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Art. 15.-THE LAW OF NEUTRALITY AND THE PRESENT WAR.
INTERNATIONAL 'law' is the label by which, not having a word corresponding to Droit and Recht, we describe a heterogeneous mass of alleged rules of inter-state conduct. Until, roughly, the last half-century these rules were derived from the practice of States, supplemented by deductions drawn by text-writers from the reason of the case. They constituted a fairly certain nucleus, fringed with uncertainties, and they inevitably lacked precision.
The only really satisfactory way of making international law is that which began with the Declaration of Paris, 1856, namely, by express Convention. The series was continued in the Declaration of St Petersburg, 1868 (forbidding the use of explosive bullets); the (unratified) Declaration of Brussels, 1874 (on the laws of land-war); the Geneva (Red Cross') Conventions of 1864 and 1906; the Conventions drawn up at the two Peace Conferences of The Hague, 1899 and 1907; and the (unratified) Declaration of London, 1909 (about naval warfare). These 'law-making' treaties are the nearest approach in the international area to enacted municipal law. Inasmuch, however, as none of them has been agreed to by all States, they form what has been called a general, as contrasted with a universal, international law. And as regards the Conventions entered into at The Hague in 1907 it is to be noted that each of those which relate to conduct during war (i.e. Nos IV to XIII) contains a proviso that it is only to apply if all the belligerents are parties to the Convention.' Now, Montenegro and Servia and Turkey have ratified none of them and, therefore, they are all technically inoperative as Conventions during the present war. Still, even the unratified Conventions, and those to which this or that State is not a party, or which are inoperative pro hac vice, possess a value only less than that of a generally operative Convention. They represent the reasoned convictions of specially-appointed state-agents as to what, having regard to the moral standards of the day, is right state-behaviour, or, in the case of a compromise,
as to what is reasonable in the circumstances. Hence we find that the Declaration of Paris was observed by two non-signatory Powers, Spain and the United States, when at war with each other in 1898; the unratified Declaration of London was appealed to in the Italo-Turkish War of 1912, as also by the Dutch in the recent case of the 'Medea' ('Times,' March 29); and several States, e.g. Argentina and Greece, in their Proclamations of Neutrality during the present war, have taken the technically inoperative Hague Conventions as their standard of conduct.
We propose to review here some of the happenings of the present war which affirm or tend to modify the rules operating between belligerents and neutrals.
Passage of belligerent troops over neutral territory.This is one of the cases in which there was, until recently, no rule except that which arose from the nature of the case. The jurists were not quite agreed. The opinion of some of the older writers, that a neutral must on demand allow this passage, had, indeed, been rejected in the light of stricter doctrines as to territorial sovereignty; but there were some (e.g. Sir T. Twiss, writing about half a century ago) who thought that a neutral did not compromise his neutrality by granting passage to one belligerent provided he was ready to grant it to the other. Against this it was pointed out (e.g. by Heffter) that this was quite inconsistent with the requisite impartiality, because this passage would always be more advantageous to one belligerent than to the other-a criticism admirably illustrated on the Belgian frontiers at the beginning of the present war. The overwhelming majority of writers was of the same opinion as Heffter. In 1907 the pronouncement agreed to at The Hague resolved all doubts. Convention V (Neutral Powers and Persons in Land Warfare') said:
'Art. 1. The territory of neutral Powers is inviolable. 'Art. 2. Belligerents are forbidden to move across the territory of a neutral Power troops or convoys, either of munitions of war or of supplies.
'Art. 5. A neutral Power ought not to allow ("tolérer") on its territory any of the acts referred to in Arts. 2 to 4.'
Accordingly, the demands made on these States by Germany in the early days of last August were an invitation to them to violate the duty owed by them to France.
Passage of the Dutch portion of the Scheldt by naval forces of the Powers now belligerent is governed by the same general principles, for whatever rights of navigating the lower waters were granted by the Treaty of Vienna, 1814, were granted 'sous le rapport du commerce only. The Scheldt being here a territorial river and not a part of the sea, an attack on Antwerp from the sea would come under the rubric Land Warfare'; and the articles cited above from Convention V (1907) would forbid its use for that purpose. This being so, it follows that the converse use of the waters by the Power in possession of Antwerp in order to carry on war in the open sea could not be allowed without a violation of the duty of impartiality. If, then, it be true that Germany is building at Antwerp submarines too large to pass to the sea except through the lower Scheldt, an improper use of these waters is contemplated which the Dutch ought to check by all available means.* That the Dutch would take a strict view of their duty is confirmed, if any confirmation be needed, by their refusal, after the fall of Antwerp, to allow the exit of merchantmen which had been taken by the Belgians as prize of war.
