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Classification of unneutral acts
Acts which need not be forbidden
Trade in contraband articles
Exception in case of armed vessels
Summary of present law
Loans of money
Subscriptions of money and expressions of opinion....
THE CHARACTER AND SCOPE OF NEUTRALITY LAWS.
International law deals with the relations between states. It con- Divisions of international sists in those generally accepted rules of conduct which nations conlaw. sider so far binding upon themselves in their relations with one another as to lead them actually to abide by them in their general practice. The traditional division of these rules by writers of international law has separated them into two general classes, those dealing with the relations of states in time of peace, and those regulating the conduct of states in time of war. The rules belonging to this latter class possess, in the history of international law, a far more important place than the rules prevailing between nations at peace. The reason for this apparently unnatural emphasis upon the rules of war is evident when we consider that, until within modern times, nations have been much more ready to cut the Gordian knot of disputed rights by a resort to armed force than to discuss amicably the justice of the right in question.
But even in their resort to armed force as the arbiter of their quar- Law of war. rels, civilized nations have recognized that there was a limit to the extent to which that force might be applied. If, in principle, the object of war is to overcome the opposition of one who refuses to grant us our rights, and if war is a means, not an end, if it is entered upon from necessity, not from choice, it follows that the operations of war are justified only in so far as they tend in fact towards the attainment of that object. But whether this principle was dimly or clearly present to the conscience of warring nations, the widespread misery, both on the part of the combatants themselves and on the part of non-combatants, attending the resort to armed force as a means of obtaining rights and redressing wrongs, forced upon civilized nations a recognition of the necessity of limiting, as far as possible, the accidental suffering caused by war, if the inherent and inevitable suffering could not be avoided. There has thus grown up between nations the apparently paradoxical system of rules called the "law of war."
From a scientific point of view the rules of international law might more properly be divided into the rules defining the fundamental
rights and duties of nations,
e rules relating to the procedure hough adopted by nations for the assertion of rights and the redress of wrongs. The former division would embrace the old "law of peace," the latter the old "law of war" with such other methods of procedure of a pacific character which have come in recent years to commend themselves to the moral sense of civilized nations. Taken thus, war may be regarded as an international method of procedure for the enforcement of rights and for the redress of wrongs. However improper a method it may be at times from the standpoint of justice and morality, international law recognizes it as a legal means of coercing an alleged offender.
Law of neutrality. Divisions.
Duty of abstention.
In thus acknowledging the legality of war, international law at the same time recognizes that the existence of war not only affects the rules normally prevailing between the parties to the conflict, but that it imposes new duties upon other states not themselves involved in the war. These new duties imposed upon states not involved in the war are deducible from the nature of the remedy resorted to by the parties to the conflict. War is the settlement of an international dispute on the basis of superior physical force. It is evident that states not parties to the dispute must either maintain an attitude of neutrality or else be drawn themselves in the conflict. Assuming, then, a desire on the part of third parties to keep aloof from the war, certain obligations necessarily devolve upon them. These obligations are based upon a two-fold principle: First, that neutrality demands an entire abstinence from all direct participation in the conflict; and secondly, that it demands an attitude of absolute impartiality towards the belligerents in all matters not connected, or only indirectly connected, with the war.
With regard to the first point it must be observed that to abstain from all participation in the conflict is something more than the mere impartial treatment of the contending parties, which would not be contravened by giving equal help to both. The principle of abstention is based upon a recognition that while it may be theoretically possible to give equal help to both contending parties, it is practically impossible to do so. Assistance of a certain kind to one party might be of far greater help to him than similar assistance might be to the other party. Moreover, the obligation of abstention from participation in the war imposes upon the neutral state active as well as passive duties. It is not merely sufficient for the neutral state to refrain from giving help to either of the parties by any positive acts of assistance on its own part, but it must take active steps to
prevent either of the belligerent parties from gaining an advantage over the other by making use of the territory of the neutral state, and to prevent private persons, whether aliens or its own citizens, from coöperating with a belligerent in the use of neutral territory for hostile purposes.
