On the other side, belligerent States have hesitated to place any serious limitations upon the movements of their military forces. The true instructions of a belligerent State to its generals are always, as Professor Westlake so accurately describes them," "Succeed-by war according to its laws, if you can; but, at all events and in any way, succeed."

Another curious but important impediment has stood in the way, both of the clear interpretation of the laws of neutrality, and of their enforcement. This is the complete failure of international conventions and of most writers on international law to define satisfactorily the duties of belligerents toward neutrals. It is impossible to draft a complete and workable code of neutrality and to ignore the correlative obligations of belligerents.

Convention V of The Hague conference of 1907 is devoted to articles "respecting the rights and duties of neutral powers"; and most writers on international law (even so careful an author as Westlake) discuss the "laws of neutrality" under the topic: "Rights and obligations of neutral States," with little or no reference to the duties and obligations of belligerents. Wherever the latter are mentioned, it usually is a repetition of the former rules, or a negative statement of a command to neutrals.

During the last 50 to 60 years the laws of neutrality have been elaborated along certain fundamental lines through the efforts of a number of leading States, chief among which has been the United States; but they have dealt very largely with the duties of neutrals; and, through the adoption of these rules, neutral States secured a recognition of their rights and a regular standing in international law. The work of the Second Hague Conference was devoted, in large part, to the elaboration of the laws of neutrality in connection with the law of war on land and of naval warfare. leading principles accepted at this conference and approved by practically all the States are the following:

1. "The territory of neutral powers is inviolate.” *

Among the

2. Troops or convoys of either munitions of war or supplies can not be moved across neutral territory by belligerents.*

3. Neutral territory must not be used as a base for wireless stations, prize courts, recruiting offices, supplies, or for military or naval operations by any belligerent power."

4. Warships must not be built, equipped, or manned in neutral ports or waters for belligerents."

5. Neutral States must preserve a strictly impartial attitude toward all belligerents, and their Governments officially give no aid, supplies, money, or loans to either side." "

A careful distinction is made, however, between the rules governing the action of belligerents on sea and those on land. The use of neutral land by belligerents is strictly forbidden; but innocent passage through the territorial waters of neutral States is permissible, particularly where the water in question is a strait or channel connecting two portions of the open sea. Belligerent ships may take refuge under stress of weather, or obtain coal and supplies sufficient to reach the next port, in neutral waters; but they must not use the same as a base of operations or a place in which to lay in wait for or to attack the enemy. Neutrals, however, may regulate the use of their own

1 John Westlake, International Law, pt. II, p. 117.

Convention V, Rights and Duties of Neutral Powers in War on Land, arts. 1, 2, 3, 4, and 11.

8 Convention V, Rights and Duties of Neutral Powers in Naval War, arts. 4, 5, 6, 8,

territorial waters' and are held responsible for the infractions of their waters and neutrality. Neutrals may exclude belligerents from their territorial waters if it is apparent that the passage of belligerent forces through those waters will jeopardize their neutrality. Ships or military forces that violate neutral waters or territory must be interned till the end of the war. If a belligerent attacks the ships of another within the territorial waters of a neutral, or an act harmful to another State occurs on neutral territory, it is incumbent on that neutral to take prompt steps to prevent such violations and to demand the proper apologies and indemnities in case the violations actually take place.

In these and in all cases where the inviolability of neutral territory and the position of neutral States and their citizens are threatened, the burden of preventing infractions of neutral laws is laid upon the neutral powers. If they take every reasonable precaution and make an honest effort with all the means at their disposal to prevent violations of their neutrality, they can not be held legally responsible for acts of violence. The means that should be used by a neutral to preserve its neutrality or to prevent a misuse of its territory or territorial waters, and the extent to which it should use these means and its powers to enforce neutral rights have not yet been fully defined. As a result of the three rules of the treaty of Washington and the decision in the case of the Alabama, it was laid down that a neutral must exercise "due diligence." This term is obviously open to various interpretations; and the definition of the tribunal that “due diligence ought to be exercised by neutral Governments in proportion to the risks to which either of the belligerents may be exposed from a failure to fulfil the obligations of neutrality on their part" was never generally accepted. The Hague conference interpreted this to mean that a "neutral power is bound to exercise such surveillance as the means at its disposal allow to prevent any violation" of the rules governing neutrality agreed upon by the conference. This is the present status and is as far as the States have been willing to commit themselves, for no one can reasonably expect a neutral State to do more to fulfil its neutral obligations than it is able to do with the means and powers at its disposal.

