The Essentials of International Public Law and Organization

By Amos S. Hershey | Go to book overview

CHAPTER XXXII
NEUTRAL RIGHTS AND DUTIES IN LAND WARFARE

1. THE RIGHTS AND DUTIES OF NEUTRAL POWERS

The Hague Conference of 1907 adopted the following Convention respecting the "Rights and Duties of Neutral Powers and Persons in War on Land":

448. Inviolability of Neutral Territory. -- "The territory of neutral Powers is inviolable" (Art. I).1

"Belligerents are forbidden to move troops or convoys, either of munitions of war or of supplies, across the territory of a neutral Power" (Art. 2).2

449. Enlistment and Levying of Troops. -- "Corps of combatants cannot be formed, nor recruiting offices opened, on the territory of a neutral Power, in the interest of the belligerents " (Art. 4).3

____________________
1
5 H. C. ( 1907), Art. 1. Cf. 13 H. C. ( 1907), 1. See infra, No. 458. This article, which was adopted without discussion, embodies a fundamental principle of the Law of Neutrality always recognized in theory and, in modern times, nearly always observed in practice.

Japan was forced to violate this principle at the outbreak of the Russo- Japanese War by her attack on the Russian vessels at Chemulpo and her subsequent invasion of Korea and Manchuria. But the conditions were altogether anomalous. Korea was under the virtual protection of Japan, and Manchuria is a case of "double or ambiguous sovereignty." The maintenance of Korean independence and the securing of the Russian evacuation of Manchuria were among the ostensible objects of the war, and it was unavoidable that these regions should become theaters of military operations. The neutrality of China (outside of Manchuria) was secured through the acceptance by the Powers of the principles embodied in the Hay note of February 10, 1904. See Hershey, Russo-Japanese War, 70-73 and 246 ff.; and Lawrence, War and Neutrality, ch. 11.

Under very exceptional circumstances, a State might be forced to violate the territorial sovereignty of another as a means of self-preservation. In order to excuse such an act, one must "show a necessity of self-defense, instant, over- whelming, leaving no choice of means and no moment for deliberation." Webster, in the case of the Caroline ( 1841). Cf. supra, note on p. 233 n.

2
5 H. C., 2. It should be noted that this is a positive prohibition upon belligerents. For the corresponding obligation resting upon neutrals, see 5 H. C., 5, below, No. 449.
3
5 H. C., 4. (For Article 3, by which belligerents are forbidden to erect or use for military purposes wireless telegraphy stations or apparatus on neutral territory, see supra, No. 440.)

-671-

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