[553] See, however, Geffcken in Holtzendorff, IV. p. 656, and Frankenbach, Die Rechtsstellung von neutralen Staatsangehörigen in kriegführenden Staaten (1910), p. 53, who assert the contrary.
Neutrality an Attitude creating Rights and Duties.
§ 295. Since neutrality is an attitude during the condition of war only, this attitude calls into existence special rights and duties which do not generally obtain. They come into existence by the fact that the outbreak of war has been notified or has otherwise[554] unmistakably become known to third States who take up an attitude of impartiality, and they expire ipso facto by the termination of the war.
[554] See article 2 of Convention III. of the Second Peace Conference.
Rights and duties deriving from neutrality do not exist before the outbreak of war, although such outbreak may be expected every moment. Even so-called neutralised States, as Switzerland and Belgium, have during time of peace no duties connected with neutrality, although as neutralised States they have even in time of peace certain duties. These duties are not duties connected with neutrality, but duties imposed upon the neutralised States as a condition of their neutralisation. They include restrictions for the purpose of safeguarding the neutralised States from being drawn into war.[555]
[555] See above, [vol. I. § 96].
Neutrality an Attitude of States.
§ 296. As International Law is a law between States only and exclusively, neutrality is an attitude of impartiality on the part of States, and not on the part of individuals.[556] Individuals derive neither rights nor duties, according to International Law, from the neutrality of those States whose subjects they are. Neutral States are indeed obliged by International Law to prevent their subjects from committing certain acts, but the duty of these subjects to comply with such injunctions of their Sovereigns is a duty imposed upon them by Municipal, not by International Law. Belligerents, on the other hand, are indeed permitted by International Law to punish subjects of neutrals for breach of blockade, for carriage of contraband and for rendering unneutral service to the enemy; but the duty of subjects of neutrals to comply with these injunctions of belligerents is a duty imposed upon them by these very injunctions of the belligerents, and not by International Law. Although as a rule a State has no jurisdiction over foreign subjects on the Open Sea,[557] either belligerent has, exceptionally, by International Law, the right to punish foreign subjects by confiscation of cargo, and eventually of the vessel itself, in case their vessels break blockade, carry contraband, or render unneutral service to the enemy; but punishment is threatened and executed by the belligerents, not by International Law. Therefore, if neutral merchantmen commit such acts, they neither violate neutrality nor do they act against International Law, but they simply violate injunctions of the belligerents concerned. If they choose to run the risk of punishment in the form of losing their property, this is their own concern, and their neutral home State need not prevent them from doing so. But to the right of belligerents to punish subjects of neutrals for the acts specified corresponds the duty of neutral States to acquiesce on their part in the exercise of this right by either belligerent.
[556] It should be specially observed that it is an inaccuracy of language to speak (as is commonly done in certain cases) of individuals as being neutral. Thus, article 16 of Convention V. of the Second Peace Conference designates the nationals of a State which is not taking part in a war as "neutrals." Thus, further, belligerents occupying enemy territory frequently make enemy individuals who are not members of the armed forces of the enemy take a so-called oath of neutrality.
[557] See above, [vol. I. § 146].