§ 286. During the Middle Ages matters changed in so far only as, in the latter part of this period, belligerents did not exactly force third parties to a choice; but legal duties and rights connected with neutrality did not exist. A State could maintain that it was no party to a war, although it furnished one of the belligerents with money, troops, and other kinds of assistance. To prevent such assistance, which was in no way considered illegal, treaties were frequently concluded, during the latter part of the Middle Ages, for the purpose of specially stipulating that the parties were not to assist each other's enemies in any way during time of war, and were to prevent their subjects from rendering such assistance. Through the influence of such treaties the difference between a really and feigned impartial attitude of third States during war became recognised, and neutrality, as an institution of International Law, gradually developed during the sixteenth century.

Of great importance was the fact that the Swiss Confederation, in contradistinction to her policy during former times, made it a matter of policy from the end of the sixteenth century always to remain neutral during wars between other States. Although this former neutrality of the Swiss can in no way be compared with modern neutrality, since Swiss mercenaries for centuries afterwards fought in all European wars, the Swiss Government itself succeeded in each instance in taking up and preserving such an attitude of impartiality as complied with the current rules of neutrality.

It should be mentioned that the collection of rules and customs regarding Maritime Law which goes under the name of Consolato del Mare made its appearance about the middle of the fourteenth century. One of the rules there laid down, that in time of war enemy goods on neutral vessels may be confiscated, but that, on the other hand, neutral goods on enemy vessels must be restored, became of great importance, since Great Britain acted accordingly from the beginning of the eighteenth century until the outbreak of the Crimean War in 1854.[529]

§ 287. At the time of Grotius, neutrality was recognised as an institution of International Law, although such institution was in its infancy only and needed a long time to reach its present range. Grotius did not know, or at any rate did not make use of, the term neutrality.[530] He treats neutrality in the very short seventeenth chapter of the Third Book on the Law of War and Peace, under the head De his, qui in bello medii sunt, and establishes in § 3 two doubtful rules only. The first is that neutrals shall do nothing which may strengthen a belligerent whose cause is unjust, or which may hinder the movements of a belligerent whose cause is just. The second rule is that in a war in which it is doubtful whose cause is just, neutrals shall treat both belligerents alike, in permitting the passage of troops, in supplying provisions for the troops, and in not rendering assistance to persons besieged.

The treatment of neutrality by Grotius shows, on the one hand, that apart from the recognition of the fact that third parties could remain neutral, not many rules regarding the duties of neutrals existed, and, on the other hand, that the granting of passage to troops of belligerents and the supply of provisions to them was not considered illegal. And the practice of the seventeenth century furnishes numerous instances of the fact that neutrality was not really an attitude of impartiality, and that belligerents did not respect the territories of neutral States. Thus, although Charles I. remained neutral, the Marquis of Hamilton and six thousand British soldiers were fighting in 1631 under Gustavus Adolphus. "In 1626 the English captured a French ship in Dutch waters. In 1631 the Spaniards attacked the Dutch in a Danish port; in 1639 the Dutch were in turn the aggressors, and attacked the Spanish Fleet in English waters; again, in 1666 they captured English vessels in the Elbe...; in 1665 an English fleet endeavoured to seize the Dutch East India Squadron in the harbour of Bergen, but were beaten off with the help of the forts; finally, in 1693, the French attempted to cut some Dutch ships out of Lisbon, and on being prevented by the guns of the place from carrying them off, burnt them in the river."[531]

