Rights and duties of neutrals; a discussion of principles and practices

Preface

nPHE majority of the following chapters -■• were prepared for the Army and Navy Journal in the belief that the European war of 1 9 14 was to force upon the attention of the United States issues that might readilylead to war, if the countr}^ was true to its traditions as a Neutral Power.

Of these issues the fundamental one, which in a sense involves all others, is of course — whether or not a peaceful commercial people shall have a place under the sun, or, to put it differently, whether nations that prefer the cultivation of commerce, art, and letters are to impose their will upon militant peoples or be ruled by these.

While the fact that the United States may be made a belligerent by breach of its neutrality, makes it suitable for officers, upon whom the nation depends in time of stress, iv Preface

to discuss the rights and duties of neutrals, it is the subject of no less concern to the citizen who craves peace.

This is because, with the elimination of time and space, the nations have been drawn together in such a pell-mell way as to make strife between any two of them of grave import to the others ; and because the subject of a great Power, which may become instantly involved in hostilities by a ministerial message that reflects nothing but self-respect, is apt to find himself involved in the swift (not slow) workings of God-driven mills.

A century ago, when the United States was painfully evolving the neutrality laws which found expression in the Statutes of 1818, little consideration was given to the rights and duties of neutrals because the arbitrary will of monarchs made war a political necessity. There were neutrals in name, and armed neutralities, but they were both too weak-kneed to be efficient.

The imagination of a magician could hardly

Preface v

conceive of the change that a hundred years have made. To-day peoples, although some of them are not as yet sufficiently self-conscious, not kings, are the important factors, and the attention of the peoples is turned toward commerce not arms. It follows inexorably, if these conditions continue, that the sort of neutrality which seeks to separate itself from international quarrels, and which is the antithesis of belligerency, is on the eve of coming into its own.

Will it? Yes! If neutrals, in an epoch that is elemental because of the rush of unharnessed forces, and at a time when the flight of an army corps in distant battlefields may be the signal for changes terrific in their consequence, prepare themselves, by arming and unflinchingly standing by their rights, to compel peace as soldier kings have compelled war.

While the author believes and has not hesitated to point out that many customs incorporated in the law of nations are based on faulty logic, and should be eliminated vi Preface

or modified, he is impressed by the fact that law to be of value must be authoritative. Great care has therefore been taken, in such reference to the rights and duties of neutrals as the scope of this book has permitted, to state what appears to be the positive law of nations, and to make it clear tha-t' the latter must control until revision is made.

D.C. B.

Boston, Dec, IQIS'

Contents

CHAPTER PAGE

I. — Some General Observations .... I

II. — Neutral Influence and

Chapter I Some General Observations

^ X rHETHER the rights of man and of na- ^ ^ tion precede or follow his or its duties is a matter that philosophers must decide. For practical minds the rights of either are dependent upon a performance of duty. The citizen behind the bars may babble of rights, but his failure to perform his obligations has eliminated these, and the cabinet of a nation which has flagrantly disregarded primal law cannot expect a hearing when it wishes to claim privileges.

This truth if borne in mind during any discussion of the rights and duties of neutrals will tend to logical thinking and consistent action. It will be found applicable to minor matters affecting such theories as those of contraband and blockade, as well as to broader principles and state policy.

Thus for an instance and specifically : The position of the United States is immensely stronger when it insists upon the rights of its individual citizens to manufacture and export arms (thus directly or indirectly aiding either belligerent) than it would be if as a nation it had not endeavored to observe every obligation which rests upon a neutral, by itself abstaining from such activities.

That any deviation from such a recognized standard, viz., the observance of international obligations by a state that claims an international right, in discussing matters which have to do with neutrality, is dangerous, scholars will generally agree. Meanwhile it

Some General Observations 3

should be obvious to practical men that there is a paramount duty which can hardly be referred to as prescribed by ethics and international law, which cabinets should attend to as a matter of high policy and expediency before they are driven, as they sometimes are, to assert privileges which they have a right to claim.

This is the duty of preparedness, which a neutral nation, desirous of peace, owes to belligerents, to the sisterhood of civilized states, and to its own people.

(i) To belligerents because they may be led by the objector's apparent military weakness into disregarding rights that are being infringed.

(2) To the sisterhood of civilized states with whom in the matter of principles commonly recognized as sound each Power is sympathetically leagued for the preservation of right standards, whether or not such a compact follows lines suggested by the Cleveland Conference of May 12, 19 15.

(3) To its own people who may at any time insist upon ministerial action which is fraught with peril.