With regard to the second point, it must be observed that war does Duty of not interrupt, in principle, the previous friendly relations between impartiality. belligerent and neutral states. But in so far as the friendly relations of times of peace incidentally produce effects which in time of war would amount to assistance from the neutral to the belligerent state, they must necessarily to that extent be interrupted. There are, however, certain acts of friendliness on the part of neutral towards belligerent states, such as the furnishing of war-ships with limited supplies of food, coal, etc., which are permitted in spite of the fact that they involve a certain amount of indirect assistance to the belligerent. Just where the line is to be drawn between direct and indirect assistance, and accordingly just what acts of friendliness are still permissible on the part of neutrals towards belligerents, has not been determined by any principle but has been worked out synthetically by the practice of nations. But whatever the neutral is permitted to do, it must do with equal readiness for both belligerents; the strictest impartiality is here the test of neutrality.
It will not be assumed that the two fundamental principles of Growth of law neutral duty just defined have always been recognized by nations, of neutrality. Universally as they are accepted to-day, they have won their position in the body of international law only after centuries of dispute between belligerents and neutrals. The history of the development of the rights as well as of the duties of neutral nations forms one of the most striking instances of the growth of law between nations. We are not here concerned with the rights of neutral states except in so far as they are connected with the fulfilment of neutral duties; it is merely sufficient to note the significant fact that the neutral states which have been most energetic in the assertion of the rights of neutrality have been generally those most ready to fulfill its duties. A brief sketch of the growth of the recognition of neutral duties will be here in place, in so far as it is necessary to throw light upon the meaning of the two fundamental principles above stated.1
For a history of the growth of the law of neutrality with respect to neutral rights as well as neutral duties, see Hall, International Law (6th ed.), 571-587. An earlier and carefully reasoned chapter of the same work discusses the growth of the underlying principles of neutrality, 71-81. See also Walker, The Science of International Law, 374-526.
As late as the year 1625 the rights and duties of neutral states were so imperfectly defined that in his famous treatise on the Law of War and Peace Grotius did not deem it necessary to consecrate more than a brief chapter to the status of those whom he described by the expressions qui in bello medii sunt; qui extra bellum sunt positi. In his statement of the duties of those who are at peace with the belligerent parties he shows himself so far dominated by the customs of his age that he takes it for granted that the neutral state should pass upon the justice of the war in progress, and modify its neutral conduct accordingly. "It is," he says, "the duty of neutrals to do nothing which may strengthen those who are prosecuting an unjust cause, or which may impede the movements of him who is carrying on a just But if the cause is a doubtful one they must manifest an impartial attitude towards both sides, in permitting them to pass through the country, in supplying their troops with provisions, and in not relieving the besieged." It is evident that the concept of a legal status of neutrality, in which a neutral state, acknowledging the sovereignty and equality of the states in conflict, regulates its conduct. irrespective of its sympathy for or its belief in the justice of the cause of either of them, had not yet come to be understood. In fact, until the close of the seventeenth century the greater part of the duties of a neutral state were determined not by fixed international custom but by treaties between individual states, by which each state sought to prevent third parties from giving help to the enemy in the event of a possible war. How little the principle of absolute abstention on the part of neutrals from all participation in the war was recognized may be seen in the fact that it was not regarded at that period as inconsistent with neutrality for a neutral state not only to grant an impartial permission to both belligerents to raise troops within its territory, but to grant this permission to one belligerent, while refusing it to the other, in cases where the neutral state had, prior to the war, entered into a treaty stipulating that such levies might be raised. As for the modern duty imposed upon neutral states of actively preventing violations of their sovereignty by the belligerents and of seeking redress for such violations after they have taken place, powerful belligerents were so in the habit of performing acts of war within the territory 1De Jure Belli et Pacis, lib. III, cap. XVII, 3.
2 Hall cites a number of such treaties ranging in date from the treaty between England and Denmark in 1465 down to the treaty between the same powers in 1686. Op. Cit., 572-573.