CHAPTER III. THE DUTIES OF NEUTRAL STATES TOWARDS BELLIGERENT STATES. § 253. THE rules which prescribe the duties of neutral states in their dealings with belligerent members of the family of nations are of two kinds. Some of them are (1) Not to give to either belliger ent or allow to one side privileges armed assistance perfectly clear. They order definite acts and omissions and point to a course of conduct well known to be binding on the parties concerned. Others are indefinite and uncertain. Opinions and practices are divergent as to the matters with which they deal, and it is impossible to say that the actions of states with regard to them can be forecast with any degree of confidence. In the statements and discussions which follow we will endeavor to distinguish carefully between what is matter of undoubted obligation and what rests only upon disputed views of justice and expediency. One of the most universally recognized duties of neutral states is Not to give armed assistance to either belligerent or allow to one side privileges denied to the other. This is involved in the very idea of neutrality. We have already traced the steps whereby a recognition of the fact that under ordinary circumstances a neutral cannot assist either belligerent with troops or ships became general among civilized states; and we have seen how the only question seriously debated in this connection for more than a century was whether limited succors might be given in pursuance of an antecedent engagement.1 There is a great preponderance of modern opinion against such aid, which is obviously inconsistent with the duty of absolute impartiality in the treatment accorded to each of the parties to the struggle. For the last hundred years practice has squared with principle. Not only has there been no instance of the grant by a belligerent to a neutral of naval or military contingents under the provisions of a treaty made before the war, but even covenants to give far less marked assistance have been steadily discountenanced and are now unknown. Thus some of the provisions of the treaty of 1778 between the United States and France were a source of great embarrassment to Washington and his Cabinet when England and France went to war in 1793. The seventeenth and twenty-second articles gave to French ships of war and privateers the exclusive privilege of bringing their prizes into American ports; and provided that privateers of any nation at war with France should be forbidden to fit themselves therein, or sell their prizes or other merchandise, or buy more provisions than were necessary to enable them to reach the nearest port of their own country, whereas the privateers of France were free to do all these things.2 Great Britain complained of the advantages accorded to her enemy; and Washington's efforts to preserve a strict and self-respecting neutrality were seriously hampered by treaty obligations from which he could not escape. Negotiations were entered into with France on this and other matters. They were exceedingly complicated, and led at first to a rupture. But in 1800 they were brought to a successful termination by a convention which did not re-enact the objectionable stipulations of the treaty of 1778.3 1 See §§ 244, 245. 2 Treaties of the United States, pp. 301-303. 3 Treaties of the United States, pp. 322-331; Wharton, International Law of the United States, §§ 148 a, 399. The United States were thenceforth free to hold the balance even between warring powers; and it has been the policy of . other nations to obtain for themselves a similar liberty. At the present time a neutrality conducted on other principles would not be tolerated. § 254. We will consider next the duty incumbent on neutral states Not to supply belligerents with money or instruments of warfare. (2) Not to supply belligerents with money or instruments of warfare. By supplying belligerents with money or arms or stores neutral states would help them almost as much as if they had sent military or naval contingents. The reasons which justify the prohibition of the latter apply equally to the former. Neutral governments may neither give nor lend money to a belligerent government, and the gift or sale of arms, ships and other instruments of warfare is forbidden to them. Trading is not one of the ordinary functions of a national administration. A state contravenes its neutrality when it goes out of its way to make bargains with the agents of foreign and belligerent powers, for the purpose of transferring to them by a commercial transaction weapons which are certain to be used against the forces of a friend. A gratuitous transfer is still more reprehensible. It would be justly regarded as inconsistent with the condition of neutrality. But it may be doubted whether a government is bound to stop the periodical sales of old arms and stores from its arsenals, even though it has good reason to believe that agents from its belligerent neighbors will attend and buy. The more excellent way is to refrain from such transactions, especially when they are concerned with ships. When in 1863 the British Government discovered that owing to the sale of an old and unserviceable gunboat, called the Victor, to a private firm, it had found its way into the hands of Confederate agents, orders were given that no more ships of the royal navy should be sold till the war was over.1 A case on the other side occurred in the United States in 1870. Congress had passed an act two years before, authorizing the Secretary of War to sell such arms and stores as were unsuitable for use. Sales had commenced when the war between France and Germany broke out; and the administration saw no reason to discontinue them in consequence. Agents of the French Government made large purchases, which were paid for through a French Consul. From September to December, 1870, as many as 55 cannon and 378,000 muskets were exported from New York to France. In the following year the Senate of the United States appointed a committee to investigate the subject. Their report justified the action of the executive, on the ground that the sales were but the continuation of a series. which had begun before the commencement of the war, and that, instead of any preference being given to the belligerents, persons suspected of being their agents were denied opportunity to purchase. It declared that the government did not know at the time of sale that those who bought were acting on behalf of France, but added that even if the head of the French state had appeared in person as a buyer it would have been lawful to sell to him in pursuance of a national policy adopted prior to the commencement of hostilities. The case seems to have come very near the border between the permitted and the forbidden. It is possible to hold that as a matter of strict law the American Government was not absolutely bound to discontinue its sales, and yet to regret that a wider interpretation was not placed upon the undoubted obligation of giving no assistance to either party. in the contest. There can be no doubt that the gift or loan of money from a neutral government to a belligerent government is a 1 British State Papers, North America, No. 2 (1873), pp. 104, 105. grave offence, and the same may be said of the guarantee by a neutral power of a loan issued by its belligerent friend. The conduct of the American envoys at Paris in 1798, when they refused on behalf of their government to consider the application of the Directory for a loan to France, then at war with Great Britain, was in strict accordance with International Law.1 All the writers who touch upon the subject are agreed that it is a violation of neutrality for a state which is not a party to a war to lend money to one which is. The uncontroverted opinion of modern publicists, backed by the general custom of civilized states, constitutes a mass of authority from which there is no appeal. But, owing largely to neglect of the fundamental distinction between neutral governments and neutral subjects, a group of jurists of good repute extend the rule far beyond the practice on which it depends. Either they declare in so many words that neutral individuals may not lend money to belligerent states, or they use ambiguous phraseology which seems to include private persons within the scope of its prohibitions.2 Never was a more unfounded doctrine set forth by able and learned men. Money is a form of merchandise, and neutral individuals constantly trade in it with belligerent governIt can be transferred with the greatest ease, far more easily, in fact, than other commodities. Commercial transactions in it could not be prevented, except by an amount of espionage and interference which would outrage human nature and render all trade impossible. No war of any magnitude takes place without a free resort by the combatant powers to neutral money markets. The stock in loans issued to provide funds for the conflict is bought and sold in other countries, just as freely as shares in foreign mines ments. 1 Wharton, International Law of the United States, §§ 148 a, 390. 2 e.g. Bluntschli, Droit International Codifié, § 768; Calvo, Droit International, § 2331; Halleck, International Law, Ch. XXIV., § 15; Phillimore, International Law, III., § CLI.; Kent, Commentary on International Law, (Abdy's ed.), Ch. VIII. |