Moreover, apart from carriage of contraband, breach of blockade, and unneutral service to the enemy, which a belligerent may punish by capturing and confiscating the vessels or goods concerned, subjects of neutrals are perfectly unhindered in their movements, and neutral States have in especial no duty to prevent their subjects from selling arms, munitions, and provisions to a belligerent, from enlisting in his forces, and the like.
No Cessation of Intercourse during Neutrality between Neutrals and Belligerents.
§ 297. Neutrality as an attitude of impartiality involves the duty of abstaining from assisting either belligerent either actively or passively, but it does not include the duty of breaking off all intercourse with the belligerents. Apart from certain restrictions necessitated by impartiality, all intercourse between belligerents and neutrals takes place as before, a condition of peace prevailing between them in spite of the war between the belligerents. This applies particularly to the working of treaties, to diplomatic intercourse, and to trade. But indirectly, of course, the condition of war between belligerents may have a disturbing influence upon intercourse between belligerents and neutrals. Thus the treaty-rights of a neutral State may be interfered with through occupation of enemy territory by a belligerent; its subjects living on such territory bear in a sense enemy character; its subjects trading with the belligerents are hampered by the right of visit and search, and the right of the belligerents to capture blockade-runners and contraband of war.
Neutrality an Attitude during War (Neutrality in Civil War).
§ 298. Since neutrality is an attitude during war, the question arises as to the necessary attitude of foreign States during civil war. As civil war becomes real war through recognition[558] of the insurgents as a belligerent Power, a distinction must be made as to whether recognition has taken place or not. There is no doubt that a foreign State commits an international delinquency by assisting insurgents in spite of its being at peace with the legitimate Government. But matters are different after recognition. The insurgents are now a belligerent Power, and the civil war is now real war. Foreign States can either become a party to the war or remain neutral, and in the latter case all duties and rights of neutrality devolve upon them. Since, however, recognition may be granted by foreign States independently of the attitude of the legitimate Government, and since recognition granted by the latter is not at all binding upon foreign Governments, it may happen that insurgents are granted recognition on the part of the legitimate Government, whereas foreign States refuse it, and vice versa.[559] In the first case, the rights and duties of neutrality devolve upon foreign States as far as the legitimate Government is concerned. Men-of-war of the latter may visit and search merchantmen of foreign States for contraband; a blockade declared by the legitimate Government is binding upon foreign States, and the like. But no rights and duties of neutrality devolve upon foreign States as regards the insurgents. A blockade declared by them is not binding, their men-of-war may not visit and search merchantmen for contraband. On the other hand, if insurgents are recognised by a foreign State but not by the legitimate Government, such foreign State has all rights and duties of neutrality so far as the insurgents are concerned, but not so far as the legitimate Government is concerned.[560] In practice, however, recognition of insurgents on the part of foreign States will, if really justified, always have the effect of causing the legitimate Government to grant its recognition also.
[558] See above, §§ [59] and [76], and Rougier, Les guerres civiles et le droit des gens (1903), pp. 414-447.
[560] See the body of nine rules regarding the position of foreign States in case of an insurrection, adopted by the Institute of International Law at its meeting at Neuchâtel in 1900 (Annuaire, XVIII. p. 227). The question as to whether, in case foreign States refuse recognition to insurgents, although the legitimate Government has granted it, the legitimate Government has a right of visit and search for contraband is controversial; see Annuaire, XVIII. pp. 213-216.
Neutrality to be recognised by the Belligerents.
§ 299. Just as third States have no duty to remain neutral in a war, so they have no right[561] to demand that they be allowed to remain neutral. History reports many cases in which States, although they intended to remain neutral, were obliged by one or both belligerents to make up their minds and choose the belligerent with whom they would throw in their lot. For neutrality to come into existence it is, therefore, not sufficient for a third State at the outbreak of war to take up an attitude of impartiality, but it is also necessary that the belligerents recognise this attitude by acquiescing in it and by not treating such third State as a party to the war. This does not mean, as has been maintained,[562] that neutrality is based on a contract concluded either expressis verbis or by unmistakable actions between the belligerents and third States, and that, consequently, a third State might at the outbreak of war take up the position of one which is neither neutral nor a party to the war, reserving thereby for itself freedom in its future resolutions and actions. Since the normal relation between members of the Family of Nations is peace, the outbreak of war between some of the members causes the others to become neutrals ipso facto by their taking up an attitude of impartiality and by their not being treated by the belligerents as parties to the war. Thus, it is not a contract that calls neutrality into existence, but this condition is rather a legal consequence of a certain attitude on the part of third States at the outbreak of war, on the one hand, and, on the other, on the part of the belligerents themselves.