OUTLINE OF CHAPTER XXII DEFINITION AND HISTORY OF NEUTRALITY 122. DEFINITION OF NEUTRALITY. 123. FORMS OF NEUTRALITY AND OF NEUTRALIZATION. (a) Neutralized states are bound to refrain from offensive hostilities. (1) Neutralization of Switzerland and Belgium. (b) A portion of a state may be the subject of an act of neutralization. (c) The neutralization of certain routes of commerce. (d) The Geneva Convention of 1906 neutralized persons and things. 124. HISTORY OF NEUTRALITY. (a) Early conceptions of neutrality. (b) The United States and the principles of neutrality. 125. DECLARATION OF NEUTRALITY. 126. TWO CLASSES OF RELATIONS BETWEEN NEUTRALS AND (a) Between neutral states and belligerent states as states. CHAPTER XXII DEFINITION AND HISTORY OF NEUTRALITY 122. Definition of Neutrality Neutrality is the relation which exists between states which take no part in the war, and the belligerents.1 Impartial treatment of the belligerents is not necessarily neutrality. The modern idea of neutrality demands an entire absence of participation, direct or indirect, however impartial it may be. 123. Forms of Neutrality and of Neutralization The first form of neutrality is what was formerly known as perfect neutrality, in distinction from imperfect neutrality, which allowed a state to give to one of the belligerents such aid as it might have promised by treaty entered into before and without reference to the war. At the present time the only neutrality that is recognized is perfect, i.e. an entire absence of participation in the war. A second form of neutrality is commonly known as armed neutrality. This implies the existence of an understanding, on the part of some of the states not parties to the contest, in accordance with which they will resist by force certain acts which a belligerent may claim the right to perform. The armed neutralities of February 28, 1780, and of December 16, 1800, defended the principle of "free ships, free goods." 2 Neutralization is an act by which, through a conventional agreement, the subject of the act is deprived of belligerent 'Lawrence, p. 566. 'The "Three Friends," 166, U. S. 1, 52. capacity to a specified extent. Neutralization may apply in various ways. Offensive hostilities forbidden neutralized states. (a) Neutralized states are bound to refrain from offensive hostilities, and in consequence cannot make agreements which may demand such action. Thus it was recognized that Belgium itself, a neutralized state, could not guarantee the neutrality of Luxemburg in the Treaty of London, in 1867. Belgium is, however, a party to the Treaty of Berlin of 1885, agreeing to respect the neutrality of the Kongo State. This agreement "to respect" does not carry with it the obligation to defend the neutrality of the Kongo State. The important instances of neutralization are those agreed upon by European powers. By the declaration signed at Neutralization Vienna, March 20, 1815, the powers (Austria, of Switzerland France, Great Britain, Prussia, and Russia) and Belgium. "acknowledged that the general interest demands that the Helvetic States should enjoy the benefits of perpetual neutrality," and declared "that as soon as the Helvetic Diet should accede to the stipulations" prescribed, her neutrality should be guaranteed.1 The Swiss Confederation acceded on May 27, 1815, and the guaranteeing powers gave their acknowledgment on November 20, 1815.2 The powers also guaranteed the neutrality of a part of Savoy at the same time. The neutralization of Belgium is provided for by Article VII of the Treaty of London, of November 15, 1831, "Belgium, within the limits specified in Articles I, II, and IV, shall form an independent and perpetually Neutral State. It shall be bound to observe such Neutrality towards all other States." 3 (b) A portion of a state may be the subject of an act of neutralization, as in the case of the islands of Corfu and 1 Hertslet, 64. Ibid., 370; see also "La Neutralité de Suisse," S. Bury, R. D. I., II, 636. 2 Hertslet, 863. Neutralization a state. Paxo by the Treaty of London, of March 29, 1864. By Article II, "The Courts of Great Britain, France, and Russia, in their character of Guaranteeing Powers of of a portion of Greece declare, with the assent of the Courts of Austria and Prussia, that the Islands of Corfu and Paxo, as well as their Dependencies, shall, after their Union to the Hellenic Kingdom, enjoy the advantages of perpetual Neutrality. His Majesty the King of the Hellenes engages, on his part, to maintain such Neutrality." of routes of (c) The neutralization of certain routes of commerce has often been the subject of convention. The United States Neutralization guaranteed the "perfect neutrality" 2 of the means of trans-isthmian transit when the State commerce. of New Granada controlled the Isthmus of Panama in 1846. By the Treaty of 1867 with Nicaragua the United States guarantees "the neutrality and innocent use" of routes of communication across the state of Nicaragua.3 The Nine Powers by the Convention of Constantinople, of October 29, 1888, Great Britain making certain reservations, agree, by a conventional act upon "a definite system destined to guarantee at all times, and for all the powers, the free use of the Suez Maritime Canal." 4 Full provisions for the maintenance of the neutrality of the canal were adopted at this time also. Substantially the same rules were embodied in the treaty between the United States and Great Britain, concluded November 18, 1901, in regard to the construction of the canal across the Isthmus of Panama. (d) The Geneva Convention of 1906, superseding that of 13 Hertslet, 1592. Art. XXXV, Treaty of Dec. 12, 1846; Treaties of U. S., 204. Art. XV, Treaty of Jan. 21, 1867; Treaties of U. S., 1784. Parl. Papers, 1889, Commercial, No. 2. See also Holland, "Studies in Int. Law," p. 269. 1864, neutralized persons and things employed in the amelioration of the condition of the sick and wounded in the time of war. At the present time hospital ships properly certified and designated by flags and by bands of color on the outside are neutralized by general practice. The Geneva 124. History of Neutrality Neutrality as now understood is of recent growth. In early times, and in general throughout the Middle Ages, the fear of retaliation alone deterred states from hostile action against belligerent states with which they were formally at peace. A belligerent in the prosecution of war might disregard the territorial, personal, or property rights in a neutral state without violation of the principles of public law then accepted. Early conceptions of neutrality. (a) A gradual formulation of principles which gave the basis of a more equitable practice came through the custom of making treaty provisions in regard to the conduct of one of the parties when the other was at war with a third state. Thus it was usually provided that no aid should be given to the third state. By the end of the seventeenth century that which had formerly been a matter of treaty stipulation became quite generally accepted as a rule of action. Grotius, in 1625, gives only about a fourth of a short chapter to the consideration of the duties of the neutral toward the belligerents and the balance of the same chapter to the duties of belligerents toward those not parties to the war. Grotius maintains that "it is the duty of those who have no part in the war to do nothing which may favor the party having an unjust cause, or which may hinder the action of the one waging a just war, . . . and in a case of doubt to treat both belligerents alike, in permitting transit, in furnishing provisions to the troops, in 1 Articles 1-16, Appendix, pp. 426-429. |