considered indispensable in view of the French menaces. Thereupon German troops marched into Belgium. The Belgian government then addressed an appeal to Great Britain, France, and Russia to coöperate with it as guaranteeing powers in the defence of Belgian territory, and the same day the Belgian government was informed by the government of Great Britain that it expected Belgium to resist with all the means at her disposal, and that the British government was prepared to join Russia and France, should Belgium so desire, in resisting the German violation of her territory. On the same day Sir E. Goschen was informed by Sir Edward Grey that "in view of the refusal of the German government to give the same assurance respecting Belgium that France had given, and in view of the violation of Belgian territory, he must repeat the request referred to above and ask that a satisfactory reply be received in London by twelve o'clock that night." If not, the ambassador was to ask for his passports and to say that His Majesty's government "felt bound to take all steps to uphold the neutrality of Belgium and the observance of a treaty to which Germany is as much a party as ourselves." 1 Sir E. Goschen states that upon receipt of this telegram he called on the German secretary of state for foreign affairs and inquired in the name of His Majesty's government whether the Imperial government would refrain from violating Belgian neutrality. Herr von Jagow at once replied that he was sorry to say that his answer must be no, as in consequence of the German troops having crossed the frontier that morning, Belgian neutrality had already been violated.2

§ 436. Questions of International Law Involved. The questions of international law involved in the violation of the neutrality of Belgium may be reduced to three: (1) Is the violation of the territory of a neutral by a belligerent ever justifiable, and if so, was it justifiable in the present case? (2) Is it permissible to a neutral to grant the right of passage through its territory of the troops of one of the belligerents for the purpose of attacking its adversary? (3) Where two or more States have by treaty guaranteed the permanent neutrality of another State, is it the right or duty of one of the guaranteeing powers to intervene, independently of the other co-guarantors, for the 1 English White Book, despatch No. 159.

? Despatch of Sir E. Goschen to Sir Edward Grey, August 8.

QUESTIONS OF INTERNATIONAL LAW

191

purpose of preventing the violation of the guarantee by one of the parties?

Acts in violation of the territory of neutral States by belligerents may, for the purpose of the present discussion, be grouped into two classes: (1) the use of neutral territory as a theatre of hostilities, a base of operations, or a place for recruiting their forces or for fitting out or increasing their armaments; (2) as a right of way for the passage of troops. The law of neutrality as it is understood today does not recognize any distinction between the two classes of acts; both are forbidden to belligerents, one quite as much as the other. But intrinsically there is an important distinction between them, for the injury sustained by the neutral in the two cases may be very different. Where opposing belligerents fight their battles upon the territory of a neutral or use it as a base of operations or for recruiting their forces or for fitting out their armaments, not only the honor and dignity of the nation are outraged, but it may suffer material injury from the inevitable destruction of property and interference with the occupations and normal life of the inhabitants. On the contrary, the use of neutral territory merely for the passage of troops does not necessarily produce such results. It would be quite possible for a belligerent to march an army across a small State without interfering in any considerable degree with the lives, property, or daily pursuits of the inhabitants. Indeed, if he should purchase his supplies from the local inhabitants, it might be a source of actual advantage to them. In the present case Germany asked only for the right of passage for her troops; she declared that she contemplated no hostile act against Belgium; she promised to protect the kingdom in all its possessions, to indemnify it for all damage done, and to buy and pay cash for all supplies needed for the troops during their passage through the country.

8437. The German Pretext of Military Necessity. The German government readily admitted that its act was a violation of a treaty to which it was a party and a violation of a longestablished principle of international law, but justified the act as one of military necessity. It was "a question of life and death"; the duty of self-preservation required Germany "to forestall the French advance," 1 and this duty must override 1 Despatch of the German foreign secretary to Prince Lichnowsky, August 4, 1914, English White Book, No. 157.

treaties and rules of international law when they stand in the way. Sir E. Goschen thus stated the reasons which the Imperial secretary of state gave in defence of Germany's action.

