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Published online by Cambridge University Press: 12 July 2017
1 Text in Special Supplement to this Journal , Oct. 1926, Vol. 20, p. 361. Dr. James Brown Scott, commenting on the draft codes of the American Institute, deals very briefly with this project. He expresses the belief that it “ states the enlightened practice of the American Republics before the last war, incorporating in its provision the experience had in that war, and quotes from Prof. Jos6 Matos, of Guatemala, who explains that changed conditions have made necessary a change in the rules of neutrality (Proc. Am. Soc. Int. Law, 1925, pp. 45-46). Dr. Antonio S. de Bustamente, of Cuba, contents himself with quoting Articles 1 and 2 of Project 26 as indicating its spirit. (Ibid., 1926, p. 125.) Prof. J. L. Brierly, of England, sees no “ serious modification of the law as commonly understood” with respect to the rights and duties of neutral states in the draft convention, while the voeux “ ensuring the comfort and profit of the neutral trader” are “ perhaps a natural corollary” to the general preamble of the code (Project 1, Art. 9), which “ hopes that war has happily and forever vanished from the American Continent.” (British Year Book of International Law, 1926, p. 17.)
2 Wright, ,and “ Changes in the Conception of War,”this Journal18p.756 Google Scholaret seq.
3 Wheaton, Elements of International Law, 8th ed. (Dana), 1866, p. 509. Scott calls this right a “ recent doctrine.” (Proc. Am. Soc. Int. Law, 1925, p. 45.)
4 The distinction lies in the fact that termination of neutrality by war does not necessarily violate international law, which would necessarily be the case if neutrality were a “ right.”
5 Kingt, Bolton,and Mazzini (Everyman's ed.)18p.305.See also Beer, The English Speaking Peoples1917 Google Scholar
6 , VanVollenhoven,and The Three Stages of the Law of Nations The Hague p. 191931Google Scholar
7 Grotius,De Jure Belli Ac Pads, I, c. 5, sec. 2; II,c. 20, sec. 40, pars. 1, 4; c. 25, sec. 6.
8 Plutarch, Solon, Sec. 18. See also Creasy, First Platform of International Law, London, 1876, p. 44; Amos, Jurisprudence, London, 1872, pp. 411,456; Wright, “ Effects of the League of Nations Covenant,” Am. Pol. Sci. Rev., 1919, Vol. 13, p. 557; “ Outlawry of War,” this Journal , Vol. 19, p. 92. This conception appears to be embodied in the fifth declaration of the rights and duties of nations of the American Institute of International Law (1916), contained in the seventh draft project, which entitles every nation to have its rights not only “ respected” but also “ protected” by all other nations, and in Article 21 of the fourth project which recognizes the “ right” (but not the duty) of American Republics “ to protest against violations of international law even if those violations do not directly affect them.” By the preceding article, however, the “ observance of international law rests principally upon the honor of the American Republics under the sanction of public opinion,” though Project 20 authorizes “ coercitive” measures of redress like reprisals, hostile embargo and pacific blockade. This Journal , Spec. Supp., Vol. 20, pp. 307, 312, 382, and Scott, Proc. Am.Soc. Int. Law, 1925, pp. 20-21, 45.
9 Covenant, Arts. 10, 16; Wright, Am. Pol. Sci. Rev., Vol. 13, p. 563; League of Nations Official Journal, Vol. 1, p. 57.
10 Switzerland's status of neutrality was recognized as a special exception by Art. 435 of the Treaty of Versailles and by a resolution of the League of Nations Council, Feb. 13, 1920 (Off. Journ. Vol. 1, p. 57). The permanent neutrality of Belgium and Luxemburg was terminated by the Treaty of Versailles (Arts. 31,40), and Germany's request for a relaxation of Covenant obligations in viewof her disarmament was not explicitly granted on her admission to the League. See collective note to Germany at Locarno, Oct. 16, 1925, this Journal , Supplement, Vol. 20, p. 32. Some of the neutrality treaties made in Europe since the war seem to conflict with the Covenant. See Post-War European Treaties, Foreign Policy Association Information Service, Vol. 2, No. 16, p. 185; De Visscher, “ The Stabilization of Europe,” p. I l l , and debate in United States Senate on effect of Article 20 of the Covenant, Cong. Rec., Jan. 14, 1926, Vol. 67(daily ed.), p. 1665
11 Wright, this Joubnal , Vol. 18, p. 7 5 6 . This seems to have been the limit of Washington's meaning when he said in the farewell address: “ The duty of holding a neutral conduct may be inferred, without anything more, from the obligation which justice and humanity impose on every nation in cases in which it is free to act to maintain inviolate the relation of peace and amity toward other nations.”
