DUTY OF BELGIUM 225 of international law that a neutral cannot allow its territory to be made a base of operations by one of the belligerents in his war against the other. As Renault justly remarks, it is difficult to imagine assistance more direct or more dangerous to the adversary than to permit his opponent to attack him on a point where normally he could only await attack. In return for a concession which would have made Belgium an ally of Germany, the German government offered nothing more than a promise to guarantee the possessions and independence of Belgium and to evacuate her territory upon the conclusion of peace. In view of the subsequent record of the German government in respect to its international engagements, it may be seriously doubted whether the promise would have been fulfilled. In any case, Germany's ability to do so would have been entirely contingent upon the triumph of her arms, an eventuality of which the Belgians were by no means certain. It seems impossible to reach any other conclusion than that the German demand upon Belgium was one which the Belgian government had no lawful right to grant. It was both the legal and moral duty of Belgium to refuse the demand, and it was to her everlasting honor that she resisted to the utmost of her power the German attempt to force a passage. The German contention that Belgium could have granted the right of passage for German troops without violating her obligations as a neutral,2 is based on a view of the law of neutrality which is entirely inconsistent with the very nature of neutrality. Schoenborn's argument that after the delivery of the ultimatum to Belgium she was in a conditional state of war and could therefore have granted the right without violating the law of neutrality is but one of many lamentable specimens of German logic by which treaties were argued out of existence and international engagements reduced to a nullity. Other German writers less specious in their reasoning asserted that in view of the circumstances it was both the duty and interest of Belgium to accede to the German request. In view of the overwhelming odds against her, she should have yielded to force majeure and, 1 Les Premières Violations, p. 49. M. Renault asks, “What would have been said in Germany if Belgium had granted to France such a concession as that which Germany demanded?" and he adds, "There is no need to answer the question." 2 This contention is made by Schulte, Von der Neutralität Belgiens (Deutsche Kriegsschriften), No. 3, 1914, p. 68, and by Hampe, Modern Germany, p. 379. VOL. 11-15 like Luxemburg, contented herself with a formal diplomatic protest, in which case she would have been indemnified at the conclusion of peace for any losses sustained on account of the passage of German troops.1 This line of argument is based on the assumption that considerations of national honor, of selfrespect, and of international duty meant nothing to Belgium. Professor Kohler even went to the length of referring contemptuously to the Belgian pretence that the national honor and international obligations of the country forbade compliance with the terms of the German ultimatum, and he contrasted Belgium's conduct with that of Luxemburg, which yielded "without resistance and without loss of honor." But the Belgian sense of national honor and of international duty was different, and the heroic resistance of the Belgian people in its defence must always constitute one of the bright pages in the history of the war.3 1 Such is the argument of Fuehr, op. cit., p. 190; Müller, Der Weltkrieg, etc., p. 28; De Welck, Die Schuld von Belgien (Jahrbücher für die Deutsche Armee und Marine, 1915), and Hampe, op. cit., p. 379. It was to the interest of Belgium, says Hampe, that she should have complied with the German demand. "Germany only asked for benevolent neutrality and the German ultimatum pledged to guarantee her territory and independence and to withdraw from the country at the conclusion of peace.' The right of passage, he adds, was not plainly forbidden by Belgian neutrality. Belgium refused because she was bound by "inclination, agreements and one-sided military subservience to England." 2 Renault, op. cit., p. 33. Grasshoff, Belgiens Schuld, p. 6, tells us that "the resistance of Belgium was incomprehensible, it was a political mistake." Fuehr (op. cit., p. 191) thus states the political philosophy of his country: "For the statesman who renders full account of his responsibility to his people, not the honor, but the welfare of the country is and must be the guiding principle of his decisions." This view of national honor may be contrasted with a passage in Cardinal Mercier's pastoral letter of Christmas 1914: "We may now say, my brethren, without unworthy pride, that our little Belgium has taken a foremost place in the esteem of nations. I am aware that certain onlookers, notably in Italy and in Holland, have asked how it could be necessary to expose this country to so immense a loss of wealth and of life, and whether a verbal manifesto against hostile aggression, or a single cannon shot on the frontier would not have served the purpose of protest. But assuredly all men of good feeling will be with us in our rejection of these paltry counsels. Mere utilitarianism is no sufficient rule of Christian citizenship." Labberton, a Dutch professor of moral philosophy at the University of Ghent and one of von Bissing's appointees after the transformation of that institution into a Flemish-German university, in his book Belgium and Germany (Eng. trans. by Leonard) tells us that Germany was justified in violating the neutrality of Belgium by a "high moral duty" (p. 33); that when Belgium rejected the German ultimatum, she ceased to be neutral and became an active participant on the side of the allies (p. 43), and that the violation of Belgian neutrality was a "new, DUTY OF THE GUARANTORS 227 452. Duty of the Guarantors of the Neutralization of Belgium. We come now to the final question raised in connection with the violation of Belgian neutrality, namely, whether it was the legal right and duty of Great Britain alone and without the consent and coöperation of the other guarantors to intervene for the purpose of preventing the violation of the neutralization treaty by one of the parties thereto. This question was first raised in 1867 in a debate in the House of Lords regarding the nature of the obligations assumed by the British government as a party to the Luxemburg convention, which expressly declared the guarantee to be "collective." In the course of the debate Lord Derby affirmed that in the event of the violation of the convention, no single signatory was bound to intervene to prevent its violation. The guarantee, he