First World War Centennial

CHAPTER V

INCIDENTAL RULES AFFECTING RIGHTS OF NEUTRALS ON THE SEA

THE thirteenth convention of the second Hague Conference which concerns the rights and duties of neutral Powers in naval war contains the following:

"These rules should not, in principle, be altered in the course of the war by a neutral Power, except in a case where experience has shown the necessity for such change to protect the rights of that Power."

The stipulation should be borne in mind, otherwise a neutral taking advantage of an opportune moment to win that which has been wrongfully withheld, may put itself on a par with belligerents which are heedless in regard to international law when it suits their convenience. Thus fortified in prudence one can safely take notice of certain belligerent practices on the high seas which are frequently over­looked in the consideration of major matters regarding search, the duty owed neutral travelers on merchantmen, contraband, and blockade.

Among the most important of these are: The practice of claiming that enemy goods continue enemy after sale to a neutral; the practice of treating vessels employed or leased by a belligerent for the purpose of victualling an enemy garrison or fleet, or the performance of kindred services, as lawful prize; the practice of seizing neutral goods in enemy ships when the same have what is briefly designated as enemy character.

Certain of these rules which favor the bel­ligerent rather than the neutral are fair, others are not. Some are grounded on wrong premises—none have had the attention they deserve.

For the present, however, they should be the subject of keen analysis rather than of action, because the law, whether it be equita­ble or otherwise, is fairly well defined, and nations at war may properly plead that the time is not convenient to suggest readjust­ment.

Bearing in mind, then, the fact that the discussion of certain matters with a view to­ward immediate correction is tabooed during the continuance of hostilities, we come to the consideration of aggressive belligerent acts which injure a neutral and for which there is insufficient warrant.

These may be classified under three heads, and briefly reviewed without considering the application of this grouping to a wider field than that which is represented by such neu­tral interests on the high seas as cannot be more conveniently treated elsewhere.

Class I. includes acts which give ample opportunity for protest, formal representa­tion, and recommendation. This is because the law governing them is unsettled. Among these will be found cases which the conferees

in the London Convention found it impossible to dispose of, and in which the rules proffered were neither accepted nor rejected.

For instance, if neutral goods are found in the country of a belligerent at the opening of a war, under the French rule they take char­acter according to the nationality of the owner, while by the English doctrine their status is determined by the locus.

Here are two radically different theories which may affect merchandise which is later shipped in enemy vessels.

So far the nations have been unable to get together on common ground. The whole matter is therefore open for neutral comment., and the exercise of neutral influence. So is it in the matter of enemy trade jealously guarded by a warring nation during the days when its commercial interests had first atten­tion. There is a doctrine affirmed by some, denied by others, that inasmuch as the par­ticular trade in question is vital to the bellig­erent, neutrals which see fit to enter into the same lose their character of impartiality and must suffer accordingly. Here again is as

a fair field for the neutral. Nothing is so settled and defined as to preclude a sagacious Power from exercising its diplomacy in such a manner as will secure lasting results.

Further instance is hardly needed by way of illustration.

What we are to bear in mind is this, viz., that when there has been affirmation pro and con, whether by courts or international pub­licists of reputation, the neutral is accorded an opportunity to play a distinguished part in the shaping of international law.

Class II. comprehends acts which are with­out precedent, but which may themselves be­come precedents and endanger neutral rights in the future if permitted to pass unnoticed.

One does not have to go far for examples in days when the ingenuity of man is devising engines of war to prowl beneath the sea and in the firmament above. Such departures are of immense significance to belligerents as well as neutrals, and should, with a view to the future, be considered as carefully by them as by non-combatants.

It goes without saying, however, that the onus of seeing that novel war measures are in accord with natural law rests upon neu­trals, and that they will be looked upon solely with regard to the military necessity of the hour by peoples who believe they are fighting for national existence. This is true even when it is suicidal for a belligerent to cham­pion an erroneous practice.

Thus Germany by her use of the submarine, and with an eye to providing an offset to Great Britain's broadened theory of war zones, may be said to be thrusting a knife into her own vitals by teaching maritime nations how they may spread their rule at sea with smaller cost to themselves. Indeed, the Kaiser's Government has given the im­pression that it may go further and refuse the rational and necessary requests of the United States. A thing which, if actually done, will furnish Great Britain and her colonies, should she be victorious, with a precedent that may hereafter cause Ger­many's undoing. This case, with which everyone is familiar in these days of stress, is only one of many that might be cited to show the inability of the belligerents to look after their ultimate interests under the pressure of war.

Neutral states must therefore expect to go on record in such manner as will protect not only their own rights, but those of humanity. In declining to do this they assume great responsibility. On the other hand if they perform that which must be regarded as a duty of the most primary sort, it will not be at all astonishing if they find themselves later supported—and staunchly too—by nations whose eyes are for the present holden that they cannot see.

Class III. comprises acts which justify action because they constitute a breach of the law which safeguards the neutral.

"Gentlemen may cry—Peace—Peace," but there can be no peace for humanity as long as the neutral allows such matters to pass unnoticed. Leagues to enforce peace may be admirable, but will ever prove insuf­ficient without moral stamina, and there is no moral stamina when a strong neutral nation permits itself, its people, and human rights to be trodden under foot in defiance of estab­lished law.