International Law

§ 120. Definition

Neutrality is the relation which exists between states which take no part in the war and the belligerents. Impartial treatment of the belligerents is not necessarily neutrality. The modern idea of neutrality demands an entire absence of participation, direct or indirect, however impartial it may be.

§ 121. Forms of Neutrality and of Neutralization

The first form of neutrality is what was formerly known as perfect neutrality, in distinction from imperfect neutrality, which allowed a state to give to one of the belligerents such aid as it might have promised by treaty entered into before and without reference to the war. At the present time the only neutrality that is recognized is perfect, i.e. an entire absence of participation in the war. A second form of neutrality is commonly known as armed neutrality. This implies the existence of an understanding, on the part of some of the states not parties to the contest, in accordance with which they will resist by force certain acts which a belligerent may claim the right to perform. The armed neutralities of Feb. 28, 1780, and of Dec. 16, 1800, defended the principle of "free ships, free goods."[390]

Neutralization is an act by which, through a conventional agreement, the subject of the act is deprived of belligerent capacity to a specified extent. Neutralization may apply in various ways.

(1) Neutralized states are bound to refrain from offensive hostilities, and in consequence cannot make agreements which may demand such action. Thus it was recognized that Belgium itself, a neutralized state, could not guarantee the neutrality of Luxemburg in the Treaty of London, in 1867. Belgium is, however, a party to the Treaty of Berlin of 1885, agreeing to respect the neutrality of the Congo State. This agreement "to respect" does not carry with it the obligation to defend the neutrality of the Congo State.

The important instances of neutralization are those agreed upon by European powers. By the declaration signed at Vienna, March 20, 1815, the powers (Austria, France, Great Britain, Prussia, and Russia) "acknowledged that the general interest demands that the Helvetic States should enjoy the benefits of perpetual neutrality," and declared "that as soon as the Helvetic Diet should accede to the stipulations" prescribed, her neutrality should be guaranteed.[391] The Swiss Confederation acceded on the 27th of May, 1815, and the guaranteeing powers gave their acknowledgment on the 20th of November, 1815.[392] The powers also guaranteed the neutrality of a part of Savoy at the same time. The neutralization of Belgium is provided for by Article VII. of the Treaty of London, of Nov. 15, 1831, "Belgium, within the limits specified in Articles I., II., and IV., shall form an independent and perpetually Neutral State. It shall be bound to observe such Neutrality towards all other States."[393]

(2) A portion of a state may be the subject of an act of neutralization, as in the case of the islands of Corfu and Paxo by the Treaty of London, of March 29, 1864. By Article II., "The Courts of Great Britain, France, and Russia, in their character of Guaranteeing Powers of Greece declare, with the assent of the Courts of Austria and Prussia, that the Islands of Corfu and Paxo, as well as their Dependencies, shall, after their Union to the Hellenic Kingdom, enjoy the advantages of perpetual Neutrality. His Majesty the King of the Hellenes engages, on his part, to maintain such Neutrality."[394]

(3) The neutralization of certain routes of commerce has often been the subject of convention. The United States guaranteed the "perfect neutrality"[395] of the means of trans-isthmian transit when the State of New Granada controlled the Isthmus of Panama in 1846. By the Treaty of 1867 with Nicaragua the United States guarantees "the neutrality and innocent use" of routes of communication across the state of Nicaragua.[396] The Nine Powers by the Convention of Constantinople, of Oct. 29, 1888, Great Britain making certain reservations, agree, by a conventional act upon "a definite system destined to guarantee at all times, and for all the powers, the free use of the Suez Maritime Canal."[397] Full provisions for the maintenance of the neutrality of the canal were adopted at this time also.

(4) The Geneva Convention of 1864 neutralized persons and things employed in the amelioration of the condition of the sick and wounded in the time of war.[398] At the present time hospital ships properly certified and designated by flags and by bands of color on the outside are neutralized by general practice.[399]

§ 122. History

Neutrality as now understood is of recent growth. In early times, and in general throughout the Middle Ages, the fear of retaliation alone deterred states from hostile action against belligerent states with which they were formally at peace. A belligerent in the prosecution of war might disregard the territorial, personal, or property rights in a neutral state without violation of the principles of public law then accepted.

A gradual formulation of principles which gave the basis of a more equable practice came through the custom of making treaty provisions in regard to the conduct of one of the parties when the other was at war with a third state. Thus it was usually provided that no aid should be given to the third state. By the end of the seventeenth century that which had formerly been a matter of treaty stipulation became quite generally accepted as a rule of action. Grotius, in 1625, gives only about a fourth of a short chapter to the consideration of the duties of the neutral toward the belligerents and the balance of the same chapter to the duties of belligerents toward those not parties to the war. Grotius maintains that "it is the duty of those who have no part in the war to do nothing which may favor the party having an unjust cause, or which may hinder the action of the one waging a just war, ... and in a case of doubt to treat both belligerents alike, in permitting transit, in furnishing provisions to the troops, in refraining from assisting the besieged."[400] In Barbeyrac's note to Pufendorf, 1706, the discussion shows that the idea of neutrality is clearer, but still confused by the attempt to admit a variety of qualified forms by which a state may be neutral in some respects and not in others.[401] Bynkershoek in 1737 said, "I call those non hostes who are of neither party."[402] This statement of Bynkershoek furnishes a convenient starting-point for his successors. Vattel, in 1758, accepting this definition, also says that a state may give such aid as has been promised in a treaty of alliance previously made with one of the states, and still preserve exact neutrality toward the other state.[403]