Prompt warnings and threats to withdraw from belligerents the innocent use of territorial waters are no doubt legitimate means open to neutral States. Prompt protests ought always to be the first act of a neutral whenever any infraction of its rights or territory is imminent or has taken place without warning. Every effort should be made diplomatically to induce the belligerents to respect the rights and territories of neutrals. A neutral is not obliged to protest against or punish for acts in violation of the neutrality of other neutral States, or for acts in violation of its neutrality not done on its own territory. The use of force by neutral nations to preserve their neutrality is justifiable, when all peaceful means fail. The Hague convention of 1907 was unanimous in declaring that "the fact that a neutral power resists even by force attempts to violate its neutrality can not be regarded as a hostile act."" This exercise of the right to employ force should, however, be used with caution, for it may react in a most undesirable way upon the user. In the case of small neutral States, they may be forced in spite of themselves into a position of belligerency. And more

1 Compare Scott, Hague Conferences, II, 632-633.

2 Convention V, Rights and Duties of Neutral Powers in Naval War, arts. 2 and 5. Compare with interpretation in Le Deuxième Conférence de la Paix. Acts and documents, Vol. III, pp. 511-512, art. 25.

* Convention 5, Respecting the Rights and Duties of Neutrals on Land, ch. I, art. 10.

powerful belligerents may also be drawn into the conflict if they appeal too hastily and brusquely to forcible measures. It is probable that more can be accomplished in the direction of securing obedience to the laws of neutrality and protection for the rights of neutrals through the exercise of a consistent and firm policy by all neutral States in defense of the existing rules and by a general cooperation in the enforcement of the same. Belligerents have always been quick to note looseness or remissness on the part of neutral States and to hold them to a strict account. Huge indemnities have had to be paid, as in the case of the Alabama and sister ships built in England during the Civil War, for lack of care in the enforcement of neutral duties and obligations. It would appear, therefore, that sufficient emphasis has been laid upon the duties and obligations of neutrals, for these are reasonably clear, as well as the penalties for their violation or evasion. The experiences of the present war have clearly shown, however, that a good deal of work yet remains to be done in the field of defining the rights of neutrals and the obligations of belligerents.

The general obligations of belligerents are well known, and certain acts are definitely forbidden to them; but a serious situation has arisen because there is no way provided to compel belligerents to respect the rights of neutrals or obey the recognized rules of neutrality, except through the agency of the neutral State itself. A powerful State may succeed without recourse to force in having its rights respected by the belligerent nations, and in preventing any serious violations of its neutrality. A small State with little or no naval or military forces is at a great disadvantage and may be forced to bear heavy military burdens and many inconveniences in order to preserve its neutrality. It may even have to permit infractions of its waters or territory or suffer desolation and ruin at the hands of an unscrupulous but well-armed belligerent. The whole system is evidently wrong and unjust. The burden is laid upon the weak and those most likely to respect the laws, while the strong and those States who are the most tempted to break over are neither compelled to assume a serious responsibility nor restrained by adequate penalties.

One of the chief difficulties in securing the proper enforcement of neutrality laws has been the action of belligerent States in interpreting these laws in the light of their own interests or necessities, and expecting neutrals to do the same. On the 2d of August, 1914, Germany demanded of Belgium permission to march her military forces across its territory, offering to pay cash for all necessities used and for all damages. And on August 4, the Imperial German authorities wrote to the Swiss Government: "The Imperial Government has taken note of that declaration [of neutrality by Switzerland] with sincere satisfaction, and feels assured that the Confederation, supported by its efficient army and the resolute will of the entire Swiss nation, will resist any violation of its neutrality." It was therefore permissible for one belligerent to violate the territory of one neutral, but not for other belligerents to do so. And it was a highly proper and commendable act for one neutral to resist with "the efficient army and the resolute will of the entire nation" any violation of its neutrality, but It was a crime for another neutral similarly threatened to do so. Such inconsistent interpretations of the law of neutrality by powerful belligerents in their own interests render extremely difficult any intelligent enforcement of established laws and place all neutrals in a very difficult and dangerous position. The situation is further complicated by the increasing tendency of belligerents to ignore the rights of neutrals in their endeavors to protect their own interests and promote their own plans and operations. The lengthy correspondence— not yet ended-of the Government of the United States with certain belligerent

1 Belgian Gray Book.

powers during all the present war is sufficient proof of this. It has led to a confusion of principles and rendered the enforcement of the laws of neutrality very difficult.

