« ПредыдущаяПродолжить »
April 6, 1917, is hereby declared at an end." This was an ascertainment of the fact that the war between the two states was terminated. The treaty between the United States and Germany signed afterward, on 25 August 1921, was not a peace treaty in the specific sense of the term—that is, it was not a treaty concluded for the purpose of terminating a war but a treaty concluded “to restore friendly relations existing between the two nations prior to the outbreak of war.” On 31 December 1946, the President of the United States proclaimed “the cessation of hostilities of World War II," and in a statement explaining the proclamation said that the action did not have "the effect of terminating the state of war iself.” However, by a joint resolution of Congress, approved by the President on 19 October 1951, “the state of war” which had been declared to exist between the United States and Germany by the joint resolution of Congress approved on 11 December 1941 was declared terminated.
The practice of terminating a war, or, more exactly formulated, of expressing an intention to terminate a war by concluding a peace treaty—that is, a treaty imposing upon the belligerents the obligation to abstain from further acts of war-evidently presupposes that without assuming such an obligation the states concerned have the right to wage war against each other. Such a presupposition is possible under general international law if the bellum justum principle is not part of it. If this principle is recognized as a part of international law or if war is prohibited by a multilateral treaty, the conclusion of a peace treaty for the purpose of terminating a war which has broken out in violation of the bellum justum principle or in violation of the treaty, may still be justified. The conclusion of a peace treaty is justified if the question as to which of the belligerents has violated its obligation not to resort to war—that is, the question as to which of the belligerents is the aggressor and which the defender-is not decided by an objective and impartial authority and consequently if both belligerents may claim to be exercising the right of self-defense. However, the situation is different under a treaty constituting an international security organization, which not only imposes upon the members the obligation not to resort to war against each other and which permits war only as a sanction to be directed against a member violating the treaty, but also confers upon a special organ the power to ascertain the fact that the treaty has been violated, or, to term it differently, gives the special organ the power to determine the aggressor. Within such an organization, a member state which has resorted to war in violation of the constituent treaty, as ascertained by the competent organ, cannot assume the obligation to abstain from further acts of war in a special treaty because this obligation is already implied in the
general obligation imposed upon it in the constituent treaty. Furthermore, a state engaged in a war waged as a sanction against a legally determined aggressor cannot assume an obligation to abstain from acts of war against a delinquent state in a treaty concluded with the other state if it is its obligation to perform these acts. However, even if this state is not obliged, but only authorized, to resort to war against the legally ascertained violator of the constituent treaty, a peace treaty concluded between the state executing a sanction and the delinquent state is quite inappropriate because, unlike the same situation under general international law, the two belligerents are not on an equal legal footing, since the war of one is illegal and the counter war of the other legal, or vice versa. Such a peace treaty is particularly problematical in case the war against the delinquent state is the action of an international police force under the direction of the central organ of a security organization. To terminate such a war by concluding a peace treaty between the international organization enforcing the law and the delinquent state is just as absurd as terminating a punitive action taken by a court against a criminal by an agreement between the court and the criminal. If war is a sanction, it can properly be terminated only when it has achieved its purpose, and this may be ascertained by a unilateral declaration of the authority executing the sanction. (bb) Neutrality within a system of international security.
The question of to what extent, if at all, the legal institution of neutrality is compatible with a system of international security can be answered in an unambiguous manner only after the concept of neutrality has been clearly defined. The considerable confusion usually found in a discussion of this question is due to the fact that the term “neutrality” is used to mean different things. In the main, it indicates the status of a state which is not involved in a war between other states. However, at the same time it is employed to denote the consequences which international law attaches to this status, the duties and rights a non-belligerent state has in relation to the belligerent states and especially the duty of the non-belligerent to observe an attitude of impartiality toward the belligerents, impartiality meaning the principle that a state not involved in a war between other states shall fulfill its obligations and exercise its rights toward all belligerents in an equal way. Sometimes neutrality means nonbelligerency accompanied by impartiality, and there are writers who even identify neutrality with impartiality. An example of the different possible meanings of neutrality is the treatment of that concept in the two Hague Conventions which deal with neutrality. The term “neutral” in the expression “neutral Powers” (Articles 5, 6 and others
of Convention V) refers to the status of Powers not involved in a war, "neutral Powers” as opposed to "belligerent” Powers (Preamble of Convention XIII). The term “neutral” in this sense is expressly defined in Article 16 of Convention V: "The nationals of a State which is not taking part in the war are considered as neutrals.” However, in Article 10 of Convention V neutrality evidently means the rights of a non-belligerent state and the corresponding duties of belligerents: “The fact of a neutral Power resisting even by force attempts to violate its neutrality cannot be regarded as a hostile act.” Neutrality can be “violated” only if it is an obligation or a right. The status of not being involved in a war can be adopted or abandoned by a state but it cannot be violated. The two Conventions distinguish between neutrality and impartiality. Article 9 of Convention V provides: "Every measure of restriction or prohibition taken by a neutral Power in regard to the matters referred to in Articles 7 and 8 (that is: to prevent the export or transport of arms, munitions of war, or anything which can be of use to an army or fleet, and to forbid or restrict the use of telegraph or telephone cables or of wireless telegraphy apparatus) must be impartially applied by it to both belligerents.” Here impartiality is not at all identical with neutrality but is the manner in which a neutral state must exercise its right to take certain measures of restriction and prohibition. This