By Article XVII. of the Treaty of Amity and Commerce between the United States and France, in 1778, "It shall be lawful for the ships of war of either party, and privateers, freely to carry whithersoever they please the ships and goods taken from their enemies; ... on the contrary, no shelter or refuge shall be given in their ports to such as shall have made prize of the subjects, people or property of either of the parties," except when driven in by stress of weather. By Article XXII. of the same treaty, foreign privateers were not allowed to be fitted out or to sell their prizes in the ports of either party. In 1793 M. Genêt, the French minister, began to fit out privateers, to give commissions to citizens of the United States to cruise in the service of France against the British, and to set up prize courts in the French consulates. He justified himself under the provisions of the Treaty of 1778. His action threatened to bring the United States into war with Great Britain and led to the enunciation of the principles by the United States authorities, of which Canning in 1823 said, "If I wished for a guide in a system of neutrality, I should take that laid down by America in the days of the presidency of Washington and the secretaryship of Jefferson."[404] The President's Proclamation of Dec. 3, 1793, declares that, in the war of France and the European powers, "the duty and interest of the United States require that they should with sincerity and good faith adopt and pursue a conduct friendly and impartial toward the belligerent powers."[405] While the Proclamation does not mention "neutrality," the orders and instructions issued in accordance with it use the word. By the Act of Congress of June 5, 1794, and by subsequent acts codified in 1818,[406] the United States assumed a position which marks an epoch in the history of neutrality. The principles then enunciated are the generally accepted rules of the present day. Great Britain passed similar enactments in 1819, and made these more definite and stringent by the Foreign Enlistment Act of 1870.[407]

§ 123. Declaration

In recent years it has become customary to issue proclamations of neutrality, or to make known the attitude of the state by some public announcement. This method publishes to other states and to the subjects of the state issuing the announcement the position which the state will take during the hostilities. Ordinarily some specifications as to what may be done during the war accompany the proclamation.

In the war between the United States and Spain in 1898, practically all the leading states of the world made known their neutrality. Germany, according to the custom in that state for twenty years preceding, made no public proclamation, but the neutrality of the Empire was announced less formally by the Emperor in a speech before the Reichstag. The British proclamation of April 23, 1898, is, however, a very full statement of the principles which are to be observed during the hostilities.[408]

A clause from the Russian Declaration of April 18, 1898, is an example of the announcement of the general fact of neutrality: "It is with keen regret that the Imperial Government witnesses an armed conflict between two states to which it is united by old friendship and deep sympathy. It is firmly resolved to observe with regard to these two belligerents a perfect and impartial neutrality."[409]

§ 124. Divisions

The relations between neutrals and belligerents naturally fall into two divisions:—

1. The relations between neutral states and belligerent states as states. These relations are determined by the respect for sovereignty, by international usage, and by treaties.

2. Relations between the states and individuals. These relations involve:—

CHAPTER XXIII

RELATIONS OF NEUTRAL STATES AND BELLIGERENT STATES

§ 125. General Principles of the Relations between States

Of the general principle Wheaton says, "The right of every independent state to remain at peace whilst other states are engaged in war is an incontestable attribute of sovereignty."[410] Equally incontestable is the right of a belligerent state to demand that a state not a party to the war shall refrain from all participation in the contest, whether it be direct or indirect.

The modern tendency is to remove from the neutral all possible inconveniences which might result from war between states with which the neutral is at peace. The normal relations between neutral and neutral are unimpaired. As the neutral is at peace with the belligerents, the relations between the neutral and the belligerents are affected only so far as the necessities of belligerent operations demand. "Every restriction, however, upon the rights of a neutral or belligerent must have a clear and undoubted rule and reason. The burden of proof lies upon the restraining government."[411]

§ 126. Neutral Territorial Jurisdiction

One of the earliest principles to receive the sanction of theory and practice was that of the inviolability of territorial jurisdiction of neutrals. This principle has been liberally interpreted in recent times, and the tendency has been to make increasingly severe the penalties for its violation.

(a) The troops of a belligerent may not engage in hostilities in the land of a neutral.

(b) Belligerent persons who enter neutral land for warlike purposes, whether actually committing hostilities or merely organized for such purpose, should be interned "at points as far removed as possible from the theater of war." Those entering for asylum to escape death or captivity should be similarly treated.

Formerly it was held that the right of passage might be granted by a neutral to both belligerents on the same terms, or to one of the belligerents if in accord with an agreement entered into before the war. There are many examples of this practice before the nineteenth century, but at the present time it is the rule that a belligerent body of troops may not pass through neutral territory. In the Franco-German War of 1870 the application of Germany to transport its wounded by railway across Belgium was denied. It was claimed that the grant of this privilege would enable Germany to use its own lines of railway for strictly hostile purposes in the way of the transportation of troops, war supplies, etc., thus relieving Germany of a part of the burdens of war.

