As regards furnishing men-of-war to belligerents, the question arose during the Russo-Japanese War as to whether a neutral violates his duty of impartiality by not preventing his national steamship companies from selling to a belligerent such of their liners as are destined in case of war to be incorporated as cruisers in the national navy. The question was discussed on account of the sale to Russia of the Augusta Victoria and the Kaiserin Maria Theresia by the North German Lloyd, and the Fürst Bismarck and the Columbia by the Hamburg-American Line, vessels which were at once enrolled in the Russian Navy as second-class cruisers, re-named as the Kuban, Ural, Don, and Terek. Had these vessels, according to an arrangement with the German Government, really been auxiliary cruisers to the German Navy, and had the German Government given its consent to the transaction, a violation of neutrality would have been committed by Germany. But the German Press maintained that these vessels had not been auxiliary cruisers to the Navy, and Japan did not lodge a protest with Germany on account of the sale. If these liners were not auxiliary cruisers to the German Navy, their sale to Russia was a legitimate sale of articles of contraband.[607]
Subjects of Neutrals fighting among Belligerent Forces.
§ 322. Although several States, as Great Britain[608] and the United States of America, by their Municipal Law prohibit their subjects from enlisting in the military or naval service of belligerents, the duty of impartiality incumbent upon neutrals does not at present include any necessity for such prohibition, provided the individuals concerned cross the frontier singly[609] and not in a body. But a neutral must recall his military and naval officers who may have been serving in the army or navy of either belligerent before the outbreak of war. A neutral must, further, retain military and naval officers who want to resign their commissions for the obvious purpose of enlisting in the service of either belligerent. Therefore, when in 1877, during war between Turkey and Servia, Russian officers left the Russian and entered the Servian Army as volunteers with permission of the Russian Government, there was a violation of the duty of impartiality on the part of neutral Russia.
[608] See Section 4 of the Foreign Enlistment Act, 1870.
[609] See article 6 of Convention V.
On the other hand, there is no violation of neutrality in a neutral allowing surgeons and such other non-combatant members of his army as are vested with a character of inviolability according to the Geneva Convention to enlist or to remain in the service of either belligerent.
Passage of Troops and War Material through Neutral Territory.
§ 323. In contradistinction to the practice of the eighteenth century,[610] it is now generally recognised that a violation of the duty of impartiality is involved when a neutral allows a belligerent the passage of troops or the transport of war material over his territory.[611] And it matters not whether a neutral gives such permission to one of the belligerents only, or to both alike. The practice of the eighteenth century was a necessity, since many German States consisted of parts distant one from another, so that their troops had to pass through other Sovereigns' territories for the purpose of reaching outlying parts. At the beginning of the nineteenth century the passing of belligerent troops through neutral territory still occurred. Prussia, although she at first repeatedly refused it, at last entered in 1805 into a secret convention with Russia granting Russian troops passage through Silesia during war with France. On the other hand, even before Russia had made use of this permission, Napoleon ordered Bernadotte to march French troops through the then Prussian territory of Anspach without even asking the consent of Prussia. In spite of the protest of the Swiss Government, Austrian troops passed through Swiss territory in 1813, and when in 1815 war broke out again through the escape of Napoleon from the Island of Elba and his return to France, Switzerland granted to the allied troops passage through her territory.[612] But since that time it has become universally recognised that all passage of belligerent troops through neutral territory must be prohibited, and the Powers declared expressis verbis in the Act of November 20, 1815, which neutralised Switzerland, and was signed at Paris,[613] that "no inference unfavourable to the neutrality and inviolability of Switzerland can and must be drawn from the facts which have caused the passage of the allied troops through a part of the territory of the Swiss Confederation." The few instances[614] in which during the nineteenth century States pretended to remain neutral, but nevertheless allowed the troops of one of the belligerents passage through their territory, led to war between the neutral and the other belligerent.