"Herr von Jagow again went into the reasons why the imperial government had been obliged to take this step—namely, that they had to advance into France by the quickest and easiest way, so as to be able to get well ahead with their operations and endeavour to strike some decisive blow as early as possible. It was a matter of life and death for them, for if they had gone by the more southern route they could not have hoped, in view of the paucity of roads and the strength of the fortresses to have got through without formidable opposition entailing great loss of time. This loss of time would have meant time gained by the Russians for bringing up their troops to the German frontier. Rapidity of action was the great German asset, while that of Russia was an inexhaustible supply of troops."

Sir E. Goschen then said, "I should like to go and see the Chancellor, as it might be, perhaps, the last time I should have an opportunity of seeing him. He begged me to do so. I found the Chancellor very agitated. His excellency at once began a harangue which lasted for about twenty minutes. He said that the step taken by His Majesty's government was terrible to a degree; just for a word 'neutrality,' a word which in war time had so often been disregarded —just for a scrap of paper, Great Britain was going to make war on a kindred nation who desired nothing better than to be friends with her." 1

In a speech in the Reichstag of August 4, the German Chancellor stated the case of Germany as follows:

"We are in a state of legitimate defence (wir sind jetz in der Notwehr). Necessity knows no law. Our troops have occupied Luxemburg and have

1 The Chancellor's reference to the treaty of 1839 as a "scrap of paper" was the subject of severe criticism. In an interview with a representative of the Associated Press on January 24, 1915 (text in Amer. Jour. of Int. Law, July, 1915, p. 717), Chancellor von Bethmann-Hollweg asserted that the phrase had been misunderstood and a wrong meaning given to his words. "When I spoke," he said, “I already had certain indications, but no absolute proof on which to base a public accusation that Belgium had long before abandoned its neutrality in its relations with England. England drew the sword only because she believed her own interests demanded it. Just for Belgian neutrality she never would have entered the war. That is what I meant when I told Sir E. Goshen, in that last interview when we sat down to talk the matter over privately man to man, that among the reasons which had impelled England into war the Belgian neutrality treaty had for her only the value of a scrap of paper. I may have been a bit excited and aroused. Who would not have been at seeing the hopes and work of the whole period of my chancellorship going for naught? I recalled to the ambassador my efforts for years to bring about an understanding between England and Germany, an understanding which, I reminded him, would have made a general European war impossible, and have absolutely guaranteed the peace of Europe. In comparison with such momentous consequences, was the treaty not a scrap of paper?" Cf. also Schoenborn's explanation in Deutschland und der Weltkrieg (Eng. trans.), p. 532.

RIGHT OF SELF-PRESERVATION

193 perhaps already penetrated into Belgium. This is against the law of nations (das widerspricht, den Geboten des Völkerrechts). France, it is true, has declared to Brussels that it is determined to respect the neutrality of Belgium as long as its adversary respects it, but we know that France was ready to invade Belgium. France can afford to wait; we cannot. A French attack on our flank in the region of the lower Rhine might have been fatal. It is for that reason that we have been compelled to ignore the just protests of the governments of Luxemburg and Belgium. The injustice which we thus commit we will repair as soon as our military object has been attained. Anybody who is threatened as we are threatened and is fighting for its highest possessions can have only one thought how he is to hack his way through (wie er sich durchhaut).”

$438. The Right of Self-preservation. The authorities on international law are generally agreed that there are conceivable circumstances under which the violation of neutral territory by a belligerent is justifiable. The necessity of self-preservation is certainly such a case. Rivier states the rule as follows: "When a conflict arises between the right of self-preservation of a State and the duty of that State to respect the rights of another, the right of self-preservation overrides the duty." "In certain cases," he adds, "a government is bound to violate the rights of another country for the safety of its own. That is the excuse of necessity, an application of the reason of State. It is a legitimate excuse." 2 "In certain cases," says Oppenheim, "it is a fact that violations committed in self-preservation are not prohibited by the law of nations; they are justified in cases of necessity and of this, every State must be the judge." 3

1 The text in Deutschland und der Weltkrieg is slightly different from the above, but in substance it is the same. Baron Beyens, Belgian minister at Berlin, relates that on August 4 he had an interview with Herr von Jagow, during the course of which the latter said: "We have been obliged by absolute necessity to address to your government the request of which you are aware. For Germany it is a matter of life and death. In order not to be crushed, she has first to crush France and then turn against Russia. We have learnt that the French army was preparing to pass through Belgium in order to attack our flank. We are bound to forestall it." Second Belgian Grey Book, Nos. 25 and 51.

