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use in order to prevent within its jurisdiction certain classes of acts, from which harm might accrue to foreign states or their citizens, must always (unless specifically determined by usage or agreement) be dependent, more or less, on the surrounding circumstances, and can not be defined with precision in the form of a general rule. It would commonly, however, be unreasonable and impracticable to require that it should exceed that which the governments of civilized states are accustomed to employ in matters concerning their own security or that of their own citizens.’
"The tribunal in its award said:
"The due diligence referred to in the first and third of the said rules ought to be exercised by neutral governments in exact proportion to the risks to which either of the belligerents may be exposed, from a failure to fulfil the obligations of neutrality on their part; and the circumstances out of which the facts constituting the subjectmatter of the present controversy arose were of a nature to call for the exercise on the part of Her Britannic Majesty's Government of all possible solicitude for the observance of the rights and duties involved in the proclamation of neutrality issued by Her Majesty on the 13th day of May, 1861."
Davis, Notes, Treaty Volume (1776-1887), 1363-1365.
For further discussions of the phrase due diligence," see Moore, Int.
The three rules of the treaty of Washington were at the very outset discredited in England by the declaration inserted in the treaty that Her Majesty's Government, while agreeing to them as rules of decision, could not assent to them as a statement of principles of international law which were in force at the time when the Alabama
claims arose. As the result of this declaration the view was generally accepted, in spite of the opinions which Sir Roundell Palmer and others had expressed to the contrary, that the rules as a matter of course imposed upon Great Britain as a neutral new and intolerable burdens; and when the adverse award was rendered it was generally ascribed to this cause, though it was also supposed that the arbitrators had in their award so interpreted the rules as to make them even worse than they were in their naked form. Nor was indiscriminate criticism of this kind confined to England. In the United States adherents of the theory that a loose and nominal neutrality, gauged by convenience and inclination, is the kind most conducive to international peace, as well as those who, while taking a more rigid view of the duties of neutrality, thought the rules too sweeping, began to take alarm and to utter warnings against making the duties of neutrals so onerous as to render the state of belligerency preferable to that of neutrality. And yet it is difficult to find among these utter
ances a serious attempt to establish specific objections either to the rules or to the award.
Prof. E. Robertson, referring in the Encyclopædia Britannica a to the three rules and the award, says:
“These rules, which we believe to be substantially just, have been unduly discredited in England, partly by the result of the arbitration, which was in favour of the United States, partly by the fact that they were from the point of view of English opinion ex post facto rules, and that the words defining liability (due diligence') were vague and open to unforeseen constructions; for example, the construction actually adopted by the Geneva tribunal that due diligence ought to be exercised in proportion to the belligerent's risk of suffering from any failure of the neutral to fulfil his obligations."
These observations are very fully sustained by the opinions of publicists. At the session of the Institute of International Law at Geneva in 1874 a report was made by a commission, of which Bluntschli was reporter, which had been appointed to examine the three rules. The principal paper was presented by Calvo, who, after examining international transactions and the legislation of particular states, and citing the opinions of Klüber, G. F. de Martens, Fiore, Pando, Bello, De Cussy, Hautefeuille, Heffter, Bluntschli, Gessner, Hall, Ortolan, Massé, Halleck, and other publicists, concluded that "incontestably the three rules do not constitute a new obligation in the law of nations ; but on the contrary they merely affirm preexisting principles consecrated for many years by numerous acts and by the legislation and practice of nations." e
Professor Lorimer, of Edinburgh, assailed the rules on the significant ground that neutrality itself was by no means a constant duty, but altogether circumstantial. He also suggested that by cutting off
a XIII. 196, Article International Law.