(c) The rules applicable to the maritime jurisdiction of a neutral are somewhat different from those of the land. The neutral does not control with the same absolute authority the waters washing its shores and the land within its boundaries. That portion of the sea which is within the three-mile limit is for the purposes of peaceful navigation a part of the open sea. The simple passage of ships of war through these waters is permitted. All belligerent acts within the maritime jurisdiction of a neutral are forbidden.[412]

The waters which appertain more strictly to the exclusive jurisdiction of the neutral, such as harbors, ports, enclosed bays, and the like, are subject to the municipal laws of the neutral.[413] Asylum in case of imminent danger is, however, not to be denied; otherwise these waters are open to belligerent ships of war only on condition that they observe the regulations prescribed by the neutral. Such regulations must of course be impartial. These regulations are now often announced in the proclamations of neutrality, as was the case in the war of the United States and Spain in 1898.

(d) Neutral territory may not be used as the base of military operations or for the organization or fitting out of warlike expeditions.

Sir W. Scott said in the case of the Twee Gebroeders that, "no proximate acts of war are in any manner to be allowed to originate on neutral grounds."[414] This would without doubt apply to filibustering expeditions. Many acts are of such nature as to make it impossible to determine whether this principle is violated until the actor is beyond the jurisdiction of the neutral. In such cases the neutral sovereignty is "violated constructively."[415] A second act of this kind might constitute the neutral territory a base of military operations.

It is difficult to distinguish in some cases between those expeditions which have a warlike character and those which cannot at the time of departure be so classed.

In 1828, during the revolution in Portugal, certain troops took refuge in England. In 1829 these men, unarmed but under military command, set out from Plymouth in unarmed vessels, ostensibly for Brazil. Arms for their use had been shipped elsewhere as merchandise. Off the island of Terceira, belonging to Portugal, they were stopped by English vessels within Portuguese waters, and taken back to a point a few hundred miles from the English Channel. The Portuguese then put into a French port. Most authorities are agreed that the expedition was warlike, but that the British ministers should have prevented the departure of the expedition from British waters where they had jurisdiction, instead of coercing it in Portuguese waters.[416]

During the Franco-German War of 1870 a large body of Frenchmen left New York in French vessels bound for France. These vessels also carried large quantities of rifles and cartridges. The Frenchmen were not organized, the arms were proper articles of commerce, and the two were not so related as to render them immediately effective for war. The American Secretary held that this was not a warlike expedition. In discussing this case Hall says, "The uncombined elements of an expedition may leave a neutral state in company with one another, provided they are incapable of proximate combination into an organized whole."[417]

In order, therefore, that an expedition may be warlike there must be an organized body of men, under military or naval direction, and intending to engage in war in the near future.

§ 127. Regulation of Neutral Relations

The relations between the belligerent and the neutral may in some respects be regulated by the neutral. Such regulations find expression in neutrality laws, in proclamations of neutrality, and in special regulations issued under exceptional circumstances or by joint agreement of several states.

(a) While it is admitted that the belligerent troops may not use the land of a neutral, yet the neutral is under obligation to offer asylum to those seeking refuge to escape death or captivity. It is the duty of a neutral state, within whose territory commands, or individuals, have taken refuge, to intern them at points as far removed as possible from the theater of war. Interned troops may be guarded in camps, or fortified places. The expenses occasioned by the internment are reimbursed to the neutral state by the belligerent state to whom the interned troops belong.[418]

(b) In general a belligerent vessel has the right of asylum in a neutral port. It may enter to escape the perils of the sea or to purchase provisions, and to make repairs indispensable to the continuance of the voyage. A vessel entering a neutral port after defeat by the enemy is not disarmed, as would be the case with land forces under similar conditions, though the neutral may prescribe the conditions of its sojourn and departure.[419]

(c) Ordinary entry depends upon the will of the neutral, and is subject to conditions imposed upon all belligerents alike.[420] These conditions usually allow a vessel to take on necessary provisions and supplies to enable her to reach the nearest home port. A regulation of the Netherlands as to the vessels of the Spanish-American War of 1898 prescribes that "Coal shall not be supplied them so long as they are in possession of prizes," otherwise a supply sufficient to bring the vessel to a home port or to the port of an ally was allowed.

(d) The time of sojourn is usually limited to twenty-four hours, unless a longer time is necessary for taking on supplies, completing necessary repairs, or from stress of weather. Regulations as to the time of departure of hostile vessels from a neutral port were quite fully outlined in President Grant's proclamations of Aug. 22 and of Oct. 8, 1870, during the Franco-Prussian War.[421] He declared that no vessel of war of either belligerent should leave the