§ 288. It was not until the eighteenth century that theory and practice agreed upon the duty of neutrals to remain impartial, and the duty of belligerents to respect the territories of neutrals. Bynkershoek and Vattel formulated adequate conceptions of neutrality. Bynkershoek[532] does not use the term "neutrality," but calls neutrals non hostes, and he describes them as those who are of neither party—qui neutrarum partium sunt—in a war, and who do not, in accordance with a treaty, give assistance to either party. Vattel (III. § 103), on the other hand, makes use of the term "neutrality," and gives the following definition:—"Neutral nations, during a war, are those who take no one's part, remaining friends common to both parties, and not favouring the armies of one of them to the prejudice of the other." But although Vattel's book appeared in 1758, twenty-one years after that of Bynkershoek, his doctrines are in some ways less advanced than those of Bynkershoek. The latter, in contradistinction to Grotius, maintained that neutrals had nothing to do with the question as to which party to a war had a just cause; that neutrals, being friends to both parties, have not to sit as judges between these parties, and, consequently, must not give or deny to one or other party more or less in accordance with their conviction as to the justice or injustice of the cause of each. Vattel, however, teaches (III. § 135) that a neutral, although he may generally allow the passage of troops of the belligerents through his territory, may refuse this passage to such belligerent as is making war for an unjust cause.

Although the theory and practice of the eighteenth century agreed upon the duty of neutrals to remain impartial, the impartiality demanded was not at all a strict one. For, firstly, throughout the greater part of the century a State was considered not to violate neutrality in case it furnished one of the belligerents with such limited assistance as it had previously promised by treaty.[533] In this way troops could be supplied by a neutral to a belligerent, and passage through neutral territory could be granted to his forces. And, secondly, the possibility existed for either belligerent to make use of the resources of neutrals. It was not considered a breach of neutrality on the part of a State to allow one or both belligerents to levy troops on its territory, or to grant Letters of Marque to vessels belonging to its commercial fleet. During the second half of the eighteenth century, theory and practice became aware of the fact that neutrality was not consistent with these and other indulgences. But this only led to the distinction between neutrality in the strict sense of the term and an imperfect neutrality.

As regards the duty of belligerents to respect neutral territory, progress was also made in the eighteenth century. Whenever neutral territory was violated, reparation was asked and made. But it was considered lawful for the victor to pursue the vanquished army into neutral territory, and, likewise, for a fleet to pursue[534] the defeated enemy fleet into neutral territorial waters.

§ 289. Whereas, on the whole, the duty of neutrals to remain impartial and the duty of belligerents to respect neutral territory became generally recognised during the eighteenth century, the members of the Family of Nations did not come to an agreement during this period regarding the treatment of neutral vessels trading with belligerents. It is true that the right of visit and search for contraband of war and the right to seize the latter was generally recognised, but in other respects no general theory and practice was agreed upon. France and Spain upheld the rule that neutral goods on enemy ships as well as neutral ships carrying enemy goods could be seized by belligerents. Although England granted from time to time, by special treaties with special States, the rule "Free ship, free goods," her general practice throughout the eighteenth century followed the rule of the Consolato del Mare, according to which enemy goods on neutral vessels may be confiscated, whereas neutral goods on enemy vessels must be restored. England, further, upheld the principle that the commerce of neutrals should in time of war be restricted to the same limits as in time of peace, since most States in time of peace reserved cabotage and trade with their colonies to vessels of their own merchant marine. It was in 1756 that this principle first came into question. In this year, during war with England, France found that on account of the naval superiority of England she was unable to carry on her colonial trade by her own merchant marine, and she, therefore, threw open this trade to vessels of the Netherlands, which had remained neutral. England, however, ordered her fleet to seize all such vessels with their cargoes on the ground that they had become incorporated with the French merchant marine, and had thereby acquired enemy character. From this time the above principle is commonly called the "rule[535] of 1756." England, thirdly, followed other Powers in the practice of declaring enemy coasts to be blockaded and condemning captured neutral vessels for breach of blockade, although the blockades were by no means always effective.

