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and neutrals in such cases, it has been 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.38 In view of these prohibitions, it is impossible to reach any other conclusion than that the German demand upon Belgium for a right of way for her troops across Belgian territory was one which Belgium had no lawful right to grant.39 It was not only her right, but her duty, to refuse the demand, and it is entirely to her honor that she did so to the utmost of her power.
We come now to the third and 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 sanction 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. 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, was joint and collective, and the obligation to enforce the observance of the treaty rested upon the guarantors collectively. 40 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
38 Scott, Texts of the Hague Peace Conferences, pp. 231-232. 39 "No state” says Twiss (Law of Nations, sec. 250), 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."
4 Hall, International Law, 3rd ed., p. 345.
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.41 Pradier-Fodéré takes substantially the same position, 42 and so do Rivier, 43 Calvo 44 and Nys.45 The language of the Belgian neutralization treaty 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, 46 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.” 47 We are certainly safe in saying that the overwhelming, if not the entire weight of present day authority, is in favor of the right 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 guarantors for the purpose of 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,
" Droit International Codifié, tr. by Lardy, sec. 440.
do not keep their engagements and are themselves guilty of a violation of law." 48 From the very first the English Government has proceeded on this theory. Mr. Disraeli in the House of Commons in 1870 affirmed that the treaty of guarantee had been concluded in the general interest of Europe and that it 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.” 49 Lord Granville and Mr. Gladstone expressed substantially the same opinion.
The position of England in regard to her obligations under the treaty was no different in 1914 from what it was in 1870, when neither belligerent was her ally and neither her enemy. In a statement furnished the press by Sir Edward Grey on September 16, 1914, he said, in answer to the criticism of the German Chancellor that England would not have intervened had France instead of Germany been the violator of Belgian neutrality:
The German Chancellor entirely ignores the fact that England took the same position in 1870 in regard to the neutrality of Belgium that she has taken now. In 1870 Prince Bismarck, when approached by England, admitted and respected the treaty obligations in respect to Belgium. The British Government stands in 1914 as it stood in 1870. It is Herr von Bethmann-Hollweg who refuses to meet us in 1914 as Prince Bismarck met us in 1870.50 Naturally, if France, instead of Germany, had been the violator of the treaty, England would have been under a strong temptation to abstain from intervention, but the attitude which the English Government took from the beginning in regard to the violation of Belgian neutrality, if any reliance can be placed upon the published diplomatic correspondence with the French and German Governments, does not warrant the conclusion that its course would have been any different had France instead of Germany been the violator of the treaty.
* Op.cit., sec. 440, n. 1.
Any other course would have been in the face of a long established construction of the nation's obligations as a party to the treaty, and one that has been reaffirmed by every government that has had occasion to pass upon the question since the treaty was concluded.
THE USE OF SUBMARINE MINES On the 23d of August the English official press bureau issued the following public statement:
The Admiralty wishes to draw attention to their previous warnings to neutrals of the danger of traversing the North Sea. The Germans are continuing their practice of scattering mines indiscriminately upon the ordinary trade routes. These mines do not conform to the conditions of the Hague Convention. They do not become harmless after a certain number of hours; they are not laid in connection with any definite military scheme, such as the closing of a military port, or as a distinct operation against an invading fleet, but appear to be scattered on the chance of touching individual British war or merchant vessels. In consequence of this policy, neutral ships, no matter what their destination, are exposed to the greatest danger. * * * The Admiralty, while reserving to themselves the utmost liberty of retaliatory action against this new form of warfare, announce that they have not so far laid any mines during the present war and that they are endeavoring to keep the sea routes open for peaceful commerce.51
The London Times, in its issue of August 29th, published the following list of neutral vessels that had been sunk up to that time by German mines in the North and Baltic Seas: Date Vessel
Subsequent to the publication of this list several other neutral vessels were reported by the Times as having been destroyed by this “callous and inhuman mode of warfare, if it can be called warfare to place engines of destruction in places where they are more likely to do harm to peaceful trading ships than to the fighting vessels of a belligerent.” In addition to the neutral vessels thus destroyed, several British ships suffered a like fate. One of these was the Runo of the Wilson line, which struck two "floating mines," it was alleged, twenty-five miles off the coast of England. It had on board some 300 passengers bound from New York to Archangel. 52 On the 10th of September, the Earl of Camperdowne, in the House of Lords, interpellated the Government in regard to the steps the Admiralty were taking “to counteract the inhuman and diabolical German practice of sowing mines broadcast on commercial routes at sea.” “Such mine laying,” he added, “is not war, but a barbarous attempt at indiscriminate murder which could in no way affect the issue of war. The shipping of small neutral states such as Norway, Denmark, and Sweden suffered most as they had not the power to make effective complaint.”
On October 2d the British Government announced that in consequence of the “German policy of mine laying, combined with their submarine activity,” it was necessary on military grounds for the Admiralty to adopt counter-measures, and that His Majesty's Government had therefore authorized “a mine laying policy in certain areas and a system of mine fields had been established and is being developed upon a considerable scale.” A few days later the French Government followed suit, the Minister of Marine issuing the following notice:
The Austrian navy having laid mines in the Adriatic, the French fleet has been obliged to do likewise, but in order to avoid damaging neutral shipping, as the Austrians have done, the French have laid their mines according to the rules of Chapter 8 of the Hague convention of 1907. The danger zone comprises all Austrian waters and channels between the islands and the coasts of Dalmatia.
Late in October the English Admiralty issued a statement charging
52 In September several Italian fishing boats were reported as having been destroyed by Aoating mines placed in the Adriatic Sea by the Austrians. The Italian Government addressed a protest to the Government of Austria against this alleged violation of the Hague Convention in respect to the laying of mines.