12 See this Journal , Vol. 18, pp. 541-542, especially footnotes 21 and 22, and Scott, Proc. Am. Soc. Int. Law, 1925, p. 45.
13 Wright, this Journal, Vol. 19, p. 9 0 ; Fenwick,International Law, p. 8 7 ; Gamer, International Law and the World War, Vol. 2 , p. 2 1 0 ; Belgian note, Aug. 3, 1914, and Swiss declaration of neutrality, Dec. 12, 1917, Naval War College, International Law Documents, 1917, pp. 53, 212.
14 Vattel,Le Droit des gens, Preliminaires, Sec. 22;infra, note 15.
15 Stowell, Intervention in International Law, pp. vi, 1; Wright, this Journal ., Vol. 19, pp. 89-96; VanVollenhoven, op. at., p. 10 et. seq.; Root, this Journal , Vol. 10, pp. 9, 217; supra, note 8.
16 The United States has twice resorted to war for the avowed purposeof defending its neutral rights against belligerents, and once to reprisals. Other neutrals have done the same on occasion, and neutrals have frequently proclaimed their right and intention to use force in behalf of neutral rights. See Armed Neutralities of 1780 and 1800 (Carnegie Endowment for International Peace, Division of International Law, Pamphlets 27, 28), and declarations of Argentina, Cuga, Peru, and Uruguay during the World War, Nav.War Col., Int. Law Docs., 1917, pp. 37, 78, 198, 216, 249.
17 Annual message to Congress, Dec. 6, 1904.
18 Venezuela recognized this interest in October, 1914, by suggestinga conference of neutral nations to mediate in the war on the following, among other, grounds: “ Although neutrality has never signified an attitude of indifference, today less than ever can it have this signification.The universal economic losses, probably resulting from the actual war of Europe, if the duration is to be, as there is reason to fear, indefinite, cannot be a matter of indifference to neutral nations.” Nav. War Col.,Int. Law Docs., 1916, p. 128
19 Supra, note 13.
20 Machiavelli thought it not only “ more frank and princely” but also “ more profitable” to declare war than “ to stand neuter” (The Prince, Chap. 21), and though Grotius favored peace, he thought “ when we have right on our side, and, what isof greatest consequence, strength also, it is time for war” (op. cit., II, c. 24, sec. 9). Washington emphasized “ the inducements of interest” for observing neutrality, in order to “ gain time … to mature our yet recent institutions,” and looked forward to “ the period not far off when we may defy material injury from external annoyance … and choose peace or war as our i terests guided by justice shall counsel.” (Farewell address, Sept. 17, 1796.) Secretary of State Hughes said: “ We are not isolated and could not be… . It is not that our interests were not affected injuriously by such controversies… . But, it was, despite such injuries, the abiding conviction that we had better bear these ills than suffer the greater evils which would follow the sacrifice of our independent position.” (Address, Nov. 30,1923, Current History, Jan. 1924, pp. 576, 579.)
21 eVisscher, op. cit., pp. 80, 82; Wright, this Journal , Vol. 19, p. 97-101; and debate between Senators Borah, Lenroot and Walsh, Cong. Rec., Jan. 22, 1926, Vol. 67 (daily ed.), pp. 2235, 2240, 2242.
22 Penn, Essay Toward the Present and Future Peace of Europe by theEstablishment of an European Dyet, Parliament or Estates, Sec. 4, par. 5, summarized in Darby, International Tribunals, 1904, p. 57.
