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PART II. OBLIGATIONS AS A NEUTRAL

TOWARD BELLIGERENTS

CHAPTER VII. INTRODUCTORY The obligations of neutral states have been classified by Holland' as obligations of (1) abstention, (2) acquiescence and (3) prevention. To these Lawrence” adds two, the duties of (4) restoration and (5) reparation.

(1) The obligations of abstention peculiar to neutrality relate to matters which the state itself must obstain from doing, and are outside of the jurisdiction of municipal law. Whether a state by performing its duties of abstention shall remain a neutral, or whether by refusing to perform them it intervenes and thus itself becomes a belligerent is a question which is always to be determined by the political departments of the goverment. Municipal law can not in any way effect the power of the state thus to exercise its sovereignty. It may be noted that certain acts of abstention are specifically required by one of the Hague conventions of 1907. Thus neutral states are required to abstain from partiality in dealing with belligerents, from supplying belligerent powers with “warships, ammunition, or war material of any kind,” and from partiality in applying “conditions, restrictions and prohibitions” upon the admission of belligerent warships or prizes into their territorial waters. By the constitution* treaties are declared to be a part of the law of the land; consequently these provisions might be regarded as rules of municipal law. In reality, as they are directory upon the state itself they can not be enforced by any regularly constituted state authority, so scarcely deserve that title. They are rules directory upon the political organs of government, but are not enforceable rules of municipal law. The duties of obstention discussed under the law of peace likewise apply to states in time of neutrality.

1T. E. Holland, Neutral Duties in Maritime War, Proceedings of the British Academy, 2;2, quoted Moore's Digest, 7;863.

2T. J. Lawrence, The Principles of International Law, 4th ed., N. Y., 1910, p. 629.

3 Hague Conventions, 1907, v, art. 9, xiii, arts. 6, 9.
4 Constitution, art. vi, sec. 2.

(2) The neutral state's obligations of acquiescence are entirely passive. They require the state to submit without protest to incidental inconveniences and detractions from its ordinary rights under international law caused by the operation of acknowledged privileges of belligerents. The most prominent of these inconveniences is the loss to its subjects which results from the exercise of belligerent rights in interfering with maritime commerce such as the right of visit and search, seizure, and confiscation after adjudication for breach of blockade, contraband trade, unneutral service and similar acts. A neutral state must also acquiesce in occasional losses by its citizens resident in belligerent countries, when such losses are incidental to the conduct of hostilities. The duty of acquiescence simply requires the acknowledgment by the neutral state that the ordinary rights of its citizens under international law are modified in their relations with a belligerent community or state. The form which a breach of this duty would take would be the making of unwarranted diplomatic protests or intervention. As in the case of abstention both of these acts are prerogatives of sovereignty and incapable of limitation by municipal law. The duties of acquiescence connected with exemptions from territorial jurisdiction and servitudes apply to states in neutrality as well as in peace.

(3) The duty of prevention requires a state to prevent unneutral acts by its citizens and agencies of government, and the unneutral use of its territory. It is in this field that municipal law is most essential for the preservation of neutral obligations.

(4) The duty which Lawrence has in mind when he speaks of

“restoration” is the duty which a neutral state is under to restore to the original owners prizes captured in its waters or illegally brought to its ports. It seems that the use of the term restoration as describing this duty is unfortunate as it implies that the duty is one owed to the power to whom the prize is restored. If this were true, if the owner of the vessel captured in violation of neutrality had a right to its restoration, he could make his claim if the vessel were in the custody of a belligerent as well as a neutral prize court. This, however, is not the case. It is a recognized principle that the owner of the vessel can not claim restoration in a belligerent prize court, on the ground that the seizure was in violation of the neutrality of a third state. The

5 Lawrence, op. cit., p. 649.

“A capture within neutral waters is, as between enemies, deemed to all intents and purposes rightful; it is only by the neutral sovereign that

а

prize is restored not as a reparation to the state from which it was taken, but as a vindication of its own neutral rights by the neutral state.? Like international cooperation and the extradition of criminals, it is an obligation growing out of the general interest of humanity which requires the greatest possible restriction of the area of war. Unlike them, however, it is a duty required by international law even in the absence of treaty stipulations, and reparation may be demanded in case of failure to observe it. We will therfore include the duties which Lawrence discusses as duties of “restoration" in the subject obligations of vindication.” There are other obligations which will logically be included in this subject, such as that to intern belligerent troops entering neutral territory and to enforce observation of the twenty-four hour stay and twenty-four hour interval rules by belligerent vessels taking asylum in its ports.

(5) The duty of reparation refers to the obligation which a neutral state is under to make suitable amends to the injured belligerent for a failure to perform any of its other duties as a neutral. The reparation may assume the forms of payment of damages, restoration of property or public apology. The payment by Great Britain of the Alabama claims award in 1871 is a classic

its legal validity can be called in question; and as to him only it is to be considered void." The Ann, 3 Wheat. 435, 447, (1818). See also, The Adela, 6 Wall. 266, (1867); The Sir Wm. Peel, 5 Wall. 535; The Lilla, 2 Sprague, 177; The Florida, 101 U. S. 37, (1879). English cases, The Eliza Ann, 1 Dods. 244, (1813); The Purissima Conception, 6 Rob. 45, (1805); The Diligentia, i Dods. 404, 412, (1814); The Etrusco, Lords, 1795, 3 Rob. 31; The Vrouw Anna Catherina, 5 Rob. 144. See Scott, Cases, pp. 684691; Moore's Digest, 6;1000, 7;511,1089.

