CHAPTER I

NEUTRALISATION IN GENERAL.

In entering into the foregoing historical sketch of the interoceanic canal questions, it has been with the intention of discovering the different views that have obtained in connection with the status of this maritime communication. The political aspect of the subject only, therefore, has been studied. It is intended now to attempt the solution of the problem from a purely legal standpoint.

As both in the Hay-Pauncefote and in the Hay-BunauVarilla treaties the words "neutrality” and “neutralisation" are used with reference to the juridical position of the canal, it would be well to define as accurately as possible the meaning of these terms, so that we may be able to avoid the misconceptions and ambiguities that would naturally result if a different course were followed. If absolute truth were not necessarily to be attained in this way, we may at least circumscribe within narrow limits the many possibilities for error that are generally attendant on all questions in which technical terms play an important part.

Among the nations of old, belligerents never recognised an attitude of impartiality on the part of the states which had no active part in the hostilities. Some kind of assistance was

always expected from those countries which were near the theatre of war; and if the expected aid was not forthcoming such states were regarded as actually hostile. But in the course of centuries a principle of impartiality on the part of those states foreign to the struggle has been developed, and to-day the body of rules which go to form that principle constitute one of the most important chapters of International Law. A state is, generally speaking, free to abstain from, or take part in, the hostilities when there is a state war; but if it chooses to abstain from acts of war it is said to be neutral, that is to say, that it takes no part in the contest and remains carrying on pacific intercourse with the belligerents. It follows, therefore, that the condition of neutrality in this sense can only exist in time of war, and applies only to those states which, of their own free will, abstain from taking part in the contest, observing thereby an attitude of impartiality towards the belligerents. But there are states and things, which have a neutral character, without having the option to join in the struggle or abstain from it. These are neutralised states and neutralised things, and the process by which they have acquired this character is technically known as Neutralisation. Such states or things cannot have a belligerent nature. In the words of Professor Holland, "to neutralise is to bestow by convention a neutral character upon states, persons, and things which would or might otherwise bear a belligerent character." As a compensation for the obligation which they have of not taking part in warlike acts, a group of states protects them from all hostilities as long as they abide by their duty.

1 Cp. Lawrence, Essays on International Law, pp. 143 et seq.

2 Fortnightly Review, July 1883.

The practice of extending the principles of neutrality in this manner, and thus restricting the freedom of states, is of modern growth. The first example of any such process dates only to the last century. By a convention signed by Austria, France, Great Britain, Prussia, and Russia, on Novenber 20, 1815, these powers declared their formal acknowledgment of the perpetual neutrality of Switzerland; and they further guarantee to that country the integrity and inviolability of its territory. In 1839 the same powers and the Netherlands bestowed this status on Belgium. And in 1867 the Grand Duchy of Luxemburg, under the guarantees of Great Britain, Austria, France, Prussia, and Russia, was perpetually neutralised.

The reason why these states have acquired this peculiar condition has been undoubtedly a political one. The Great Powers have been anxious to uphold the balance of power in Europe, and in order to attain this end they have sought to preserve weak states between the territories of powerful nations, by covenanting that such weak states are not to be attacked, their territories becoming thereby free from the rigours of war. It has been necessary, therefore, in order that there should be a sanction sufficient to deter all aggression, that the agreement providing for neutralisation should be entered into by nations whose location gave them an interest in the question, and whose strength was such as to make effective the inviolability of the provisions contained in the convention. Although distant nations have not taken part in these arrangements, the facts that the guarantee of neutrality is perfectly effective and that so far the inviolability of the states concerned has not been affected, would seem to be sufficient in themselves for considering the neutrality of Switzerland, Belgium,

and Luxemburg as part and parcel of the public law of Europe.

The same machinery has been used to obtain a different end. The doctors and nurses in attendance on the sick and wounded in war, even when in the service of the enemy, are said to be neutralised according to the Geneva Convention, 1864, which has been signed by representatives of nearly all the civilised nations.' The reason is that states have recognised the advisability of letting such persons do their beneficent work in time of war without any discrimination whatever. The hospitals and ambulances of combatants were neutralised in a similar way.

There is another kind of neutralisation, namely, that of certain portions of land or water for the purpose of excluding such places as parts of the regions of war. Primarily the territory of the belligerents and the open sea may be converted into the scene of battle, but the neutral character may be impressed on certain portions, and then no acts of war can be committed there. At present no part of the open sea is neutralised, but formerly the Black Sea was supposed to enjoy this status by virtue of the treaty of Paris, 1856, concluded by Great Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey. It is not necessary here to enter into a discussion of the causes that led the powers to veil under the euphemism of neutrality the restriction imposed on Russia. But by the Treaty of London, 1871, freedom of action in the waters of the Black Sea was restored.

Savoy and the Ionian Islands of Corfu and Paxo are

I It is to be observed that the term “neutrality" does not appear in the revised Geneva Convention of 1906. It is simply stated that the personnel engaged in the treatment of the wounded and the sick "shall be respected and protected under all circumstances" (Higgins, op. cit. p. 23).