These observations are in striking contrast with those of Sir Henry Maine (International Law, 216), who declares that Great Britain was penally dealt with for a number of acts and omissions, each in itself innocent." The grounds of this singular statement are not disclosed. It could hardly have been made as the result of an examination of the cases of the Alabama, the Florida, and the Shenandoah, which were the only vessels in respect of which Great Britain was held liable. On September 19, 1872, The Nation (XV. 180), referring to the Geneva award, very pertinently said: "No hardship or inconvenience can ever result to any government from being held bound to prevent what England permitted to occur with regard to the fitting out of that ship [the Alabama]. . . The case of the Orcto, afterward the Florida, was nearly as bad. . . . The Shenandoah was received at Melbourne with welcome and rejoicings which it is no exaggeration to call wild. . . . The tribunal imposes no new or heavy burden on neutrals in deciding that what occurred at Melbourne made the English Government liable for all the damage done by the Shenandoah afterwards."
c Rev. de Droit Int. VI. 453.
military supplies wars might be brought to an end before the belligerents were sufficiently exhausted. Moreover, he thought the first rule capable of being so applied as to prohibit commerce in ships between belligerents and neutrals altogether, and objected to making the intention with respect to a ship's use, rather than her actual character, the test of neutrality."
President Woolsey was of opinion that the rules represented the duties prescribed by international law and that they were correctly interpreted by the Geneva tribunal. He thought that the commissioners who framed the treaty understood that a vessel which had been fitted out and armed and had then escaped should be seized if she reentered the jurisdiction. In this relation he pointed out that Lord Granville in his instructions to the British high commissioners of February 9, 1871, had said that Her Majesty's Government was prepared to accept the rule that no vessel in the military or naval service of any belligerent which should have been "equipped, fitted out, armed, or dispatched contrary to the neutrality of a neutral state should be admitted into any port of that state," as well as the rule that no vessel should be received as a vessel of war in a neutral port which had not been commissioned in some port in the actual occupation of the government by which her commission was issued."
M. Rolin-Jaequemyns, after an able analysis of the subject, came to the conclusion that the rules did not constitute an innovation. He commented on Lorimer's idea that a peace must be regarded as delusive if concluded before the total ruin of the combatants."
William Beach Lawrence thought that the interpretation given by the Geneva tribunal to the words "due diligence" rendered the rules unacceptable. He thought that the declaration that the diligence of the neutral government must be in exact proportion to the risk to which the belligerents were exposed would make neutrals guarantors of every injury which might be inflicted on one of the belligerents by the use of the property of the other belligerent which should be found in the neutral jurisdiction.
Prof. Mountague Bernard adhered to the view of his government, as expressed in the treaty, of which he was one of the signers, that the rules constituted an innovation."
Bluntschli, as reporter of the commission, summed up its conclusions. He pronounced the paper of Calvo "very learned and very judicious," and declared that it "demonstrated" that the rules did not constitute an innovation, but on the contrary embodied longrecognized principles by which neutral states had regulated their a Rev. de Droit Int. VI. 542. b Id. 559. c Id. 561. d Id. 574. e Id. 575.
conduct. He dissented from Lorimer's suggestion that it was good policy to prolong wars. He concurred with President Woolsey in the view that the rules might be more definitely expressed and that "due diligence" should be defined. He expressed general concurrence in the views of Rolin-Jaequemyns, and dissented from the argument of William Beach Lawrence."
The institute voted that the rules were only declaratory of the law of nations; but, with a view to prevent controversies as to their interpretation, referred them for revision to the commission which had previously had them under examination, at the same time adding to the commission four new members, one of whom was Professor Westlake."
At the session of the institute at The Hague in 1875 Bluntschli submitted a project of rules, with certain observations and proposed amendments presented by various members of the commission. The report was discussed on the 30th of August, there being present M. Asser, counselor to the ministry of foreign affairs, Amsterdam; Prof. Mountague Bernard; M. Besobrasoff, of St. Petersburg; Dr. Bluntschli, of Heidelberg; M. Brocher, of the University of Geneva; Dr. Bulmerincq, counselor of state, of Wiesbaden; David Dudley Field; Professor Lorimer; Dr. Marquardsen, member of the Reichstag; Professor de Martens, of St. Petersburg; M. Moynier, of Geneva; Dr. Neumann, member of the Austrian House of Peers; M. de Parieu, member of the French Senate and of the Institute of France; M. Pierantoni, member of the Italian Parliament; M. RolinJaequemyns, of Ghent; Sir Travers Twiss; Professor Westlake; and MM. Den Beer Portugael, Hall, Holland, Rivier, and Albéric Rolin. The institute, Messrs. Bernard, Lorimer, and Twiss opposing, adopted the following rules:
I. L'État neutre désireux de demeurer en paix et amitié avec les belligérants et de jouir des droits de la neutralité, a le devoir de s'abstenir de prendre à la guerre une part quelconque, par la prestation de secours militaires à l'un des belligérants ou à tous les deux, et de veiller à ce que son territoire ne serve de centre d'organisation
a Rev. de Droit Int. VII. 127.
