Chapter Seven: Effect of "Changed
Conditions"
Alexander Fuehr
THE NEUTRALITY OF BELGIUM
1915
PART II
The Legal Aspect of Belgium's Neutrality
INTRODUCTORY REMARKS
Since the events of August, 1914, the status of Belgium as a perpetually neutral country has been constantly discussed in public in such a manner as though, from the point of view of international law, it rested on absolutely solid ground.
In reality, that status has been, for more than half a century, one of rather uncertain legal foundation.
It is sufficient to point out that, in 1870, Mr. Gladstone formally asked the Cabinets of Paris and Berlin whether they considered the treaties which, originally, guaranteed Belgium's neutrality, as "still binding," and that twice within the last four years the Belgian Government has itself felt so uncertain in this matter that it proceeded to ask two of its neighbor governments for assurances as to their attitude toward Belgium's neutrality.
The legal uncertainty as to Belgium's neutrality is well illustrated by the fact that the numerous authors who have written on this subject of late refer quite indiscriminately to the treaty of 1831 and to those of 1839, whilst the Belgian Delegation which, in autumn 1914, visited the United States, in its semi-official pamphlet(87) even brings in a "Treaty of 18 Articles" which, in reality, does not exist.(88)
The British Government which announced to the world that England had gone to war "to fulfil a solemn treaty obligation,"(89) studiously avoided in its negotiations with Germany to name that treaty "to which Germany is a party in common with themselves."(90) In an official despatch to the Japanese Government, Great Britain made the extraordinary assertion that Belgium's neutrality was "guaranteed by the Triple Alliance and by an understanding between the Great Powers.(91)
Belgium's official claim concerning her perpetual neutrality is that it rests on "the treaties of 1839, confirmed by the treaties of 1870," and that this neutrality is "under the guarantee of the Powers and notably of the Government of His Majesty the King of Prussia."(92)
The second part of the present study will examine whether, according to the accepted rules of international law, the treaties referred to---as far as they are on record and do not rest on fiction like the alleged guarantee of the Triple Alliance---imposed obligations regarding Belgium's neutrality on the Powers concerned in 1914, and whether, if Germany was under such obligations, she had legally valid reasons for disregarding them.
.
OBLIGATIONS OF THE GUARANTORS OF THE QUINTUPLE TREATY
When on August 3, 1914, Sir Edward Grey reported to the House of Commons on the traditional attitude of Great Britain toward the obligations of the guarantors of the Quintuple Treaty, he quoted part of a long speech of Mr. Gladstone, made in the same hall, on the same subject, forty-four years before, and expressly declared that England could not take a more narrow or less serious view of those obligations than that taken by Mr. Gladstone's Government. The quotation begins with the following words:
"There is, I admit, the obligation of the Treaty. It is not necessary, nor would time permit me, to enter into the complicated question of the nature of the obligations of that treaty.(93)
These words show very plainly that, as far back as 1870, the British Government did by no means consider the obligations on the guarantors of the Quintuple Treaty so self-evident and beyond any doubt that one might be allowed to style them "sacred," but, on the contrary, of a rather "complicated" nature.
In what then consisted those obligations, according to the text of the original instruments and according to the British state doctrine, before Mr. Gladstone's time?
The guarantee of the five Great Powers in Art. XXV of their treaty with Belgium of November 15, 1831, was assumed with regard to "the execution of all the preceding Articles." (94)
In the Quintuple Treaty, the guarantee clause is contained in the treaty of the Great Powers with Holland (Art. II) as well as in their treaty with Belgium (Art. I) and states, in either case, that the Twenty-Four Articles of October 14, 1831, are "placed under the guarantee of their said Majesties," i.e. of the rulers of Austria, France, Great Britain, Prussia and Russia.(95)
There is, thus, a marked difference between the wording of the guarantee clause in the treaty of 1831 and of that in the Quintuple Treaty. The guarantee given in the former called for "execution" and, as stated above(96) was in fact invoked by Belgium to oblige England and France---the two Powers which had unconditionally ratified it---to materialize the provisions of the treaty. The fact that the guarantee clause was worded differently in 1839 indicates very plainly that the Great Powers did not want that guarantee any longer to oblige them to draw the sword in order to have the stipulations of the Twenty-Four Articles respected. Otherwise there would not have been the slightest reason for formally abrogating the treaty of November 15, 1831, and replacing it by a new one the text of which was absolutely identical with that of the former instrument, except for the guarantee clause.(97)
The guarantee given toward the upholding of the provisions of the Twenty-Four Articles by the Great Powers in 1839 can not, therefore, be considered as putting any of the Great Powers under the individual obligation to use coercive measures in case of a violation of the said provisions. It was, evidently, nothing more than an affirmation before the world that the then existing state of affairs, based on the Twenty-Four Articles, was in conformity with the wishes of the Great Powers and that they would resent a change in that state of affairs.
