altered in the slightest by the annexation of African territory. European Belgium remained exactly as it was in 1839, with her territorial boundaries unaltered, and the reasons which led to her neutralization existed in 1914 as they existed then. As a European power Belgium's position, geographically and politically, remained the same, and to argue that the acquisition of African territory so completely altered the conditions which existed at the time the neutralization status was imposed, as to destroy the binding effect of the treaty, is to subject the rule of rebus sic stantibus to an interpretation which is wholly unwarranted. Under such an interpretation treaties between the United States and foreign powers entered into before the acquisition of Porto Rico and the Philippines could easily be argued out of existence. Even admitting that the rule was applicable in the present case, the invasion of Belgium was legally indefensible, because it is generally agreed that the reservation rebus sic stantibus does not authorize one of the parties to a treaty to repudiate its obligations whenever in its judgment its own interests require a termination of the treaty. It only allows the complaining party to insist upon a revision of the treaty, its replacement by another treaty, or its abrogation.1 In the present case Germany made no effort to have the treaty modified or abrogated through negotiation with the other parties, but instead proceeded to repudiate it, after which the doctrine of rebus sic stantibus was invoked in justification of an act already committed. Clearly, the case was not one in which the application of the rule was permissible. The Belgian treaty, says Schoenborn, was "incompatible with the vital interests of Germany; consequently it ceased to have any binding force for her." 2 We may readily admit the soundness of this proposition, but the inference that the observance of the Belgian neutralization treaty by Germany would have jeopardized the existence of the Empire or imperilled its vital interests, the impartial judgment of history will probably never accept. § 450. Evaluation of the German Arguments. Such are the reasons that were put forward in justification of the invasion 1 Cf. Westlake in the Rev. de Droit Int. et de Lég. Comp., 1901, p. 394. RIGHT OF PASSAGE 221 of Belgium. It is probably safe to affirm that never before have technicalities and legal subtleties been exploited with so much ability to justify an act for which there was no moral or legal justification. A regrettable feature of the controversy is that among those who gave the great weight of their opinion in support of such arguments are to be found the greater number of Germany's most honored and distinguished jurists, from whom the world had a right to expect some impartiality and judicial poise in the consideration of the legal questions involved in the Belgian invasion. The more honorable course, it would seem, would have been to admit the validity of treaties and conventions whose validity had never before been questioned, to have invoked solely the plea of military necessity, and to have stood by the declaration of the Chancellor in his address of August 4, 1914, that the invasion was contrary to the law of nations, and that it was a wrong for which Germany would make reparation. The attempt to argue out of existence those treaties by appeals to technicalities and legal refinements and to place the responsibility on France and Belgium by means of unfounded charges, is evidence that Germany had a very poor case. That her leading jurists should have prostituted their talents in support of such reasoning was highly discreditable to German legal scholarship.2 § 451. The Right of Passage in Time of War. We now come to another question raised in connection with the violation of Belgium, namely, whether Belgium could have granted the 1 It is refreshing to be able to record that a few distinguished German scholars had the courage to oppose the views of Schoenborn, Zitelmann, Liszt, Kohler, Hamper, Niemeyer, and others. Among them may be mentioned Dr. Hans Wehberg, who resigned in disgust from the board of editors of the Zeitschrift für Völkerrecht because he did not sympathize with the extreme views expressed through the columns of its managing editor, Professor Kohler. See his letter addressed to the German press in the Berliner Tageblatt of September 24, 1915 (English trans. in the Amer. Jour. of Int. Law, October, 1916, p. 925). Professor Lammasch, one of the leading Austrian jurists and publicists, also criticized the grounds alleged in justification of the invasion of Belgium. See his article entitled Vertragstreue in Völkerrecht, Österreichische Zeitschrift für Öffentliches Recht, 1915, No. 1; also the brochure of Professor Walther Schückung of the University of Marburg, entitled Die Deutschen Professoren und der Weltkrieg, in which he laments that the propaganda of the German professors was conducted with so little tact that the effect was contrary to the results expected. 2 The logic of the German professors is luminously analyzed and dissected by the Belgian jurist De Visscher in his book La Belgique et les Juristes Allemands (Paris, 1916). German demand for "friendly neutrality, entailing free passage of German troops through her territory," without herself violating a well-settled rule of international law and thereby rendering herself liable to attack by France for the advantage thus given to her enemy. The ancient publicists generally held that the troops of one belligerent had an absolute right of passage through neutral territory, and that this right could not be refused without injustice. Even Grotius in his day maintained that neutral nations ought to allow the right of passage to an army seeking to maintain its rights in a just war, and that in such cases it might be taken by force.1 Vattel held that the right of free passage might be granted so long as the privilege was accorded to both or all belligerents equally.2 Wheaton affirmed that it could be granted or withheld at the discretion of the neutral, and that its being granted or withheld constituted no ground of complaint on the part of the other belligerent, provided the same privilege was granted to him, unless there were sufficient reasons for withholding it.3 Phillimore, Kent,5 Manning, Sir William Scott, Twiss,' Martens, and many others pronounced in favor of substantially the same view. Baty, who has made a careful study of the subject, states that the jurists of the first half of the nineteenth century, with the possible exception of Kluber (who recognized the right of passage where it had been granted by treaty before the outbreak of war), were unanimous in following Grotius and Vattel in their view that neutrals might permit the right of passage so long as the permission was granted impartially.' But since the middle of the nineteenth century opinion has been practi 1 De Jure Belli ac Pacis, Liv. II, secs. 12-13. 