2 Principes du Droit des Gens, Vol. I, p. 277.

3 Int. Law, Vol. I, p. 178. On the question of the right of a State to violate the neutrality of another State on the ground of self-preservation cf. Grotius, de Jure Belli ac Pacis, Bk. II, ch. 2, par. 7; Vattel, Droit des Gens, Bk. II, ch. 7; Kluber, Droit des Gens, sec. 44; Twiss, Law of Nations, Vol. I, sec. 102; Halleck, Int. Law, Vol. I, p. 95; Rivier, Principes, Vol. I, sec. 20; Bonfils, Droit Int. Pub., secs. 242 et seq.; Despagnet, Droit Int. Pub., secs. 172-175; Pradier-Fodéré, Droit Int. Pub., Vol. I, secs. 211-286; Calvo, Droit Int. Pub., Vol. I, secs. 208209; Hall, Int. Law, 4th ed., pp. 57, 281; Phillimore, Vol. I, secs. 210-220; Pomeroy, Int. Law, p. 351, and Lawrence, Principles, p. 501.

VOL. II-13

Westlake approves the destruction by the English of the Danish fleet in 1807 to prevent its falling into the hands of Napoleon, and apparently he justifies such acts as the seizure of Amelia Island by the United States in 1817, the invasion of West Florida by General Jackson in 1818, and the destruction in American waters of the Caroline by the British in 1837. The violation of Korean territory by the Japanese in 1904 was defended by the Japanese on the ground that the maintenance of the independence and territorial integrity of Korea was one of the objects of the war, and that Japan was justified in landing troops there to prevent its occupation by the Russians. Lawrence, who has attempted to justify the conduct of the Japanese, although he admits that technically there was a violation of international law, points out that Korea's position was "curious and anomalous"; that "theoretically it had long been within Japan's sphere of political influence," and that "practically it never had been and was never meant to be fully independent." 2 But this justification has not commended itself to all writers. The Japanese act, says Spaight,3 was based on the extremely dubious assumption that Russia would land there if the Japanese did not forestall them. In this respect the Japanese case was analogous to that of Germany in the recent war, although in other respects they were very different. The law of self-preservation was not involved in the Japanese case, but, on the other

1 Int. Law, Pt. I, p. 315. The destruction of the Danish fleet, says Westlake, is essentially similar to that of a belligerent having sure information that his enemy, in order to obtain a strategic advantage, is about to march an army across the territory of a neutral clearly too weak to resist, in which circumstances it would be impossible to deny him the right of anticipating the blow in the neutral territory. There is no doubt, he says (Collected Papers on Int. Law, p. 120), that a belligerent may violate the territory of a neutral State on the ground of selfpreservation, e.g., where one belligerent has sure information that a corps of the other, quite beyond the ability of the neutral to resist, is on the march to obtain a strategic advantage by violating the territory of the latter.

2 War and Neutrality in the Far East, pp. 208 et seq. The British Manual of Military Law (sec. 468, n. d) remarks that "the circumstances under which Manchuria and Korea became the theatre of war were peculiar and exceptional arising out of the inability of China and Korea to free themselves from Russian occupation and influence. The very purpose of the war was the expulsion of the Russians from Manchuria and Korea."

3 War Rights on Land, p. 481.

♦ Cf. also Hershey, Int. Law and Diplomacy of the Russo-Japanese War, pp. 70 et seq., and Smith and Sibley, Int. Law as Interpreted during the Russo-Japanese War, pp. 22-23.