the war, or through the commencement of war by a hitherto neutral State against one of the belligerents, or through one of the belligerents commencing war against a hitherto neutral State. Since, apart from a treaty obligation, no State has by International Law the duty to remain neutral in a war between other States,[581] or, if it is a belligerent, to allow a hitherto neutral State to remain neutral,[582] it does not constitute a violation of neutrality on the part of a hitherto neutral to declare war against one of the belligerents, and on the part of a belligerent to declare war against a neutral. Duties of neutrality exist so long only as a State remains neutral. They come to an end ipso facto by a hitherto neutral State throwing up its neutrality, or by a belligerent beginning war against a hitherto neutral State. But the ending of neutrality must not be confounded with violation of neutrality. Such violation does not ipso facto bring neutrality to an end, as will be shown below in § 358.
[Footnote 581: See above, § 293.]
[Footnote 582: See above, § 299.]