Primary as this rule of conduct for any great and self-respecting state should be, it is an extraordinary fact that the United States, whose interest and historic part in the annals of the last century is that of a neutral, has failed to appreciate the place preparedness plays in giving effect to proclamation and protest. This is the more anomalous because the nation has not been blind to its moral obligations, and because its population is essentially peace-loving, and ought to appreciate that when the word neutral is printed in the same capital letters as the word belligerent the world will be far nearer the peace millennium than it ever can become through opposing resolutions to bayonets.

Is it not time to change all this ? Is it not for men who deal with things as they are in the light of what they desire, rather than academic theories, to see to it now that our national declarations of neutrality be rendered respectable by putting the nation's

Some General Observations 5

reserve or latent power in such shape that it can be used if exigency requires ?

Only by so doing, viz., performing a national duty as above described to sovereign states grouped as the embodiment of civilization and in their several capacities, can we secure the standing in court which is essential to us, if we mean to champion in our own interests and those of humanity the achievements won for neutrality in the past, and secure such conquests as will put neutral nations into the position in world conferences which belongs to them.

It is interesting to discuss the rules of war as they apply to neutrals; to define contraband; to argue the limitations of blockade, the new theories of ''war zone," etc., but a commercial and peaceful nation should never forget that the international law of Hall and Oppenheim is law made largely under the influence of belligerent states in an abnormal, not normal, status, and that the industrial and social interests of neutrals require that positive law in all these matters should more closely approximate to the natural law of Grotius and Phillimore, which is nothing other than economic and moral law.

This will never be brought about until neutral states, noncombatants, speaking with authority because they have performed their political and ethical obligations, play a major part in world councils.

Chapter II Neutral Influence And Freedom Of The Seas

A FTER a neutral nation has safeguarded '^^ its own interests by preparing for any contingency, it finds that as a by-product to the achievement of national security it is possessed of influence that was not its before. This comes automatically with the creation of a military and naval force proportional to its needs.

Fitted in its own eyes for defense, it becomes from the belligerent's point of view a powerful medium for offense. In this nations have all the frailty and weakness of mortals. During the time that the neutral state was of no importance from a military point of view it was ignored. Now that an army and navy are features of its sovereign life it is courted and treated with consideration.

It is curious that eminent pacificists whose hopes for the future rest upon the part assigned neutral states in world councils have given this fact so little weight.

Oppenheim, the text writer on international law, is a better observer. To him (vol. ii., page 359) the shaping up of such resources has been a most important factor in bringing about the rapid development in the laws of neutrality during the nineteenth century. If the distinguished professor is right, and ministries involved in war are careful not to offend a powerful neutral for fear of driving it into the opposite camp, the present opportunity for the United States to win lasting advantages, not only for itself as a neutral, but for all neutral states, is one that is historically without parallel.

This is especially so because trade and commerce, now the chief factor in community life, have waked a world public not only to a realization of the economic and unprevent-

Freedom of the Seas 9

able loss from war, but to the fact that states not involved in conflict are unnecessarily embarrassed by rules which are as illogical as they are archaic.

All that is now needed is strong and consistent leadership among the nations. With this furnished, the close of the present war will find belligerent peoples as anxious as neutrals to put the noncombatant in a position from which it may even hold the dogs of war themselves in check.

Unfortunately it is one thing to have an opportunity to do things of lasting value and another thing to act. Meantime no discussion of neutral rights and duties in this day is sufficient that does not contemplate both progress and reform.

In no department of international law is this more apparent than in that which intimately affects the United States and which has to do with rules and practices governing that great portion of the globe which is covered with water and is familiarly designated as the High Seas, whether the same lo Neutral Rights and Duties

is understood to be the ** unenclosed ocean without fauces terrcB'' of Judge Story, or is otherwise designated.

For reasons varying in weight from the ingenuously naive and worthless to the respectable, both publicists and jurists have declared these to be free.

This is puzzling to the student who reads of belligerent aggression in the daily press; it must be irritating to naval officers who, themselves distinguished commentators on the law of nations, are informed regarding the facts.

For the high seas are not free in practice because of the right of search which is at present recognized as belonging to nations at war, and the theory is so obviously fiction that it is hardly worth while to read learned treatises which tell why the ocean is considered to be something else than it is.

No one will deny that here is occasion for reform as far as present practice is concerned, nor that progress is desirable even if it brings the arbiters of international affairs no further

Freedom of the Seas ii

than is required to make respectable the words — "Freedom of the Seas."

