CHAPTER VII

RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS

It is customary for neutrals, on learning that a war has begun which is likely to affect their interests, to announce to their own subjects the altered condition and to inform them and the belligerents concerning the particular rules of neutral conduct they wish observed. The announcement takes the form of a declaration of neutrality. A declaration of neutrality is an express statement of an intention to remain neutral, and is usually accompanied by a more or less detailed statement of the attitude the neutral proposes to assume on the several subjects which concern neutrals in time of war. In the Spanish-American war the majority of the powers issued declarations of neutrality, the only noteworthy exceptions being Germany and Austria-Hungary. Germany had made it a practice to abstain from the formality for at least a quarter of a century. While the imperial authorities deny the necessity of a formal declaration of neutrality, they uniformly publish in the leading imperial papers official notes of an intention to observe strict neutrality in all relations with the belligerents.1 These notes have the effect of warning German subjects in a general way of their peculiar duties and obligations during the war. The importance of declarations of neutrality arises from the indefiniteness in international 1Le Fur, La guerre hispano-américaine, p. 126.

law of certain of the duties and rights of neutrality. It cannot be said that a declaration affects the status of the neutral, or increases or diminishes its rights and duties. In its main aspect the declaration announces to the world the particular state's municipal law of neutrality and interpretation of the law of nations upon those subjects where usage differs, is doubtful, or where a margin of liberty of action is admitted. Like a formal declaration of war, it has lost with increased facilities for communication much of its former significance and importance. Nevertheless, as long as there are great differences in the law of neutrality it has valid reasons for existence. It at least emphasizes for the benefit of subjects the effect of the war on their conduct, and makes clear the conditions under which they may expect protection in any conflict with a belligerent. It is true that the declarations of many states go no farther than a general prohibition upon non-neutral conduct without an attempt at special statement.

The declaration of neutrality does not in itself bring into life the law of neutrality. That, instead, dates from the first act of hostility committed by one of the belligerents. In the Spanish-American war the neutral status of the non-belligerents began April 22, while the declarations of neutrality bore dates all the way from April 23 to June 20.2

In general it may be said of the declarations of neutrality of 1898 that they differed little from those published on the occasion of other recent wars. The

2 Archives diplomatiques, Vol. 66, pp. 249–53, 360; Vol. 67, pp. 209-11, 323 ff.

French declaration included the French protectorates in the same category with France herself and her colonies, whereas the declarations published during the Greco-Turkish and the Chino-Japanese wars did not. The English declaration, in the main a recital of the Foreign Enlistment Act, differed like the French from its predecessors in making more emphatic the imperial character, and specifically stating that the same obligations of neutrality were imposed upon all colonies and dependencies. In another particular it was more stringent, in applying the restrictions of neutrality to belligerent vessels in British ports at the date of the proclamation as well as to those which should enter them later. The proclamation, moreover, for the first time incorporated the rules appended to the treaty of Washington, though as is well known the Foreign Enlistment Act was in substantial agreement with them.3

One of the fundamental obligations imposed upon neutrals is that of giving no aid to either of the belligerents. Any form of government assistance or favoritism is inconsistent with neutrality. It is also a general rule that a state ought not to conclude treaties in time of peace which will prevent its strict neutrality in time of war; if it has done so it must accept the consequences and expect to be treated as a belligerent. No case of the kind existed in 1898, though a treaty between Haiti and the United States has been criticised as inconsistent with neutrality, but it is difficult to see wherein the treaty infringes the obligations of the most impartial neutrality. Article 30 of the treaty 'The London Times, April 27 and 28, 1898.

of 1864 is as follows: "It shall not be lawful for any foreign privateers who have commissions from any Prince or State in enmity with either nation to fit their ships in the ports, either to sell their prizes or in any manner to exchange them; neither shall they be allowed to purchase provisions, except such as shall be necessary to their going to the next port of that Prince or State from which they have received their commissions."4 The treaty is positive and clear, and it cannot be construed to obligate the parties to grant one another privileges which are prohibited to the enemies." The conduct of Haiti during the war belies such a construction. Her declaration of neutrality is in every respect regular, and states specifically that the special conventions with the United States in the treaty of 1864 will be put into practice equitably toward both belligerents.

It is a universally accepted obligation upon neutral states not to sell or furnish to belligerents any ships of war during the actual continuance of hostilities. Neutrals may sell ships to buying states up to the moment when hostilities begin, but no longer, nor is it permissible for ships purchased by a belligerent to depart from neutral ports after war has begun. Before the outbreak of the Spanish-American war both the United States and Spain, having reason to believe that peace could not long be maintained, went into the market for ships of war, but neither met with much success. The United States purchased on March 16 two vessels from the Brazilian Government, the AmaTreaties and Conventions of the United States, p. 559.

Le Fur, La guerre hispano-américaine, p. 131, holds a contrary view.

zonas and the Almirante Abreu. Both were being built in English shipyards. As neither was ready for service when war broke out, the English Government forbade the former, a torpedo boat nearly completed, to leave port, and stopped work on the other, a cruiser. As the transaction itself took place several weeks before war began, there was nothing irregular about it. On the contrary England's conduct was strictly regular. The right of neutrals to sell ships after relations have become strained is challenged by some writers, but the consensus of opinion does not condemn the transaction as long as war has not actually begun. In short, it may be said that it is a permissible commercial transaction until the first act of hostilities; after that moment it constitutes a violation of neutrality.

In a similar manner the sale of war supplies is held to be a violation of neutrality if it takes place after war begins, but perfectly legal before that time. The purchase of several torpedoes from Brazil in April, 1898, raised a vigorous protest in some European journals, but like the preceding case such sales are not inconsistent with neutrality until war has actually begun. The United States itself has not in the past been very scrupulous in observing its neutral obligation to abstain from aid through the direct sale of war supplies. It is recalled that in 1870 the Government sold at public sale in New York a quantity of surplus guns and other arms. A large part was bought by French agents, paid for through the French consul, and transported directly by French ships. Probably

Moore, Digest, Vol. VII, p. 861.

'See Senate Report 183, 42 Cong., 2 Sess., and House Report 46, 42 Cong., 2 Sess. Hall, International Law, p. 622; Moore, Digest, Vol. VII, p. 973.