maintained, being joint and collective, the obligation to enforce the observance of the treaty rested upon the guarantors collectively. But this view provoked a vigorous protest in Parliament, Lord John Russell, among others, declaring that the guarantee was directed especially against possible aggressions of the co-guarantors themselves, and, that in consequence, each party was under an individual obligation to guarantee the territory in question against violation by any and all powers. Among the writers on international law there is little difference of opinion in regard to the nature of the obligation. Bluntschli holds that if the neutralization treaty expressly stipulates that the guarantee shall be common and collective, and not individual, intervention for the purpose of enforcing the guarantee must be collective. In such case the guaranteeing powers must examine the question together and must intervene in common if they judge intervention necessary. If they cannot agree, each is authorized and bound, bona fide, to execute the treaty conformably to the interpretation which it places on the treaty.1 Pradier-Fodéré takes substantially the same position,2 and so do Rivier, Calvo, and Nys. The language of the Belgian neutralization treaty, ethical creation" and a "proof of ethical genius" (p. 93)! The Chancellor's speech of August 4, frankly admitting that Germany was committing a wrong against Belgium, was, he says, a most admirable act. "If this is not the height of moral earnestness," he adds, "then I know not where to seek it" (p. 81)! 1 Droit Int. Cod., tr. by Lardy, sec. 440. • Droit Int. Pub., sec. 1010. Op. cit., Vol. II, p. 104. • Droit International, Vol. III, p. 40. Op. cit., sec. 2611. unlike that by which the neutralization of Luxemburg was guaranteed, does not expressly state whether the obligation of intervention is individual or collective; it merely declares that "the five powers . . . guarantee her that perpetual neutrality, etc." But as Hall points out,1 such a guarantee would be meaningless if it did no more than provide for common action under circumstances in which the guaranteeing powers would act together. Oppenheim, speaking of Lord Derby's interpretation of the nature of the guarantee, says, "I do not know of any publicist who would or could approve it."2 Piccioni, who has made a thorough study of the matter, says it was clearly the intention of the Conference of 1867 to assimilate the guarantee in respect to the neutralization of Luxemburg to that of Belgium, and that there was no intention to introduce any distinction between them, although the word "collective" was not employed in the Belgian treaty. This, he adds, was the opinion expressed by Bismarck in the German parliament on September 24, 1887.3 We are certainly safe in saying that the overwhelming, if not the entire, weight of present-day authority is in favor of the right, if not the duty, of individual intervention on the part of each guaranteeing power for the purpose of preventing the violation of the treaty. To have required England in the present case to summon the other guaranteeing powers for common counsel would have rendered the treaty illusory. The violation of the treaty was too sudden to permit of common counsel; moreover, the violator in the present case was one of the guarantors, and her ally was another: the other two guarantors were allies of England, and therefore their consent and approval could be presumed. Under the circumstances it can hardly be denied that England's right to intervene singly to prevent the violation of the treaty was clear and undoubted. Was it also her legal duty? Let Bluntschli answer the question. "The States which have guaranteed the neutrality of Belgium," he says, "and which do not defend her against an aggressor do not keep their engagements and are themselves guilty of a violation of law." 4 "The violation of permanent neutrality by a belligerent," says von Liszt, “is an infraction of the law of nations, and it makes legal the inter• International Law, Vol. I, p. 575. Op. cit., sec. 440, n. I. 1 Op. cit., p. 345. 3 Essai sur la Neutralité, pp. 21, 53. OBLIGATION OF GREAT BRITAIN 229 vention of the other powers against the State which has disturbed the reign of peace. 99 1 From the very first the English government proceeded on this theory. Mr. Disraeli in the House of Commons in 1870 affirmed that the treaty of guarantee had embodied a rule of modern international law which should be vigorously maintained. Lord John Russell, speaking in the House of Lords at the time, said: "Our obligations to Belgium are the most sacred. We have assumed these obligations separately as well as jointly with other powers. We do not have to choose from among several ways; we have to follow only one path and that is the path of honor. We are bound to defend Belgium."2 Lord Granville expressed substantially the same opinion in the House of Lords on August 8, 1870. Mr. Gladstone has been quoted as expressing a contrary opinion,3 but this is an error. It is true he stated in the House of Commons on August 10 that he could not subscribe to the doctrine of those who held that there was an obligation on each of the guaranteeing powers, individually, to insure the observance of the treaty irrespectively of the particular position in which it might find itself at the time when the occasion for acting on the guarantee arises. It is clear from the context that what he denied was the obligation of Great Britain alone to defend the neutrality of Belgium under circumstances which might imperil the existence of Great Britain herself. What he evidently had in mind was the conceivable inability of one of the guaranteeing powers at a given moment, resulting from exceptional circumstances, to fulfil the obligations imposed by the treaty. In any case, the right of Great Britain to intervene if she was willing to undertake alone the enforcement of the treaty was beyond all question. Regarding her interest in the enforcement of the treaty, Mr. Gladstone said: 1 Das Völkerrecht, p. 63. 2 Quoted in Deschamps, La Neutralité de la Belgique, p. 295. See Stowell, op. cit., pp. 615 ff. for various extracts from the parliamentary debates of 1870 regarding the nature of the guarantee and the obligations imposed by the treaty. 3 Hampe, e.g., in Modern Germany, p. 355, attributes to Gladstone the statement that he denied expressly England's duty to intervene alone for the protection of Belgian neutrality. Cf. also Schulte, op. cit., p. 75, Dernburg in the North American Review for December, 1914, and Jastrow, Germany's Just Cause, p. 14. 4 Hansard, Parl. Debates, Vol. CCIII, p. 1787. Cf. also Stowell, op. cit., p. 390, and De Visscher, Belgium's Case, p. 56. |