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from using the territory of a neutral state as a base for military operations, or prohibiting the export and transport of arms and munitions to belligerents, and measures which do not affect, at least not directly, the military operations of belligerents, like merely economic measures. The constituent treaty may impose upon the neutral members of the organization or upon some of them no obligation which would prevent them from adopting an attitude of impartiality with respect to military measures, but would impose upon them only obligations to take nonmilitary, especially economic, measures disadvantageous to the aggressor and advantageous to its victim. It has even been maintained that the obligation imposed by general international law upon neutral states to adopt an attitude of impartiality toward the belligerents refers only to military matters.19 However, the validity of this doctrine is doubtful, and it is rather difficult to distinguish between measures taken by neutral states which affect the military operations of the belligerents and measures which do not. If the treaty constituting the security organization does not abrogate neutrality but only restricts or abolishes the obligation of impartiality neutral members would have under general international law, one may speak of their neutrality as qualified, imperfect, partial, or differential neutrality.20 This terminology shows clearly that neutrality and impartiality are not identical, although it may be admitted that if a state not involved in a war between other states is called neutral even though it is not obliged to treat both belligerents impartially in every respect, the term “neutrality” is of little value.
4. The status of neutrality and the obligation of neutral states to adopt an attitude of impartiality toward the belligerents are compatible to a very restricted extent in the case of a security system constituted by a treaty prohibiting war under all circumstances (with the exception of war as a sanction, which includes war in the exercise of self-defense) and imposing upon the members of the security organization the obligation to apply not only non-military but also military sanctions to the aggressor in conformity with the decisions of a central organ. In addition to the case mentioned under paragraph 1, the status of so-called qualified neutrality of all members not involved in a war between other members or between members and non-members can be maintained if the central organ orders them to apply only nonmilitary sanctions to the aggressor and to come to the assistance of the victim only with economic and financial measures. If the central organ orders only some of the members, but not all of them, to take such action, the others are not excluded from preserving a neutrality which may even be a perfect neutrality. Since it is not very likely
that the central organ will order some of the members not involved in the war to apply military sanctions without ordering all of the members to take non-military sanctions, only a qualified neutrality of the members not participating in the military sanctions is possible. It should be noted that if a member participates in the execution of military sanctions, even if only with those contingents of its armed forces which are at the disposal of the central organ of the security organization, it cannot be considered to be neutral. Although the execution of the military sanction is an action of the organization, it is at the same time also an action of the member state whose contingents are involved.21 Only if the security organization has a separate and permanent armed force at its disposal can military sanctions be executed without the status of neutrality of the member states being abolished. However, it will be only a status of so-called qualified neutrality if the members are obliged to take non-military measures to the disadvantage of the aggressor and the advantage of its victim.
1. Cf. Oppenheim, International Law, 7th Ed. Edited by H. Lauterpacht. Vol. II (1952), p. 653.
2. Op. cit., p. 627.
7. Robert R. Wilson, 'Non-belligerency' in Relation to the Terminology of Neutrality.” The American Journal of International Law, Vol. 35 (1941), pp. 122-3.
8. Cf. Oppenheim, op. cit., pp. 653 ff.
9. Grotius, De Jure Belli ac Pacis, Book III, Chap. XVII, III: “It is the duty of those who keep out of a war to do nothing whereby he who supports a wicked cause may be rendered more powerful, or whereby the movements of him who wages a just war may be hampered. .. In a doubtful matter, however, those at peace should show themselves impartial to either side in permitting transit, in furnishing supplies to troops, and in not assisting those under siege."
10. The General Treaty for the Renunciation of War, signed at Paris on 28 August 1928 (the so-called Kellogg-Briand Pact, or Pact of Paris) to which almost all the states of the world were parties provided : “Article 1. The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another. Article 2. The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or whatever origin they may be, which may arise among them, shall never be sought except by pacific means.”
