Questions of Public Law (1737)
Cornelius van Bynkershoek
How War Affects Neutrals
NEUTRALS (non hostes) I call those who belong to neither belligerent party and who owe no services to either party by treaty obligations. Those who have obligations are not mere neutral friends, they are allies. Grotius’s term for neutral was medius, the middle man. Now the question arises what it is lawful for neutrals to do and not to do in their relationships with the two belligerents. Some may perhaps hold that everything is permissible which was permissible during peace, since the status of war seems not to extend beyond the belligerent parties; for, they argue, if it is not reasonable for us to look upon our friends’ enemies as our own enemies, why should not our friends furnish to their friends, even if these be our enemies, the things which they formerly furnished, such as arms and men? And even if this view militates against our own advantage, the question is one of reason and not of advantage. They might also add that an unjust act was the sole cause of the war, and that this act affected only the person injured, except that in case the injured person was a prince, the injury extended to his subjects, though never to non-subjects. Consequently, oh this view, it would follow that an enemy of my friend was not my enemy, and that my friendship with him remained unchanged.
This view apparently met the approval of the counsellors of the States-General when, on their report, the latter on March 3, 1640, decreed that ‘according to ancient custom and the law of neutrality’, it is lawful for neutrals to fight for us or for our enemy as they may choose. And when the Spaniards on March 30, 1639, had decreed that if any citizen of Liege fought in favour of the States-General, he must return within a month, taking the oath not to fight again against the Spaniards or the House of Austria, otherwise all pardon would be refused, a similar edict was issued in retaliation by the States-General on March 3, 1640; and I remember that this latter decree was to be in force as long as the Spanish one, and that it designated the Spanish decree as wholly unprecedented and unreasonable, using phrases like the following: ‘an unreasonable edict’, ‘such novelty and unreasonableness’, ‘so long as the Spaniards shall continue in their unreasonable position’. Certain Dutch citizens expressed the same view in the assembly of the Estates of Holland on February 26, 1684, urging that the United Provinces should send auxiliary troops against the French, and saying that this could be done without injury to the amicable relations existing with the French.
But we cannot approve of this view, if indeed we have in mind those who are simply neutrals and not allies; for these must in every way guard against interfering in the war, and against showing favouritism toward or prejudice against either belligerent. This is the meaning of the phrase in Livy: ‘let them not intervene in the war,’ that is, let them not show preference to either belligerent so far as concerns the war, and this is the only proper course for neutrals. I am not sure that the rule of Grotius is satisfactory. ‘It is’, he says,
‘the duty of neutrals to do nothing which may strengthen the side which has the worse cause, or which may impede the motions of him who is carrying on a just war.’ In my judgement, the question of justice and injustice does not concern the neutral, and it is not his duty to sit in judgement between his friends who may be fighting each other, and to grant or deny anything to either belligerent through considerations of the relative degree of justice. If I am a neutral I may not lend aid to one to an extent that brings injury to the other. But, you say, I will send to both whatever I choose, for thus friendship requires; and if one uses for the destruction of the other the things I send, that is not my fault. But you must not adopt such an opinion. We must rather consider the enemies of our friends from two different points of view, not only as our friends, but also as enemies of our friends. If we consider them only as friends we may properly help them with advice, with troops, arms, and whatever else they need in war. But in so far as they are enemies of our friends we may not do this, because we would then show preference to one side in the war, and this the equality of friendship, which has first claim, forbids. It is better to preserve friendship with both than to show preference to one in war, and thus tacitly to renounce the friendship of the other.
This principle that I have just laid down is supported not only by reason, but also by the accepted usages of most nations. For however unrestricted may be our commerce with the enemies of our friends, yet, as I shall explain at length in the next chapter, custom ordains that we shall not aid either belligerent in the things by which war may be carried on against our friends. Accordingly, it is unlawful to carry to either party the things he needs in actual warfare, as for instance artillery, arms, and what he most needs, soldiers. Indeed, in some nations soldiers are excluded by agreements, and the material for building ships is sometimes prohibited if the enemy especially needs this for the construction of ships to use against our friends. Foodstuffs also are often excepted when the enemy is being besieged by our friends or is in some other way pressed by famine. These prohibitions against supplying the needs of their enemies have very properly been made because by such supplies we would ourselves appear in a manner to be making war on our friends. Therefore, if we consider the belligerents merely as friends of ours, we have a right to carry on commerce with them and to send them whatsoever we choose; if, however, we consider them as enemies of our friends we must make an exception of such merchandise as may do injury to our friends in war. The latter consideration, moreover, outweighs the former, for by aiding the one against the other in any manner we intervene in the war, and this is not consistent with the position of friendship. From this discussion you may judge which of the two edicts mentioned above was the more just, that of the Spaniards of March 30, 1639, or that of the States-General of March 3, 1640.
I have briefly explained my views about the duty of those who were in no way bound by treaty, but were absolutely independent of both belligerents. These I have called simply ‘friends’ to distinguish them from allies and confederates. If my view is correct, I cannot agree with the opinion of many writers on public law who hold that we may and ought to aid the friend whose cause appears to us the best and most just, not only by supplying military stores but also by open warfare if the case requires it. This view is certainly wrong, for it is by no means right to interfere in another’s affairs. When neither friend has made any engagement with us why should princes, absolutely independent, stand or fall by our judgement? It is not our duty to avenge all the wrongs of every sovereign; it is sufficient if we avenge our own and those of our allies. If, however, the wrong of another becomes so evident that we must fear for ourselves, and the only hope remaining is that our destruction is reserved for the end, we may perhaps admit that the oppressed friend must be helped; but even in such a case the friendship must be dissolved first, for it cannot be otherwise than impious to make war upon one while he still bears the name of friend.