23 Nav. War Col., Int. Law Docs., 1916, pp. 125-129.
24 Addams, Peace and Bread, 1922; Women at the Hague, 1916.
25 Project No. 7 of the American Institute, a formal statute for the Pan American Union, authorizes the Union to “ see that no nation interferes with the most absolute freedom of navigation even indirectly.” This Journal , Spec. Supp., 1926, Vol. 20, p. 315.
26 This draft says “ a merchant ship must not be rendered unseaworthy until the crew and passengers have been first placed in safety,” while the Washington treaty said“ must not be destroyed unless … ,” etc.
27 See Nav. War Col., Int. Law Docs., 1905, pp. 1-20, 1913, pp. 113-131.
28 Netherlands, Regulation of Aug. 5, 1914, Arts. 2, 4. Ibid., 1916, p. 62.
29 Norway, Oct. 13, 1916, Jan. 30, 1917; Spain, June 29, 1917; Sweden, July 19, 1916. Ibid., 1917, pp. 194, 214, 215.
30 Netherlands, Aug. 5, 1914; United States for Panama Canal Zone, Nov. 13, 1914, Rule 2; Argentina, Aug. 17, 1914, Art. 4, Dec. 26, 1914; Dominican Republic, Jan. 5, 1915; Ecuador, Jan. 18, 1917, Art. 1. Nav. War Col., Int. Law Docs., 1916, pp. 62, 97; 1917, pp. 23, 30, 86; 1918, p. 45. Great Britain proposed such a provision at the Second Hague Conference (1907), but objection was made on the ground that the competence of the conference did not extend to unneutral service here involved. See Scott, Reports to the Hague Conferences, p. 614; Higgins, Hague Peace Conferences, p. 317
31 Armed merchant vessels, however, are not assimilated to war vessels, as they were by the Netherlands during the World War. See Hall, International Law, 8th ed. (Higgins), p. 630, which supports the British protest against the Dutch practice.
32 Ecuador, Nov. 28, 1914; United States, Sept. 19, 1914; Uruguay, Dec. 14, 1914; Argentina, Dec. 26, 1914. Nav. War Col., Int. Law Docs., 1916, pp. 57, 91, 116; 1917, p. 29.
33 Ibid., 1916, p. 28.
34 Switzerland, Aug. 4, 1914, Art. 17, Aug. 10, 1914; United States for Panama Canal Zone, Nov. 13, 1914, Art. 15; Norway, Nov. 6, 1914, Art. 2. Ibid., 1916, pp. 73, 77, 96; 1917, p. 192.
35 Hyde, op, cit., Vol. 2, p. 699.
36 Ibid.,Vol. 2, p. 755; Gamer, op. cit., Vol. 2, p.408 et seg.
37 Hyde, ,International Law,p.754. 2For detailed discussion of the question, see Gamerop. cit Chap. 35.Google Scholar
38 The United States made no such attempt while neutral in the World War (Hyde, op. cit., Vol. 2, p. 707). It would be an encroachment upon the usual authority of a state over its citizens if a belligerent were prohibited from punishing, by action against property or persons within its territory, its citizens abroad who failed to respond to a call to the colors.
39 Chile, Dec. 30, 1914; Colombia, Aug. 22, 1914, Sept. 1, 1914, Sept. 11, 1914; Cuba, Sept. 24, 1914; Guatemala, Sept. 1, 1914; Nicaragua, Dec. 5, 1914; Switzerland, Aug. 4, 1914, Art. 14; United States, Aug. 5,1914; Uruguay, Sept. 1, 1914; Venezuela, Aug. 26, 1914. Nav. War Col., Int. Law Docs., 1916, pp. 24, 36-38, 49, 58, 64, 73, 87, 110, 124-125.
40 Hall, International Law, 8th ed. (Higgins), p. 480; Gamer, op. tit., Vol. 2, p. 428.
41 Hall,op. cit., pp. 198-199. Dutch restrictions of this character were protested by belligerents. Gamer,op. cit., Vol. 2, p. 429.
42 Belligerents protested to Colombia and Ecuador on the inadequacy of radio control. Gamer, op. cit., Vol. 2, pp. 413-414.