"waters subject to the jurisdiction of the United States from which a vessel of the other belligerent ... shall have previously departed, until after the expiration of at least twenty-four hours from the departure of such last-mentioned vessel beyond the jurisdiction of the United States. If any ship of war or privateer of either belligerent shall, after the time this notification takes effect, enter any ... waters of the United States, such vessel shall be required ... to put to sea within twenty-four hours after her entrance into such ... waters, except in case of stress of weather or of her requiring provisions or things necessary for the subsistence of her crew, or for repairs; in either of which cases the authorities ... 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 supplies beyond what may be necessary for her immediate use; and no such vessel ... shall continue within such ... waters ... for a longer period than twenty-four hours after her necessary repairs shall have been completed, unless within such twenty-four hours a vessel ... of the other belligerent, shall have departed therefrom, in which case the time limited for the departure ... shall be extended so far as may be necessary to secure an interval not less than twenty-four hours between such departure and that of any ... ship of the other belligerent which may have previously quit the same ... waters. No ship of war ... of either belligerent shall be detained in any ... waters of the United States more than twenty-four hours, by reason of the successive departures from such ... waters of more than one vessel of the other belligerent. But if there be several vessels of each or either of the two belligerents in the same ... waters, the order of their departure therefrom shall be so arranged as to afford the opportunity of leaving alternately to the vessels of the respective belligerents, and to cause the least detention consistent with the objects of this proclamation. No ship of war ... of either belligerent shall be permitted, while in any ... waters within the jurisdiction of the United States, 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, if without sail power, to the nearest European port of her own country; or in case the vessel is rigged to go under sail, and may also be propelled by steam power, then with half the quantity of coal which she would be entitled to receive if dependent upon steam alone; and no coal shall be again supplied to any such ship of war ... in the same or in any other ... waters of the United States, without special permission, until after the expiration of three months from the time when such coal may have been last supplied to her within the waters of the United States, unless such ship of war ... shall, since last supplied, have entered a European port of the government to which she belongs."[422]

The tendency at the present time is to make regulations which shall guard most effectively against any possible use of neutral maritime jurisdiction for hostile purposes. In the Spanish-American War of 1898, Brazil provided that in case of two belligerent vessels:—"If the vessel leaving, as well as that left behind, be a steamer, or both be sailing vessels, there shall remain the interval of twenty-four hours between the sailing of one and the other. If the one leaving be a sailing vessel and that remaining a steamer, the latter may only leave seventy-two hours thereafter."[423] Many states have adopted the practice of absolutely refusing entrance within their waters to belligerent vessels with prizes, except in case of distress. Some states prescribe that, in such cases, the prizes should be liberated. There are examples of this refusal in the neutrality proclamations of 1898. All forms of sale or disposal of prize in neutral jurisdiction is of course generally forbidden.

§ 128. No Direct Assistance by the Neutral

The neutral state may not furnish to a belligerent any assistance in military forces, supplies of war, loans of money, or in any similar manner.

(a) Formerly military assistance was often furnished to one of the belligerents by a state claiming to be neutral on the ground that such action was justified by a treaty obligation entered into before the war could be foreseen. This position was supported by some of the ablest of the authorities of the nineteenth century,[424] but is denied by the latest writers.

(b) It is generally held that a neutral state may not furnish to one or both of the belligerents supplies of war. As Hall says, "The general principle that a mercantile act is not a violation of a state of neutrality, is pressed too far when it is made to cover the sale of munitions or vessels of war by a state."[425]

A case that aroused discussion was occasioned by the action of the authorities of the United States conformably to a joint resolution of Congress of July 20, 1868, by which the Secretary of War was to cause "to be sold, after offer at public sale on thirty days' notice, ... the old cannon, arms, and other ordnance stores ... damaged or otherwise unsuitable for the United States military service, etc."[426] Complaint was made that sales made under this act during the time of the Franco-German War were in violation of neutrality. A committee appointed by the United States Senate to investigate these charges reported that sales "were not made under such circumstances as to violate the obligations of our government as a neutral power; and this, to recapitulate, for three reasons: (1) The Remingtons [the alleged purchasing agents of the French government] were not, in fact, agents of France during the time when sales were made to them; (2) if they were such agents, such fact was neither known nor suspected by our government at the time the sales were made; and (3) if they had been such agents, and that fact had been known to our government, or if, instead of sending agents, Louis Napoleon or Frederick William had personally appeared at the War Department to purchase arms, it would have been lawful for us to sell to either of them, in pursuance of a national policy adopted by us prior to the commencement of hostilities."[427] This last statement does not accord with the best opinion and doubtless would not be maintained at the present time. The first and second claims might justify the sale, though it would be in better accord with a strict neutrality for a state to refrain from all sale of supplies of war during the period of war between two states, toward which states it professes to maintain a neutral attitude. This, of course, does not affect the rights of commerce in arms on the part of the citizens of a neutral state.

(c) The authorities are practically agreed that loans of money to a belligerent state may not be made or guaranteed by a neutral state. This does not, however, affect the commerce in money which may be carried on by the citizens of a neutral state.

(d) A neutral may not permit the enlistment of troops for belligerent service within its jurisdiction. This applies to such action as might assume the proportions of recruiting. The citizens or subjects of a neutral state may enter the service of one of the belligerents in a private manner.

§ 129. Positive Obligations of a Neutral State

Not only must a neutral state refrain from direct assistance of either belligerent, but it must also put forth positive efforts to prevent acts which would assist a belligerent. If a state has neutrality laws, it is under obligations to enforce these laws, and is also under obligation to see that the principles generally recognized by international law are observed. Most states make provision for the enforcement of neutrality. In the United States the President is authorized to employ the land and naval forces or militia to execute the law.[428] Jefferson said that, "If the United States have a right to refuse the permission to arm vessels and raise men within their ports and territories, they are bound by the laws of neutrality to exercise that right, and to prohibit such armaments and enlistments."[429] There can be no difference of opinion upon the proposition that a neutral state is bound to restrain within its jurisdiction all overt acts of a character hostile to either belligerent.