The theory is quite different regarding allies and confederates. If two nations with which we are allied wage war against others, we will supply to both what the terms of the alliance call for; but if they are engaged in a war against each other, shall we aid both or one, and how shall we decide? On this question there is as great variance between authorities as there is warfare between nations. Gentili rehearses the various views of the authorities and adds his own. Grotius, and following him, Zouche, lay down several distinctions. Certainly auxiliary troops are not to be sent to both allies even if they are due according to the terms of alliance; for it would be very absurd to send our soldiers to both, only to have them fight and slay each. other. Those who hire out their soldiers often fall into this predicament, but that is not now our concern. For my part, whether our allies are at war with others or with each other, I think there is but one point to raise, and that is whether they have a just cause for war. If both are at war ‘with outside nations and both have a just cause, I should aid both to the extent of my pledge; if only one proves to have a just cause, I will deny aid to the other. If our allies are at war with each other I shall perform the obligation of my treaty toward the one which has the juster cause, and of this I will be the judge, as you shall presently hear. Thus we can readily forego the opinions and definitions of others.
But what if we have promised aid to an ally who comes to blows with a power friendly to us? In my opinion we can and must fulfill our promises, since allies in this respect constitute one state to be defended by the resources of both powers. But here also there is room for a distinction, and we must inquire whether our ally has suffered wrong or whether he is the aggressor. If he is the injured one we will perform our promises, if he is the aggressor we will not, for we are not bound to aid an ally in an unjust cause; moreover, the party which promises aid has the decision as to whether or not the cause is just. I wish that this distinction that I have laid down regarding the justice and injustice of the cause were clearly and elaborately stated in international treaties: in the treaties that I have seen there is usually a simple clause demanding that one ally shall furnish to the other ‘when attacked’ such and such naval and land forces, and that is all. However, the only possible interpretation of that phrase ‘when attacked’ is that aid will be given to the ally which is unjustly attacked, that is to say, the injured party, not the aggressor. This, indeed, is the only true interpretation of ‘the phrase, for what if the party attacked had previously committed a wrong, thereby affording a cause of war? Shall I in such a case send aid to an unjust ally? No. It would be better, then, to say that aid will be sent to one who is unjustly attacked, which would include the party that did not afford a cause of war, and that did not
commit the fault or injury which provoked the war. Indeed Grotius has proved that although it be not openly expressed, the exception is always tacitly understood in treaties, and I have not found any writer who differs from him.
He who promises aid and he alone, as I just said, judges also regarding the justice of the cause and determines whether or not a casus foederis, as it is called, has taken place; nor do the contracting parties often submit this to the decision of arbitrators, a course which would prevent treaties from being made sport of as they now are. Otherwise, how many are there who will not interpret treaties in the way that they consider most advantageous? Who will not evade them by a false interpretation? The ancient Greeks and Romans, even in public matters, frequently entrusted to others the judgement of the justice and injustice of a cause, as is proved by the instances cited by Grotius, and this was the right course. But this practice has now fallen into disuse in international law, so that treaties are now little else than an empty name. What I have said above applies to treaties by which aid is promised before war, for, in my opinion, when war has once broken out it is not right to promise or send aid to either friend, and he who does so promise or send to one will violate his neutrality with the other.
The states that are under our protection also constitute a kind of neutral class, for though they are not our subjects, being those of another sovereign, they are not considered enemies, since that is precluded by the very nature of the protectorate. They can therefore aid their sovereign even when he is at war with us, but they may not aid him with arms and troops with which to wage war against us. Accordingly, the counsellors of the States-General on March 17,1, decreed that no one from the territory of Luxembourg and Namur could serve as soldier for the King of Spain, and again on July 18, 1646, they issued the same edict with reference to citizens of Luxembourg, and these decrees were entirely proper since these two states were under the protection of the States-General. Later on August 14, 1645, they issued a general decree that no neutral under our protection should fight for the King of Spain even if he had done so before, and that no one who had left such service should be recalled to it. Again, on February 23, 1636, they decreed that none of those who were under our protection should aid the enemy’s armies with horses, wagons, or ships; and very properly, since this would be affording assistance to the enemy. The law is different as regards those things which are brought to our enemies for other than purposes of war, and therefore, though the States-General had formerly completely forbidden the exportation of grain, they decreed on May 23, 1631, that those who were under their protection might sell their grain to the Spaniards or to the United Provinces at pleasure. For a neutral may carry grain to an enemy except in the case of a siege or famine.
The States-General by the third clause of the edict of September 26, 1590, prohibited the treating of neutrals, their vessels and goods, in a hostile manner even in the enemy’s territory, provided they were bound for the United Provinces, or coming from there. And yet I find men writing as if the States-General had decreed on December 15, 1672, that even ships of neutrals proceeding from enemy ports could properly be confiscated. But no credence can be given to the pettifoggers who have written so, for this edict was a special one, made only by way of retaliation for the confiscation of the Hamburg ship, as I showed in Chapter V.