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Grand Duchy of Luxemburg as the price of his neutrality in the war of 1866 between Prussia and Austria, led to the convention of London between Great Britain, Austria, Belgium, France, Italy, Netherlands, Prussia and Russia, by which the Powers in question engaged to respect the neutrality of Luxemburg, and, with the exception of Belgium, to guarantee its neutrality. The material portion of this important treaty follows:
Article II. The Grand Duchy of Luxemburg, within the limits determined by the act annexed to the treaties of the 19th of April, 1839, under the guarantee of the courts of Great Britain, Austria, France, Prussia, and Russia, shall henceforth form a perpetually neutral state. It shall be bound to observe the same neutrality toward all other states. The high contracting parties engage to respect the principle of neutrality stipulated by the present article. That principle is and remains placed under the sanction of the collective guarantee of the Powers signing the present treaty, with the exception of Belgium, which is itself a neutral state.
The outbreak of the war of 1870 between Prussia and the German Stątes, on the one hand, and France on the other, raised doubts in the minds of the British statesmen as to the preservation of Belgian neutrality, for Belgium was then, as now, a highway between the two belligerents. Great Britain, therefore, entered into a treaty with Prussia of August 9, 1870, and on the 11th of August, 1870, with France, which, without affecting the guaranty of 1839, specified that each of the belligerents would observe Belgian neutrality during the war, and Great Britain pledged itself to preserve by force of arms the neutrality of Belgium, if it were violated by one or the other of the belligerents.
The matter, however, does not rest here. The Hague Convention, to which reference has been made, provides in its first article that "the territory of neutral Powers is inviolable;" Article 2, that "belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power;" Article 5, that “a neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory;" and Article 10, that “the fact of a neutral Power resisting, even by force, attempts to violate its neutrality can not be regarded as a hostile act." The official report of the Conference says that Articles 1 to 11 were unanimously adopted (Deuxième Conférence Internationale de la Paix, Actes et Documents, Vol. 1, p. 125), and the convention was signed and ratified by Germany, and the ratification thereof deposited at The Hague November 27, 1909. It should be said, however, that this convention contains the clause in Article XX, that “its provisions do not apply except between contracting Powers, and then only if all the belligerents are parties to the convention.” It appears, however, that Servia has not ratified this convention.
On August 4, 1914, Dr. von Bethmann Hollweg, Chancellor of the German Empire, said, in a speech to the Reichstag, as quoted in the London Times of August 11, 1914:
Gentlemen, we are now in a state of necessity, and necessity knows no law! Our troops have occupied Luxemburg, and perhaps are already on Belgian soil. Gentle men, that is contrary to the dictates of international law. It is true that the French Government has declared at Brussels that France is willing to respect the neutrality of Belgium as long as her opponent respects it. We knew, however, that France stood ready for the invasion. France could wait, but we could not wait. A French movement upon our flank upon the lower Rhine might have been disastrous. So we were compelled to override the just protest of the Luxemburg and Belgian Governments. The wrong-1 speak openly—that we are committing we will endeavor to make good as soon as our military goal has been reached. Anybody who is threatened, as we are threatened, and is fighting for his highest possessions can have only one thought-how he is to hack his way through (wie er sich durchhaut)!
It therefore appears that the Chancellor knew and admitted that the occupation of Belgium and Luxemburg was contrary to international law, but he justified the act by the statement that the German Empire was "in a state of necessity” and that “necessity knows no law.” . Some light is thrown on the reasons which may have moved Germany to violate the neutrality of Luxemburg and Belgium by the following passage from General von Bernhardi's War of Today, published in 1911:
* * * An example of course a mere theoretical one-will illustrate the idea in the simplest manner.
