as belligerents, and Belgium and England, as neutrals, rigorously
observed their duties and enforced their rights, and no difficulty
occurred. It is, nevertheless, conceivable that, under pressure
of military necessity, or on account of an overwhelming interest,
a powerful belligerent state would cross the territory of a weak
neutral state and leave the consequences to diplomacy. The
South African War was exceptional, in that the Portuguese
government exposed itself to no international difficulty through
allowing a belligerent, whose final victory was certain, and of
necessity entailed total suppression of the conquered belligerent,
to cross its colonial territory. At the same time it is an unfortunate
precedent of taking advantage of the practical powerlessness
of neighbouring neutral states to commit a Violation
of the law of nations, respect for which it is a primary duty of
every self-respecting state to encourage.[1]
If, by inadvertence or otherwise, belligerent soldiers pass the frontier, they have to be turned back. If they claim the droit d’ asile, they are arrested, disarmed, and kept in such a manner as to render it impossible for them to take any further part in the hostilities. In the case of territorial waters, as has already been pointed out, the neutral state is not Refugees. in the same position as on land, all ships without distinction having a right of innocent passage through them. Belligerent ships also have the right to enter neutral ports, but the neutral authority is bound to take precautions to prevent any favour being shown to the one party or the other.[2]
Relative Duties of Neutrals.—Relative duties embrace those duties which citizens are bound to observe and for which states incur a relative responsibility. It was the non-observance of these relative duties that led to difficulties between Great Britain and the United States at the close of the American Civil War and which brought Foreign enlistment, &c. the two countries themselves to the verge of conflict. The Treaty of Washington (8th May 1871) referring these difficulties to arbitration defined the scope of the duties in question for all future purposes between the two peoples (see below, “Proclamations of Neutrality”). Under this treaty the parties bind themselves to use “due diligence,” where they have “reasonable ground” to believe that any acts have a belligerent character, in “preventing” them. They are bound to prevent—
(1) Fitting out, arming, or equipping any vessel;
(2) The departure from their jurisdiction of any vessel, having been specially adapted in whole or in part within such jurisdiction to warlike uses;
(3) The making use by a belligerent of their ports or waters as a base of naval operations against the other;
(4) The making use thereof for the purpose of the renewal or augmenting of military supplies or arms;
(5) The making use thereof for the recruitment of men.
The contracting states undertook to bring the rules they adopted on this subject to the knowledge of other maritime powers, and to invite them to adopt them also, but nothing was ever done to get them accepted among other states. Provision had already been made to enable the government to carry them out in the Foreign Enlistment Act (9th August 1870). This act, which repealed the previous one of 1819 on the same subject, is minute in its provisions to prevent enlisting or recruiting men, or the building or the equipping of vessels; for the military service “of a foreign state at war with a friendly state.” Other states, except the United States (which adopted a similar act), have not followed the example of Great Britain, but leave it to their governments to deal with the cases, when they may arise, as matters of public safety.[3]
There was evident reluctance among foreign states to commit themselves to the obligation of exercising “due diligence.” It is clear that the duty of a state to forbear from committing any act which may be of assistance to either belligerent can never be formulated as an absolute one in regard to the acts of private persons, merely within the neutral jurisdiction. In recent times it has certainly become possible for states to exercise a more effective control than formerly over these acts; but at the present moment, though a much greater latitude is left to neutral subjects and citizens than is consistent with the idea of strict neutrality, there is no movement to alter the usages to the disadvantage of neutral interests. That the Geneva Arbitral Tribunal found in favour of the United States in the “Alabama” case in no way implied that International Law had undergone any change. The tribunal was bound by the antecedent fixation of the Washington rules, and laid down no new principle. On the other hand, the magnitude of the Geneva award was not likely to promote change in the direction of increasing neutral duties, except as part of a general regulation of neutral and belligerent rights. The whole subject was laid before the Hague Conference of 1907, which adopted the main principles of the rules enunciated in the Treaty of Washington (see Art. 8 of the Convention relating to the rights and duties of neutral states in maritime war).
