페이지 이미지
PDF
ePub

United States Supreme Court, held that a neutral vessel could institute a claim for capture in neutral waters, regardless of any protest by the territorial neutral.102 Affirmative duties are now incumbent upon a neutral to prevent any violation of his neutrality by a belligerent seizure in his territorial waters, for a breach of which his own responsibility may properly be invoked.103 In land warfare, injuries inflicted by belligerents in permitting bullets to fall into neutral territory, constitute a violation of the territorial sovereignty of the neutral and justify international reclamation against the wrongdoing belligerents. Violations of a nation's neutrality by a belligerent entails international responsibility.

NEUTRAL OBLIGATIONS

The state of war casts upon neutrals numerous duties incident to the maintenance of neutrality, for a violation of which duties liability is incurred either toward the belligerent or toward neutrals who sustain injury thereby.104 A neutral must prevent a belligerent from setting up prize courts on his neutral territory. This practice was not considered illegitimate in the eighteenth century, but after the United States in 1793 had refused permission to France to set up prize courts in United States territory, it became the recognized rule that such a use of neutral territory by belligerents is a violation of neutrality and entails responsibility on the part of the neutral.105 This rule is confirmed by Article 4 of Convention XIII of the Second Hague Conference.108

"•The Sir William Peel (Gt. Brit.) v. U. S., May 8, 1871, Moore's Arb. 3948; Lawrence's Wheaton, 2nd ed., 716.

m Oppenheim, II, sees. 360-363. See Commodore Stewart's case, 1 Ct. CI. 113.

104 It will not be possible to refer to these duties in any detail. These obligations of neutrals are now largely codified in Convention V of the Second Hague Conference respecting the rights and duties of neutral powers and persons in war on land and in Convention XIII concerning the rights and duties of neutral powers in maritime war. See Scott, Hague Peace Conferences, I, 541, et seq., 620, et seq.; Oppenheim, II, sec. 313, et seq.; Weatlake, II, 117-119, 284-287, 321-331; Dupuis, he Droit de la guerre maritime, Paris, 1912, ch. 12. On Convention V, see A. S. de Bustamente in 2 A. J. I. L. (1908), 95-120. Einicke, P., Rechte und Pflichten der neutralen MOchie im Seekrieg. Tubingen, 1912.

In Wheaton, as representative of the United States, obtained heavy indemnities from Denmark for such breaches of neutrality during the Napoleonic Wars. Treaty

Oppenheim, II, sec. 327.

As far as lies in his power, a neutral must prevent a belligerent man-ofwar from cruising within his territorial waters for the purpose of capturing enemy vessels leaving his ports. It has already been observed that a neutral must use diligence to prevent hostilities being carried on in his territorial waters, and that an enemy attacked may invoke this neutral protection, for a failure to extend which the neutral is liable.107

One of the most important duties which the obligation of impartiality makes incumbent upon neutrals is the use of "due diligence"—in Articles 8 and 25 of Convention XIII, it reads "the means at [their] disposal"—to prevent their subjects from building and fitting out vessels within their jurisdiction or the departure of vessels intended for warlike purposes, and to prevent either belligerent from making use of neutral ports as a base of naval operations.108

While a neutral Power incurs no responsibility from the fact that individuals leave its territory to enlist in the service of a belligerent, it is responsible if it permits enlistment on its territory by either of the belligerents.109 It is also bound to use due diligence to prevent hostile expeditions from being organized in its territory to operate against either belligerent.110 A neutral Power, however, is not bound to prevent the export or transit of arms or anything which may be of use to an army or fleet.111 Such trade is merely subject to the belligerent rights of cap

of March 28, 1830, Moore's Arb. 4549-4573. Spain was similarly held liable under the Florida treaty of Feb. 22, 1819, Moore's Arb. 4487, 4513. The United States assumed heavy liabilities under Art. 7 of the Jay treaty of Nov. 19, 1794, for such use of its territory by France. Moore's Arb. 3967, et seq., 3981.

107 But where the claimant vessel began the hostilities upon her captor, she forfeits neutral protection. The Anne, 3 Wheat. 435. The claim of the Brig Armstrong (U. S.) v. Portugal, attacked by a British vessel in Fayal, was dismissed because the brig had failed to notify the Portuguese authorities of the necessity of protection and that they were not physically in a position to protect. Moore's Arb. 1071-1132. The decision has been severely criticized. Lapradelle and Politis, Recueil, I, 650, et seq.

1M These obligations had their origin in the Three Rules of Washington, applied in the Geneva Arbitration. Moore's Arb. 4057-4178. See Convention XIII, 2nd Hague Conference, Arts. 6, et seq.; Hershey, ch. XXXI.

lM Arts. 4 and 6 of Convention V. The United States and British neutrality laws which prohibit citizens and subjects from enlisting within the jurisdiction (or by British law, even without his Majesty's Dominions) exceed the requirements of international law.

110 But its negligence must be clearly proved. See cases in Moore's Arb. 4027-4056.

111 Art. 7 of Convention V.

ture as contraband, the neutral State incurring no responsibility in the matter.

