The rights and duties of neutrals: A general history

By Stephen Neff

Now available as an ebook for the first time, this 2000 title in the Melland Schill Studies in International Law series is a survey of the history of law of neutrality from its mediaeval roots to the end of the twentieth century. The theme is the eternal clash between the rights of neutrals and belligerents - between the right of belligerents to defeat their enemies, and the right of neutrals to trade freely with all parties. Over the centuries, belligerent powers have devised various legal means of restricting neutrals from trading with their enemies, such as the law of blockade and contraband carriage. At the same time, neutral traders have done their best to evade and circumvent these restrictions. This book traces the evolution of state practice, together with the debates over the relevant doctrinal issues and the various attempts to reform and codify the law of neutrality.

• Language: English
• Publisher: Manchester University Press
• Release date: Dec 20, 2022
• ISBN: 9781526170569

Book preview

The rights and duties of neutrals

Melland Schill Studies in International Law

General editors Iain Scobbie and Jean D’Aspremont

Founded as a memorial to Edward Melland Schill, a promising scholar killed during the First World War, the Melland Schill Lectures (1961–74) were established by the University of Manchester following a bequest by Edward’s sister, Olive B. Schill, to promote the understanding of international law and implicitly lessen the possibilities for future conflict. Dedicated to promoting women’s employment rights and access to education, Olive’s work is commemorated in both the Melland Schill series and the Women in International Law Network at the University of Manchester.

The Melland Schill lecture series featured a distinguished series of speakers on a range of controversial topics, including Quincy Wright on the role of international law in the elimination of war, Robert Jennings on the acquisition of territory, and Sir Ian Sinclair on the Vienna Convention on the Law of Treaties.

In the 1970s, Gillian White, the first woman appointed as a Professor of Law in mainland Britain, transformed the lectures into a monograph series, published by Manchester University Press. Many of the works previously published under the name ‘Melland Schill monographs’ have become standard references in the field, including: A.P.V. Rogers’ Law on the battlefield, which is currently in its third edition, and Hilary Charlesworth and Christine Chinkin’s The boundaries of international law, which offered the first book-length treatment of the application of feminist theories to international law.

Closely linked to the Melland Schill Classics and Melland Schill Perspectives series, Melland Schill Studies in International Law has become a home for exceptional academic work from around the world.

The rights and duties of neutrals

A general history

Stephen C. Neff

MANCHESTER UNIVERSITY PRESS

Copyright © Stephen C. Neff 2000

The right of Stephen C. Neff to be identified as the author of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988.

Published by Manchester University Press

Oxford Road, Manchester M13 9PL

www.manchesteruniversitypress.co.uk

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library

ISBN 978 1 5261 7057 6   web pdf

ISBN 978 1 5261 7056 9   epub

This ebook edition first published 2022

The publisher has no responsibility for the persistence or accuracy of URLs for any external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Original typesetting

by Graphicraft Limited, Hong Kong

To the memory of Richard B. Lillich whose friendship and inspiration are missed by so many.

Contents

List of abbreviations

Acknowledgements

Table of treaties

Introduction

Part I: The foundations 1200–1800

1Medieval roots

The just-war era

‘Rights’ of neutrals

Duties of neutrals

Rights of belligerents

Some practical problems

2The age of parchment

A time of liberality

Neutral assertiveness

Trouble beckoning

3In search of first principles

The three schools

The pedants in contention

Part II: Innovation and consolidation 1750–1914

4The invention of total war

Belligerent innovations

Neutrals fight back

Economic warfare – with neutrals in the middle

5Consensus approached

Doctrinal clashes

Practical adjustments

Towards the Declaration of Paris

Neutrality and peace

6Consensus ruptured

Holes in the Declaration of Paris

New tools for total war

Exploiting sovereign rights

Fearing for the future

7Stating the rules

The Hague Conventions of 1907

The Declaration of London

A revolt in Britain

Part III: New challenges 1914–2000

8A great war and new departures

The Allies: the art of ‘long-distance blockade’

The Germans: the art of submarine warfare

Post-mortem

9The collective-security era

Abolishing neutrality

Codification redux

The challenge of the ‘new neutrality’

Neutral solidarity

Total war returns

10 Modern times

The just-war outlook returns

Neutrality survives – again

Belligerents’ rights in action

Sovereign rights in action

Neutrals resurgent

Conclusion

Select bibliography

Table of cases

Index

Abbreviations

Acknowledgements

The generous help, in the form of financial assistance, from the University of Edinburgh’s Faculty of Law is gratefully acknowledged. In addition, special thanks are due to Ms Helena Janssen for her invaluable contributions as a research assistant.

