Section 2 The Duties of Neutral States, and the Liabilities of Neutral Individuals, Distinguished
The duties of neutral States have been classified by the present writer under the heads, of “Abstention,” “Prevention,” and “Acquiescence.” (Transactions of the British Academy, vol. ii, p. 55; reproduced in the Revue de Droit International, the Revista de Derecho International, and the Marine Rundschau.) In the three letters which follow, an attempt is made to point out the confusion which has resulted from failure to distinguish between the two last-mentioned heads of neutral duty; on the one hand, namely, the cases in which a neutral government is bound itself to come forward and take steps to prevent certain classes of action on the part of belligerents, or of its own subjects, e.g. the overstay in its ports of belligerent fleets, or the export from its shores of ships of war for belligerent use; and, on the other hand, the cases in which the neutral government is bound only to passively acquiesce in interference by belligerents with the commerce of such of its subjects as may choose, at their own risk and peril, to engage in carriage of contraband, breach of blockade, and the like.
I. A neutral State is bound to prevent its territory from becoming, in any way, a “base of operations” for either belligerent. Of the various obligations thus arising, the following letters deal with the duty of the State (1) to prevent the departure from its ports of vessels carrying coal intended to supply directly the needs of a belligerent fleet; and (2) to prevent the reception accorded in its ports to belligerent warships from being such as will unduly facilitate their subsequent operations. It is pointed out that the rule adopted by the United States and this country, as well as by some others, when neutral, by which the stay of belligerent warships is limited to twenty-four hours, has not been adopted by the nations of the European continent. The attempt made at The Hague Conference of 1907 to secure the general acceptance of this rule was unsuccessful; and Convention No. xiii. of that year, not yet ratified by Great Britain, which deals with this subject, merely lays down, in Art. 12, that “In the absence of special provisions to the contrary in the legislation of a neutral Power, belligerent warships are not permitted to remain in the ports, roadsteads, or territorial waters of the said Power for more than twenty-four hours, except in the cases covered by this Convention.” Art. 27 obliges the contracting Powers to “communicate to each other in due course all laws, proclamations, and other enactments, regulating in their respective countries the Status of belligerent warships in their ports laid waters.”
II. A neutral State is not bound to prevent such assistance being rendered by its subjects to either belligerent as is involved in, e.g. blockade-running or carriage of contraband; but merely to acquiesce in the loss and inconvenience which may in consequence be inflicted by the belligerents upon persons so acting. In order to explain this statement, it became necessary to say much as to the true character of “carriage of contraband” (although this topic is more specifically dealt with in the letters contained in Section 5), and to point out that such carriage is neither a breach of international law nor forbidden by the law of England. For the same reason, it seemed desirable to criticise some of the clauses now usually inserted in British Proclamations of Neutrality.
The view here maintained commended itself to the Institut de Droit International, at its Cambridge and Venice sessions, 1895, 1896, as against the efforts of MM Kleen and Brusa to impose on States a duty of preventing carriage of contraband by its subjects (Annuaire, t. xiv. p. 191, t. xv. p. 205). It has now received formal expression in The Hague Convention No. x. of 1907, Art. 7 of which lays down that “a neutral Power is not bound to prevent the export or transit, for the use of either belligerent, of arms, ammunition, or, in general, of anything which could be of use to an army or fleet.”