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the right to defend herself against any foreign aggression." This convention was followed by a definitive treaty dated January 23, 1839 and accepted by Belgium and the Netherlands, Article 7 of which declares that Belgium shall form "an independent and perpetually neutral state" and that she is "obligated to preserve this neutrality against all the other states." By a treaty dated May 11, 1867, between Great Britain, Austria, Belgium, France, Italy, The Netherlands, Prussia and Russia, Luxemburg was likewise declared to be a perpetually neutral state. Article 2 declares that 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 purpose of the treaties had regard to both the preservation of the peace of Europe and the protection of the neutrality of the said states, which, by reason of their geographical situation, were peculiarly exposed to violation in a war among those Powers between whose territories they lie.2

The question of the binding force of the Belgian treaty was first raised during the Franco-German War of 1870 when England, fearing that one or both belligerents might disregard it, demanded assurances on this point and induced both belligerent governments to sign special agreements by which they promised to respect the neutrality of Belgium and this they both did.3

On July 31, 1914, when war between Germany and France seemed imminent, Sir Edward Grey, adopting the identical course which the British Government followed in 1870, instructed the British Ambassadors at Berlin and Paris that it was essential in view of existing treaties that His Majesty's Government should know whether the German and French Governments were prepared to undertake an engagement to respect the neutrality of Belgium so long as no other Power violated it. 1 For the text of this treaty and comments thereon see Wicker, Neutralization, pp. 29 et seq.

2 For the history of the events leading up to the neutralization of Belgium and the reasons therefor, see Descamps, La Neutralité de la Belgique, Chap. III; see also Kleen, Les Lois et usages de la Neutralité, Vol. I, p. 91; and Rivier, Principes du Droit des Gens, Vol. I, p. 110.

* The texts of both treaties are printed in Descamps, pp. 287-288.

The French Government promptly replied to the British inquiry of July 31st, saying that it was "resolved to respect the neutrality of Belgium and it would only be in the event of some other Power violating that neutrality that France might find herself under the necessity in order to assure the defense of her security to act otherwise." The reply also added that "this assurance has been given several times." The reply of the German Secretary of State for Foreign Affairs was that he could not possibly give an answer before consulting the Emperor and the Chancellor. In a dispatch of August 1st, Sir Edward Grey again insisted on an answer, saying that the neutrality of Belgium was a matter of very great interest to England. "If Germany could see her way clear," he said, "to give the same assurance as that which had been given by France, it would materially contribute to relieve anxiety and tension here. On the other hand, if there were a violation of the neutrality of Belgium by one combatant while the other respected it, it would be extremely difficult to restrain public feeling in this country."

On August 2d, the German Government proposed to Belgium that permission be granted to German troops to march through her territory, offering in return that when peace was concluded the Kingdom of Belgium and all its possessions should be protected to the fullest extent; that upon the conclusion of peace the territory should be evacuated and that if Belgium would preserve a "friendly attitude" Germany would engage to pay cash for all supplies needed by the German troops and would indemnify her for all damage caused. The character of an ultimatum was given to the proposal by the threat that "should Belgium behave in a hostile manner toward German troops Germany will be

obliged to consider Belgium as an enemy," in which case Germany "will make no promises to the kingdom but will leave to the decision of arms the regulation of the ultimate relations of the two states toward each other." Finally, it added that "the German Government is justified in hoping that this eventuality will not arise and that the Belgian Government will take appropriate steps to prevent its arising." 5 A reply within twelve hours was requested to this ultimatum. On the following day at 7 o'clock in the morning the Belgian Government delivered a Statement of Sir Edward Grey in the House of Commons, August 31st. 'The text of this proposal is printed in "The Case of Belgium," p. 5.

reply to the German proposal for "friendly neutrality," in which it declared that it was "profoundly and painfully astonished" at the demand, that Belgium had always faithfully observed her international obligations and performed her duties in a spirit of loyal impartiality; that the attack upon her independence with which Germany threatened her was a flagrant violation of the law of nations, and that if the Belgian Government accepted the proposal it would sacrifice its national honor and betray, at the same time, its duty toward Europe. In conclusion, the reply stated that "if the Belgian Government be disappointed in its expectations, it is resolved to repulse by every means in its power any attack upon its rights." 6 On the 4th of August the Belgian Minister of Foreign Affairs was informed by the German Government that, as Belgium had declined its "well intentioned" proposals, it deeply regretted the necessity of carrying out, by force of arms, if necessary, the measures considered indispensable in view of the French menaces. Thereupon German troops marched into Belgium. 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 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."7 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.

The questions of international law involved in the violation of the neutrality of Belgium may be reduced to three, namely: (1) is the viola

Text in "The Case of Belgium," p. 7.

7 English "White Book," dispatch No. 159.

Dispatch of Sir E. Goschen to Sir Edward Grey, August 8th.

tion 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 troops for the purpose of attacking another state? (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 will of the other co-guarantors, for the 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 theater of hostilities, a base of operations or a place for recruiting forces or for fitting out or increasing 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 suffers 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 the slightest 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 profit 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. 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 long established principle of international law, but justified the act as one of military necessity. It was "a question of life and death;" and the duty of self-preservation required Germany "to forestall the French advance," and this duty must override 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 defense 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.1

10

In a speech in the Reichstag of August 4th, the German Chancellor, Herr von Bethmann-Hollweg, is reported to have stated the case of Germany as follows:

We are in a state of legitimate defense. Necessity knows no law. Our troops have occupied Luxemburg and have perhaps already penetrated into Belgium. This is against the law of nations. 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.11

The authorities on international law are generally agreed that there are conceivable circumstances under which the violation of neutral

'Dispatch of the German Foreign Secretary to Prince Lichnowsky, August 4, 1914, English "White Book," No. 157.

10 Communication of Sir E. Goschen to Sir Edward Grey of August 8, 1914. " Daily Telegraph War Book: How the War Began, p. xxiii.

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