130. No Direct Assistance by the Neutral Allowed

The neutral state may not furnish to a belligerent any assistance in military forces, supplies of war, loans of money, or in any similar manner.

(a) Formerly military assistance was often furnished to one of the belligerents by a state claiming to be neutral on the ground that such action was justified by a treaty obligation entered into before the war could be

Military assistance

forbidden.

foreseen. This position was supported by some

of the ablest of the authorities of the nineteenth century,1 but is no longer admitted.

(b) It is generally held that a neutral state may not furnish to one or both of the belligerents supplies of war. As Hall Furnishing of says, "The general principle that a mercantile supplies of war act is not a violation of a state of neutrality, is pressed too far when it is made to cover the sale of munitions or vessels of war by a state." 2

not allowable.

A case that aroused discussion was occasioned by the action of the authorities of the United States conformably to a joint resolution of Congress of July 20, 1868, by which the Secretary of War was to cause "to be sold, after offer at public sale on thirty days' notice, . . . the old cannon, arms, and other ordnance stores . . . damaged or otherwise unsuitable for the United States military service, etc."3 Complaint was made that sales made under this act during the time of the FrancoGerman War were in violation of neutrality. A committee appointed by the United States Senate to investigate these charges reported that sales "were not made under such circumstances as to violate the obligations of our government as a neutral power; and this, to recapitulate, for three reasons: (1) The Remingtons [the alleged purchasing agents of the Wheat. D., § 425; Dana, contra, note 203; 1 Kent Com., pp. 49, 116; Bluntschli, § 759; Woolsey, § 165. 2 Hall, p. 591. 15 U. S. Sts. at Large, 259.

French government] were not, in fact, agents of France during the time when sales were made to them; (2) if they were such agents, such fact was neither known nor suspected by our government at the time the sales were made; and (3) if they had been such agents, and that fact had been known to our government, or if, instead of sending agents, Louis Napoleon or Frederick William had personally appeared at the War Department to purchase arms, it would have been lawful for us to sell to either of them, in pursuance of a national policy adopted by us prior to the commencement of hostilities." 1 This last statement does not accord with the best opinion and doubtless would not be maintained at the present time. The first and second claims might justify the sale, though it would be in better accord with a strict neutrality for a state to refrain from all sale of supplies of war during the period of war between two states, toward which states it professes to maintain a neutral attitude. This, of course, does not affect the rights of commerce in arms on the part of the citizens of a neutral state not residing in belligerent territory.2

(c) The authorities are practically agreed that loans of money to a belligerent state may not be made or guaranteed by a neutral state. This does not, however, Loans of money affect the commerce in money which may be carried on by the citizens of a neutral state not

forbidden.

residing in belligerent territory.3

(d) A neutral may not permit the enlistment of troops for belligerent service within its jurisdiction. This applies to such action as might assume the proportions of recruiting. The citizens or subjects of a neutral state may enter the service of one of

Enlistment of troops not permitted.

the belligerents in a private manner.4

13 Whart., § 391.
Appendix, p. 422.

'Appendix, p. 422.

Appendix, p. 421, Articles IV, VI.

131. Positive Obligations of a Neutral State

Obligation to restrain hostile acts.

(a) Not only must a neutral state refrain from direct assistance of either belligerent, but it must also put forth positive efforts to prevent acts which would assist a belligerent. If a state has neutrality laws, it is under obligations to enforce these laws, and is also under obligations to see that the principles generally recognized by international law are observed. Most states make provision for the enforcement of neutrality. In the United States the President is authorized to employ the land and naval forces or militia to execute the law.1 Jefferson said that, "If the United States have a right to refuse the permission to arm vessels and raise men within their ports and territories, they are bound by the laws of neutrality to exercise that right, and to prohibit such armaments and enlistments." 2 There can be no difference of opinion upon the proposition that a neutral state is bound to restrain within its jurisdiction all overt acts of a character hostile to either belligerent.

Acts in themselves not necessarily warlike.

(b) There are, however, many acts which in themselves have no necessarily warlike character. Whether such acts are in violation of neutrality must be determined by inference as to their purpose. By such acts, as Hall says, "the neutral sovereignty is only violated constructively." 3 These acts vary so much in character and are of so wide a range that the determination of their true nature often imposes severe burdens upon the neutral attempting to prevent them. The destination of a vessel that is in the course of construction may de-. termine its character so far as the laws of neutrality are concerned. If it is for a friendly state which is at peace with all

'U. S. Rev. Sts., § 5288.

21 Amer. State Papers, 116.

3 Hall,

p.

598.

the world, no objection to its construction and sale can be raised. If a subject of a neutral state builds a vessel for one of the belligerents, such an act has sometimes been regarded as a legitimate business transaction, at other times as an act in violation of neutrality. As a business transaction, the vessel after leaving neutral territory is liable to the risk of seizure as contraband. As an act in violation of neutrality, the neutral state is bound to prevent the departure of the vessel by a reasonable amount of care. The line of demarcation which determines what acts a neutral state is under obligation to prevent, and what acts it may allow its subjects to perform at their own risk, is not yet clearly drawn. It is certain that a state is bound to use "due diligence" to prevent the violation of its neutrality. In the case of the Alabama 1 this phrase was given different meanings by the representatives of the United States and of Great Britain. The arbitrators declared that "due diligence" should be "in exact proportion to the risks to which either of the belligerents may be exposed from a failure to fulfill the obligations of neutrality on their part." 2 This definition. is not satisfactory, and the measure of care required still depends upon the circumstances of each individual case, and is therefore a matter of doubt.

The Hague Convention of 1907 concerning Neutral Powers in Naval War provides that:

"ART. VI. The supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of war-ships, ammunition, or war material of any kind whatever, is forbidden. . . .

"ART. VIII. A neutral Government is bound to employ the means at its disposal to prevent the fitting out or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise, or engage in hostile operations, 'Appendix, p. 481. 27 Moore, § 1330.

against a Power with which that Government is at peace. It is also bound to display the same vigilance to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile operations, which had been adapted entirely or partly within the said jurisdiction for use in war." 1 1 1 Appendix, p. 445.