Belligerent rights and neutral privileges are set in array against each other. Their respective pretensions, if not actually intermixed, come into close contact, and the line of partition is not so distinctly marked as to be clearly discernible. It is impossible to declare in favor of either, without hearing, from the other, objections which it is difficult to answer and arguments which it is not easy to refute.

John Marshall, The Nereide, 13 US (9 Cranch) 388 (1815), at 432.

Table of treaties

Introduction

To the average person, war and peace are stark opposites. And so they are, after a fashion. But these two opposite conditions are also indissoluably interconnected because they exist at the same time. Belligerent states are (by definition) at war with their enemies. But at the very same time, they are (again by definition) at peace with all neutral countries. As a consequence, the relationships of war and the relationships of peace are, in practice, constantly interweaving and jostling against one another. War and peace may be opposites. But they are also bedfellows – sometimes of a very fractious sort.

The law of neutrality is the law regulating the coexistence of war and peace. Its history is the story of the competition between opposing rights – those of belligerents against those of neutrals. Belligerents claim a right to take whatever steps are necessary to bring their foes to heel – including, when necessary, interrupting their trade with neutral persons. Neutrals claim a right to carry on doing ‘business as usual’ with the warring sides, with whom they are (by definition) at peace. For centuries in the past – and possibly for centuries in the future too – this struggle has continued. In general, belligerents have had the upper hand. For one thing, they come to the struggle already armed and desperate, since they are fighting a real enemy at the same time that they are vigilantly eyeing the doings of neutrals. Also, the law recognised the rights of belligerents before it recognised the rights of neutrals. The building of a law of neutral rights has therefore been a sort of juridical guerrilla war. There has been thrust and counterthrust, invention and circumvention, crackdown and evasion. Periods of consensus and calm have alternated with times of confrontation. Our history is the story of that struggle and of the forces that shaped it, starting in the Middle Ages and extending to the present day.

For those who prefer clear-cut moral distinctions between competing parties, this story is likely to be a puzzling and unsettling one in many ways. The moral balance of power between neutrals and belligerents, like the legal one, has altered much over the centuries. There is, in truth, much to disapprove of on both sides. Many are loath to concede any special prerogatives to belligerents simply by virtue of their being at war. They will have an instinctive sympathy for broad rights for neutrals, on the thesis that the interests of those at peace should naturally prevail over the interests of those at war.

At the same time, many will see little to praise in the neutrals, whose ‘business as usual’ has sometimes been of a sordid character: the supplying of arms to one side, or even to both; or the reaping of ‘famine’ profits by means of blockade running. Neutrality encompasses the humanitarianism of the Red Cross but also the derring-do of the blockade runner. It unites the idealism of the pacifist with the sharp commercial eye of the arms dealer. Historically, the blockade runner and the arms dealer were earlier on the scene, by a very considerable margin, than the humanitarian and the pacifist (who were not much in evidence before the nineteenth century). In addition, if more prosaically, the neutral camp has included ordinary peace-loving merchants seeking nothing more adventurous than to ply their ordinary trades without vexation and oppression.

More than perhaps any other area of international law, neutrality has been moulded far more by the struggles of the real world than by the expositions of commentators. No other major area of the law of nations began its career with so poor a doctrinal endowment as the law of neutrality. The law of neutrality accordingly was moulded as much by war planners and strategists as by commentators and judges – indeed, more so. Consequently, in our story, the salt air of the quarterdeck must mingle with the dust of the scholar’s chamber. The centuries of competition between the rights and interests of belligerents and neutrals have spawned a continous, if rather ad hoc, outpouring of doctrines designed, often at short notice, to deal with very down-to-earth problems. They often go by quaintly obscure names – the Rule of 1756, the continuous-voyage doctrine, the base-of-operations principle, the commercial-adventure doctrine and so forth.

In this process, scholars and commentators have often been reduced to the role of intellectual scavengers – prowling the field of competition in the wake of statesmen and traders, trying to assemble the myriad doctrines and practices into something like a coherent whole. They often tried heroically to make something permanent and systematic out of a set of practices that were, in truth, makeshift and piecemeal. A major theme of our story will be the challenges that these would-be systematisers have faced – and why the law of neutrality, for all of its detail and intricacy, has continued to rest on uncertain conceptual foundations.