Leaving all political conditions alone, we can very well imagine a German offensive against France being conducted by the northern wing of the German army, with its extreme right along the sea-coast, advancing with the armies echeloned forward through Holland and Belgium, while the German forces in the south evade the blow of the enemy, retiring through Alsace and Lorraine in a north-easterly direction, and leaving South Germany open to their opponent. The advance in echelon of the German attacking wing would force the left wing of the opposing army into making a great change of front, bringing it by this means alone into an unfavorable situation; but in the south the French would likewise be obliged to carry out a strategic left wheel, thereby getting into an unfavorable position as to their base. Strategically would here be attained what Frederic the Great achieved by his attack in echelon at Leuthen tactically.
A German success in the north would lead straight on Paris, and touch the vital arteries of the French army much sooner than the latter could gain decisive results in South Germany. In such a case the position of the French army portions which
had penetrated into South Germany would likely become extremely critical, as they would find their line of retreat most seriously threatened from the north.
There is no need at all for any specially intricate and difficult movements of the German army. It would be chiefly a question of properly distributing the forces and regulating the extent of the retrograde movement of the left wing. That must never be allowed to go so far as to expose the lines of communication of the German right wing. The pivot of the movement, which might be fixed somewhere in northern Lorraine and Luxemburg, must be vigorously held, too. People have therefore often thought of turning Trier into an army fortress, and the idea of fortifying Luxemberg is also partly based on similar points of view. These reflections show, at any rate, the prominent importance of the fortress of Mainz. It would be, further, advisable to hold a strategic reserve in a central position, ready for reinforcing, in case of need, either the right or the left wing."
GERMANY AND INTERNATIONAL PEACE The position of Germany at the Second Hague Conference on the subject of arbitration has been much discussed and no little criticized. At a session of the Reichstag held April 28, 1914, the Director of the Foreign Office, Dr. Kriege, German delegate to the Second Hague Peace Conference and to the London Naval Conference, explained and defended the attitude of Germany in 1907, and in the course of his remarks made some very interesting observations, not merely concerning arbitration and the judicial decision of international difficulties, but concerning the meeting and labors of a Third Peace Conference, in which Germany would be represented, and from which he expected great results.
The first paragraph of this address 2 aims to show that Germany is friendly, not merely to treaties of arbitration, but to the arbitration of concrete difficulties; that it has negotiated two treaties of arbitrationone with Great Britain, which has been twice renewed, and the other with the United States of America, which, however, has not become effective—and that it has inserted the arbitral clause in a series of commercial treaties. Dr. Kriege calls attention also to the fact that Germany proposed the creation of an International Prize Court at the Second Hague Conference, and that at the last Hague Conference on Bills of Exchange, the German delegation advocated the creation of an international court of appeal to decide conflicts of private international law. He further calls attention to the treaties between France and
1 Von Bernhardi's War of Today, authorized translation by Karl von Donat, pp. 328–329.
2 The translation of Dr. Kriege's remarks is made from the text as contained in the "Zeitschrift für Völkerrecht," Vol. 8 (1914), pp. 460–462.
Germany concerning the Morocco question, and the presence of an arbitral clause to settle disputes arising from the Moroccan situation, and finally, he mentions the two controversies which Germany submitted to the Permanent Court of Arbitration at The Hague: the well known Venezuelan preferential case and the Casablanca case. This part of Dr. Kriege's speech follows:
The idea has gone abroad that Germany has but little sympathy with the idea of settling difficulties through arbitration. But this is not at all so. In 1904 Germany concluded a general arbitration treaty with Great Britain which it has renewed twice since. A similar treaty had been concluded with the United States of America, but owing to the opposition of the American Senate, it was not ratified. In a series of more recent commercial treaties arbitration clauses were included so that all disputes regarding tariff questions are to be laid before special arbitration courts. At the Second Hague Peace Conference Germany proposed the institution of an International Prize Court, and this proposition was accepted. At the last Hague Conference upon the Laws of Exchange the German delegation moved to consider the institution of an international court of appeals which would be competent to decide disputes in the field of private law arising from international treaties. But above all, into the important treaties which it has concluded with France for the settlement of the Morocco question, Germany has inserted a non-reserving arbitration clause, as a result of which any and all disputes arising from its application should be submitted to the decision of an arbitration court. Nor has Germany in distinct cases hesitated to consent to have disputes of primordial importance decided by the Hague Arbitration Court, such as the Venezuela and Casablanca disputes.
