CHAPTER 1

ON NEUTRALITY IN GENERAL

I

DEVELOPMENT OF THE INSTITUTION OF NEUTRALITY

Hall, § 208-214-Lawrence, § 244-Phillimore, III. §§ 161-226Twiss, II. §§ 208-212-Taylor, $$ 596-613-Walker, History, pp. 195-203, and Science, pp. 374-385-Geffcken in Holtzendorff, IV. pp. 614-634-Ullmann, § 192-Bonfils, Nos. 1494-1521-Rivier, II. pp. 370-375-Calvo, IV. §§ 2494-2591-Fiore, III. Nos. 1503-1535 -Martens, II. § 130-Dupuis, Nos. 302-307-Mérignhac, pp. 339342-Boeck, Nos. 8-153-Kleen, I. pp. 1-70-Cauchy, "Le droit maritime international (1862), vol. II. pp. 325-430-Gessner, pp. 1-69-Bergbohin, "Die bewaffnete Neutralität 1780-1783" (1884)-Fauchille, "La diplomatie française et la ligue des neutres 1780" (1893)-Schweizer, "Geschichte der schweizerischen Neutralitaet" (1895), I. pp. 10-72.

not prac

Times.

§ 285. Since in antiquity there was no notion of Neutrality an International Law, it is not to be expected that tised in neutrality as a legal institution should have existed Ancient among the nations of old. But neutrality did not exist even in practice, for belligerents never recognised an attitude of impartiality on the part of other States. If war broke out between two nations, third parties had to choose between the belligerents and become ally or enemy of one or other. This does not mean that third parties had actually to take part in the fighting. Nothing of the kind was the case. But they had, if necessary, to render assistance; for

Neutrality during the

Middle Ages.

example, to allow the passage of belligerent forces through their country, to supply provisions and the like, on the one hand, and, on the other, to deny all such assistance to the enemy. Several instances are known of efforts on the part of third parties to take up an attitude of impartiality, but belligerents never recognised such impartiality.

1

286. During the Middle Ages matters changed in so far only as in the latter part of this period belligerents did not exactly force third parties to a choice, but legal duties and rights connected with neutrality did not exist. A State could maintain that it was no party to a war, although it furnished one of the belligerents with money, troops, and other kinds of assistance. To avoid such assistance, which was in no way considered illegal, treaties were frequently concluded during the latter part of the Middle Ages for the purpose of specially stipulating that the parties should be obliged not to assist in any way each other's enemies during time of war, and to prevent their subjects from doing the same. It is through

the influence of such treaties that the difference during war between a real and feigned impartial attitude of third States grew up, and that neutrality, as an institution of International Law, gradually developed during the sixteenth century.

Of great importance was the fact that the Swiss Confederation, in contradistinction to her policy during former times, made it from the end of the sixteenth century a matter of policy always to remain neutral during wars of other States. Although this former Swiss neutrality can in no way be compared with modern neutrality, since Swiss mercenaries were for centuries to come fighting in all

1 See Geffcken in Holtzendorff, IV. pp. 614-615.

European wars, the Swiss Government itself succeeded in constantly taking up and preserving such an attitude of impartiality as complied with the current rules of neutrality.

It should be mentioned that the collection of rules and customs regarding Maritime Law which goes under the name of Consolato del Mare made its appearance at about the middle of the fourteenth century. The rule there laid down, that in time of war enemy goods on neutral vessels may be seized, but that, on the other hand, neutral goods on enemy vessels must be restored, became of great importance, since Great Britain acted accordingly from the beginning of the eighteenth century until the outbreak of the Crimean War in 1854.1

during the

teenth

Century.

§ 287. At the time of Grotius, neutrality was recog- Neutrality nised as an institution of International Law, although Sevensuch institution was in its infancy only and wanted long time to reach its present range. Grotius did not know, or at least did not make use of, the term neutrality. He treats neutrality in the very small seventeenth chapter of the Third Book on the Law of War and Peace under the head De his, qui in bello medii sunt, and establishes in § 3 two doubtful rules only. The first is that neutrals shall do nothing which may strengthen such belligerent whose cause is unjust, or which may hinder the movements of such belligerent whose cause is just. The second rule is that in a war in which it is doubtful whose cause is just neutrals shall treat both belligerents alike in permitting the passage of troops as well as in supplying provisions for the troops, and in not rendering assistance to persons besieged.

The treatment of neutrality by Grotius shows, on

1 See above, § 176.

Progress

of Neutrality during

the Eighteenth Century.

the one hand, that apart from the recognition of the fact that third parties could remain neutral, not many rules regarding the duties of neutrals existed, and, on the other hand, that the granting of passage to troops of belligerents and the supply of provisions to them was not considered illegal. And the practice of the seventeenth century furnishes numerous instances of the fact that neutrality did not really mean an attitude of impartiality, and that belligerents did not respect the territories of neutral States. Thus, although Charles I. remained neutral, the Marquis of Hamilton and six thousand British soldiers were fighting in 1631 under Gustavus Adolphus. "In 1626 the English captured a French ship in Dutch waters. In 1631 the Spaniards attacked the Dutch in a Danish port; in 1639 the Dutch were in turn the aggressors, and attacked the Spanish Fleet in English waters; again, in 1666 they captured English vessels in the Elbe...; in 1665 an English fleet endeavoured to seize the Dutch East India Squadron in the harbour of Bergen, but were beaten off with the help of the forts; finally, in 1693, the French attempted to cut some Dutch ships out of Lisbon, and on being prevented by the guns of the place from carrying them off, burnt them in the river." 1

§ 288. It was not until the eighteenth century that theory and practice agreed upon the duty of neutrals to remain impartial, and the duty of belligerents to respect the territories of neutrals. Bynkershoek and Vattel formulate adequate conceptions of neutrality. Bynkershoek 2 does not use the term "neutrality," but calls neutrals non hostes, and he describes them as those who are of neither partyqui neutrarum partium sunt-in a war, and who do 1 See Hall, § 209, p. 604. 2 Quaest. jur. publ. I. c. 9.