As has been stated above, the guarantee of the Powers, in the treaty of November 15, 1831, as well as in the Quintuple Treaty, did not in any particular way concern the perpetual neutrality of Belgium, but a great many other things at the same time which, then, were of much greater importance to the contracting parties. As for the establishment of that neutrality in particular, the aims and intentions of the framers of the Quintuple Treaty are quite evident from the various ways in which, in the course of the negotiations, the article in question has been worded---first stage (Protocols of January 20 and 27, 1831): the very positive and specific guarantee "the five Powers guarantee it" (i.e. Belgium) "that perpetual neutrality"; second stage (Protocol of June 26, 1831): the clause is inserted "without wishing to interfere in the internal affairs of Belgium"; third stage (treaty of November 15, 1831): no specific guarantee with regard to the neutrality, but merely a general collective guarantee of the Great Powers for the "execution" of all the Twenty-Four Articles of which the neutralization of the new kingdom formed only one small item; and fourth stage (treaties of April 19, 1839) : no specific guarantee and---as shown above---a still more modified general collective guarantee with regard to the same Twenty-Four Articles, without any promise of "execution."
A close examination of the wording of the Protocols of January 20 and June 26, 1831, with the text of the treaties of 1831 and 1839, reveals still another striking point of difference. In the former documents the Powers expressed their willingness to guarantee Belgium "that perpetual neutrality as well as the integrity and the inviolability of its territory,"(98) whilst in the treaties of 1831 and 1839 their general guarantee only referred to Belgium as "an independent and perpetually neutral State."(99) From this divergence the conclusion has been drawn that the integrity and inviolability were purposely not guaranteed by the Great Powers---an opinion which is upheld by none less than Professor Ernest Nys, one of the leading Belgian jurists and a Member of the International Tribunal of the Hague.(100)
According to this authority it would seem that whoever considers the Quintuple guarantee as still in force in 1914 would have to admit that, since it did not cover the inviolability of Belgium's frontiers, the German invasion was no violation of Belgium's guaranteed rights.
Regardless, however, of which Belgian state rights were covered by the Quintuple guarantee, the above juxtaposition of the wording of the guarantee clause during the different stages of the proceedings leaves no doubt that the Quintuple guarantee was a general collective guarantee with regard to the arrangements of the Twenty-Four Articles, without any promise of execution.
What such collective guarantees mean to Great Britain has been authoritatively defined by her responsible Ministers, in 1867, in the sense that a collective guarantee involved no specific obligation on the part of any of the single guarantors. This doctrine was particularly emphasized "ex cathedra" by Lord Stanley, on June 14, 1867, when he was asked, in the House of Commons, why, by the signature of the treaty guaranteeing perpetual neutrality to Luxembourg, signed five weeks before that debate, he had assumed burdensome obligations for England. He replied to that question:
"The guarantee now given is collective only. This is an important distinction. It means this, that in the event of a violation of neutrality, all the Powers who have signed the treaty may be called upon for their collective action. No one of those Powers is liable to be called upon to act singly or separately. It is a case, so to speak, of 'limited liability'. We are bound in honor---you cannot place a legal construction upon it---to see in concert with others that these arrangements are maintained. But if the other Powers join us, it is certain that there will be no violation of neutrality. If they, situated exactly as we are, decline to join, we are not bound single-handed to make up the deficiencies of the rest. Such a guarantee has, obviously, rather the character of a moral sanction to the arrangements which it defends than that of a contingent liability to make war. It would no doubt give a right to make war, but it would not necessarily impose the obligation.
