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Neutrality and the World War
Published online by Cambridge University Press: 04 May 2017
Extract
To understand aright the modern concept of neutrality as it existed on the eve of the World War, it is necessary to inquire into its relationship to the society and law of nations. Neutrality, as is well known, was a status almost unknown to the ancient world in the period previous to the establishment of the pax Romana. Once almost universal dominion had passed into the hands of Rome, the possibility of maintaining an impartial attitude as between the Roman Empire and its enemies virtually ceased to exist, and the tribes and peoples bordering the lands where Roman authority was exercised became either hostes or socii et amici. When the Roman imperator was succeeded as a temporal authority by the pontifex maximus of the Christian church, the Mediaeval Empire, embodying in theory the whole of Latin Christendom, went forth against Moor or Saracen alike, conquering and to conquer in the name of the church militant. The foes of the church were the foes of every Christian potentate, and there could be no lukewarmness, no neutrality, in the perennial conflict against the Infidel.
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References
1 Thus Hanois Taylor writes: “So long as that strange creation, the Mediaeval Empire, resting upon the theory of a vast Christian Monarchy whose sway was abolutely universal, endured, there was no place for the idea of a state standing as an impartial spectator in wars in which every member of the confederation was directly interested, no matter whether they were waged by one member of the association against the other, or by the corporate person of the entire church militant against Saracens or Infidels. According to mediaeval ideas no Christian could stand neutral in the struggle of orthodoxy against heresy, a struggle which intensified the application of the scriptural precept that ‘he that is not with me is against me’. While a crusader, under exceptional circumstances, might make a truce with the Saracen, no peace might be made with the Infidel, against whom all wars carried on by Christians were, according to Conrad Brunus {De Legaiionibus, Lib. IV, Cap. 5) just, provided they were undertaken to recover dominions which might be made useful to all Christendom.” International Public Law, pp. 619-620.
2 “We can see now that the order we hoped to mould to our ideals contained within itself the germs of destruction. It lacked any means of obliging its members to bestir themselves to the enforcement of the performance of their common duties. Each state was bound to obey the rules of the International Society; but no state was bound, in the absence of express stipulations, to see that the other states obeyed them. The result was that any ill-disposed member might violate its obligations, not exactly with impunity, but with nothing certain in the way of penalty or compulsion. Others might interfere or again they might not. There was a chance of castigation, but a chance of impunity also.” Lawrence, T. J., The Society of Nations, pp. 85-86.
3 Walker, Thomas A., The Science of International Law, p. 57.
4 Fenwick, Charles G., The Neutrality Laws of the United States, pp. 1-15.
5 Cf. Conventions V and XIII of the Second Hague Conference, 1907.
6 Renault, Louis, Les Premiers Violations du Droit de Gens par l’Allemagne, p. 18.
7 Lawrence, op. cit., pp. 87, 118.
8 Cf. the brochure published by the United States Department of State, entitled Neuirality Prodamations and Decrees, 1914-1918; also the Naval War College International Law Topics for 1915-1918.
9 Editorial note in the Journal of the Society of Comparative Legislation and International Law, New Series, Vol. XVIII, p. 271 (1917).
10 These regulations are found, for example, in the brochure put out by the Netherlands Government in 1916 entitled, Recueil de diverses Communications du Ministere des Affaires Etrangeres aux Etats-Generaux par rapport a la Neutralite des Pays-Bas et au respect du Droit de Gens. La Haye, 1916. Cf. also the British Sessional Papers, Misc. No. 17 (1917) Cd. 8693; Misc. No. 2 (1918) Cd. 8915; Misc. No.4 (1918) Cd. 8985; and Misc. No. 12 (1918) Cd. 9026.
11 Cf. the Netherlands Whitebook Diplomatieke Bescheiden betreffende de Toelating van Bewapende Handelsvaartuigen der Oorlogsvoerenden en Onzidigen binnen het Nederlandsche Rechtsgebied (1917).
12 Numerous instances of these abuses are cited in Alvarez, Alejandro, La Grande Guerre Europeenne et la Neutralite du Chili, passim. Cf. also the case of the Amista and other vessels in American ports, documented in the Special Supplement to Vol. 9 of this Journal.