It is in China that the most conspicuous instances of the violation of neutral soil have occurred during the present war. These fall under two heads. First, those troops of the belligerent Powers which were guarding their national embassies at Pekin when the war began could not join their main bodies without passing over Chinese soil. The President of China forbade this by a provision in his Neutrality Mandate.
'Troops of any of the belligerents,' it ran, their munitions of war or supplies, are not allowed to cross the territory of China. The guards attached to the Legations of the various Powers in Pekin. are not allowed to interfere with the
* When the erection of forts at Flushing and Terneuzen was in contemplation only, the late Mr Westlake pointed out that it would increase for the Dutch the effectiveness of the obligation contained in the words 'not to tolerate' in Art. 5 above mentioned. See 'Revue de Droit International,' 2nd ser., vol. xiii, p. 105.
Those who do not conform to the foregoing provision may be interned and disarmed by China until the termination of the war.'
Nevertheless the guard attached to the German Legation made its way to Kiaochau; and probably the guards of other belligerent Powers paid as little respect to Chinese neutrality. The circumstances of this case were so anomalous-the foreign troops being lawfully in China on the outbreak of the war-that ordinary considerations can hardly apply. The second instance referred to above is a clearer case of violation of neutral rights and of inability to carry out neutral obligations. The Germans had transported troops and material of war into Kiaochau by the Shantung railway, which, though a German concession, ran for 250 miles outside the part of China leased to Germany; the Japanese landed troops at Lungkow and travelled at least an equal distance across Chinese soil in order to invest Tsingtao on the land side. The Chinese Government protested, but to deaf ears. At the same time the President proposed to establish a war-zone such as had been established in the Russo-Japanese war, and disclaimed responsibility for the enforcement of neutrality there. The zone was a defined part of the peninsula north of Kiaochau Bay. Germany in reply warned China that she held her responsible for losses caused by her acquiescence in the use of her territory for hostilities; the Allies in their reply (so it seems) simply justified their conduct as the inevitable result of violations of neutrality previously committed by Germany.*
Passage of belligerent vessels over neutral territorial sea.'-No rule, customary or conventional, forbids a belligerent to send his ships of war over neutral territorial waters which are part of the sea. This is one of many instances showing that different considerations apply to water and to land. The question does not assume first-rate importance unless the territorial waters are the only way between two parts of the open sea, as in the case of the Sound and the Belts. The precedent furnished in 1854, when British and French ships, hostile
*The fuller story can be read in the deeply interesting account given by Sir F. Piggott in the March number of the Nineteenth Century,' to which we are indebted for the facts set out above.
to Russia, passed the Sound without protest, is in favour, if not of a right of passage, at any rate of the non-existence of a neutral duty to restrain it. So also is the fact that in 1870 Prussia raised no objection on this score to a blockade of her Baltic coasts by the French. The topic was discussed by the Institute of International Law in 1894; and, while it was conceded that a neutral had a right to regulate the passage of its waters by ships of war, it was added, 'Straits which form a channel from one open sea to another can never be closed.' The reasonableness of allowing a neutral to regulate the passage of belligerent war-vessels through its territorial straits is obvious, for the straits might otherwise become the scene of hostilities, to the no small hurt of the adjacent shores. When, however, the matter came up at the second Peace Conference, nothing more was decided than that a neutral was not compromised by 'le simple passage' or the employment of its pilots by a belligerent warship. (Convention XIII (1907), Art. 10, 11.) If it enforced its right of regulating passage by the use of mines, this provision about the employment of pilots would be important. Whether this whole question has become actual in the present war cannot be stated until full information is obtainable with regard to the extent to which free navigation of the Sound and the Belts has been allowed.
Passage of belligerent air-craft over neutral territory.— The modern development of aeronautics has brought new problems before international law. A fundamental question is whether the subjacent state is sovereign of the air at all heights, or whether the air is free from territorial sovereignty, its navigation being merely limited in certain respects in the interest of the subjacent state. The question is an open one as yet. Switzerland made a definite stand in favour of the doctrine of territorial sovereignty of the air in connexion with the raid on the Zeppelin works at Friedrichshafen by British airmen on Nov. 21, 1914. Although the airmen had received instructions not to fly over Swiss territory, the evidence showed that they had done so. The Swiss Federal Council thereupon addressed a protest to both France and Great Britain. Both Governments expressed regret. The British note said that the airmen's failure