Dr. Kriege's statement as to the rejection of the arbitration treaty by the Senate of the United States is not quite accurate. It is true that the treaty was signed and that it was laid before the Senate for its advice and consent. It was amended by the Senate by striking out the expression “special agreement” and substituting therefor "special treaty," so that the compromis, to use a technical term, or the submission of the case to arbitration, would require the approval of the Senate. Mr. Roosevelt, then President, was unwilling to accept the amendment and dropped the whole matter. However, later, when Mr. Root was Secretary of State, the United States tried to negotiate a treaty of arbitration, in which the right of the Senate was reserved to approve the compromis; but Germany refused to conclude such a treaty.
Dr. Kriege next proceeds to state the attitude of the German delegation toward arbitration at the Second Hague Conference, and the two paragraphs devoted to this are here quoted:
If the German delegation delined to assent to the world arbitration treaty proposed at the Second Hague Peace Conference, it took this stand because it felt convinced
that such a treaty would not be serviceable to the cause of peace. In accordance with this proposition, all controversial legal questions, especially those in reference to the application and interpretation of international treaties, were to be submitted to arbitral decision with the condition, that neither the vital interests nor the independence, nor the honor of either of the parties in dispute should be in conflict therewith. In its delimitation, in its execution and its effects, such a treaty would be so unclear, 80 uncertain and so doubtful that it could not but lead to the greatest difficulties and disputes between the treaty states. Limitation of the treaty to legal questions is necessary because mere questions of interests cannot in their nature be submitted to arbitral decision. But no way could be found to separate in a clear manner the legal questions from the question of interests. The further matter of excluding disputes of secondary importance from the arbitral decision in reference to the time and expenses connected therewith, the Conference was unable to settle. It is even more difficult to insert the so-called clause of honor, that is, the right of each Power to decide independently whether in a particular case it would decline to accept an arbitral decision in reference to its vital interests, independence or honor. This clause, whose need was justly recognized by the Conference, would indeed have rendered the treaty illusory, because it would merely have been a treaty with the clause “si volo.” An appeal to this clause is furthermore of such a nature as to further embitter the dispute between the parties, because in so doing the suspicion might be entertained that the opponent is not acting in a bona fide manner, but that realizing that he is wrong wishes to avoid the arbitral decision. And it is furthermore doubtful as to what effect an arbitral decision might exercise upon the judicial or the legislative authority of a treaty if one of these authorities, through the violation of international obligations, has brought about the dispute. In such cases, shall the judicial authority or the legislative authority be compelled to take the arbitral decision into account, or shall these authorities remain sovereign in respect of the arbitral decision? There was complete difference of opinion at the Conference with regard to this matter, so that in adopting the treaty, the uniformity of the intentions of the treaty would from the first have been absent.
The aforesaid considerations at the Conference brought it about that, not only Germany, but several of the other great Powers and a number of smaller states disapproved of the universal arbitration treaty. In fact the experiences that various Powers would have encountered with an arbitration treaty such as we have been considering, could only have strengthened the uncertainties pointed out.
The objections to the proposed arbitration treaty are indeed forcibly stated, but it would have been possible to prepare a draft which would have been free from most of these objections, if the German delegation had shown itself willing to co-operate rather than to criticize. Indeed, the Conference was much encouraged by the seemingly frank acceptance of the principle of arbitration by the first German delegate, Baron Marschall von Bieberstein, who stated, on behalf of his delegation: “We are ready to examine conscientiously and impartially the propositions which already have been made and those which may yet be presented on