As privateering was legitimate and in general use, neutral commerce was considerably disturbed during every war between naval States. Now in 1780, during war between Great Britain, her American colonies, France, and Spain, Russia sent a circular[536] to England, France, and Spain, in which she proclaimed the following five principles: (1) That neutral vessels should be allowed to navigate from port to port of belligerents and along their coasts; (2) that enemy goods on neutral vessels, contraband excepted, should not be seized by belligerents; (3) that, with regard to contraband, articles 10 and 11 of the treaty of 1766 between Russia and Great Britain should be applied in all cases; (4) that a port should only be considered blockaded if the blockading belligerent had stationed vessels there, so as to create an obvious danger for neutral vessels entering the port; (5) that these principles should be applied in the proceedings and judgments on the legality of prizes. In July and August 1780, Russia[537] entered into a treaty, first with Denmark and then with Sweden, for the purpose of enforcing those principles by equipping a number of men-of-war. Thus the "Armed Neutrality" made its appearance. In 1781, the Netherlands, Prussia, and Austria, in 1782 Portugal, and in 1783 the Two Sicilies joined the league. France, Spain, and the United States of America accepted the principles of the league without formally joining. The war between England, the United States, France, and Spain was terminated in 1783, and the war between England and the Netherlands in 1784, but in the treaties of peace the principles of the "Armed Neutrality" were not mentioned. This league had no direct practical consequences, since England retained her former standpoint. Moreover, some of the States that had joined the league acted contrary to some of its principles when they themselves went to war—as did Sweden during her war with Russia 1788-1790, and France and Russia in 1793—and some of them concluded treaties in which were stipulations at variance with those principles. Nevertheless, the First Armed Neutrality has proved of great importance, because its principles have furnished the basis of the Declaration of Paris of 1856.

§ 290. The wars of the French Revolution showed that the time was not yet ripe for the progress aimed at by the First Armed Neutrality. Russia, the very same Power which had initiated the Armed Neutrality in 1780 under the Empress Catharine II. (1762-1796), joined Great Britain in 1793 in order to interdict all neutral navigation into ports of France, with the intention of subduing France by famine. Russia and England justified their attitude by the exceptional character of their war against France, which country had proved to be the enemy of the security of all other nations. The French Convention answered with an order to the French fleet to capture all neutral ships carrying provisions to enemy ports or carrying enemy goods.

But although Russia herself had acted in defiance of the principles of the First Armed Neutrality, she called a second into existence in 1800, during the reign of the Emperor Paul. The Second Armed Neutrality was caused by the refusal of England to concede immunity from visit and search to neutral merchantmen under convoy.[538] Sweden was the first to claim in 1653, during war between Holland and Great Britain, that the belligerents should not visit and search Swedish merchantmen under convoy of Swedish men-of-war, provided a declaration was made by the men-of-war that the merchantmen had no contraband on board. Other States later raised the same claim, and many treaties were concluded which stipulated the immunity from visit and search of neutral merchantmen under convoy. But Great Britain refused to recognise the principle, and when, in July 1800, a British squadron captured a Danish man-of-war and her convoy of several merchantmen for having resisted visit and search, Russia invited Sweden, Denmark, and Prussia to renew the "Armed Neutrality," and to add to its principles the further one, that belligerents should not have a right of visit and search in case the commanding officer of the man-of-war, under whose convoy neutral merchantmen were sailing, should declare that the convoyed vessels did not carry contraband of war. In December 1800 Russia concluded treaties with Sweden, Denmark, and Prussia consecutively, by which the "Second Armed Neutrality" became a fact.[539] But it lasted only a year on account of the assassination of the Emperor Paul of Russia on March 23, and the defeat of the Danish fleet by Nelson on April 2, 1801, in the battle of Copenhagen. Nevertheless, the Second Armed Neutrality likewise proved of importance, for it led to a compromise in the "Maritime Convention" concluded by England and Russia under the Emperor Alexander I. on June 17, 1801, at St. Petersburg.[540] By article 3 of this treaty, England recognised, as far as Russia was concerned, the rules that neutral vessels might navigate from port to port and on the coasts of belligerents, and that blockades must be effective. But in the same article England enforced recognition by Russia of the rule that enemy goods on neutral vessels may be seized, and she did not recognise the immunity of neutral vessels under convoy from visit and search, although, by article 4, she conceded that the right of visit and search should be exercised only by men-of-war, and not by privateers, in case the neutral vessels concerned sailed under convoy.