2 Droit des Gens, Bk. II, ch. VII, secs. 119-121. Lawrence's Wheaton, Part IV, ch. III, sec. 8. ▲ International Law, Vol. III, sec. CLIX. 6 Case of the Twee Gebroeders. 7 Law of Nations, sec. 218. 8 Précis, Vol. II, sec. 310. Abdy's Kent, p. 328. • International Law in South Africa, p. 73. But in fact, the right thus granted can rarely be of equal advantage to both belligerents. For example, during the South African war the right of passage through Portuguese territory would have been of immense benefit to the Boers, since they had no access to the sea through their own territory, whereas it would have been of far less benefit to the British who could reach the Transvaal through their own territory of Cape Colony. Cf. Dumas, Du Droit de Passage en Temps de Guerre, Rev. Gén. de Droit Int. Pub., 1909, pp. 7 ff. (p. 289). RIGHT OF PASSAGE 223 cally unanimous against this view. Hautefeuille in 1848 was the first writer to adopt the view that a neutral State is bound to refuse the right of passage to any and all belligerents, even where the right has been promised by treaty. This rule, observes Halleck, is most consonant with the general principles of neutrality. "The passage of troops," says Hall, "for the sole and obvious purpose of attack, is clearly forbidden."2 "It is now generally recognized," says Oppenheim, "that a violation of the duty of impartiality is involved when a neutral allows a belligerent the passage of troops or the transport of war material over its territory. And it matters not whether neutral gives such permission to one of the belligerents or to both alike." 3 "No State," says Twiss, speaking of the neutralization of Belgium and Switzerland, "is entitled to demand of either of these States, under the general law of nations, that it should allow a free passage to its troops for belligerent purposes through its territory." Heffter, Funck-Brentano, and Sorel, Bonfils, Guelle, and Heffcken express emphatic opinions that neutrals have no such right.5 A few modern writers, among them Calvo and Bluntschli, allow neutrals to grant the right of passage in pursuance of treaty stipulations, if the treaty has been made prior to the outbreak of the war. "The fulfilment of such an obligation,' says Bluntschli, "could not be regarded as assistance to the belligerent and therefore as a violation of neutrality." It was in pursuance of a treaty (signed June 11, 1891) that Portugal granted permission to the English government to transport 96 1 As early as the middle of the eighteenth century the right of passage was sometimes refused. In 1744 Marshal Maillebois appeared at the frontier of the electorate of Cologne with an army and demanded of the elector the right of passage. He offered to pay for the supplies taken for his troops and to cause as little damage as possible. But the request was refused, and the marshal desisted from forcing a passage. Arendt, Essai sur la Neutralité de la Belgique, p. 127. 2 Int. Law, p. 624. 3 Int. Law, Vol. II, p. 345. 4 Law of Nations, sec. 250. Geffcken remarks that the conduct of the Swiss government in 1870 in refusing to allow troops of Baden to cross Swiss territory in trains over the most direct route was more in harmony with the modern idea of neutrality. Geffcken also approves the conduct of the Belgian government in refusing to allow wounded German soldiers to be transported across Belgian territory, because it would have facilitated the military operations of Germany by allowing her the use of the Belgian railways. See his note to Heffter, secs. 147-150. During the same war, Bismarck protested against the conduct of the government of Luxemburg in allowing French troops to traverse the Duchy in order to reënter France. Droit Int. Cod., trans. by Lardy, sec. 771. troops through Portuguese East Africa during the Boer war. The Portuguese government claimed that the grant of passage was in fulfilment of a convention concluded long before the war and could not be regarded as a "superfluous support of one of the belligerent parties or as a violation of the duties imposed by neutrality." The English government on its part contended that in this particular case it was only availing itself of existing treaty rights which the neutral cheerfully granted. English writers at the time had much to say in defence of the policy of "benevolent neutrality" — exactly the same thing as the "friendly neutrality" which the Germans demanded of Belgium in 1914 and they cited the authority of such precedents as that of 1877, when Roumania, in pursuance of a treaty, granted the right of passage to Russian troops in their war against Turkey. The Transvaal government protested and, clearly, with justice. Spaight, an English writer, affirms that the procedure of Portugal "was hardly conformable with the strict canon of the law of neutrality."3 Baty points out that the treaty of 1891 contemplated only the right of commercial passage, and it was by a forced interpretation that it could be construed to cover the transportation of troops and military supplies. There can be little doubt that the law of neutrality as then generally recognized not merely required of Portugal equal treatment of both belligerents, but also imposed upon her the duty of absolute prohibition in respect to the use of her territory by either belligerent, and her conduct, as well as that of England, has been almost universally condemned.5 If any doubt existed at the time in regard to the rights of belligerents and neutrals in such cases, it was removed by the Hague convention respecting the rights and duties of neutral powers and persons in case of war on land, article 2 of which forbids belligerents to move troops or convoys of either munitions of war or supplies across the territory of a neutral power, and article 5 of which forbids neutrals to allow such acts to occur in their territory. It is one of the elementary principles 1 Cf. Campbell, Neutral Rights and Obligations in the Anglo-Boer War, p. 67, where the whole question of the right of Portugal to grant free passage to the British troops is fully examined. 2 Amery, Times History of the War in South Africa, Vol. IV, p. 367. 3 War Rights on Land, p. 485. Cf. Campbell, op. cit., pp. 66–70. Int. Law in South Africa, pp. 76–77. |