155

RELATIONS BETWEEN BELLIGERENTS, ETC.

191

§ 154.

A treaty of peace begins to bind the parties when it is signed (§ 107, § 149), and to bind individuals of the two belligerent nations when they are notified of its existence. (Compare § 149.) Injuries done meanwhile must be made good by the state to which the person committing the injury belongs. But it is held that captures made after a peace, but before the captor has become aware of it, subject him to a civil suit for damages, and that he must fall back on his government to save him harmless. It is also held that a capture, made before the time for the cessation of hostilities at a particular spot, but with a knowledge that the peace has been concluded, is unlawful, and must be restored; the reason for which rule is, that the limit of time is intended to cover hostile acts performed in ignorance of the new pacific relation.

CHAPTER II.

OF THE RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS.

SECTION I. Of the Obligations and Rights of Neutral States.

§ 155.

THE rights of neutrals have grown up to be an important part of international law in modern times. The ancients Doctrine of nenput the rights of war foremost, and the neutral stood trality of modern chiefly in the passive relation of non-interference. growth. This was owing, in part, to the fact that a system of confederations united the states of antiquity together in war, so that few prominent powers stood aloof from the struggles in which their neighbours were engaged, and in part to the small importance of neutral interests. Things have put on a new shape with the growth of wide intercourse especially by sea, and with the spread of one code of public law over so many powerful states of the world, who, when they have stood aloof from war, have created for themselves rights, or secured the acknowledgment of existing ones. Now, when a war arises between two states, the interests of all neutrals are more affected than formerly; or, in other words, neutral power has increased more than war power, and the tendency is more and more towards such alterations of the code of war as will favour neutral commerce—a change evidently in the direction of peace and of Christian civilisation.

The increasing importance of questions connected with neutrality is shown by the small space which Grotius gives to it, compared with his immense copiousness on many now minor

questions. He devotes a short and trifling chapter to those who are 'medii in bello' (iii. 17), and a section to those who are not parties to a war, and yet supply aid to the combatants (iii. 1, § 5). This, if we are not deceived, is nearly the extent of his doctrine of neutrality. Take up now any of the leading publicists of the last hundred years, and you will find the chapters devoted to this doctrine second to few or none others in fulness and importance. A neutral state is one which sustains the relations of amity to both the belligerent parties, or negatively is a non Neutrals, who? hostis, as Bynkershoek has it, one which sides with neither party in a war. There are degrees of neutrality. Strict neutrality implies that Gradations of a state stands entirely aloof from the operations of neutrality. war, giving no assistance or countenance to either belligerent. Imperfect neutrality may be of two kinds: it may be impartial, inasmuch as both belligerents have equal liberty to pursue the operations of war, or certain operations, such as transit of troops, purchase of military stores, enlistments of soldiers or seamen, within the neutral's territory; or qualified by an anterior engagement to one of the parties, as by a covenant to furnish a contingent of troops, or to place a certain number of ships at his disposal. It is manifest that agreements like these partake of the nature of alliance. The other belligerent then is free to decide whether he will regard such a state as neutral or as an ally of his enemy. If the assistance to be rendered is trifling, and has no reference to a particular case or a war with a particular nation, it will probably be overlooked; otherwise it will expose the nation furnishing the assistance to the hostility of the other. Such was

the agreement of Denmark, put into effect in 1788, in a war between Sweden and Russia, to furnish certain limited succours to the latter. Such, also, are the exclusive privileges, which may have been granted beforehand, of admitting the armed vessels and prizes of one of the belligerents into the neutral's ports.

trality?

A state may stipulate to observe perpetual neutrality towards Permanent neu- some or all of its surrounding neighbours, on condition of having its own neutrality respected. It thus strips itself of its own power of sovereignty, so far forth that it cannot declare war against any of these states except for the act of violating this neutrality. Such is the position of Switzerland -including the provinces of Chablais and Faucigny and all the territory of Savoy, north of Ugine1-and of Belgium, whose neutrality and inviolability of territory were formally recognised; that of the first by the declaration of the allied powers of March 20, 1815, which the federative authorites soon afterwards ac

1 The neutrality of these Sardinian districts does not cease in consequence of their cession to France. Compare Append. II. under 1859.

cepted, and that of the latter by the five great powers on its final treaty with Holland in 1831. The reasons for these arrangements were the welfare of the minor states before mentioned, and the preservation of the peace of Europe; Switzerland furnishes pathways for armies between France and Italy, and Belgium is interposed as a barrier between France and Germany. The free town of Cracow also enjoyed for a while a kind of guaranteed neutrality, before it lost its liberties in 1846.

The position of the neutral gives rise to rights, which may be defended against attempted aggressions of a belli- Armed neutralgerent by armed forces, and several neutrals may ity.

unite for this purpose. This is called an armed neutrality, of which the two leagues of the Baltic powers in 1780 and 1800 furnish the most noted instances. But it may be doubted whether the term neutrality can be applied to leagues like this, which not only armed themselves for self-defence, but laid down principles of public law against the known maxims of one of the belligerents, which they were ready to make good by force. (§ 174, § 191.)

§ 156.