But this compromise did not last long. When in November 1807 war broke out between Russia and England, the former in her declaration of war[541] annulled the Maritime Convention of 1801, proclaimed again the principles of the First Armed Neutrality, and asserted that she would never again drop these principles. Great Britain proclaimed in her counter-declaration[542] her return to those principles against which the First and the Second Armed Neutrality were directed, and she was able to point out that no Power had applied these principles more severely than Russia under the Empress Catharine II. after the latter had initiated the First Armed Neutrality.

Thus all progress made by the Maritime Convention of 1801 fell to the ground. Times were not favourable to any progress. After Napoleon's Berlin decrees in 1806 ordering the boycott of all English goods, England declared all French ports and all the ports of the allies of France blockaded, and ordered her fleet to capture all ships destined to these ports. And Russia, which had in her declaration of war against England in 1807 solemnly asserted that she would never again drop the principles of the First Armed Neutrality, by article 2 of the Ukase[543] published on August 1, 1809, violated one of the most important of these principles by ordering that neutral vessels carrying enemy (English) goods were to be stopped, the enemy goods seized, and the vessels themselves seized if more than the half of their cargoes consisted of enemy goods.

§ 291. The development of the rules of neutrality during the nineteenth century was due to four factors.

(1) The most prominent and influential factor is the attitude of the United States of America towards neutrality from 1793 to 1818. When in 1793 England joined the war which had broken out in 1792 between the so-called First Coalition and France, Genêt, the French diplomatic envoy accredited to the United States, granted Letters of Marque to American merchantmen manned by American citizens in American ports. These privateers were destined to cruise against English vessels, and French Prize Courts were set up by the French Minister in connection with French consulates in American ports. On the complaint of Great Britain, the Government of the United States ordered these privateers to be disarmed and the French Prize Courts to be disorganised.[544] As the trial of Gideon Henfield,[545] who was acquitted, proved that the Municipal Law of the United States did not prohibit the enlistment of American citizens in the service of a foreign belligerent, Congress in 1794 passed an Act temporarily forbidding American citizens to accept Letters of Marque from a foreign belligerent and to enlist in the army or navy of a foreign State, and forbidding the fitting out and arming of vessels intended as privateers for foreign belligerents. Other Acts were passed from time to time. Finally, on April 20, 1818, Congress passed the Foreign Enlistment Act, which deals definitely with the matter, and is still in force,[546] and which afforded the basis of the British Foreign Enlistment Act of 1819. The example of the United States initiated the present practice, according to which it is the duty of neutrals to prevent the fitting out and arming on their territory of cruisers for belligerents, to prevent enlistment on their territory for belligerents, and the like.

(2) Of great importance for the development of neutrality during the nineteenth century became the permanent neutralisation of Switzerland and Belgium. These States naturally adopted and retained throughout every war an exemplary attitude of impartiality towards the belligerents. And each time war broke out in their vicinity they took effectual military measures for the purpose of preventing belligerents from making use of their neutral territory and resources.

(3) The third factor is the Declaration of Paris of 1856, which incorporated into International Law the rule "Free ship, free goods," the rule that neutral goods on enemy ships cannot be appropriated, and the rule that blockade must be effective.

(4) The fourth and last factor is the general development of the military and naval resources of all members of the Family of Nations. As all the larger States were, during the second half of the nineteenth century, obliged to keep their armies and navies at every moment ready for war, it followed as a consequence that, whenever war broke out, each belligerent was anxious not to injure neutral States in order to avoid their taking the part of the enemy. On the other hand, neutral States were always anxious to fulfil the duties of neutrality for fear of being drawn into the war. Thus the general rule, that the development of International Law has been fostered by the interests of the members of the Family of Nations, applies also to the special case of neutrality. But for the fact that it is to the interest of belligerents to remain during war on good terms with neutrals, and that it is to the interest of neutrals not to be drawn into war, the institution of neutrality would never have developed so favourably as it actually did during the nineteenth century.