13 Cf. J. W., Garner, International Law and the World War, Vol. II, Sec. 549 Google Scholar, and the United States Naval War College International Law Topics (1916), pp. 10, 35-6, 71-2, 108-9, for examples.
14 For illustrations see the sources cited in note 8 supra.
15 The United States found itself hampered by the fact that it was not a signatory to the Declaration of Paris and hence could not invoke its provisions. Moreover, its practice in respect of contraband, continuous voyage and blockade had been markedly influenced by the American Civil War.
16 A differential policy was pursued in respect of the neutrality regulations applicable to its European domain and to its colonies, whereas the neutrality laws of the United States were equally applicable to its insular possessions.
17 Such factors as geographical location, climate, natural products, which hampered the Swiss government in dealing with its problems of neutrality, emphasize the need found by the limitrophe neutrals in the World War to pursue a policy of economic neutrality. Such a policy, dictated by national interest, the need of raw materials, the financial rivalry of the opposing belligerents in neutral markets and their varying abilities to meet neutral needs, imposed upon the country adopting it the problem of enforcing its fundamental duty of impartiality while making skilled statemanship imperative in order to conclude effective bargains with the belligerents on each side.
18 Cf. the statement of Earl Granville to Count Bernstorff on September 16, 1870: “It seems hardly to admit of doubt that neutrality, when it once departs from a strict impartiality, runs the risk of altering its essence, and the moment a neutral allows his proceedings to be biassed by a predilection for one of two belligerents, he ceases to be neutral. The idea, therefore, of benevolent neutrality can mean little less than the extinction of neutrality.” (British and Foreign Siate Papers, Vol. 61, p. 759.)
19 E.g., Brazil, Costa Rica, Peru, Salvador, Uruguay.
20 Cf. Documentos Diplomaticos: Attitude do Brasil (1914-1917), pp. 57-59. Note also the Memoria del Ministerio de Relaciones Exteriores del Uruguay, for 1918, p. 467, and the Naval War College International Law Topics, 1917, pp. 64-5; 249-250.
21 Charles G., Fenwick, “The Status of Armed Neutrality,” American Political Science Review, Vol. 11, p. 588 Google Scholar.
22 Special Supplement to this Journal, Vol. 10, pp. 51-2.
23 Huberich and King, The Development of German Prize Law, p. 35.
24 See reference under note 22.
25 Special Supplement to Vol. 9 of this Journal, pp. 157-161.
26 In the case of the Leonora, the prize court based its justification of the Allied blockade on the extreme doctrines of retaliation promulgated in debates in Parliament in 1807 and 1811 and hardly having a judicial tone. Trehern, , British and Colonial Prize Cases, Vol. III, pp. 181–236, 385-403Google Scholar; also this Journal, Vol. 13 (1919), p. 814.
27 The official documents on these controversies are voluminous. Cf. the British Sessional Papers:
(1) Concerning postal correspondence: Misc. No. 5 (1916) Cd. 8173, No. 9 (1916) Cd. 8223, No. 20 (1916) Cd. 8261, No. 23 (1916) Cd. 8294, and Misc. No. 2 (1917) Cd. 8438 giving the controversy with the United States; Misc. No. 28 (1916) Cd. 8322 giving the controversy with Sweden; see also, the Netherlands Whitebook Diplomatieke Bescheiden betreffende de Inbeslagneming door de Brusche Autoriteiten van over Zee vervoerde Brievenpost, Zitting 1915-16, III Hoofdstuk, No. 14, April, 1916.
(2) Concerning search at sea: Misc. No. 6 (1915) Cd. 7816, No. 14 (1916) Cd. 8233, No. 15 (1916) Cd. 8234; cf. also the Special Supplement to Vol. 10 of this Journal, pp. 120-145.
28 On the Dutch convoy see the Netherlands Whitebook, Diplomatieke Bescheiden betreff ende de Uitzending van een Convooi naar Nederlandsch-Indie (1918), the British view in Misc. No. 13 (1918), Cd. 9028, and Bellot, H. H. L., on “The Dutch Convoy,” Journal of the Soci ety of Comparative Legislation and International Law, New Series, Vol. XVIII, p. 265 Google Scholar.
