Neutrality and Small States (Routledge Revivals)

Efraim Karsh

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781135728472
• Edition: 1
• Topic: Ciencias sociales
• Subtopic: Sociología

Originally published in 1988, this book examines the experiences of neutral states in Europe during the Second World War and in the postwar peiod. It examines both the practical and the theoretical considerations and the interface between the two, and discusses the implications of the experience of these countries for small states generally

Part I

Neutrality: A Framework for Analysis

1

Historical Development of the Concept of Neutrality

The idea of neutrality, like the later neutrality laws, developed as an addendum, a by-product of the concept of war, and not as a conceptually and judicially separate and independent idea. Ever since human beings began to wage war upon one another, there have been individuals and groups that have sought to avoid participation in a war. It has already been noted that this phenomenon was not looked upon benevolently by the belligerents who considered it, in varying degrees, to injure their cause. Moreover, in ancient times the belligerents were not even prepared to recognise the impartiality of third parties. Thus, with the outbreak of war, heavy pressures were brought to bear upon neutrals to take sides — not necessarily as active belligerents, but rather primarily in support roles (supply, granting of free passage, etc.) vis-à-vis one of the belligerents.¹

Yet, as far back as ancient times there evolved certain dynamics of interaction between the neutral and belligerent parties based on an ad hoc convergence of interests and leading to the creation of a reciprocal understanding regarding rights and obligations towards one another. For example, during the Peloponnesian War, the Coreyroeans addressed the Athenians and asked them to remain neutral in their struggle against the Corinthians, adding the request that the Athenians not permit the Corinthians to recruit troops in their territory or, alternatively, allow the Coreyroeans to take this step.² At times such a mutual understanding took the form of an agreement or charter drawn up between belligerent and neutral parties; one of the early known instances was the convention signed between Judah Maccabee and Rome, which stipulated that ‘to those who start the war they shall neither give nor supply grain, arms, money or ships’.³ Nevertheless, these were exceptions to the rule; the general attitude towards the neutral state was one of intolerance and principled reluctance to recognise neutrality as a legitimate political option.

This state of affairs began to change in the Middle Ages as belligerents displayed greater readiness to recognise the right of certain states to remain ‘fence-sitters’ and, implicitly, to legitimise the rights deriving from such a status. Thus, certain clauses included in international conventions in the fourteenth century could be considered rules of neutrality. The best known of these was the Consolato del mare of maritime law, which forbade belligerents to damage the property of neutrals at sea. But for the most part, the thirteenth and fourteenth centuries did not witness the formation of comprehensive behavioural modes regarding the conduct of neutral states nor, to be sure, of a recognised and agreed legal system that formally established the mutual rights and obligations of neutrals and belligerents.

In the absence of such a binding, orderly code of bahaviour, every neutral actor was free to interpret the policy of neutrality as he saw fit, with the inevitable result that manifestations of neutrality took on a broad variety of forms: from non-alignment with the belligerents and the maintenance of total objectivity all the way to the hire for full pay of a neutral state’s army by one of the belligerents, or alternatively, payment to a neutral by one of the warring parties in return for refraining from participation in the conflict.⁴ In order to overcome or reduce uncertainty in such situations, states began to introduce into their bilateral treaties concrete clauses dealing with the question of neutrality in wartime. Thus one encounters — for the first time in an official document, according to some scholars — the concept of neutrality in a French royal decree from May 1408, in which the King of France declared his neutrality in the struggle between the popes of Rome and Avignon.⁵ By the end of the fifteenth century, neutrality had appeared in a number of contracts, decrees and assorted government documents, and in the seventeenth century the concept was recognised as an institution of international law.