§ 292. And this development has continued during the first decade of the twentieth century. The South African and Russo-Japanese wars produced several incidents which gave occasion for the Second Peace Conference of 1907 to take the matter of neutrality within the range of its deliberations and to agree upon the Convention (V.) concerning the rights and duties of neutral Powers and persons in war on land, as well as upon the Convention (XIII.) concerning the rights and duties of neutral Powers in maritime war. And some of the other Conventions agreed upon at this Conference, although they do not directly concern neutral Powers, are indirectly of great importance to them. Thus the Convention (VII.) respecting the conversion of merchantmen into men-of-war indirectly concerns neutral trade as well as the Convention (VIII.) respecting the laying of submarine mines, and the Convention (XI.) concerning restrictions on the exercise of the right of capture. Of the greatest importance, however, is the fact that by the as yet unratified Convention XII. the Conference agreed upon the establishment of an International Prize Court to serve as a Court of Appeal in such prize cases decided by the Prize Courts of either belligerent as concern the interests of neutral Powers or their subjects. To enable this proposed Court to find its verdicts on the basis of a generally accepted prize law the Naval Conference of London met in 1908 and produced, in 1909, the Declaration of London concerning the laws of naval war, which represents a code comprising the rules respecting blockade, contraband, unneutral service, destruction of neutral prizes, transfer to neutral flag, enemy character, convoy, resistance to search, and compensation. Although the Declaration of London has been signed by only ten Powers, none of which has as yet ratified,[547] there is no doubt that sooner or later, perhaps with some slight modifications, it will either be expressly ratified, or become customary law by the fact that maritime Powers which go to war will carry out its rules.[548] Be that as it may, the Declaration of London is a document of epoch-making character and the future historian of International Law will reckon its development from the Declaration of Paris (1856) to the Declaration of London[549] (1909).

II CHARACTERISTICS OF NEUTRALITY

Grotius, III. c. 17, § 3—Bynkershoek, Quaest. jur. publ. I. c. 9—Vattel, III. §§ 103-104—Hall, §§ 19-20—Lawrence, § 222—Westlake, II. pp. 161-169—Phillimore, III. §§ 136-137—Halleck, II. p. 141—Taylor, § 614—Moore, VII. §§ 1287-1291—Walker, § 54—Wheaton, § 412—Bluntschli, §§ 742-744—Heffter, § 144—Geffcken in Holtzendorff, IV. pp. 605-606—Gareis, § 87—Liszt, § 42—Ullmann, § 190—Bonfils, Nos. 1441 and 1443—Despagnet, No. 686—Rivier, II. pp. 368-370—Pradier-Fodéré, VIII. Nos. 3222-3224, 3232-3233—Nys, III. pp. 570-581—Calvo, IV. §§ 2491-2493—Fiore, III. Nos. 1536-1541, and Code, Nos. 1768-1775—Martens, II. § 129—Dupuis, No. 316—Mérignhac, pp. 349-351—Pillet, pp. 272-274—Heilborn, System, pp. 336-351—Perels, § 38—Testa, pp. 167-172—Kleen, I. §§ 1-4—Hautefeuille, I. pp. 195-200—Gessner, pp. 22-23—Schopfer, Le principe juridique de la neutralité et son évolution dans l'histoire de la guerre (1894).

§ 293. Such States as do not take part in a war between other States are neutrals.[550] The term "neutrality" is derived from the Latin neuter. Neutrality may be defined as the attitude of impartiality adopted by third States towards belligerents and recognised by belligerents, such attitude creating rights and duties between the impartial States and the belligerents. Whether or not a third State will adopt and preserve an attitude of impartiality during war is not a matter for International Law but for International Politics. Therefore, unless a previous treaty stipulates it expressly, no duty exists for a State, according to International Law, to remain neutral in war. On the other hand, it ought not to be maintained, although this is done by some writers,[551] that every State has by the Law of Nations a right not to remain neutral. The fact is that every Sovereign State, as an independent member of the Family of Nations, is master of its own resolutions, and that the question of remaining neutral or not is, in absence of a treaty stipulating otherwise, one of policy and not of law. However, all States which do not expressly declare the contrary by word or action, are supposed to be neutral, and the rights and duties arising from neutrality come into and remain in existence through the mere fact that a State takes up and preserves an attitude of impartiality and is not drawn into the war by the belligerents themselves. A special assertion of intention to remain neutral is not therefore legally necessary on the part of neutral States, although they often expressly and formally proclaim[552] their neutrality.

