Ian Mugridge
One of the more difficult problems attached to all wars is that of relations between belligerents and neutrals. In land wars the question is not of such magnitude, although Switzerland is probably the only nation to have arrived at a satisfactory solution. In naval wars, however, in situations where maritime commerce and other activities are involved, the question of the relationship between belligerents and neutrals, that is, of neutral rights, has long been debated, almost always with inconclusive results.
The question of neutral rights in wartime is almost always discussed, especially by neutrals, within the context of international law. It is usually claimed that such international law is supported by principles established either by earlier treaties or by practice or both, that it is an expression of some accepted view of maritime conduct in wartime, which should therefore govern relations between belligerents and neutrals.
The problem is that international law has no validity beyond that accorded it in particular situations by particular nations. It only exists either when nations agree that it does or when they can uphold their interpretation of it by whatever means are appropriate. In a narrower context, the problem with stating and attempting to uphold neutral rights at sea is that, in the end, neutrals have no rights except those that they can maintain by their own actions, in which case they often cease to be neutrals, as the Dutch discovered in the American Revolution. Again, the example of the Swiss is instructive. They have preserved their neutrality inviolate for hundreds of years by the simple but effective expedient of placing themselves in such a position that challenging their neutrality would not be worth the cost.
The introduction of principles to regulate relations between belligerents and neutrals has never been motivated by anything other than self-interest. Since at least the seventeenth century, declarations, opinions, judgments, and conventions on neutral rights in seaborne commerce have been common. But if one strips away the philosophical disguises, legal circumlocutions, and endless casuistry, what remains is really very simple: neutrals have constantly been trying to trade with some or all of the belligerents in a given war while some or all of the same belligerents have been trying to stop neutral trade with their enemies. For example, the cause of most of the problems concerning the West Indies, particularly the French islands, during the American Revolution was the clear and avowed intent of the French to assist the Americans and the equally firm intent of the British to stop this. What mattered in this situation was not declarations of neutral rights or expressions of principle but the possession of the force required to carry out national policy.
There has, nevertheless, developed during the last three hundred years a great body of pronouncements on neutral rights as both neutrals and belligerents have sought to regulate their relations and to justify their self-interested conduct by appeals to principle and to precedent. No nation has been absolutely consistent in the principles and doctrines to which it has appealed and on which it has acted, and this has been as true of the United States as of any other nation.
In The Diplomacy of the American Revolution (1935), still a valuable work on the topic, Samuel Flagg Bemis noted that, in espousing unequivocally the principles of the Armed Neutrality of 1780 and in embodying some of these principles in the Treaty of Paris, the United States established what he called "the American doctrine of freedom of the seas." This doctrine, which he recognized as being rooted in practice, was by no means American nor has it been one to which the United States has consistently adhered. During the Civil War, the British in particular tried, unusually for them, to uphold the principle of free ships, free goods; but the government of Abraham Lincoln refused to do anything but cling to maritime doctrines more usually espoused by the British. In the two major wars of the twentieth century, the neutral rights of American shipping were one of the causes of contention between the United States and Germany, but in neither case was the real neutrality of the nation clearly established. In the 1960s, it might be maintained that one of the ingredients of the Cuban missile crisis was the unwillingness of the United States to uphold the principle of freedom of the seas when such an action would seriously have threatened its security. This is not to criticize particularly the actions of the United States in successive crises, merely to point out that its governments, like those of other major and minor powers over the years, have been motivated by self-interest rather than by continuous adherence to principle.
An examination of the conduct of the maritime powers in time of war, however, indicates that the body of international maritime law, ephemeral and even illusory as it may be, has yet had considerable influence on their actions.
See also BLOCKADES; FREEDOM OF THE SEAS; INTERNATIONAL LAW; NAVAL DIPLOMACY; NEUTRALISM; NEUTRALITY.