The present account of the evolution of the law of neutrality cannot be a comprehensive one. (The subject still awaits a full-scale historical treatment.) We can only follow its central threads. That means that our primary attention will be in three paricular areas: contraband, blockade and the capture of enemy property at sea. These subjects, more than any others, sharply highlight the dilemmas and controversies that have raged in this subject throughout history. Many of the concerns in these areas have been recognisably the same for centuries – yet they have also undergone significant evolution in the light of conceptual, moral, economic and technological change. The focus of our attention, accordingly, will be far more on the seas than the dry land. In addition, it should be stressed that the neutral parties in our story will principally be neutral individuals rather than states – persons who are seeking to trade with the belligerents while (so to speak) the bullets whizz around them.

We can say only a little about such topics as the criteria for neutral character, the law relating to loans to belligerents or the law on prizes in neutral states. Aerial warfare will receive little attention, since it has contributed little (as yet) in the way of new conceptual departures. Also omitted, with regret, is a survey of roots of neutrality law in ancient Greece and Rome, or in other civilisations. Nor will we be concerned, save incidentally, with the foreign policies of neutral states, such as Sweden or Switzerland.

The book is not designed only for lawyers. It does not pretend or attempt to be a treatise on the substantive law of neutrality. Instead, it will be a look at the general forces which have shaped the law over the centuries, beginning in the Middle Ages and continuing to the present day. No prior legal knowledge is assumed, and all necessary legal ideas are explained as the story proceeds. Those interested in the general history of international relations and of war will find something of interest here. So will anyone who wishes to see, in detail, how a rich body of international law can be – and has been – assembled out of the raw material of events on the ground. Most of all, the story will be of interest to those who wish to know how the law of nations has struggled, over the centuries, to reconcile the rights of war with the rights of peace.

Part I

The foundations 1200–1800

1

Medieval roots

The law of neutrality does not possess a lengthy intellectual pedigree. It made no significant appearance in the corpus of Justinian or in the writings of the natural lawyers of the Middle Ages. What it possesses instead is a lengthy body of state practice that gradually – though only very gradually, to be sure – blossomed into a distinct branch of the law of nations. The law of neutrality, in short, was made not, as it were, from the top-down by scholars and commentators, but rather from the bottom-up by statesmen, generals, admirals and traders. It was a fact of life first, and an institution of law only later.

This state of affairs may seem surprising, in light of the fact that the medieval natural lawyers devised a very elaborate body of law relating to war: the theory of the just war. But it was the very nature of this theory – in which war was seen as a contest between good and evil – that prevented neutrality from being morally acceptable. The ideas of theologians and natural lawyers were, however, powerless to prevent a host of very practical problems from presenting themselves when some countries were at war while others were at peace. The way in which these questions were dealt with put the law of neutrality onto the course that it has taken ever since.¹

The just-war era

The medieval Christian world held neutrality in low esteem. It could hardly do otherwise, given the prevailing concept of war in Christian thought as a contest between justice and injustice. The unjust side in any given conflict was using force to infringe the legal rights of its foe (or victim). The just side, in contrast, was using force to defend or enforce its rights. A just war – i.e., a use of force by the just side – was therefore essentially a police measure, an enforcement of legal rights and punishment of wrongdoing.² On this view of war, third parties might decline to participate in the actual hostilities. But they could hardly be neutral in the sense of being utterly indifferent to the outcome. On the contrary, it was seen as the duty of third states to lend assistance to the just side and scrupulously to refrain from assisting the unjust one. For third parties simply to carry on doing ‘business as usual’ would amount, at best, to a dereliction of moral duty. At worst, it could even be seen as covert support for the unjust side. In a struggle between a criminal and his victim, there is no moral excuse for neutrality.

With such an outlook on war, it was virtually impossible to see neutrality as an incontestable and unquestionable sovereign prerogative of states, as later generations would. (The idea that states could even have a legal duty to be neutral, in the style of Belgium in the nineteenth century, would have been utterly preposterous to a medieval lawyer.) Nor could any elaborate body of rights of neutrals possibly exist. How could a state expect to derive a set of rights from a refusal to do its proper duty to the community at large? It is no accident, then, that, while the general law of war came to be highly developed in the Middle Ages, a law of neutrality was virtually non-existent.

When we turn from the doctrinal position to the actual practice of states, we find the greatest contrast. If just-war theory was conceptually stony ground for the growth of a body of legal rights attaching to neutrality, then state practice showed itself to be a very lush garden. There was no gainsaying that neutrality existed as an ineluctable fact of international life. In practice, there was no great disposition on the part of princes to throw themselves into the quarrels of others when they perceived no interest of their