OUTLINE OF CHAPTER XXIII RELATIONS OF NEUTRAL STATES AND BELLIGERENT STATES 127. GENERAL PRINCIPLES OF THE RELATIONS BETWEEN STATES. 128. NEUTRAL TERRITORIAL JURISDICTION. (a) Inviolability of neutral territory. (b) Passage of belligerents through neutral territory restricted. (c) Maritime jurisdiction of a neutral. (d) Neutral territory as a base of military operations forbidden. 129. REGULATION OF NEUTRAL RELATIONS. (a) Obligation of neutral state to offer asylum to belligerent troops seeking refuge. (b) Right of asylum of a belligerent vessel in a neutral port. (c) Internment of a vessel in a neutral port to escape capture. (d) Ordinary entry depends upon the will of the neutral. (e) Time of sojourn of vessels usually limited to twenty-four hours. (1) Regulation by proclamation. (2) Regulations in regard to vessels with prizes. 130. NO DIRECT ASSISTANCE BY THE NEUTRAL ALLOWED. (a) Military assistance on any grounds not now justified. (b) Furnishing of supplies of war not allowable. (c) Loans of money forbidden. (d) Enlistment of troops within the jurisdiction of a neutral state not permitted. 131. POSITIVE OBLIGATIONS OF A NEUTRAL STATE. (a) Obligation to restrain hostile acts. (b) Acts in themselves not necessarily warlike must be judged by inference as to their purpose. CHAPTER XXIII RELATIONS OF NEUTRAL STATES AND BELLIGERENT STATES 127. 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." 1 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." 2 128. Neutral Territorial Jurisdiction (a) One of the earliest principles to receive the sanction of theory and practice was that of the inviolability of territorial Inviolability of neutral territory. 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. 1 Wheat. D., p. 509. 2 "International Law," Naval War College, 2d ed., p. 118. The Hague Convention of 1907 respecting the Rights and Duties of Neutral Powers provides that (1) Neutral territory is inviolable; (2) "Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power." Passage of belligerents (b) 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 through neutral are many examples of this practice before the territory. nineteenth century. Article XIV of the Hague Convention shows the present attitude of states. “A neutral State may authorize the passage through its territory of wounded or sick belonging to the belligerent armies, on condition that the trains bringing them shall carry neither combatants nor war material. In such a case, the neutral State is bound to adopt such measures of safety and control as may be necessary for the purpose." Such persons in neutral territory "must be guarded by the neutral Power, so as to insure their not taking part again in the military operations." 1 (c) The rules applicable to the maritime jurisdiction of a neutral are somewhat different from those of the land. The Maritime a neutral. neutral does not control with the same absolute jurisdiction of 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.2 1 The waters which appertain more strictly to the exclusive Appendix, p. 422. 2 Case of the "Gen. Armstrong," 2 Moore, "Arbitrations," 1071; the "Anne," 3 Wheat., 435; 7 Moore, 510, 512, 617, 1089. jurisdiction of the neutral, such as harbors, ports, enclosed bays, and the like, are subject to the municipal laws of the neutral.1 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 were formerly announced in the proclamations of neutrality, as was the case in the war of the United States and Spain in 1898. They are now quite fully set forth in the Hague Convention of 1907 concerning the Rights and Duties of Neutral Powers in Naval War.2 (d) Neutral territory may not be used as the base of military operations or for the organization or fitting out of warlike expeditions. Neutral terri 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." 3 This would tory as a base 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." 4 A second act of this kind might constitute the neutral territory a base of military operations. of military operations forbidden. 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 1 Perels, "Das Seerecht," § 39. 2 Appendix, p. 444. 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.1 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.” 2 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. 129. 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, as in the Hague Conventions. 1 3 Phillimore, 287-299. 2 Hall, p. 603. For the case of the "Caroline," see Appendix, p. 480. |