There are, however, many acts which in themselves have no necessarily warlike character. Whether such acts are in violation of neutrality must be determined by inference as to their purpose. By such acts, as Hall says, "the neutral sovereignty is only violated constructively."[430] These acts vary so much in character and are of so wide a range that the determination of their true nature often imposes severe burdens upon the neutral attempting to prevent them. The destination of a vessel that is in the course of construction may determine its character so far as the laws of neutrality are concerned. If it is for a friendly state which is at peace with all the world, no objection to its construction and sale can be raised. If a subject of a neutral state builds a vessel for one of the belligerents, such an act has sometimes been regarded as a legitimate business transaction, at other times as an act in violation of neutrality. As a business transaction, the vessel after leaving neutral territory is liable to the risk of seizure as contraband. As an act in violation of neutrality, the neutral state is bound to prevent the departure of the vessel by a reasonable amount of care. The line of demarcation which determines what acts a neutral state is under obligation to prevent, and what acts it may allow its subjects to perform at their own risk, is not yet clearly drawn. It is certain that a state is bound to use "due diligence" to prevent the violation of its neutrality. In the case of the Alabama,[431] this phrase was given different meanings by the representatives of the United States and Great Britain. The arbitrators declared that "due diligence" should be "in exact proportion to the risks to which either of the belligerents may be exposed from a failure to fulfill the obligations of neutrality on their part."[432] This definition is not satisfactory, and the measure of care required still depends upon the circumstances of each individual case, and is therefore a matter of doubt.

CHAPTER XXIV

NEUTRAL RELATIONS BETWEEN STATES AND INDIVIDUALS

§ 130. Ordinary Commerce

As a general principle, subjects of a neutral state may carry on commerce in the time of war as in the time of peace. At the same time, owing to the fact of war, a belligerent has the right to take measures to reduce his opponent to subjection. The general right of the neutral and the special right of the belligerent come into opposition. The problem becomes one of "taking into consideration the respective rights of the belligerents and of the neutrals; rights of the belligerents to place their opponent beyond the power of resistance, but respecting the liberty and independence of the neutral in doing this; rights of the neutrals to maintain with each of the belligerents free commercial relations, without injury to the opponent of either."[433]

In regard to commerce in the time of war, the matters of destination, ownership of goods, and the nationality of the vessel have been the facts ordinarily determining the treatment by the belligerent. If there is nothing hostile in the destination of the commercial undertaking, in the nature of the goods, or in the means of transport, the commerce is free from interruption by the belligerent.

(a) The questions arising in regard to destination will naturally be treated under the subjects of blockade and continuous voyage.

(b) The ownership of goods has usually been a fact determining their liability to capture.

The rules of the Consolato del Mare, compiled in the thirteenth or fourteenth century, looked to the protection of the neutral vessel and the neutral goods on the one hand, and to the seizure of the enemy vessel and of the enemy goods on the other hand. The goods of an enemy could be seized under a neutral flag, and the goods of a neutral were free even though under an enemy flag. This doctrine considered mainly the character of the goods. These rules were held in favor till the sixteenth century, from which time the practice varied greatly, sometimes being regulated by treaty. In the sixteenth century France advanced the doctrine of hostile contagion, maintaining the principle of "enemy ships, enemy goods," and "enemy goods, enemy ships."[434] The practice of states was far from uniform in the various wars.

(c) The nationality of the vessel has been sometimes regarded as the sole fact determining liability of goods to capture, and at other times affecting only the vessel itself.

Under the rules of the Consolato, the flag determined the liability of the vessel only. Under the French ordinances, the flag contaminated the goods. From 1778, the doctrine that the neutral flag covered enemy goods became more commonly accepted. This was especially emphasized by the armed neutrality of 1780.

Some of the agreements of the United States will show the variety of practice even in recent times. By Art. XXIII. of the Treaty of 1778 with France it is provided, "that free ships shall also give a freedom to goods, and that everything shall be deemed to be free and exempt which shall be found on board the ships belonging to the subjects of either of the confederates, although the whole lading or any part thereof should appertain to the enemies of either, contraband goods being always excepted." In the Treaty of 1785 with Prussia occurs the following: "free vessels making free goods, insomuch that all things shall be adjudged free which shall be on board any vessel belonging to the neutral party, although such things belong to an enemy of the other." In the Treaty of 1795 with Spain is a similar provision, excepting, however, contraband of war. It is asserted in the Treaty of 1799 with Prussia that as the doctrine of "free ships make free goods" has not been respected "during the two last wars," and in the one "which still continues," the contracting parties propose "after the return of a general peace" to confer with other nations and meantime to observe "the principles and rules of the law of nations generally acknowledged." The Treaty of 1819 with Spain interprets the clause of the Treaty of 1795, in which it is stipulated that the flag shall cover the property, by saying, "that this shall be so understood with respect to those Powers who recognize this principle; but if either of the two contracting parties shall be at war with a third party, and the other neutral, the flag of the neutral shall cover the property of enemies whose Government acknowledges this principle, and not of others." The Treaty of 1794 with Great Britain expressly provides that property of an enemy on a neutral vessel shall be good prize. In 1887 it was agreed in the treaty with Peru "that the stipulation in this article declaring that the flag shall cover the property shall be understood as applying to those nations only who recognize this principle; but if either of the contracting parties shall be at war with a third, and the other shall remain neutral, the flag of the neutral shall cover the property of enemies whose Governments acknowledge this principle, and not that of others."[435] In spite of these variations, the practice of the United States has been much more uniform than that of the states in which the foreign relations have exercised a more direct influence.