In his Dejure belli et pacis, Hugo Grotius laid out the behavioural patterns to be followed by any state adopting a policy of neutrality. In so doing, he made a clear distinction between those cases in which the identity of the just party is beyond any doubt, and those in which this fact cannot be ascertained unequivocally. Grotius held that in the first type of war, the neutral state should avoid any steps that might enhance the power of the unjust side or, alternatively, hinder the actions of the just party. In contrast, in a war in which the identity of the just side was uncertain, the neutral should maintain an attitude of impartiality and treat both belligerents equally.⁶ Neutrality, then, was perceived by Grotius as primarily a policy of value judgement: its essence changing according to the specific nature of the relevant war. Grotius not only argued that neutrality did not imply impartiality and non-alignment; he even viewed support for the just belligerent as the obligation of the neutral state.

Who had the authority to determine how a neutral state should conduct itself in a specific war? Grotius offered no solution to this dilemma. Indeed, since the international system at the time comprised no supra-institution or body that wielded the authority to determine who was just in any given war, it emerged that the decision as to the nature of that war — and consequently the essence of neutrality — remained the exclusive responsibility of the neutral state. Thus, in the seventeenth century states continued to base their neutrality on value judgement, granting support and aid to the belligerent, who in their estimate, had justice on its side. Actually, in many cases a state did not even require such justification for its behaviour, being perceived by one of the belligerents as a friend that, for its own good reasons, simply preferred not to take part in the war.

It was only in the eighteenth century that there emerged a theoretical and practical recognition of the necessity to strictly maintain both the obligations of a neutral state — as embodied in the principle of impartiality — and those of the belligerents vis-à-vis the neutral. Here the jurisprudents Vattel and Bynkershoek made key contributions. For example, Vattel defined neutral states in wartime as ‘those who take no one’s part, remaining friends common to both parties, and not favouring the armies of one of them to the prejudice of the other’.⁷ Still, in the eighteenth century Vattel’s concept of the essence of neutrality had not yet become universally accepted, and not a few instances were recorded in which a state, displaying biased neutrality, preferred one belligerent over the other. However, this century also witnessed a process of restricting the degree of partiality that a neutral state might display towards the belligerents; it became generally accepted that such partiality was justified only while corresponding with the conditions of a treaty signed prior to the war, under which the neutral state had undertaken to support the second signatory or to refrain from aiding its adversary, were it to be involved in a war.

Interestingly enough, from the Middle Ages on, the primary controversies between neutrals and belligerents concerning the nature of the idea of neutrality, as well as the genuine content to be given to it, revolved around neutrality in maritime warfare rather than in land wars. This stemmed from an increase in the European countries’ dependence on international, particularly maritime, commerce. The neutral states, for their part, aspired to maintain normal trade relations while the belligerents sought to inflict injury on their adversaries in every possible way including damage to their commerce with other states. This centrality of maritime commerce in neutral-belligerent relations caused neutrality laws regarding maritime warfare to develop far earlier than those concerning land warfare, as exemplified by the aforementioned Consolato del mare. But even in this sphere a defined and accepted system of laws was not to develop until the nineteenth century, and disputes between neutrals and belligerents continued to be adjudicated on an ad hoc basis, in accordance with the specific balance of forces between the two sides.

The neutral states were well aware that in the absence of an agreed behavioural and legal system administering their relations with the belligerents, the last say was inevitably left to the militarily superior actor. This state of affairs induced some of them, prior to the close of the seventeenth century, to attempt to endow their neutrality with the most solid physical backing possible — a policy which later came to be recognised as ‘armed neutrality’. Thus, for example, in March 1691 Sweden and Denmark signed a bilateral agreement to ensure the maintenance of their commerce as neutrals: the two states undertook to adopt joint countermeasures against any state that violated their neutrality (albeit after pursuing all diplomatic steps possible), even though they recognised that such measures were liable to deteriorate into the very war that they, as neutrals, sought to avoid.⁸