While serious objection will be urged to any change in prevailing custom by the representatives of nations that have championed the rule of the hour, there is a serious question if all such would not directly benefit by voluntarily curtailing their powers. Think of the trouble that a modification of the right of search would eliminate! Now in danger of being extended, its broad application long since brought peril to promoters who were too anxious to force neutral nations into partial servitude to notice its effect upon their own interests.

In 1 8 12 it led England into conflict with America, and left a hard feeling toward the mother country, causing bad blood for over a century. It almost precipitated a war between Great Britain and the United States because of the Mason and Slidell incident at a time when the cause of the Union might have been wrecked thereby.

It has recently roused discontent in the

United States toward all the belligerents; and through Germany's inexplicable interpretation, extension, and application of Precedents must, if persisted in, bring it into conflict with a great nation that does not want to fight.

Notwithstanding these facts, we cannot expect belligerent nations of themselves to make any departure from past practices. Their immediate selfish interests will not permit it. The initiative must come from neutral states, which should be prepared to argue somewhat as follows:

**The older publicists, not hidebound by precedent, based the freedom of the seas upon the sentimental ground that they were equally convenient to all peoples as a medium for communication and therefore should be controlled by none ; and upon the more satisfactory premises that no nation, however powerful, can exercise consistent dominion thereupon. States will find it for their advantage to bear in mind both points, but especially to recognize actual dominion as

Freedom of the Seas 13

the only criterion which justifies meddling with the concerns of a sister nation."

Politely submitted, matter of this sort ought to receive fair consideration, especially if backed by representations which indicate that the neutral nations are wearied of the part assigned them — that of the chestnutpulling cat in the fable.

Perhaps the time has not come for such a leap forward. If not, then some approximation is to be sought for. Meantime is there not reason to believe that if a concert of the great Powers ever does decide to limit acts of sovereignty to the sphere in which the acting nation is in a position (whether by peaceful or war measure) to maintain consistent and constant dominion, then not only will a hundred tangles be avoided, but many of the new problems which arise in connection with the adaptation of old rules to new conditions will be automatically adjusted?

New conditions are caused by improvements made in artillery, ships of war, fortresses, means of offense and defense. These are bound to bring about continuous and serious complications for neutrals unless positive international law is put on a sane basis.

Chapter III The Doctrine Of Search

THE neutral state which realizes that it will never secure its rights upon the sea until the authority of belligerents is curtailed so as to correspond to the power they can respectively exert is apt to find self-restraint difficult in time of aggression. Nevertheless, it is better for prudential reasons for it to abide by law and custom in this as in other matters until it can secure a following among the nations.

By so doing — viz., itself waiting for international acceptance of the reform it never hesitates to urge — it

1. Wins the confidence of sister states; and

2. Puts itself in an impregnable position when it comes to insisting that no jot or tittle of favorable existing law shall be abrogated — a thing which it is absolutely essential for it to do, unless it prefers to drift into a more untenable position than that which it is finding so unsatisfactory.

What is the legal status which properly frets the noncombatant commercial neutral, and which restricts its sovereignty? Briefly and baldly this: While neutrals and belligerents in time of war have authority over their respective lands and appurtenant waters as well as over their war-ships on the sea, the neutral has only a limited authority subject to belligerent visitation, search, and condemnation over its merchant fleet. That is, the neutral is expected to quietly suffer an indignity from a belligerent which a belligerent need suffer from none but the enemy against whose attacks it is armed.

That rules, operative on any sea in which the belligerent man-of-war sees fit to order a neutral trading craft to haul to and submit to such a search as pleases the boarding officer or his superior, are galling in the ex-

The Doctrine of Search 17

treme, are unreasonable and are unfair, must occur to anyone. What if there be a blockade of enemy ports or the trader carry contraband? Why should the belligerent interfere with a neutral ship in waters over which God Almighty alone holds dominion, and which may be off Kamtchatka, while the feud itself affects nations in the antipodes?

The question can have no very different answer from this. In the good old days (which seem to be with us again), when nations pursued war as a business, it pleased combative and ruling Powers that neutrals should be ''cabined, cribbed, confined,** and that their convenience, trade, and very life interests should be crumpled into such space as suited the militant states.

Inasmuch as Mars was beyond question wielding more influence at the council board of the gods in those days than Mercury, such policies took shape and form in laws and customs suited to the requirements of the warrior and inimical to the trader.