b Id. VI. 606. The commission as thus constituted was composed of Bluntschli, reporter, and MM. Asser, Carlos Calvo, Lorimer, Mancini, Neumann, Rolin-Jaequemyns, Westlake, and Woolsey.
c Rev. de Droit Int. VII. 427.
d Annuaire, I. 139. Rivier, in his work on the law of nations, intimates that these rules are not less liable to misinterpretation than the three rules themselves. He observes that the communication of the three rules to maritime powers with an invitation to accede to them would now be superfluous, since no state would dream of contesting the principle they contain, even though the manner in which it is expressed might be criticised. (Principes du Droit des Gens, par Alphonse Rivier, II. 408; Paris, 1896.)
ou de point de départ à des expéditions hostiles contre l'un d'eux ou contre tous les deux.
"II. En conséquence l'État neutre ne peut mettre, d'une manière quelconque, à la disposition d'aucun des États belligérants, ni leur vendre ses vaisseaux de guerre ou vaisseaux de transport militaire, non plus que le matériel de ses arsenaux ou de ses magasins militaires, en vue de l'aider à poursuivre la guerre. En outre l'État neutre est tenu de veiller à ce que d'autres personnes ne mettent des vaisseaux de guerre à la dispositon d'aucun des États belligérants dans ses ports ou dans les parties de mer qui dépendent de sa juridiction. "III. Lorsque l'État neutre a connaissance d'entreprises ou d'actes de ce genre, incompatibles avec la neutralité, il est tenu de pendre les mesures nécessaires pour les empêcher et de poursuivre comme responsables les individus qui violent les devoirs de la neutralité.
"IV. De même l'État neutre ne doit ni permettre ni souffrir que l'un des belligérants fasse de ses ports ou de ses eaux, la base d'opérations navales contre l'autre, ou que les vaisseaux de transport militaire se servent de ses ports ou de ses eaux, pour renouveler ou augmenter leurs approvisionnements militaires ou leurs armes, ou pour recruter des hommes.
"V. Le seul fait matériel d'un acte hostile commis sur le territoire
neutre, ne suffit pas pour rendre responsable l'État neutre. Pour qu'on puisse admettre qu'il a violé son devoir, il faut la preuve soit d'une intention hostile (Dolus), soit d'une négligence manifeste (Culpa).
"VI. La puissance lésée par une violation des devoirs de neutralité n'a le droit de considérer la neutralité comme éteinte, et de recourir aux armes pour se défendre contre l'État qui l'a violée, que dans les cas graves et urgents, et seulement pendant la durée de la guerre.
"Dans les cas peu graves ou non urgents, ou lorsque la guerre est terminée, des contestations de ce genre appartiennent exclusivement à la procédure arbitrale.
"VII. Le tribunal arbitral prononce ex bono et æquo sur les dommages-intérêts que l'État neutre doit, par suite de sa responsabilité, payer à l'État lésé, soit pour lui-même, soit pour ses ressortissants." a
a I. The neutral state, desirous of maintaining peace and friendship with the belligerents and of enjoying the rights of neutrality, ought to abstain from taking any part whatever in the war by furnishing military aids to either or both of the belligerents, and to see to it that its territory does not serve as a center of organization or point of departure for hostile expeditions against one or both of the belligerents.
II. Consequently the neutral state can not in any manner put at the disposition of any belligerent or sell to it ships of war or military transports or material from its arsenals or military stores with a view to aid it in the prosecution of the war. Moreover, the neutral state is bound to see to it that other