(d) Since 1856 the principles enunciated in the Declaration of Paris have generally prevailed. The provisions in regard to the flag and goods are:—

"2. The neutral flag covers enemy's goods, with the exception of contraband of war.

"3. Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag."[436]

This agreement bound only those states which signed it. A few states, including the United States, Spain, Mexico, Venezuela, and China, did not accede to these provisions. The United States declined because the government desired a provision exempting all private property at sea from capture.[437] In the War of 1898, the United States announced that the rules of the Declaration of Paris would be observed, and Spain made a similar announcement except as to the clause in regard to privateering.[438] Spain did not, however, make use of privateers. The goods of a neutral embarked in a belligerent carrying vessel are liable to the damages or destruction which may be the consequence of necessary acts of war. Destruction not the result of such necessary acts would be in violation of the spirit of the Declaration of Paris, and the neutral might justly demand reparation.

The rules of the Declaration of Paris have been so generally accepted in practice that there is little possibility that they will be disregarded by the civilized states of the world.

§ 131. Contraband

Contraband is the term applied to those articles which from their usefulness in war a neutral cannot transport without risk of seizure. While a state is under obligation to prevent the fitting out of hostile expeditions and to refrain from furnishing belligerent ships warlike material, a state is not bound to prevent the traffic of its citizens or subjects in contraband of war. Such articles as are contraband may be seized on the high seas,[439] and by the Declaration of Paris are not protected by the neutral flag.[440]

Of the articles of commerce themselves, Grotius makes three general classes:—

"1. Those which have their sole use in war, such as arms."

"2. Those which have no use in war, as articles of luxury."

"3. Those which have use both in war and out of war, as money, provisions, ships, and those things appertaining to ships."[441]

Grotius regards articles of the first class as hostile, of the second as not a matter of complaint, and of the third as of ambiguous use (usus ancipitis), of which the treatment is to be determined by their relation to the war.

While the general principle may be clear, the application of the principle is not simple. Those articles whose sole use is in war are, without question, contraband. Articles exclusively for peaceful use are not contraband. Between these two classes are many articles in regard to which both practice and theory have varied most widely.[442] The theorists have usually endeavored to give the neutral the largest possible liberty in commerce, on the ground that those who were not parties to the war should not bear its burdens. This has been the opinion most approved by the jurists of Continental Europe. Great Britain and the United States have been inclined to extend the range of articles which might on occasion be classed as contraband.

The attitude of the United States may be seen from the following enumeration of articles, which is practically the same as was declared contraband in the Spanish War of 1898:—

"Absolutely Contraband.—Ordnance; machine guns and their appliances and the parts thereof; armor plate and whatever pertains to the offensive and defensive armament of naval vessels; arms and instruments of iron, steel, brass, or copper, or of any other material, such arms and instruments being specially adapted for use in war by land or sea; torpedoes and their appurtenances; cases for mines, of whatever material; engineering and transport materials, such as gun carriages, caissons, cartridge boxes, campaigning forges, canteens, pontoons; ordnance stores; portable range finders; signal flags destined for naval use; ammunition and explosives of all kinds and their component parts; machinery for the manufacture of arms and munitions of war; saltpeter; military accouterments and equipments of all sorts; horses and mules."

"Conditionally Contraband.—Coal, when destined for a naval station, a port of call, or a ship or ships of the enemy; materials for the construction of railways or telegraphs; and money; when such materials or money are destined for the enemy's forces; provisions, when actually destined for the enemy's military or naval forces."[443]

The range of articles classed as contraband will naturally vary from time to time as changes in the method of carrying on war occur. Horses have usually been regarded as contraband by France, England, and the United States, except in their dealings with Russia, which state has always opposed this inclusion. The increasing importance of coal during the latter half of the nineteenth century has led to the policy of determination of its character by its destination. Provisions are in practically the same position as coal.[444] In the war with Spain in 1898, the United States included as absolute contraband, horses, and as conditionally contraband, coal, money, and provisions, which Spain did not mention. Spain mentioned by name sulphur, which the United States did not specify, though it might be included in some of the general classes. "As the supply of sulphur is chiefly obtained from Sicily, the Spanish government would have had a rare opportunity to seize and confiscate it as it passed through the Straits of Gibraltar. But upon the request of the Italian government it ... refrained from treating sulphur as contraband."[445]

§ 132. Penalty for Carrying Contraband

No penalty attaches to the simple act of transportation of contraband. It is the hostile destination of the goods that renders them liable to penalty and the vessel liable to delay or other consequences according to circumstances.