Some ninety years later, in 1780, at the height of the United States’ War of Independence against Britain, a group of European states joined together to protect their neutral-status trade — even if force should be required to this end. This union, known as ‘The First League of Armed Neutrality’, consisted of Russia, Sweden, Norway, Denmark, Holland, Prussia, Austria (joined in 1781), as well as Portugal and Sicily (joined in 1783). The League addressed the belligerents — in fact, Britain alone, for it was the British who posed the primary threat to the members’ free navigation⁹ — and presented a number of concrete demands intended to secure their maritime commerce. The most important of these was the demand to allow neutral ships to sail between ports of belligerents and along their coasts, as well as the insistence that transported property belonging to one of the belligerents and carried in a neutral ship should not be damaged unless classified as contraband. In the event of a belligerent failing to respect these demands, the League’s founding charter (the Danish-Russian-Norwegian Charter of 9 July 1780) delineated the measures to be taken by the League members, including the seconding of warships by each member for protecting the interests of all.

Twenty years later, in 1800, Russia, Denmark, Sweden and Prussia founded the ‘Second League of Armed Neutrality’. The guiding principles of the Second League were generally similar to those of the first, with the important addition that belligerents were forbidden to board a neutral ship if the captain declared that it did not carry contraband.¹⁰

The lifespan of these two Leagues was short, and the belligerents’ respect for their demands minimal.¹¹ Nevertheless, they exercised a far-reaching influence on the development and formation of the concept of neutrality in modern times. First, the Leagues’ principles formed the basis for the Declaration of Paris (16 April 1856) which formulated the rules of neutrality regarding maritime warfare. Secondly, the Leagues strengthened the concept of neutrality as not necessarily a passive policy, but rather an active one not rejecting use of force if necessary — a concept that came to form an important principle of modern neutrality. And finally, the Leagues in effect recognised war as a. fait accompli, making neither a value judgement nor attempting to distinguish between the belligerents by a fixed standard of justice. In this sense, the Leagues of Armed Neutrality must be seen as having contributed to the development of objective neutrality under which the neutral avoids showing preference for one side, and behaves with total impartiality towards both belligerents.¹²

If the experience of the Leagues of Armed Neutrality and the writings of Vattel and Bynkershoek provided the first manifestations of impartial neutrality, it is commonly held that it was the American declaration of neutrality at the end of the eighteenth century which gave the most significant impetus to the crystallisation of the modern concept of neutrality.

‘The duty and interest of the United States require that they should, with sincerity and good faith, adopt and pursue a conduct friendly and impartial towards the belligerent powers’, stated the Declaration of Neutrality issued by George Washington on 22 April 1793.¹³ The pioneering aspect of this declaration is not confined to its having been the first official statement of impartial neutrality; it also was the first to view neutrality as a two-way concept involving obligations as well as rights on the part of the neutral state.¹⁴ Washington’s proclamation of neutrality was accompanied by a series of legislative initiatives issued by the Congress, and designed to define, delimit and institutionalise the idea of neutrality in American law; these culminated in the Neutrality Act of 1818 which sought to bring together all previous measures relating to neutrality.¹⁵

However, despite the contribution made by American neutrality to the development of this concept, the course of the nineteenth century made it increasingly plain that state legislation was not the best and most efficient means of dealing with the rights and obligations of neutrals, and that the issue had to be integrated into international law. This recognition found expression in a long series of international conferences dealing with neutrality, until it was ultimately institutionalised in the Hague Conventions of 1899 and 1907.

Oppenheim notes two major events of the nineteenth century beyond the American declaration of neutrality which made a decisive contribution to the institutionalisation of neutrality within international law: the neutralisation of Switzerland and Belgium, as well as the Paris Conference.¹⁶

At the Congress of Vienna in 1815, the great powers imposed the status of permanent neutrality on Switzerland. The agreement which formalised Swiss neutrality guaranteed Switzerland’s territorial integrity in wartime, in exchange for this country’s pledge to remain neutral during all wars waged on the continent. Belgium achieved the same status in 1839, and...