PART III. OBLIGATIONS AS A BELLIGERENT TOWARD NEUTRALS CHAPTER X. INTRODUCTORY. The obligations of neutral to belligerent states have been classified under the five heads, duties of (1) abstention, (2) acquiescence, (3) prevention, (4) vindication, (5) reparation. In order to show the relation of belligerent duties to neutral duties we will consider belligerent duties under the same classification. It must, however, be constantly borne in mind that the position of a belligerent is very different from that of a neutral. A belligerent is always active, while a neutral is passive. Consequently, while it is neutral duties that are prominent, it is belligerent rights which are most noticed. Neutral duties are restrictions upon the ordinary rights of an independent state, while belligerent duties are simply limits set to extraordinary rights. (1) The belligerent's duties of abstention are largely equivalent in substance to a neutral state's duties of prevention. What the neutral is bound to prevent, the belligerent, in most cases, though not always, is bound to abstain from. Thus a belligerent state is bound to abstain from violations of neutral territory and injury to neutral individuals. These duties so far as encumbent upon the state as such are beyond the province of municipal law to control and so beyond the scope of our subject. When a belligerent neglects its duties of abstention, as Germany did in the violation of Belgian neutrality, it is an act of sovereignty for which the state is internationally responsible but which can not be controlled by municipal law. Some duties of this character have been given recognition in treaties and international agreements, but such stipulations are for the most part directed to the political organs of government and constitute political questions which can not be enforced as municipal law. An exception, however, may be made in one case. The duty to abstain from interference with neutral commerce, except as permitted by international law, is enforced by municipal law through the adjudication of all neutral seizures in prize courts. This method of enforcing duties of abstention will therefore be considered. (2) The belligerent's duties of acquiescence relate largely to the neutral's duties of vindication. In performing these duties the neutral state subjects belligerent troops, public vessels and prizes to its jurisdiction in a manner which would be considered as an indignity under ordinary circumstances. These conditions the belligerent must acquiesce in. It must not complain when a neutral interns its troops or ships of war and assumes prize jurisdiction over its captures, provided such acts are required by international law. Acquiescence in such actions or its reverse, however, are acts of sovereignty and beyond the control of municipal law. (3) The belligerent's duties of prevention bear a relation to the neutral's duties of vindication. Acts which the neutral is obliged to vindicate if committed, the belligerent is obliged. to prevent. As the belligerent in exercising rights peculiar to that status comes in contact with neutrals through its army and navy, its duties of prevention require it to exercise control over those agencies of government. It is through this control that municipal law can be most effective in enforcing international obligations of belligerent to neutral states. The municipal means for preventing infractions of international law by such agencies of government will therefore concern us. (4) A belligerent state has no duty of vindication. It is itself the aggressive party in its relations with neutrals and consequently no occasion is apt to arise for vindicating its sovereign rights as against neutrals. Resembling the neutral's duty of vindication is the belligerent's right of self-help, by which it is permitted to requisition the property of neutrals under certain circumstances, to draft resident aliens into its armies and subject them to numerous inconveniences and losses in case of military necessity, to visit and search neutral merchant vessels, and confiscate them in well defined cases. These acts resemble duties of vindication in that they are acts involving foreign individuals and are specifically defined by international law, but they are in no sense duties. No one but the belligerent is benefited by their performance and there will be no violation of international law if they are not performed. It is a belligerent right which is here in question and the accompanying duty is that which is owed to the neutral state to abstain from exceeding these privileges and to prevent an illegal exercise of them by its land and naval forces. These subjects are considered under obligations of abstention and prevention. (5) Reparation is a belligerent duty, but, as noted in the case of a neutral, it is not a duty peculiar to the status of belligerency. It is a duty universally required in cases of breaches of international law. Because of the probability of illegal acts in the heat of war, the question of reparation is particularly prominent in relation to belligerent communities. As examples of reparation by the United States as a belligerent may be mentioned the case of the Florida, in which the United States made public apology for a capture in the territorial waters of Brazil, and the Trent affair, in which the United States restored two confederate officers taken from a British vessel during the civil war.2 As the principles of municipal law relating to the enforcement of this duty are applicable to reparation in all cases, further discussion has been given under that head, in the general division of the law of