Unelastic, rigid, and set, these laws should long since have been canceled, with the adoption of new and wise standards at the beginning of the nineteenth century, but although a few changes have been wrought in their character, we are only just coming to appreciate that the whole matter in mind when the doctrine of search was formulated must be taken up de novo, if international law is to correspond with the eternal verities or with the requirements of this generation.

When is this to be done? One person's surmise is probably as good as another's. Meantime, it will be a long step forward if neutrals can shortly modify the right of search so that it will be accorded to none except as a police measure in time of peace, outside of the waters so dominated by the country of the visiting war-ship as to make its authority supersede every other.

Pending this time let us hope that the present administration in Washington will see to it that nothing is lost which has been secured by American diplomacy in the past. At present its position is admirably dignified

The Doctrine of Search 19

and unassailable. All that remains for it when persuasively urged by foreign ministries to wink at unconscionable practices claimed to be extensions of existing law is to stand fast by such deliverances as that of Lord S to well in the Flad Oyen, which can be found in L. C. Rob. Adm. Rep., the occasion being the wrongful condemnation in a neutral port of a ship taken by the enemy French.

"In my opinion, " says the learned Justice, "if it could be shown regarding mere speculative general principles, such a condemnation ought to be deemed sufficient, that would not be enough — more must be proved. It must be shown that it is conformable to the usage and practice of nations. '* And again, "A great part of the Law of Nations stands on no other foundation.*' "It is introduced indeed by general principles, but it travels with those general principles only to a certain extent, and if it stops there you are not at liberty to go further, and to say that mere general speculations would bear you out in a further progress. Thus, for instance, on mere general principles it is lawful to destroy your enemy, and mere general principles make no great difference as to the manner by which this is to be effected, but the conventional law of mankind which is evidenced in their practice does make a distinction and allows some and prohibits other modes of destruction, and a belligerent is bound to confine himself to those modes which the common practice of mankind has employed and to relinquish those which the same practice has not brought within the ordinary exercise of war, however sanctioned by its principles and purposes."

And again, with special reference to an American precedent in the day of our beginnings: "Wisely did the American Government defeat a similar attempt made on them at an earlier period of the war. They knew that to permit such an exercise of the rights of war within their cities would be to make their coasts a station of hostility.'*

And again, with direct bearing upon the

The Doctrine of Search 21

plea that has recently reached Washington from more than one belligerent: ''The true mode of correcting the irregular practice of a nation is b}^ protesting against it and byinducing that country to reform it. It is monstrous to suppose that because one country has been guilty of an irregularity every other country is let loose from the Law of Nations and is at liberty to assume as much as it thinks fit." ''Institutions must conform to the text law and likewise to constant usage upon the matter. " : Here are statements so sound and reasonable that eminent text writers quote them as articulating the sense of the nations. ; It is improbable that neutral champions endeavoring to prevent any slipping away from such custom as is beneficent can find anything more applicable with which to meet the argument of an overreaching belligerent. They should be borne in mind in discussing the limitation of belligerent right to interfere with neutral shipping. They also have a direct bearing on such other matters touching the rights of neutral citizens as have been forced upon public attention in the United States by the unfortunate incident of the Lusitania.

CHAPTER IV THE Lusitania matter — non-combatants ON MERCHANTMEN

NO better illustration can be given as to the right and the wrong course for a neutral to pursue at a moment when basic principles are under discussion, than that furnished by the resignation of Mr. Bryan from Mr. Wilson's Cabinet, June, 191 5.

The question before the American people, acting not only for themselves but in the interests of the race, was — righteousness or peace — which!

Mr. Bryan said first peace, and perhaps righteousness if a court provided for along lines suggested by him so arranges. The President, with clear insight into the hearts of the American people, said — righteousness first, then let us hope, peace. 23

While any pacificist ought to see that in the eternal order of things Mr. Bryan's cast of peace conscientiously suggested could only be temporary at the best, it is dreadfully apparent that there is much confusion of thought.

In no other way can we explain the regret recently expressed in a certain part of the press, which affirmed that the United States by standing too vigorously for principle had lost the opportunity to lead a coalition of neutrals and be the peacemaker of Europe.

Because of this befogged condition of the public mind — consistently and persistently bewildered by the sociological group that anticipates the near approach of the millennium — it is desirable to clearly distinguish issues so that people may understand that the defense of neutral rights is one thing — the inauguration of world peace another.