§ 294. Since neutrality is an attitude of impartiality, it excludes such assistance and succour to one of the belligerents as is detrimental to the other, and, further, such injuries to the one as benefit the other. But it requires, on the other hand, active measures from neutral States. For neutrals must prevent belligerents from making use of their neutral territories and of their resources for military and naval purposes during the war. This concerns not only actual fighting on neutral territories, but also transport of troops, war materials, and provisions for the troops, the fitting out of men-of-war and privateers, the activity of Prize Courts, and the like.

But it is important to remember that the necessary attitude of impartiality is not incompatible with sympathy with one and antipathy against the other belligerent, so long as such sympathy and antipathy are not realised in actions violating impartiality. Thus, not only public opinion and the Press of a neutral State, but also the Government,[553] may show their sympathy to one party or another without thereby violating neutrality. And it must likewise be specially observed that acts of humanity on the part of neutrals and their subjects, such as the sending of doctors, medicine, provisions, dressing material, and the like, to military hospitals, and the sending of clothes and money to prisoners of war, can never be construed as acts of partiality, although these comforts are provided for the wounded and the prisoners of one of the belligerents only.

§ 295. Since neutrality is an attitude during the condition of war only, this attitude calls into existence special rights and duties which do not generally obtain. They come into existence by the fact that the outbreak of war has been notified or has otherwise[554] unmistakably become known to third States who take up an attitude of impartiality, and they expire ipso facto by the termination of the war.

Rights and duties deriving from neutrality do not exist before the outbreak of war, although such outbreak may be expected every moment. Even so-called neutralised States, as Switzerland and Belgium, have during time of peace no duties connected with neutrality, although as neutralised States they have even in time of peace certain duties. These duties are not duties connected with neutrality, but duties imposed upon the neutralised States as a condition of their neutralisation. They include restrictions for the purpose of safeguarding the neutralised States from being drawn into war.[555]

§ 296. As International Law is a law between States only and exclusively, neutrality is an attitude of impartiality on the part of States, and not on the part of individuals.[556] Individuals derive neither rights nor duties, according to International Law, from the neutrality of those States whose subjects they are. Neutral States are indeed obliged by International Law to prevent their subjects from committing certain acts, but the duty of these subjects to comply with such injunctions of their Sovereigns is a duty imposed upon them by Municipal, not by International Law. Belligerents, on the other hand, are indeed permitted by International Law to punish subjects of neutrals for breach of blockade, for carriage of contraband and for rendering unneutral service to the enemy; but the duty of subjects of neutrals to comply with these injunctions of belligerents is a duty imposed upon them by these very injunctions of the belligerents, and not by International Law. Although as a rule a State has no jurisdiction over foreign subjects on the Open Sea,[557] either belligerent has, exceptionally, by International Law, the right to punish foreign subjects by confiscation of cargo, and eventually of the vessel itself, in case their vessels break blockade, carry contraband, or render unneutral service to the enemy; but punishment is threatened and executed by the belligerents, not by International Law. Therefore, if neutral merchantmen commit such acts, they neither violate neutrality nor do they act against International Law, but they simply violate injunctions of the belligerents concerned. If they choose to run the risk of punishment in the form of losing their property, this is their own concern, and their neutral home State need not prevent them from doing so. But to the right of belligerents to punish subjects of neutrals for the acts specified corresponds the duty of neutral States to acquiesce on their part in the exercise of this right by either belligerent.