peace. The obligations of belligerents to neutrals which may be enforced by municipal law will therefore be considered under the two heads, (1) obligations of abstention, and (2) obligations of prevention. In the first case, international law itself defines the obligations which are binding upon the government. Courts in giving effect to such obligations therefore apply international law. In the second case, international law defines the conduct which land and naval forces must pursue in dealing with neutrals, but it does not prescribe the measures which the government must take for enforcing this conduct. The means which may be taken for preventing infractions of international law by agencies of government, are left to the discretion of the belligerent state. They are therefore rules supplementary to international law. 1Case of the Florida; See Moore's Digest, 2;367: 7;1090. CHAPTER XI. OBLIGATIONS OF ABSTENTION. INTRODUCTORY. 3 A number of obligations of abstention have received specific recognition in treaties and international agreements to which the United States is a party, and are therefore according to the constitution part of the law of the land. In the Hague conventions the United States has bound itself to abstain from exercising war rights against neutrals until it has notified them of the outbreak of war,' from committing hostilities in neutral territory or in neutral waters, and from using neutral harbors or territory as bases of naval or military operations or for the undue asylum of war vessels. In special treaties as well as the Hague conventions and the Declaration of London, which, however, is unratified, it has agreed to abstain from injuring neutral individuals in person or property except in accordance with specified rules. Although so far as these rules bind the state they are sanctioned by considerations of policy rather than by municipal law, yet a belligerent acts through its agencies of government, largely its army and navy. The duties of abstention imposed upon it may be to a considerable extent guaranteed by the control of these bodies through municipal law. Looked at from this standpoint the duties in question become duties of prevention. What a belligerent community is bound to abstain from doing, it is bound to prevent its army and navy from doing. Such duties may be controlled by municipal law and will be considered under obligations of prevention. Municipal law may also serve to make the obligations effective through the action of constitutional checks between 1Hague Conventions, 1907, iii, art. 2, Malloy, p. 2266. 4 See treaties guaranteeing "free ships, free goods", infra p. 164, note 106; specifying rules of blockade, infra. p. 149, note 12; freedom of vessels under neutral convoy, infra. p. 182, note 49; freedom of neutral trade, infra. p. 162, note 95, p. 182, note 50; specifications for the exercise of the right of visit and search, infra. p. 182, note 51; and the immunity of resident neutral persons from military service, infra. p. 174, note 9. departments of government. Thus the courts may be given authority to control the action of the executive in seizing neutral property. This situation actually exists in the provisions of municipal law requiring the adjudication of all maritime seizures by prize courts before their confiscation. The judiciary here, by its power to liberate prizes, acts as a check upon the abuse of authority by the executive, and in so far as it actually applies rules of international law in determining prize cases, enforces the belligerent government's duty to abstain from illegally interfering with neutral commerce. It must not, however, be forgotten that the prize court, although it may apply international law, is a court of the belligerent state and is always bound by municipal law. It has no authority as against the sovereign power in its state. It is only over one branch of the government that its authority exists. The fact that the belligerent state controls the prize court, a condition which it was hoped would be remedied by the establishment of an international prize court, inevitably puts the neutral claimant at a disadvantage in litigating, and were it not for the pressure of his own government and the sanctions of international opinion, he would not receive his rights, as is indicated by the distinct difference in the enforcement of neutral rights when most of the great powers are belligerent and when most of them are neutral. It is the belligerent state's duty to make its prize court, in the words of Lord Stowell, "a court of the law of nations".5 Yet as it is a court of the belligerent state the law which it enforces is by definition municipal law. Here therefore we have a case where we should expect to find international law enforced directly as a part of municipal law. We should expect to find the rules applied by prize courts, rules of both international law and municipal law. Both English and American prize courts have on numerous occasions assured us that this is the situation which actually exists, yet with a few cases to the "The Recovery, 6 Rob. 348, (1807). See T. E. Holland, Studies in International Law, p. 196. "Cases asserting that prize courts apply international law. EnglishThe Maria, 1 Rob. 350, (1799); The Recovery, 6 Rob. 348, (1807); The Minerva, (1807); The Fox, Edw. Adm. 312, (1811); Le Louis, 2 Dods. 239, (1817); The Annapolis, 30 L. J. Pr. M. and Ad. 201. See also Phillimore, International Law, 3; sec. 436. For discussion of these cases see Holland, op. cit. 196. The first three of these cases are authority for the view that prize courts must apply international law even when con |