No special guarantees or provisions for the protection of neutrals have been provided in international law other than the signatures of all governments to the Hague conventions. It was therefore deemed wise to give protection to the smaller neutrals-particularly to those whose geographical position rendered their territory liable to violation in the event of European wars-by special treaties of guarantees. And Switzerland, Belgium,' Luxemburg, and Norway were protected in this way. But since the now famous "scrap of paper" incident, even treaties of guarantee seem to have lost their importance. The statement that a State may violate at will its international obligations on the ground of national necessity provides no security for neutrals and is in no way admissible in international law. Nor is the lack of a moral code or the failure of a State to provide those municipal laws necessary to make possible the fulfilment of its duties and obligations as a belligerent, when war breaks out, a legitimate excuse for the nonfulfilment of those duties and for the disregard of the laws of neutrality. Self-defense for one State can never Justify the destruction of an innocent by-standing neutral State. Neither do the accepted rules of international law or the dictates of justice and humanity permit belligerents to destroy with impunity the lives and properties of neutrals in order to execute some military or naval operation. And it is a strange commentary on the existing system of international law and interstate relations that, in the present conflict, belligerents have deliberately committed such breaches of the law of nations and of international ethics, while neutral States have been compelled to use all the diplomatic pressure and power at their disposal to procure from those recreant belligerents a tardy recognition that violation of recognized rules may have occurred and a promise of reparation. Moreover, it is manifestly unjust that small States should be forced to pay out $25,000,000 a year (as Switzerland is doing now) to prevent any violation of her frontier, and that their citizens should be deprived of a large portion of their trade and means of livelihood because two or more of their neighbors are drawn into an armed conflict.

It is, therefore, evident that the existing laws of neutrality are quite inadequate to provide for the conditions and emergencies of the present time and that their revision is imperatively demanded. This recodification should be one of the chief labors of the next Hague conference, and it must be done with great care so that all the essential principles are clearly stated and will apply with equal precision and force to belligerents and neutral alike. It is extremely important in this connection that some means should be devised whereby the rights and interests of neutral States may be adequately protected without the whole burden of providing such security and of enforcing the law of neutrality falling upon neutral nations. And the most vital point in any scheme for revision must be the establishment of penalties of such moment and severity as will bring home to all States the consequences of every breach of the rules of neutrality. Penalties for violations by belligerents should be in proportion to the losses and damages imposed upon neutral States by such infractions of the law. And all neutrals should be authorized to demand at once such indemnities and to cut off all diplomatic and commercial relations if need be until such time as belligerents make proper restitution or agree to submit them to the Hague tribunal for adjustment, where the amount of the indemnity is open to question.

1 Treatles of June 26, 1831, Jan. 23, 1839, and Aug. 9, 1870.

In municipal law when any citizen commits a crime he is arrested and deprived of intercourse with the rest of his fellows until the end of his trial, and, If convicted, for a long or short period, according to his sentence. Even when let out on bail his social position remains for the moment in abeyance, while conviction is sure to deprive him of both citizenship and social standing. Is it, then, too much to ask that in the family of nations any State which deliberately commits a crime against its neighbor should be deprived of intercourse with the other members of the family until it has made reparation or been punished for Its crime? Only on some such basis will it be possible to make international law effective and to secure protection for the smaller members of the international community. This may be a Utopian view and only possible of achievement when the great standing armies have been abolished and the nations of the world have signed a universal peace agreement. Yet it is a terrible outlook to think that the security, happiness, and prosperity of small States should depend solely upon the will or caprice of their greater belligerent neighbors. States may hesitate to put any hindrances or checks upon the exercise of the full sovereignty of any independent State, but the dangers of the undefined position of a neutral State in international law have been so brought into relief by the present war that the powers represented in any future Hague conference can hardly refuse to lay down carefully rules governing the duties and obligations of both neutrals and belligerents with adequate penalties for any infractions of the law. The best world opinion is hopeful of a general disarmament as a result of the present conflict. At any rate, if the statesmen and diplomats do not favor it, the people of all lands do. If this is accomplished it will then be possible to hold another Hague conference and place international law on a sane and workable basis. And it will be possible also to secure some method of enforcement of the rules now so sadly lacking.

In any event it should be possible for neutral States through cooperation and intelligent leadership to secure some revision and elaboration of the laws of neutrality that, while preserving the rights and interests of belligerents, will give adequate protection to the territories, properties, persons, and rights of neutral States. And no agency will be more effective in bringing about this justly desired situation than the exposure of a belligerent or of a neutral State to international and commercial isolation whenever it violates any law of neutrality or rule of international law.

The CHAIRMAN. The following papers will be read by title:

Relação do direito internacional com a lei nacional nos paizes americanos, by José Linhares.

Relação entre o direito internacional e o direito nacional nos paizes americanos, by José Mendes.

RELAÇÃO DO DIREITO INTERNACIONAL COM A LEI NACIONAL

NOS PAIZES AMERICANOS.

Por JOSÉ LINHARES,

Membro associado da Sociadade Brazileira de Direito Internacional.

Antes de iniciarmos o estudo da these por nós escolhida advirtiremos que no seu desenvolvimento tivemos em vista tão somente estudal-a nos seus restrictos