The general rules are as follows:—

1. When the ship and the contraband cargo belong to the same owner, both are liable to be condemned.

2. When the ship and the contraband cargo belong to different owners, the cargo only is liable to be condemned.

3. When the owner of the cargo is also part owner of the ship, it has been held that his part of the ship is also liable to be condemned.[446]

4. When non-contraband goods on the ship belong to the same owner with the contraband goods, it has been held that these goods are also liable to be condemned. "To escape from the contagion of contraband, the innocent articles must be the property of a different owner."[447]

5. A vessel which would otherwise be free when carrying contraband may become liable to condemnation on account of fraud. Such fraud may consist in bearing false papers or claiming a false destination.

6. In certain instances, vessels have been held liable to condemnation because carrying articles which by treaty between the state of the captor and the state of the carrier are specially forbidden.

As Perels maintains, it is difficult to see how the fourth rule can be enforced consistently with the Declaration of Paris, by which they would be exempt even if belonging to the enemy.[448]

The neutral carrier loses freight on the contraband goods and suffers such inconvenience and delay as the bringing in of the contraband and its adjudication in a proper court may entail.

Under special circumstances goods have been treated as liable to preëmption instead of absolute seizure. Of this Hall says, "In strictness every article which is either necessarily contraband, or which has become so from the special circumstances of war, is liable to confiscation; but it is usual for those nations who vary their list of contraband to subject the latter class to preëmption only, which by the English practice means purchase of the merchandise at its mercantile value, together with a reasonable profit, usually calculated at ten per cent on the amount."[449] This practice is not viewed with favor upon the Continent as indicating a departure from the generally accepted practice.[450]

§ 133. Unneutral Service

Unneutral service differs from the carriage of contraband, particularly in being hostile in its nature and involving a participation in the contest. Such service involves assistance in the performance of warlike acts. While the destination is a question of vital importance in the case of contraband, the intent of the act is a matter of highest importance in cases of unneutral service.

The acts generally regarded as in the category of unneutral service are:—

1. The carriage of enemy dispatches.

2. The carriage of certain belligerent persons.

3. Aid by auxiliary coal, repair, supply, or transport ships.

4. Knowing coöperation in the transmission of certain messages and information to the belligerent.

(1) Of the carriage of dispatches, in the case of the Atalanta, Lord Stowell said:—

"How is the intercourse between the mother country and the colonies kept up in the time of peace? By ships of war or by packets in the service of the state. If a war intervenes, and the other belligerent prevails to interrupt that communication, any person stepping in to lend himself to effect the same purpose, under the privilege of an ostensible neutral character, does in fact place himself in the service of the enemy state."[451]

"A neutral vessel carrying hostile dispatches, when sailing as a dispatch vessel practically in the service of the enemy, is liable to seizure. Mail steamers under neutral flags carrying dispatches in the regular and customary manner, either as a part of their mail in their mail bags, or separately as a matter of accommodation and without special arrangement or remuneration, are not liable to seizure and should not be detained, except upon clear grounds of suspicion of a violation of the laws of war with respect to contraband, blockade, or unneutral service, in which case the mail bags must be forwarded with seals unbroken."[452]

Regular diplomatic and consular correspondence is not regarded as hostile unless there is some special reason for such belief.

(2) The limitation in regard to the carriage of certain belligerent persons applies to those who travel in such manner as to make it evident that they travel in the military or naval service of the belligerent state. If the carriage of the person or persons is paid by the state, or is done under state contract, it is regarded as sufficient evidence of unneutral service.[453] The neutral carrier engaged in ordinary service is not obliged to investigate the character of persons who take passage in the usual way. The case of the Trent had no particular bearing upon this subject, as it merely emphasized an already settled principle "that a public ship, though of a nation at war, cannot take persons out of a neutral vessel at sea, whatever may be the claim of her government on those persons."[454]

(3) Auxiliary coal, repair, supply, or transport ships, as, directly in the service of the belligerent, have an undoubted hostile character.[455]

(4) Knowing coöperation in the transmission of certain messages for the belligerent renders the ship liable to penalty. Such an act as the repetition of signals would fall in this class. Submarine telegraphic cables between a belligerent and a neutral state may become liable to censorship or to interruption beyond neutral jurisdiction if used for hostile purposes. A neutral vessel engaged in the laying, cutting, or repair of war telegraph cables is held to be performing unneutral service.

The general penalty for the performance of unneutral service is the forfeiture of the vessel so engaged.

§ 134. Visit and Search

(a) "The right of visiting and searching merchant ships upon the seas—whatever be the ships, whatever be the cargoes, whatever be the destinations—is an incontestable right of the lawfully commissioned cruisers of a belligerent nation,"[456] is the statement of the general principle laid down in the case of the Maria. Judge Story says that the right is "allowed by the general consent of nations in the time of war and limited to those occasions."[457] There is, however, a qualified right of search in the time of peace in case of vessels suspected of piracy or of slave trade. Under these circumstances the right must be exercised with the greatest care, otherwise the searching party is liable to damages.[458]

(b) The Object. In the time of war the right is exercised in order to secure from the neutral the observance of the laws of neutrality, or specifically, according to the regulations of the United States:—

1. To determine the nationality of a vessel.

Note. The right of approach to ascertain the nationality of a vessel is generally allowed in time of peace. "International Law," Naval War College, p. 165.

