Toleration
of operations
of war

Neutral

persons and property

century." Research in International Law, Rights and Duties of Neutral States in Naval and Aerial War (Harvard Law School), 33 A.J.I.L. Supp. (1939) 167, 341–342.

Article 18 of the Declaration of London provides:

"The blockading forces must not bar access to neutral ports or coasts." 1909 For. Rel. 322.

ARTICLE 18. A belligerent shall not engage in hostile operations on, under or over the high seas so near to the territory of a neutral State as to endanger life or property therein.

ARTICLE 19. A belligerent shall not permit its warships or military aircraft to hover off the coasts of a neutral State in such manner as to harass the commerce or industry of that State.

Research in International Law, Draft Convention on Rights and Duties.ofNeutral States in Naval and Aerial War (Harvard Law School), 33 A.J.I.L. Supp. (1939) 175, 343, 348.

With respect to the hovering of belligerent warships off neutral waters, see ante, pp. 200-201.

Because of the mere existence of war-war being a legitimate status-a neutral state is under obligation to tolerate certain acts by the states engaged in the war which in time of peace it would not allow. The belligerent claims the right to put his opponent beyond the power of resistance, and, in the prosecution of this end, claims the right to prevent any action by neutrals which, by making it possible for his opponent to resist longer or more effectively, would hinder the attainment of his object. Such acts of interference, commonly tolerated by the neutral, are visit and search of neutral private vessels, seizure for carriage of contraband, violation of blockade, or on the ground of unneutral service, and the exercise of certain forms of military authority.

In time of war, military authority may be exercised over neutral persons and property in the belligerent's own territory and upon the high seas; in time of military occupation, it may also be exercised within the territory of his opponent.

Wilson, Handbook of International Law (3d ed., 1939) 481–482.

With respect to belligerent interference with neutral commerce, see chs. XXII and XXIII of this Digest.

A belligerent has no duty to pay compensation for damage to a neutral vessel or other neutral property or persons, when such damage is incidental to a belligerent's act of war against the armed forces of its enemy and not in violation of the provisions of this Convention or of the law of war.

Research in International Law, Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War (Harvard Law School), art. 22, 33 A.J.I.L. Supp. (1939) 167, 386.

"... international tribunals have frequently found difficulty in distinguishing between cases of requisition and cases of incidental damage to or destruction of neutral property in the course of belligerent operations. The famous case of the German sinking of the British colliers in 1870 ...

will illustrate the possibilities of confusion. It is possible to analyze that case by saying that the Germans first requisitioned the colliers and then used them to obstruct the river. On the other hand, one may regard the German action merely as a destruction of neutral property as a war measure to hinder the enemy forces, as where trees are felled to form an obstruction. A clear case exemplifying the type of situation which falls within this article is one where a building belonging to a neutral happens to be situated in the line of fire and is incidentally destroyed by artillery fire directed at enemy forces or positions. The precedents show clearly that in this latter case a belligerent is not liable to pay compensation. It is, therefore, believed that the instant article states a rule of existing international law. The difficulty is largely a factual one and the question of the belligerent's liability to pay compensation must be determined by ascertaining whether a particular act falls under Article 21 (requisition) or under Article 22 (incidental damage due to acts of war). The instant article makes one reservation to the general principle of non-liability; if the act of war is itself illegal, then the belligerent is liable for damages. An example would be found in a case where a belligerent warship attacked an enemy warship in neutral waters and incidentally injured a neutral vessel which was within the range of fire." Ibid.

With respect to responsibility of the belligerent in case of injury suf. ferred by neutrals as a consequence of military operations, see ch. XVIII, §§ 535-537, and ch. XX, §574, of this Digest.

...

abstain

". . . A belligerent who conquers enemy territory must from treating neutral subjects and property established on enemy territory more harshly than the laws of war allow; for, although neutral subjects and property, by being established on enemy territory, have acquired enemy character, nevertheless they have not lost the protection of their neutral home State. He must, lastly, pay full damages in case he exercises his right of angary against neutral property in course of transit through enemy territory." II Oppenheim's International Law (6th ed., by Lauterpacht, 1940) 539.

VIOLATION OF NEUTRAL RIGHTS

§658

Secretary Lansing wrote with respect to the attitude which a neutral government should take in case of violation of neutral rights:

prevent

When... the acts of belligerent[s] seriously infringe the rights of neutrals, a neutral government cannot permit such acts Neutral to be passed over in silence. It is a duty, which a government protest and owes to its citizens and for which it was established, to protest attempt to against such violations and to endeavor to prevent their repetition. Without passing upon the question as to whether new conditions have made certain belligerent acts, previously condemned, justifiable, or upon the question as to whether they are warranted by way of retaliation for alleged lawlessness on the part of the enemy, a neutral is bound to decide as to their legal character if they impair recognized neutral rights, and in reach

ing a decision it can only apply existing rules, even though they seem obsolete and insufficient.

Memorandum by Secretary Lansing, Dec. 1, 1916, MS. Department of State, file 763.72111/43321⁄2; I The Lansing Papers, 1914-1920 (For. Rel.: 1939) 227, 230.

See Hall's International Law (8th ed., by Higgins, 1924) 740-741.

Early in the World War of 1914-18 there were criticisms of the Government of the United States for its failure to protest against violations of the Hague conventions by both belligerents. Mr. Lansing suggested, and President Wilson agreed, that the following reasons be given for not protesting:

Second. Barring cases where the rights of a neutral or its citizens are unaffected [affected] by a violation of the provisions of the Conventions there is nothing in The Hague Conventions which imposes upon a neutral government the duty to act on its own initiative in a judicial capacity and pass upon charges of violation of a treaty nor grant the authority so to act at the instance of an injured party. The propriety of such action, therefore, depends upon the character of the undertakings entered into by the signatories to the Conventions. If they are joint in nature, they may be construed as imposing an obligation to investigate charges; if they are several in nature, no such obligation is implied.