29 This was discussed at length in the controversy between the United States and Germany over the sinking of the William P. Frye. Cf. the Special Supplement to Vol. 9 of this Journal, pp. 180-193, also that to Vol. 10, pp. 345-353. Cf. also the Dutch Recueil, cited supra, pp. 106-7; and Garner, op. cit., Vol. II, p. 282.
30 For Dutch views on the subject see Recueil, pp. 84-89. Cf. Garner, op. cit., Vol. I, p. 353: “The action of the British Government in proclaiming the whole North Sea to be a military area in which mines on an extensive scale were planted constituted a serious infringement upon the principle of the freedom of the seas, although it may be said in extenuation of the measure that safety lanes were provided and every endeavor was made by the Admiralty to insure the safety of navigation within that area.”
31 The Netherlands Government’s views are expressed in a memorandum presented to the German Government inFebruary, 1918,found in a Whitebook entitled Diphmatieke Bescheiden betreffende den Verscherpten Duikbootoorlog, pp. 1-4. The Uruguayan views to the same effect are given in the Memoria del Ministerio de Relaciones Exteriores, 1918, pp. 411-419. Regarding the mine-laying by the Allied and Associated Powers in 1918 at the north end of the North Sea, cf. Publication No. 2 of the Historical Section of the United States Navy Department, The Northern Barrage and Other Mining Activities, p. 115; that by the German Government is described in Publication No. 1, German Submarine Activities on the Atlantic Coast of the U. S. and Canada, pp. 122-142.
32 Recueil, cited supra, pp. 128-133.
33 E.g., the Netherlands: Recueil, pp. 99-102; the United States: Special Supplement to Volume 9 of this Journal, pp. 88-89; the British reply is given on pp. 96-97.
34 Such, for example, is the argument advanced by the Netherlands Government in the Recueil, pp. 37-8,47-60. For the decision of the French Prize Council in the case of the Dacia, see this Journal, Vol. 9 (1915), p. 1015.
35 The Hamborn, Trehern, , British and Colonial Prize Cases, Vol. III, pp. 80, 375Google Scholar, and this Journal, Vol. 14 (1920), p. 269. The prize court acted similarly in the cases of the Genesee, Hocking, and Kankakee (Garner, op. cit., Vol. II, p. 199) ; the Solveig, Revue General de Droit International Public, Vol. 23 (1916), Jurisprudence, p. 16.
36 The Pass of Balmaha, Garner, op. cit., Vol. II, p. 201 ; the Cubano, Huberich and King, op. cit., p. 28.
37 The Uruguayan experiment in this respect is of particular importance because it furnishes the clearest instance of the utilization of vessels for tonnage needs without a subsequent state of war; the character of a reprisal is entirely wanting in the Uruguayan discussion and action. Cf. the Memoria del Ministerio de Relaciones Exteriores del Uruguay, 1918, pp. 579-594.
38 Cf. C., Calvo, Dictionnaire de Droit International Public et Prive, Tome I, p. 47 Google Scholar.
39 Misc. No. 11 (1918) Cd. 9025, note of May 31, 1918; see also Netherlands Whitebook No. 22, 1918.
40 Huberich and King, op. cit., p. 42.
41 Misc. No. 13 (1918) Cd. 9028, British note of June 7, 1918.
42 Special Supplements to this Journal, Vol. 9, pp. 146-149; Vol. 10, pp. 354-366.
43 Ibid., pp. 374-386.
44 Ibid., pp. 366-372; Garner, op. cit., Vol. I, pp. 392-3.
45 For the texts of such agreements see the Netherlands Orangebook of Mededeelingen van den Minister van Buitenlandsche Zaken aan de Staten-Generaal, April 1918-Juni 1919, and Juni 1919-April 1920. The accounts of the creation and functioning of the Société Suisse de Surveillance Economique are given in the reports of the Federal Council to the Federal Assembly concerning the administration of the Law of Full Powers, Ad 575, Parts 2-14, passim.