The Preamble stipulated that "any signatory Power which shall hereafter seek to promote its national interests by resort to war should be denied the benefits furnished by this treaty." This meant that the Treaty authorized the contracting parties to resort to war, as a sanction, against a violator of the treaty,
an aggressor. However, as pointed out above, the states, contracting parties to the treaty, which did not resort to war against an aggressor, could resort to reprisals against this state—that is, they could take enforcement measures short of war. This meant that under the Kellogg-Briand Pact the principle of impartiality in the relations between neutral states and belligerents did not apply. This was also the interpretation of the Pact in the 38th Report adopted by the Conferences of the International Law Association at Budapest in 1934. Article 4 of this report ran as follows: "In the event of a violation of the Pact by a resort to armed force or war by one signatory State against another, the other State may, without thereby committing a breach of the Pact or of any rule of international law, do all or any of the following things :
(a) Refuse to admit the exercise by the State violating the Pact of belligerent rights, such as visit and search, blockade, etc.
(b) Decline to observe towards the State violating the Pact the duties prescribed by international law, apart from the Pact, for a neutral in relation to a belligerent.
(c) Supply the State attacked with financial or material assistance, including munitions of war.
(d) Assist with armed forces the State attacked."
Certain measures which the United States took during the second World War to the advantage of Great Britain and her allies and to the disadvantage of Germany might be justified as reprisals against the violation of the Kellogg-Briand Pact by Germany. The transfer of fifty over-age destroyers to Great Britain was such a measure. In a message to the Congress on 3 September 1940 the President declared: “I transmit herewith for the information of the Congress notes exchanged between the British Ambassador at Washington and the Secretary of State on September 2, 1940, under which this Government has acquired the right to lease naval and air bases in Newfoundland, and in the islands of Bermuda, the Bahamas, Jamaica, St. Lucia, Trinidad, and Antigua, and in British Guiana; also a copy of an opinion of the Attorney General dated August 27, 1940, regrding my authority to consummate this arrangement. The right to bases in Newfoundland and Bermuda are gifts—generously given and gladly received. The other bases mentioned have been acquired in exchange for fifty of our lover-age destroyers. This is not inconsistent in any sense with our status of peace. Still less is it a threat against any nation. It is an epochal and far-reaching act of preparation for continental defense in the face of grave danger. Preparation for defense is an inalienable prerogative of a sovereign state. Under present circumstances this exercise of sovereign right is essential to the maintenance of our peace and safety. This is the most important action in the reinforcement of our national defense that has been taken since the Louisiana Purchase. Then as now, considerations of safety from overseas attack were fundamental. The value of the Western Hemisphere of these outposts of security is beyond calculation. Their need has long been recognized by our country, and especially by those primarily charged with the duty of charting and organizing our own naval and military defense. They are essential to the protection of the Panama Canal, Central America, the northern portion of South America, the Antilles, Canada, Mexico, and our own eastern and Gulf seaboards. Their consequent importance in hemispheric defense is obvious. For these reasons I have taken advantage of the present opportunity to acquire them.” The American Journal of International Law, Vol. 34 (1940), Supplement, pp, 183 f.
Other measures of this kind were certain provisions of the Act to Promote the Defense of the United States, approved 11 March 1941. (The American
Journal of International Law, Vol. 35 (1941), Supplement, pp. 75 ff.) Section 3 of this Act stipulated :
“(a) Notwithstanding the provisions of any other law, the President may, from time to time, when he deems it in the interest of national defense, authorize the Secretary of War, the Secretary of the Navy, or the head of any other department or agency of the Government
(1) To manufacture in arsenals, factories, and shipyards under their jurisdiction, or otherwise procure, to the extent to which funds are made available therefor, or contracts are authorized from time to time by the Congress, or both, any defense article for the government of any country whose defense the President deems vital to the defense of the United States. (2) To sell, transfer title to, exchange, lease, lend, or otherwise dispose of, to any such government any defense article ... (3) To test, inspect, prove, repair, outfit, recondition, or otherwise to place in good working order, to the extent to which funds are made available therefor, or contracts are authorized from time to time by the Congress, or both, any defense article for any such government, or to procure any or all such services by private contract. (4) To communicate to any such government any defense information, pertaining to any defense article furnished to such government under paragraph (2) of this subsection. (5) to release for export any defense article disposed of in any way under this subsection to any such government." Section 2 provided : “As used in this Act
(a) The term 'defense article' means (1) Any weapon, munition, aircraft, vessel, or boat; (2) Any machinery, facility, tool, material, or supply necessary for the manufacture, production, processing, repair, servicing, or operation of any article described in this subsection; (3) Any component material or part of or equipment for any article described in this subsection; (4) Any agricultural, industrial or other commodity or article for defense. .. (b) The term 'defense information' means any plan, specification, design, prototype, or information pertaining to any defenses article.”
