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RELATIONS OF NEUTRAL STATES AND BELLIGERENT
125. GENERAL PRINCIPLES OF THE RELATIONS BETWEEN
(a) To belligerent troops.
(d) Sojourn of vessels.
$ 125. 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.”i Equally incontestable is the right of a belligerent state to demand that a state
1 Wheat., D., p. 509.
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 unimpared. As the neutral is at peace with the bellig. erents, 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.” 1
§ 126. Neutral Territorial Jurisdiction One of the earliest principles to receive the sanction of theory and practice was that of the inviolability of territorial 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.
(a) The troops of a belligerent may not engage in hostilities in the land of a neutral.
(6) Belligerent persons who enter neutral land for warlike purposes, whether actually committing hostili. ties or merely organized for such purpose, should be interned - at points as far removed as possible from the theater of war.” Those entering for asylum to escape death or captivity should be similarly treated.
1“ Internat. Law,” Naval War College, p. 118.
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 are many examples of this practice before the nineteenth century. Article LIX 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 state, so as to insure their not taking part again in the military operations.”
(c) The rules applicable to the maritime jurisdiction of a neutral are somewhat different from those of the land. The neutral does not control with the same absolute 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.1
The waters which appertain more strictly to the exclusive jurisdiction of the neutral, such as harbors, ports, enclosed bays, and the like, are subject to the municipal laws of the neutral.2 Asylum in case of
1 Case of the “Gen. Armstrong," 2 Whart., § 227; the “Anne,” 3 Wheat., 435; 3 Whart., $ 399.
2 Perels, “ Droit Maritime," $ 39,
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 are now often announced in the proclamations of neutrality, as was the case in the war of the United States and Spain in 1898.
(d) Neutral territory may not be used as the base of military operations or for the organization or fitting out of warlike expeditions.
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.” 1 This would 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.”2 A second act of this kind might constitute the neutral territory a base of military operations.
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 shipped elsewhere as mer. chandisė. Off the island of Terceira, belonging to Portugal, they were stopped by English vessels within
13 C. Rob., 164. 2 Hall, $ 221, p. 627.
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.
§ 127. 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
13 Phillimore, 287–299.
2 Hall, $ 222, p. 631. For the case of the “Caroline," see Appendix, p. 434.