2. To ascertain whether contraband of war is on board.

3. To ascertain whether a breach of blockade is intended or has been committed.

4. To ascertain whether the vessel is engaged in any capacity in the service of the enemy.[459]

(c) The Method. The vessel is usually brought to by firing a gun with a blank charge, or if this is not sufficient, a shot across the bows or even by the use of necessary force. The cruiser should then send a small boat with an officer to conduct the search. Arms may be carried in the boat but not upon the persons of the men. The officer should not be accompanied on board the vessel by more than two men. He should examine the papers of the vessel. "If the papers show contraband, an offense in respect to blockade, or enemy service, the vessel should be seized; otherwise she should be released, unless suspicious circumstances justify a further search. If the vessel be released, an entry in the log book to that effect should be made by the boarding officer."[460]

(d) Ship's Papers. The papers expected to be on board as evidence of the character of the vessel are:—

• 1. The register.
• 2. The crew and passenger list.
• 3. The log book.
• 4. A bill of health.
• 5. The manifest of cargo.
• 6. A charter party, if the vessel is chartered.
• 7. Invoices and bills of lading.[461]

(e) Grounds of Seizure. It is generally held that a vessel may be seized in case of:—

• 1. Resistance to visit and search.
• 2. Clear evidence of attempt to avoid visit and search by escape.
• 3. Clear evidence of illegal acts on the part of the neutral vessel.
• 4. Absence of or defect in the necessary papers.
  • (a) Fraudulent papers.
  • (b) Destruction, defacement, or concealment of papers.
  • (c) Simple failure to produce regular papers.

(f) Seizure. In case of seizure it is held that the neutral vessel and property vests in the neutral till properly condemned by a duly authorized court. The captor is therefore under obligation:—

• 1. To conduct the seizure with due regard to the person and property of the neutral.
• 2. To exercise reasonable diligence to bring the capture quickly to a port for its adjudication.
• 3. To guard the capture from injury so far as within his power.

Failure to fulfill these obligations renders the belligerent liable to damages.[462]

In the Chino-Japanese War of 1894, the Japanese war vessels visited eighty-one neutral vessels but only one was brought to the prize court.[463]

§ 135. Convoy

A neutral merchant vessel is sometimes placed under the protection of a ship of war of its own state, and is then said to be under convoy.

It has been claimed by many authorities, particularly those of Continental Europe, that such a merchant vessel is exempt from visitation and search upon the declaration of the commander of the neutral ship of war that the merchantman is violating no neutral obligation. England has uniformly denied the validity of this claim.

Practice has been very divergent in most states. From the middle of the seventeenth century the right of convoy has been asserted. From the end of the eighteenth century the claim has gained in importance.[464] The United States has made many treaties directly recognizing the practice, and instructs naval officers that, "Convoys of neutral merchant vessels, under escort of vessels of war of their own State, are exempt from the right of search, upon proper assurances, based on thorough examination, from the commander of the convoy."[465]

In the war of 1894,—

"Japan ordered naval officers to give credence to the declaration of a convoying officer. The idea was simply that, as generosity was the chief object of Japan, she did not wish to search and make actual inspection in order to verify the character of escorted merchantmen and goods, trusting to the honor of neutral officers. This was the main idea of the Japanese in adopting the Continental principle regarding convoy; but she was not, in actual cases, so lax as to admit exorbitant claims of the right of convoy, such as an English admiral made for all British ships in the China Sea."[466]

The present tendencies seem to indicate an inclination to admit the right of convoy within reasonable limits and under reasonable regulations.[467]

§ 136. Blockade

Blockade is the obstruction of communication with a place in the possession of one of the belligerents by the armed forces of the other belligerent. The form which blockade takes in most cases is that of obstruction of communication by water.

(a) Historical. In 1584 Holland declared the ports of Flanders blockaded. Holland did not, however, maintain this declaration by ships of war; indeed, in the early days there were no such ships as would make the maintenance of a blockade possible. Such paper blockades were common in the following centuries, and all the ports of a state were frequently proclaimed blockaded, even though there might be no force in the neighborhood to insure that the blockade would not be violated. Treaties of the eighteenth century show an inclination in the states to lessen the evils of blockade by proclamation. The growth of neutral trade led to the adoption of rules for its greater protection. The armed neutrality of 1780 asserted in its proclaimed principles that a valid blockade should involve such a disposition of the vessels of the belligerent proclaiming the blockade as to make the attempt to enter manifestly dangerous.[468] The armed neutrality of 1800 asserted that a notice from the commander of the blockading vessels must be given to the approaching neutral vessel. During the Napoleonic wars there was a return to the practice of issuing proclamations with the view to limiting neutral commerce. The English Orders in Council of 1806 and 1807, and the Berlin Decree of 1806, and the Milan Decree of 1807, by which Napoleon attempted to meet the English Orders, were the expression of the extremest belligerent claims in regard to the obstruction of neutral commerce. The treaties of 1815 said nothing in regard to blockade. The practice and theory varied till, by the Declaration of Paris in 1856, a fixed basis was announced in the provision that "Blockades, in order to be binding, must be effective."[469]