In an address delivered on 27 May 1941, the President announced :
"Our national policy today, therefore, is this: First, we shall actively resist wherever necessary, and with all our resources, every attempt by Hitler to extend his Nazi domination to the Western Hemisphere, or to threaten it. We shall actively resist his every attempt to gain control of the seas. We insist upon the vital importance of keeping Hitlerism away from any point in the world which could be used and would be used as a base of attack against the Americas. Second, from the point of view of strict naval and military necessity, we shall give every possible assistance to Britain and to all who, with Britain, are resisting Hitlerism or its equivalent with force of arms. Our patrols are helping now to insure delivery of the needed supplies to Britain. All additional measures necessary to deliver the goods will be taken. Any and all further methods or combination of methods, which can or should be utilized, are being devised by our military and naval technicians, who, with me, will work out and put into effect such new and additional safeguards as may be needed." Documents on American Foreign Relations, Vol. III, World Peace Foundation, 1941, p. 55.
In an address delivered on 11 September 1941, prompted by the attack on the United States destroyer Greer, the President stated :
"In the waters which we deem necessary for our defense American naval vessels and American planes will no longer wait until Axis submarines lurking under the water, or Axis raiders on the surface of the sea, strike their deadly
blow-first. Upon our naval and air patrol-now operating in large numbers over a vast expanse of the Atlantic Ocean-falls the duty of maintaining the American policy of freedom of the seas—now. That means, very simply and clearly, that our patrolling vessels and planes ill protect all merchant ships not only American ships but ships of any flag-engaged in commerce in our defensive waters. They will protect them from submarines; they will protect them from surface raiders." Documents on American Foreign Relations, Vol. IV, 1942, p. 100.
11. In this way Article 2, paragraph 6 of the Charter of the United Nations may be interpreted.
12. This is one of the facts which justifies the view that neither the KelloggBriand Pact nor the Covenant of the League of Nations abolished entirely the legal institution of neutrality in the relations among the contracting parties, for under both treaties each contracting party was authorized to decide for itself whether or not a violation of the treaty had taken place,
13. This may be the case under the Charter of the United Nations which confers, upon the Security Council the function of determining the existence of a threat to or breach of the peace (Article 39) but at the same time gives each of the five permanent members of the Council a veto right, by the exercise of which the Council may be prevented from fulfilling this function.
In this case, according to the resolution, “Uniting for Peace," the General Assembly, an organ of the United Nations within which no member state has a veto right, may assume the function not fulfilled by the Security Council and determine the existence of a threat to or breach of the peace. However, it is doubtful that a decision adopted by the General Assembly to this effect is binding upon the member states. The General Assembly can only make recommendations to the members to take enforcement measures against an aggressor. Since these recommendations are not legally binding, member states may remain neutral and then must adopt an attitude of impartiality towards belligerents..
14. This is the case if Article 51 of the Charter of the United Nations concerning collective self-defense applies. This Article sets forth the right of the members of the United Nations to come to the assistance of a victim of an armed attack by taking enforcement measures involving or not involving the use of armed force against a state responsible for an armed attack.
Since, according to Article 51, the right of collective self-defense exists "until the Security Council has taken the measures necessary to maintain international peace and security,” the legal position of the members not involved in a war following an armed attack does not change if the General Assembly intervenes under the resolution "Uniting for Peace.” The General Assembly can only make recommendations to the Members to take measures involving or not involving the use of armed force against a state which the General Assembly has determined to be an aggressor. These members may or may not comply with the recommendations and thus may or may not remain neutral, or, if they do remain neutral, they may give up their attitude of impartiality toward an aggressor by taking measures short of war against this state. It is even doubtful that the members not involved in a war following an armed attack are bound to share the opinion of the General Assembly that an armed attack has taken place and accept the finding of the General Assembly as to which state is the aggressor.
15. The right of collective self-defense established by Article 51 of the Charter is transformed into an obligation by certain treaties implementing Article 51. Cf. Note 5, page 127.