In most wars nations are bound to be neutral, as having no vocation to judge in the disputes of other states, and Obligations of as being already friends to both parties. The obliga- neutrals. tions must be fixed and known, in order to prevent the neutral from slipping into a position to which war between his friends, if he do not keep his ground, must force him. 'The enemies of our

friends,' says Bynkershoek ('Quæst. J. P.' i. 9), 'are to be considered in a twofold light, as our friends and our friends' enemies. If you consider them as friends, we may rightfully aid and counsel them, and may supply them with auxiliary troops, arms, and other things which war has need of. But as far as they are our friends' enemies, it is not permitted to us to do this, for thus we should prefer one to the other in war, which equality in friendship-a thing to be especially aimed at forbids. It is better to keep on friendly terms with both than to favour one of the two in war, and thus tacitly renounce the other's friendship.' The principles from which we start seem to be clear enough; at the same time, for the reason that neutrality is a thing of degrees, and that the practice of nations has been shifting, it is a little difficult to lay down with precision the law of nations in regard to it, as it is at present understood. That law seems to be tending towards strict neutrality.

A just war being undertaken to defend rights, each sovereignty must, as we have seen, decide for itself whether its Neutrals must be war be just and expedient. It follows that impartial. powers not parties to the war must treat both belligerents alike as friends.

Hence no privilege can be granted or withheld from one and not equally from the other. Thus, if transit, or the entrance into harbours of ships of war, for the purpose of refitting or of procuring military supplies, or the admission of captured prizes and their cargoes is allowed to the one belligerent, the other may claim it also. Otherwise a state aids one of its friends in acts of violence against another, which is unjust, or aids a friend in fighting against another party, which is to be an ally and not a neutral. § 157.

But the rule of impartiality is not enough. The notion of neuBut impartiality trality, to say nothing of the convenience of the is not enough. neutral and his liability to be drawn into the war, demands something more. It is not an amicable act when I supply two of my friends with the means of doing injury, provided I do as much for one as for the other. Such a relation is not that of a medius inter hostes, but of an impartial enemy, of a jack on both sides. Moreover, it is impartiality in form only, when I give to two parties rights within my territories which may be important for the one, and useless to the other. The United States in a war between Great Britain and Russia might allow both parties to enlist troops within its borders, but what would such a privilege be worth to Russia? And, indeed, almost every privilege conceded by neutrals would be apt to inure more to the benefit of one than of the other of two hostile nations. A rule of greater fairness would be to allow nothing to the belligerents, which either of them would object to, as being adverse to his interests; but this rule would be subjective, fluctuating, and probably impracticable. A rule, again, expressive of strict neutrality, would prohibit the neutral from rendering any service specially pertaining to war, or allowing his territory to be used for any military purpose by either belligerent. This, if we add the qualification, * unless engagements previous to the war concede some special assistance to one of the parties, which assistance is not of importance enough to convert a neutral into an ally,' would nearly express what is the present law and usage of nations.

§ 158.

But it is necessary to descend to particulars. We shall consider, first, what duties neutrality does not preclude; secondly, what it binds the neutral not to do or allow; and then shall take up by themselves certain actions which are open to doubt. 1. The neutral ought to discharge the duties of humanity to both belligerents, for these are still due even to an humane to both enemy, and are due to persons of no nationality. It parties. is clear that a ship of war in distress may, during

Neutrals must be

war, run into a neutral port, unless there is some special reason to prevent it. So asylum is allowed within neutral territory and waters to a defeated or fugitive belligerent force, and the victor must stop his pursuit at the borders. The conditions, however, according to which refugees shall be received are not absolutely settled. In the case of troops fleeing across the borders, justice requires that they shall be protected, not as bodies of soldiers with arms in their hands, but as individual subjects of a friendly state; they are, we believe, in practice generally disarmed, and supported in their place of shelter at the expense of their sovereign. The other course would be unfriendly, as protected soldiers might issue forth from a friend's territory all ready for battle; and would also tend to convert the neutral soil into a theatre of war. In the case of ships of war running into neutral waters in order to escape from an enemy, to demand that they shall either be disarmed, like fugitive troops, or return to the high seas, seems to be a harsh measure, and unauthorised by the usages of nations. An instance of such harshness occurred in a recent war between SchleswigHolstein and Denmark. A small war-steamer, belonging to the former party, ran for safety, in July 1850, into the waters of Lübeck, which was on friendly terms with both belligerents. The senate of Lübeck had given orders that vessels of war of either party, appearing within its jurisdiction, must lay down their arms, or depart beyond cannon-shot from the coast. The lieutentant commanding the steamer chose the latter alternative. In justification of its conduct, which was impartial, Lübeck only pleaded that the neutral, in regard to the rules of hospitality, must consult its own interests, and that small states, in order to have their character for neutrality respected, must observe in everything which relates to war itself the stricter rules of neutrality.' They would receive, they said, vessels of the belligerent parties only when escaping the perils of the seas, and then only whilst such perils lasted. The analogy from the practice of disarming fugitive troops does not hold here. If the ship is driven out at once, it goes where a superior force is waiting for it; if it remains disarmed, the expense and inconvenience are great.1

$159.

The same spirit of humanity, as well as respect for a friendly power, imposes on neutrals the duty of opening their May admit ports to armed vessels of both belligerents, for pur-. vessels of war of poses having no direct relation to the war, and equally

the belligerents.

1 Von Kaltenborn, author of the Vorlaufer des Hugo Grotius, published at Hamburg, in 1850, a brochure, entitled Kriegsschiffe auf neutralem Gebiete, from which these facts are drawn; and which, while occupied with an examination of this particular case, contains an excellent summary of the rights and duties of neutrals on their own territories.