term is used in the same sense in Article 9 of Convention XIII, and the Preamble of this Convention states: “that it is, for neutral Powers, an admitted duty to apply these rules (regulating the relations between neutral Powers and belligerent Powers] impartially to the several belligerents.” Here impartiality characterizes the way in which a neutral Power must fulfill all its duties and exercise all its rights in relation to belligerent Powers. In accordance with this terminology, a neutral state may violate its duty to treat belligerents impartially without losing its status of neutrality. To quote a leading writer, Oppenheim defined the concept of neutrality as follows: “Such states as do not take part in a war between other states are neutrals." This means that neutrality is the status of non-belligerency, i. e., the status of a state which does not take part in a war between other states. Such a status may or may not be accompanied by an attitude of impartiality on the part of a neutral state toward belligerents. In his preceding chapters, Oppenheim analyzed the different types of neutrality which do not imply the impartiality of the neutral states or imply only a restricted impartiality. He mentioned the fact that the impartiality demanded by the theory and practice of the eighteenth century was not at all strict, and that a state was considered not to have violated its obligations as a neutral if it furnished one of the belligerents with such limited
assistance as it had previously promised by treaty or if it allowed one of the belligerents to levy troops in its territory. He referred to Grotius' concept of neutrality which was not at all identical with his concept of impartiality. Grotius formulated two principles concerning neutrality. The first was that neutrals shall do nothing which may, strengthen a belligerent whose cause is unjust or hinder the movement of a belligerent whose cause is just. This concept is certainly contrary to impartiality. Grotius' second principle concerning neutrality was that neutrals shall treat both belligerents alike only if there is doubt as to whose cause is just. However, immediately after defining neutrality as non-belligerency, Oppenheim said: “Neutrality may be defined as the attitude of impartiality adopted by third states towards belligerents and recognized by belligerents, such attitude creating rights and duties between the impartial states and the belligerents. Hence, neutrality is now identified with impartiality, but in discussing the end of neutrality Oppenheim stated: “Neutrality ends with the cessation of war, or through a hitherto neutral state beginning war against one of the belligerents, or through one of the belligerents commencing war against a hitherto neutral State.” Neutrality which ends in this way can be only the status of not taking part in a war. It cannot be the attitude of impartiality. Oppenheim then emphasized that "the ending of neutrality must not be confounded with mere violation of neutrality. A mere violation of neutrality does not ipso facto bring neutrality to an end." 5 In this statement, the term “neutrality” is used in both senses, as the “duty of impartiality" and as the "status of not taking part in a war.” What this statement means is that the status of not taking part in a war must not be confused with the duty of impartiality. A mere violation of the duty does not ipso facto end the status. Under the heading “Violation of Neutrality," 6 Oppenheim distinguished between violations of neu-. trality in the narrower and in the wider sense of the term. He stated: “It is necessary for obvious reasons to discuss, not only violations of the duty of impartiality of neutrals, but violations of all duties deriving from neutrality, whether they are incumbent upon neutrals or upon belligerents.” Here neutrality is far from being “the attitude of impartiality" for impartiality is only one of the duties which derive from neutrality.
Another writer has stated that "the notion of neutrality as merely non-involvement in direct hostilities is inconsistent with the traditional concept and if it should come to have this meaning, the concept would have been strikingly narrowed.”? Nevertheless, the only way to avoid the confusion just illustrated is to understand neutrality as nothing else but the status of a state which is not involved in a war,
between other states, and impartiality as the principle according to which a neutral state shall fulfill the obligation and exercise the rights, which a neutral state has under general international law, equally towards all belligerents. Of course, the theoretical suggestion that neutrality should be defined as the status of non-belligerency does not imply any political preference with respect to the desirable consequences of such a status for the neutral state. The question as to whether or not the status of neutrality entails the obligation of the neutral state to treat the belligerents impartially is a question of positive law and can be answered only by an analysis of this law.
In regard to the general international law of our time, the answer is certainly in the affirmative. Under this law, a state is under no obligation to remain neutral in a war between other states, but if a state is neutral, the relationships between this state and the belligerents are regulated by definite rules of general international law. The main obligations a neutral state has in relation to belligerents are: 8 the obligation to refrain from giving assistance to one of the belligerents which may be detrimental to the other; the obligation to refrain from inflicting injuries on one of the belligerents which may benefit the other; the obligation to refrain from granting any facilities whatsoever for military operations of the belligerents (however, the neutral state is not obliged to prohibit its own nationals from supplying belligerents with such facilities); the obligation to prevent the fitting out or arming of any vessel within its jurisdiction which it has reason to believe is intended to cruise or engage in hostile operations against either belligerent; the obligation to prevent the departure from its jurisdiction of any vessel intended to cruise or engage in hostile operations which has been adapted entirely or partly within its jurisdiction for use in war; the obligation to prevent belligerents from making use of its neutral territory and its resources for military purposes during the war. The most important obligations of the belligerent are the obligation to refrain from making use of neutral territory for military purposes and from interfering with the legitimate intercourse of the neutral states with the other belligerents, and the obligation to refrain from appropriating neutral goods on enemy ships with the exception of contraband. Belligerents have the right to appropriate neutral merchant ships for breach of blockade and to appropriate contraband on a neutral vessel.
It is evident that the legal institution of neutrality—that is, the duties and rights which general international law imposes or confers upon the states not involved in a war between other states in relation to the belligerents and upon the belligerents in relation to the neutral states, especially the principle of impartiality-presupposes that the