?If the property has been captured within the jurisdiction of the neutral, the neutral “may indeed inflict pecuniary or other penalties on the parties for such violation; but it then does it professedly in vindication of its own rights, and not by way of compensation to the captured.” La Amistad de Rues, 5 Wheat. 385. See also La Estrella, 4 Wheat. 298, (1819); The Santissima Trinidad, 7 Wheat. 283,496. Fenwick, op. cit. p. 90, says: “Where vessels have been fitted out and armed or have increased their force, in violation of the neutrality of the United States, the courts of the United States will intervene to effect a restitution of prizes captured by such vessels, not because the capture is illegal as between the captor and the former owner, but because the neutral state has the right to vindicate its own sovereignty by divesting possession of property acquired as the result of a violation of its sovereignty."

8 Commodore Stewart's Case, i Ct. Cl. 113, (1864), Scott, 910. Infra p. 134, note 25.

example of the performance of this duty. There are no duties of reparation peculiar to the law of neutrality. The provisions of United States law enforcing this duty in time of peace apply equally well to the enforcement of obligations arising in time of neutrality.

We will then consider the municipal measures enforcing the obligations of the United States as a neutral under two heads, (1) the obligations of prevention, and (2) the obligations of vindication.

It is probably desirable to present in more detail the basis of distinction between these two classes of duties. The duty of prevention differs from the duty of vindication in that the former relates to certain obligations a neutral state is under in reference to its own subjects and territory, while the latter is concerned with the treatment of foreign subjects and agencies of government. International law does not define the means which a state must take in performing its duties of prevention. It is of no international importance whether it chooses to control its subjects and the use of its territory by means of criminal penalties, requirements of bonds or other guarantees, or the use of military force; so long as it exercises “due diligence” or “the means at its disposal," the methods are entirely a matter of internal policy. On the other hand, in performing the duty of vindication the state is dealing with persons who are not its own subjects. It is really acting as an agent of the society of nations to adjudicate a breach of international law. Consequently that society is interested in the method of treating these violators of international duty, and specifies in international law that illegal prizes shall be restored, belligerent troops shall be interned, vessels illegally in ports shall be expelled or sequestrated, etc.

In general, therefore, the municipal rules enforcing duties of prevention consist of rules supplementary to international law, while those enforcing duties of vindication consist of rules of international law which are also rules of municipal law.

It may be added that the same act may entail obligations of both kinds. A neutral state may be required to prevent a specified infraction of its neutrality. If it is unsuccessful in preventing this act, it may be required to vindicate its neutrality in a particular manner. Thus a neutral state is under an obligation to prevent hostilities in its territorial waters. Yet if a prize is there taken in spite of its efforts, the duty of vindication requires it to adjudicate this prize and restore it to its situation before capture.

CHAPTER VIII. OBLIGATIONS OF PREVENTION.

TREATY PROVISIONS

(1) The United States has recognized certain duties of prevention as incumbent upon it by treaty. Many of the early treaties of the United States contain an article stipulating for the preservation of "perpetual peace and amity” between the two parties. In Henfield's case, which arose in 1793, such provisions in the treaties with Netherlands, Prussia', and Great Britainwere made one of the bases for the government prosecution of a person accused of accepting a commission from France who was at war with these countries. General principles of international law were also relied on in the case, but the main support for the indictment seemed to be that Henfield's acts were prohibited by these treaties, which were law in the United States. Though the court accepted this view at that time, it is clear that criminal indictments could no longer be supported under such general treaty provisions, and as a matter of fact few treaties now in force contain the perpetual peace and amity clause in the mandatory form it assumed in the early treaties.

By another common provision in early treaties the contracting parties bound themselves when neutral to prevent their

1As an example of this kind of treaty may be mentioned that with France, in force from 1778 to 1798, which said, "There shall be a firm, inviolable, and universal peace and a true and sincere friendship between" etc., Malloy, p. 469. The same phrase introduces the treaty with Sweden of 1783, p. 1725; with Prussia, 1785-1796, p. 1477; with the Netherlands, 1782-1795, p. 1234; with Great Britain, 1794, P. 591. Most of these treaties have been abrogated or superseded and the more recent treaties generally relate to particular subjects such as commerce, extradition, consular privileges, etc., and do not contain the specific peace and amity clause. This, however, is not universally true. The treaty with Spain of 1902 begins with an article of the character formerly so common, p. 1701.

2 In re Henfield, Fed. Cas. 6360, (1793).
3Treaty with the Netherlands, 1792-1795, art. 1, Malloy, p. 1234.
4 Treaty with Prussia, 1785-1796, art. 1, Malloy, p. 1477.
5Treaty with Great Britain, 1794-1807, art. 1, Malloy, p. 591.

6U. S. vs. Worral, 2 Dall. 384, (1798); U. S. vs. Hudson, 7 Cranch 32, (1812).