"Take an instance from what we have done already. We have guaranteed Switzerland; but if all Europe combined against Switzerland, although we might regret it, we should hardly feel bound to go to war with all the world for the protection of Switzerland. We were parties to the arrangements which were made about Poland; they were broken, but we did not go to war. I only name those cases as showing that it does not necessarily and inevitably follow that you are bound to maintain the guarantee under all circumstances by force of arms."(101)
In the House of Lords, the Earl of Derby defined the British Government's views in the following manner:
"A several guarantee binds each of the parties to do its utmost individually to enforce the observance of the guarantee. A collective guarantee is one which is binding on all the parties collectively; but which, if any difference of opinion should arise no one of them can be called upon to take upon itself the task of vindication by force of arms. The guarantee is collective and depends upon the union of all the parties signing it; and no one of those parties is bound to take upon itself the duty, of enforcing the fulfillment of the guarantee."(102)
Lord Derby, it is true, tried to make it appear as though the guarantee of the Powers with regard to the neutrality of Luxembourg were of another nature than that with regard to the neutrality of Belgium, and it seems that Sir Edward Grey who, on August 2, 1914, specially referred to Lord Derby(103), still held the same opinion. It is, however, perfectly obvious that, though politically the neutrality of Belgium may be of greater importance to Great Britain, legally the guarantee assumed by the Powers in 1839 with regard to Belgium is the very same collective guarantee as that assumed with regard to Luxembourg in 1867. Lord Derby, moreover, himself admitted this by quoting from the Protocols concerning the Luxembourg Treaty the stipulation that the intention of the contracting parties had been that "Luxembourg should enjoy the same guarantee of her neutrality as Belgium." (104)
Besides, on a previous occasion, the same British statesman had expressly stated, in Parliament, that "the former guarantee" (i. e. the guarantee assumed under the Quintuple Treaty), "which was under the collective guarantee of all the Powers of Europe, declared that Luxembourg should continue to form a part of the possessions of the King of Holland, whereas the present guarantee" (i. e. the guarantee assumed under the Luxembourg Neutralization Treaty) "which is also under the guarantee of the collective Powers, declares that that territory shall be neutralized."(105)
Thus, the legal significance of the collective guarantee logically, in the case of Belgium, could not be different from that laid down with regard to Luxembourg, in the words of Lord Stanley, that such a guarantee would no doubt give a right to make war, but it would not necessarily impose that obligation.
In other words: England might find it expedient to go to war on account of a violation of Belgium's neutrality, as for any other pretext---but she does not consider herself under any "sacred" obligation to do so.
When, therefore, on August 6, 1914, Mr. Asquith, in the House of Commons, attempted to justify England's intervention in the present war by asserting that she was by law and honor bound "to fulfil a solemn international obligation," the British Prime-Minister found himself at complete variance with the previously established state doctrine of his country concerning its obligations resulting from collective guarantees.
Even if the Quintuple guarantee could still be considered as binding. in 1914---which, as the subsequent chapters will show, was not the case---England was, according to the statements of earlier British statesmen, not legally bound to take action when Belgium was invaded by German troops.
She was, of course, at liberty to take that step for political reasons, in connection with Belgium or otherwise. But the attempt of her responsible statesmen to justify their cause before their country and the neutral world by pointing at alleged solemn treaty obligations was, to repeat Mr. Ramsay MacDonald's criticism, nothing but "a pretty little game of hypocrisy."
It is gratifying to note that one English newspaper at least, the Labour Leader, has had the moral courage of showing up this political hypocrisy of the Asquith Cabinet by pointing at England's attitude toward a threatening invasion of Belgium in 1887. At that time, the so-called "Schnaebele incident" brought Europe to the verge of a repetition of the Franco-German War of 1870, and the possibility of a Belgian invasion by either Germany or France was widely discussed in England. Then, however, as the Labour Leader shows, in the two articles reproduced in the Appendix,(106) neither the Conservative nor the Liberal party held the opinion that such a contingency would impose on England the obligation of going to war in defense of Belgium's neutrality. The Pall Mall Gazette, the leading Liberal newspaper, proved at some length that no such obligation existed. The Standard, leading organ of the Conservatives, then in power, pointed out that there was "all the difference in the world" between a permanent occupation of neutral Belgium by another state and the "momentary use of the right of way" through that country by either prospective belligerent in order to reach the other's territory. The paper asserted that the former might be a serious question for England; but with reference to the latter, said "it would be madness for us to incur or to assume responsibilities unnecessary when to do so would manifestly involve our participation in a tremendous war."
These utterances of the Conservative party organ in 1887 seem to prove conclusively that Germany's demands on Belgium for the right of way, in connection with a most explicit guarantee of her integrity and independence after the restoration of peace, as expressed in the German note of August 2, 1914, would not have failed to fully satisfy Lord Salisbury's government, twenty-seven years ago, and would have effectively secured England's neutrality.
Is it to be surmised that, with regard to the fulfilment of "a solemn international obligation" on the part of Great Britain, the sense of honor of the Right Honorable Lord Salisbury was less alive than that of the Right Honorable H. H. Asquith?