STATE INDEMNITY

It remains merely to note that it is becoming a growing practice for nations to alleviate the individual losses sustained during war, for which no legal liability is incurred, by making voluntary' awards of indemnity as a matter of grace and favor, in order to distribute the loss equally over the whole nation. This beneficent practice was begun by France in 1792 and other states have from time to time followed this worthy example.112 The statute making the appropriation may limit the classes of the beneficiaries as the State deems best, so that occasionally foreigners have not been included among those indemnified. By treaty, diplomatic arrangement or arbitral convention the Latin-American States and certain others among the weaker countries have at times been compelled by the nations of Europe to assume a heavy liability, beyond that required by the strict rules of law, for injuries sustained by aliens during war.113

»• France, law of Aug. 11, 1792, Feb. 27, 1793, Nys, III, 456, 458; Law of Sept. 6, 1871, July 28, 1874 and Aug. 16, 1876, 65 St. Pap. 71 and 621; For. Rel. 1884, 357. Bentwich, pp. 42-43, cites various cases of voluntary indemnities in France, Germany, Italy and Great Britain. Germany in 1871 extended the indemnity to Germans and to subjects of such neutral States only as promised reciprocal treatment in a similar case. Moore's Dig. VI, 905. Bentwich cites England's generous conduct after the South-African War (p. 44). Great Britain also made compensation to deported neutrals. 26 Law Mag. and Rev. 486; For. Rel. 1903, 479-480; 28 Clunet (1901), 189. See also U. S. Act of April 9, 1816, supra, and Abandoned or Captured Property Act; Briggs v. U. S., 143 U. S. 346. Latin-American States often establish claims commissions after a civil war for deciding claims arising out of war injuries. See treaty between United States and Switzerland, Nov. 25, 1850, Art. 2, Malloy II, 1765, providing for equality with natives with respect to war indemnities.

"* Many European countries pressed claims against Chile arising out of her war of 1879-1883 with Bolivia and Peru. Large indemnities were paid. Moore's Arb. 4916 (Germany). Some were submitted to arbitration. Seijas, V, 544-551; 73 St. Pap. 1211; 79 ibid. 670 (Italy); Martens, Nouv. rec. gin., 2* ser., 11, 638 (Belgium) 74 St. Pap. 128, 131, and 79 ibid. 671 (France); 77 St. Pap. 826 (Switzerland); 82 St. Pap. 1292 (Portugal); 76 St. Pap. 98; Martens, Nouv. rec. gen., 2* ser., 12, pp. 507-509 (Austria-Hungary). See also For. Rel. 1883, 97 and For. Rel. 1896, 42. See also claims conventions between Italy and Uruguay, Apr. 5, 1873, 63 St. Pap. 1322; Sardinia and Argentine, August 31, 1858, 49 St. Pap. 477, 480; Great Britain-France and Uruguay, June 28, 1862, 63 St. Pap. 1063; France and New Granada. Ecuador

The war indemnities which are often exacted from the conquered nation by the victor at the end of a war frequently have been used in part to compensate subjects who have sustained injury during the war.114

The growing tendency to impose upon belligerents and neutrals a strict compliance with the rules of war in the interests of private property, under penalty of pecuniary liability, and to regard war as a national disaster, the burdens of which shall be distributed equally over the whole nation, should not be permitted to be interrupted or impaired.

Edwin M. Borchard.

and Venezuela, 49 St. Pap. 1301; Great Britain and Nicaragua (seizures of neutral property and personal injuries) For. Bel. 1894, App. I, 234-363; Moore's Arb. 4966; Great Britain and China, 1899 (Kowshing case), ParI. Pap. (Cd. 93) China, No. 1, 1900.

E. g., Franoe v. China, treaty of Oct. 25, 1860, Art. V, Hertslet's China Treaties, 3rd ed., London, 1908,I, 289; France and Madagascar, French domestic commission, March 18, 1886, 77 St. Pap. 801, 78 St. Pap. 708; Great Britain and South African Republic, Aug. 3, 1881, 72 St. Pap. 900; Brazil and Paraguay, Jan. 9, 1872, La Fontaine, 167-170; Chile and Peru, Oct. 20, 1883, Art. 12, La Fontaine, 592, 593.

THE A.B.C. MEDIATION

How to regulate social, political and commercial intercourse between the people and Government of the United States and the peoples and governments of the other republics on the American continent so as to establish and maintain perfect cordiality and mutual confidence and respect, is a problem which has never been satisfactorily solved.

In considering this question, which is often to the front and sometimes discussed with acerbity, certain disagreeable facts must be faced. In the process of understanding it American vanity will be hurt, but that is no reason for avoiding the effort to do so. There is abundant reason for believing that Americans are not popular in Mexico and other Latin-American countries. It is not the purpose of the writer in this brief essay to undertake to show why this is so. Suffice it to say that the people of the United States are viewed with suspicion, and this doubt of them and their purposes has militated against the development of American trade in the southern republics, and is a cause of irritation which ought to be cured. Diplomatic friendship has existed and does exist, but that is a relationship which can always be counted on until an open breach is imminent. Less than thirty days before the outbreak of the greatest war in all history there was an assumed—a diplomatic— cordiality between the monarchs of Russia, England, Germany and Austria. There is no danger of a cataclysm in America such as is deluging Europe with blood; but that unparalleled disaster shows that something more than formal friendships, something far more than diplomatic amenities, is desirable in the intercourse of nations.

The right relations are based in justice, in respect for the rights and views of other countries, and in forbearance. These are elemental international virtues that must be cultivated if cordial relations are to be maintained. They are the antidotes for the poison of doubt and suspicion.

For four years Mexico has been cursed by one revolution after another,

« 이전계속 »