This being done, men who look forward to the elimination of war can then produce such arguments as they please to convert to their way of thinking those of us who are incorrigi-

Non-Combatants on the Seas 25

ble doubters and who believe that there are more important things in Hfe than the attainment of a peaceful status; that there is nothing in the moral law or the teachings of the founder of Christianity that prefers dissimulation to straightforwardness, temporizing to decision, cowardice to intrepidity, or that there is no better way for this generation to assist in bettering international conditions than by endeavoring to secure for nations at peace (neutrals) recognized or unrecognized rights which belong to them, but which have heretofore been too frequently disregarded.

Meantime having eliminated such matter as is irrelevant, and having brought home to those who are looking for light the fact that, although a pacificist may be a neutral, it by no means follows that a neutral has to be a pacificist, those who look for progress through the broadening and extending of right legal principles can take up the matter affecting neutral rights which had the attention of President Wilson at the time of Mr. Bryan's resignation.

In doing this they will find that there is no question or doubt about the existing law of nations regarding the status of non-combatant individuals traveling upon other than war vessels.

Wrangle as the nations have pleased to about free goods, free ships, visit, search, and contraband, from the time of the Consolato del Mare to August, 19 14, they have been in accord regarding human life on the high seas.

Thus there has grown up a body of positive laws, buttressed, fortified, and resting upon foundations which include the appreciation of natural law by medieval and modern conscience, the conclusive reasoning of the keenest intellects, and the formal assent of great sovereignties.

These affirm and insist that the non-combatant, whether neutral or enemy (but emphatically if neutral), is to be protected in every exigency which may arise in connection with the chase, overhauling, capture, and disposition of a merchant vessel, unless there be such resistance on the part of the carrying

Non-Combatants on the Seas 2^

ship, after full warning, as will justify the man-of-war in taking severe measures by way of self-defense, or in order to compel obedience to its demands. They cannot be construed otherwise than as requiring the captain of a cruiser or other national craft to use every resource at his command to avoid the endangering or destruction of people not themselves bearing arms or in the regular service of the enemy.

With the law thus defined and available by the use of responsible text-books written in any of the great modern languages, and with the facts which have to do with the matter in hand (viz., the loss of the Lusitania) collated and published, it will be surprising if such inquiries do not come to the following conclusions :

1. That this is a case where natural and positive law are one, the decisions of courts keeping pace with eternal principles of justice and equity, and therefore not to be lightly surrendered.

2. That if the rights thus accorded neutral citizens be infringed, it is for the neutral state to take action, provided it is desirable, as seems to be generally believed, that neutrals shall take an increasing part in the shaping of the law of nations.

3. That any failure on the part of the neutral to insist upon observance of a law and custom which thus seriously affects it, or the substitution of such a scheme as was suggested by Mr. Bryan, would not only negative neutral influence for the time being and hereafter, but exalt belligerency and push it back upon the throne from which it has sent forth so many bloody decrees.

4. That at a time when the engines of destruction are becoming more frightful, any cowardice in the maintenance of recognized standards will permit the invasion of peaceful fields by a new cloud of terror.

In that case a plain duty will follow, to take issue with the recent Secretary of State, whose sincerity is not impugned, and to see to it

Non-Combatants on the Seas 29

that the general public has the law and the facts clearly brought to its attention.

Our democracy cannot live without discussion of these vital things which have to do with its well being. Mr. Bryan himself in a late publication has come out as unequivocally endorsing a platform already assumed in these pages, viz., it is for neutrals, not belligerents, to dictate the international law of the future. Perhaps after all the arguments are in he may be brought to see that the way adopted by the President, at this time of national crisis, is profoundly in the interest of such world peace as is attainable.

However this may be, with right matter put properly before him, it seems as if any American of good understanding, whether conscience-dulled by modern vagaries or not, would say in the exigency caused by the unhappy loss of American lives by belligerent usurpation :

'* There is but one choice, unless the nation is to forfeit rights and prove recalcitrant. This is — to demand a discontinuance of a lawless practice, and if no attention be given its reasonable representations, to take such steps as may seem expedient to forcibly prevent a recurrence of the offense."

Chapter V Incidental Rules Affecting Rights Of Neutrals On The Sea

T^HE thirteenth convention of the second ■*■ Hague Conference which concerns the rights and duties of neutral Powers in naval war contains the following:

"These rules should not, in principle, be altered in the course of the war by a neutral Power, except in a case where experience has shown the necessity for such change to protect the rights of that Power."

The stipulation should be borne in mind, otherwise a neutral taking advantage of an opportune moment to win that which has been wrongfully withheld, may put itself on a par with belligerents which are heedless in regard to international law when it suits their convenience.