46 For illustrations of various instances see Recueil, pp. 175-179, and the Overzicht van eenige in het tydvak October 1916 tot Juli 1916 door het Ministerie van Buitenlandsche Zaken behandelde Aangelegenheden, p. 32, as indicative of Dutch practice.
47 Favre, Major Eduard, L’Internement en Suisse des Prisonnera de Guerre, Premier Rap port, pp. 1-14 (1916); Deuxieme Rapport, pp. v-vii (1917). Cf. also the abridged reprint in English, Swiss Internment of Prisoners of War, Columbia University Press, November 1917. For the German-American agreement of November 11, 1918, see Supplement to this Journal, Vol. 13 (1919), pp. 1-72.
48 Renault, op. cit., passim; the attitude of the Luxemburg Government is set forth fully in an official brochure entitled: Neutralite du Grand Duche pendant la Guerre de 1914-1918. The Greek White Book was printed in full as a supplement to Vol. 12 of this Journal. The official documents regarding Shantung are those presented to the Peace Conference in Paris: The Claim for the Direct Restoration ofKiau Chau, p. 48, and the Japanese reply, Quelques Ob servations sur U memorandum Chinois, p. 10. For further observations on Greece and Corfu see Garner, op. cit., Vol. II, pp. 242-243.
49 Such, in substance, was the view of the German occupying authorities in regard to their status in Luxemburg as revealed in the grand-ducal brochure.
50 Treaty of Versailles, Articles 40, 41.
51 Treaty of Versailles, Article 31.
52 Treaty of Versailles, Article 435 and Annex.
53 Such are typical provisions of treaties entered into in 1920 between Germany, Austria, Hungary, on the one hand, and the Russian Soviet Government on the other. This marked an endeavor on the part of the Soviet Government conventionally to preclude hostilities with the new states at the time of the Russo-Polish War. The effect of municipal ordinances in furtherance of Germany’s announced policy of neutrality is under consideration, at the pres ent writing, by the Permanent Court of International Justice in the case of the Wimb edon. [Decided adversely to Germany on Aug. 17, 1923.—Editor.] The network of individual alliances between various of the succession states of the Dual Monarchy provide for neutral ity in coventionally specified terms. Similarly, in the treaties signed at the Central American Peace Conference in Washington, February 7, 1923, conventional stipulations for the neu trality of Honduras under specified conditions are laid down.
54 The apparent exception found in the action of the League of Nations in formulating a conventional agreement for the “neutralization” of the Aaland Islands does not actually partake of the character of neutralization as applied to states, since the islands are not capable of taking action independently of Finland. The agreement is really a disarmament or demilitarization convention not unlike those being considered for other “regions” of Europe by the League’s Armament Commission. Thus the Aaland Island convention is properly a “regional understanding for the maintenance of peace”, as will be all other treaties of a similar nature designed to furnish the bases for disarmament.
55 This tendency in the acts of belligerents has received further confirmation in the report of the Commission of Jurists appointed under the terms of the resolutions of the Washington Conference to revise the laws of war. In the proposed code regulating aerial warfare and the use of radio in wartime, the concept of unneutral service has been vastly extended to include what may perhaps be more properly classified under the French rendition, assistance hostile. Cf. Part I, Art. 6, Sec. 1 and Part II, Chapter V, Arts. 36, 37, 47 and 52, printed in Supplement to this Journal, pp. 244, 254, 256, 257.
56 Trehern, , British and Colonial Prize Cases, Vol. I, pp. 405–492 Google Scholar; also this Journal, Vol. 9 (1915), p. 979.
57 Law Reports (1916), 2 A. C. 77 ff.; also, this Journal, Vol. 10 (1916), p. 422.
58 An interesting example of such “tolerance” may be seen in the joint Allied declaration of neutrality in the Greco-Turkish War, made August 10, 1921 (48 Clunet, 433-435). This would appear to be the first modern instance of a collective declaration of neutrality, and therefore of considerable import as a precedent for future collective action on the part of the integrating international community.