Third. It is a matter of doubt, therefore, whether this Government should act in regard to a violation of The Hague Conventions unless the rights of the United States or its citizens are impaired by the violation. While the form of The Hague Conventions is that of a joint undertaking, the adoption of the form may be considered (and I think rightly) to have been for the sake of convenience, and not for the purpose of binding the parties to joint action in case of violation by one of them in a war with another signatory. That is, the same end would have been attained had each of the parties entered into an identical treaty with each one of the other signatories. To avoid this cumbersome method with the attendant repetition of ratifications and exchanges, the form of The Hague Conventions and provisions for deposit of ratifications were adopted. I think that this view is borne out by the provision which occurs in each Hague Convention of 1907 that any one party may denunciate the Convention but such denunciation shall only have effect in regard to that power. If this view of the several character of the undertakings by a signatory is correct the United States is in no position to protest or demand an explanation of an alleged violation unless its rights or those of its citizens are affected.

The Acting Secretary of State (Lansing) to President Wilson, Nov. 23, 1914, MS. Department of State, file 763.72111/1072a; I The Lansing Papers, 1914-1920 (For. Rel.: 1939) 35, 36.

The Harvard Research in International Law suggests, as a proposition which "does not purport to be declaratory of international law but ... does not lack precedents in its support" and which has received the support in principle of many writers on international law, that "every neutral State has a direct interest in the observance by belligerents of the law defining neutral rights, and a violation by a belligerent of a neutral right of one neutral State constitutes a violation of a neutral right of all neutral States". Research in International Law, Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War (Harvard Law School), art. 114, 33 A. J. I. L. Supp. (1939) 175, 788, 789.

The view has been expressed that a neutral has a duty to prevent violations of its neutrality by one belligerent to the injury of the opponent, and to protest and secure redress in case of such violations.

A neutral state which overlooks such violations of its neutrality as it can rightly be expected to prevent, or which neglects to demand reparation in the appropriate cases, becomes itself an active offender. It is bound therefore to give satisfaction in some form, if satisfaction be required, to the belligerent whose interests have been prejudiced by its laches. The nature of this satisfaction is of course a matter for agreement between the parties.

Hall's International Law (8th ed., by Higgins, 1924) 747–748.

See also II Oppenheim's International Law (6th ed., by Lauterpacht, 1940) 614.

For example, article III of Hague Convention XIII provides: "When a ship has been captured in the territorial waters of a neutral Power, this Power must employ, if the prize is still within its jurisdiction, the means at its disposal to release the prize with its officers and crew, and to intern the prize crew." 2 Treaties, etc. (Malloy, 1910) 2352, 2359; 36 Stat. 2415, 2427. See also ante, ch. XXIII, §639.

Article V of Hague Convention V on the rights and duties of neutral states in case of war on land states that a neutral state is not called upon to suppress "acts in violation of neutrality" unless said acts have been committed on its own territory. Concerning the use of the term acts in violation of neutrality, Colonel Borel, in the report to the Conference by its Second Commission, on rights and duties of neutral states in case of war on land, said that

it would be impossible to make here a complete enumeration of all acts that might be considered in violation of neutrality, and therefore it must be left to the neutral State to do as much more as it deems necessary, in this respect, either in its neutrality proclamation or otherwise.

Scott, Reports to the Hague Conferences of 1899 and 1907 (1917) 538, 541; I Deuxième Conférence Internationale de la Paix: Actes et documents (The Hague, 1907) 140.

Retaliation

It certainly can not be said that international law imposes upon a neutral a duty to resort to retaliatory acts in response to the illegal conduct of a belligerent. It is not even clear that a neutral is under a duty to protest against illegal belligerent conduct. Aside from the law of neutrality, it is not believed that international law imposes upon a State a duty to protest against illegal conduct of which it is the victim. A State may, if it chooses, ignore the offense, without giving to any other State a right to protest against its forbearance. This is true because international law has not yet reached the point of development where every breach of the law is considered to be a matter of common concern. "Up to this time breaches of international law have been treated as we treat wrongs under civil procedure [as contrasted with criminal procedure], as if they concerned nobody except the particular nation upon which the injury was inflicted and the nation inflicting it. There has been no general recognition of the right of other nations to object." Elihu Root, "The Outlook for International Law," Proceedings of the American Society of International Law, 1915, p. 8.

Research in International Law, Draft Convention on Rights and Duties of Neutral States in Naval and Aerial War (Harvard Law School), 33 A.J.I.L. Supp. (1939) 175, 334.

As in the case of retaliatory acts adopted in time of peace, the State resorting to such a measure of self-help [acts of reprisal and retaliation] must justify its conduct by showing the illegality of the action against which it complains. If it acts without such justification, its action is illegal under general principles of international law and without reference to the particular law of neutrality. If the retaliating State, however, pretends to be neutral, it is under a double burden since its conduct may be challenged both under the general rules and under the special rule of neutral impartiality. It is obvious that a neutral may not excuse its partial conduct merely by characterizing it with the label of retaliation, reprisal or retorsion.

It is also necessary to point out that the neutral State's retaliatory measure must not be a violation of any absolute neutral duty.

Ibid. 330.

If the partial or discriminatory treatment meted out to a belligerent is a retaliatory act adopted by the neutral because of previous injury by the illegal action of that belligerent, the conduct of the neutral is generally regarded as justified and is not deemed a violation of the neutral duty of impartiality.

See ibid. 329-334. This is also recognized by the second paragraph of article IX of Hague Convention XIII of 1907, 2 Treaties, etc. (Malloy, 1910) 2352, 2360; 36 Stat. 2415, 2428.