- ↑ The right of way claimed and acceded to under the Anglo-Portuguese Treaty of 11th June 1891 was a mere right of transit for merchandise, and could not in any way be construed as diminishing the neutral obligation to a belligerent who was no party to the treaty.
- ↑
The rules laid down on this subject by the British authorities
during the Spanish-American War were as follows:—
Rule 1.—During the continuance of the present state of war all ships of war of either belligerent are prohibited from making use of any port or roadstead in the United Kingdom, the Isle of Man or the Channel Islands, or of any of Her Majesty’s colonies or foreign possessions or dependencies, or of any waters subject to the territorial jurisdiction of the British crown, as a station or place of resort for any warlike purpose, or for the purpose of obtaining any facilities for warlike equipment; and no ship of war of either belligerent shall hereafter be permitted to leave such port, roadstead or waters from which any vessel of the other belligerent (whether the same shall be a ship of war or a merchant ship) shall have previously departed until after the expiration of at least twenty-four hours from the departure of such last-mentioned vessel beyond the territorial jurisdiction of Her Majesty.
Rule 2.—If there is now in any such port, roadstead or waters subject to the territorial jurisdiction of the British crown any shi of war of either belligerent, such ship shall leave such port, roadstead, or waters within such time, not less than twenty-four hours, as shall be reasonable, having regard to all the circumstances and the condition of such ship as to repairs, provisions or things necessary for the subsistence of her crew; and if after the date hereof any ship of war of either belligerent shall enter any such port, roadstead or waters subject to the territorial jurisdiction of the British crown, such ship shall depart and put to sea within twenty-four hours after her entrance into any such port, roadstead or waters, except in case of stress of weather, or of her requiring provisions or things necessary for the subsistence of her crew, or repairs; in either of such cases the authorities of the port, or the nearest port (as the case may be), shall require her to put to sea as soon as possible after the expiration of such period of twenty-four hours, without permitting her to take in any supplies beyond what may be necessary for her immediate use; and no such vessel which may have been allowed to remain within British waters for the purpose of repair shall continue in any such port, roadstead or waters for a longer period than twenty-four hours after her necessary repairs shall have been completed. Provided, nevertheless, that in all cases in which there shall be any vessels (whether ships of war or merchant ships) of both the said belligerent parties in the same port, roadstead or waters within the territorial jurisdiction of Her Majesty, there shall be an interval of not less than twenty-four hours between the departure therefrom of any such vessel (whether a ship of war or merchant ship) of the one belligerent and the subsequent departure therefrom of any ship of war of the other belligerent; and the time hereby limited for the departure of such ships of war respectively shall always, in case of necessity, be extended so far as may be requisite for giving effect to this proviso, but no further or otherwise.
Rule 3.—No ship of war of either belligerent shall hereafter be permitted, while in any such port, roadstead or waters subject to the territorial jurisdiction of Her Majesty, to take in any supplies, except provisions and such other things as may be requisite for the subsistence of her crew, and except so much coal only as may be sufficient to carry such vessel to the nearest port of her own country or to some nearer destination; and no coal shall again be supplied to any such ship of war in the same or any other port, roadstead or waters subject to the territorial jurisdiction of Her Majesty, without special permission, until after the expiration of three months from the time when such coal may have been last supplied to her within British waters as aforesaid.
Rule 4.—Armed ships of either belligerent are interdicted from carrying prizes made by them into the ports, harbours, roadsteads or waters of the United Kingdom, the Isle of Man, the Channel Islands, or any of Her Majesty’s colonies or possessions abroad. - ↑
The French Penal Code, however, contains the following clauses
covering the government’s powers in this respect:—
Art. 84.—Whoever shall by hostile acts, not approved by the Government, expose the State to a declaration of war, shall be punished by banishment, and should war follow, by deportation.
Art. 85.—Whoever shall, by acts not approved by the Government, expose Frenchmen to the risk of reprisals, shall be punished by banishment.
