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Neutralization as a Movement in International Law

Published online by Cambridge University Press:  04 May 2017

Malbone W. Graham Jr.
Malbone W. Graham Jr.*
Affiliation:
University of California,Southern Branch
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Extract

Writers on the history of the law of nations, in dealing with neutralization as an accepted practice, have seldom given a satisfactory account of the development of the ideas underlying this unusual phenomenon in international law. They have, in general, been inclined to treat it in a rather fragmentary manner; merely to note in passing certain scattered instances as of minor importance and to devote their major attention to the more outstanding occasions on which the European Powers have settled some given problem by the use of the formula of neutralization. It is thus rendered exceedingly difficult to form an objective appraisal of the ideological forces back of the movement, or effectively to analyze and weigh the constituent elements entering into it. In consequence, the movement has for the most part escaped scientific evaluation.

Type
Research Article
Information
American Journal of International Law , Volume 21 , Issue 1 , January 1927 , pp. 79 - 94
Copyright
Copyright © American Society of International Law 1927

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References

1 Such as Arendt Essai sur la neutralié de la Belgique, Brussels, 1845), the two Descamps –Baron Edouard (La neutralié de la Belgique au point de vue historique, juridique et politique, Brussels, 1902) and Emmanuel (L'Etat neutré A titre permanent, Paris, 1912), Dollot (Les origines de la neutralié de la Belgique et le systhne de la barriére, 1609-1830, Paris, 1902), Hymans (La neutralié de la Belgique, Paris, 1915), Nothomb (La barriére belge, Paris, 1916), Waxweiler (Belgium Neutral and Loyal, London, 1915) and Woeste (La neutralié belge, Brussels, 1891) in Belgium; Eyschen (“ La position du Luxembourg selon le Droit des Gens,” Revue de Droit International, XXXI, 1899), Servais (Le Grand-Duchi de Luxembourg et le Traiti de Londres du 11 mai 1867, Paris, 1879), and Wampach (Le Luxembourg neutre, Paris, 1900) in Luxemburg, and Calonder (Ein Beitrag zur Frage der Schweizerischen NeutralitSt, Zurich, 1890), Hilty (Die Neutrcditat der Schweiz in ihren heutigen Auffassung, Bern, 1882), and Schweizer (Geschichte derSchweizerischen Neutralitat, Frauenfeld, 1894) in Switzerland.

2 Such as Nys (“ Notes sur la neutrality,” Revue de Droit International, 2* série, II, and III, 1900-1901), and Kleen (Lois et Usages de la neutrality, Paris, 1898).

3 Among such may be noted Baumgartner, F. W., “ The Neutralization of States,”Bulletins of the Departments of History and Economic Science in Queen's University, No.24, July, 1917, pp. 54r-89, and No. 25, October, 1917, pp. 1-32; Hagerup, F., “ La NeutralityPermanente,” Revue de Droit International Public, XII, 1905; Morand, M., “ Lesorigines de la neutrality perpetuelle,” idem, I, 1894; Piccioni, C., Essai sur la neutrality perpetuelle, Paris, 1902; Sherman, Gordon E., “ The Permanent Neutrality Treaties,” YaleLaw Journal, Vol. 24, pp. 217-241, January, 1915; Westlake, J., “ Notes sur la neutralityperpetuelle,” Revue de Droit International, 2* syrie, III, 1901; Wicker, C. F., Neutralization,London, 1911; and Wilson, G. G., “ Neutralization in Theory and Practice,” Yale Review,Vol. IV, pp. 474r-486, April, 1915.

4 Cf. Huber, Max, “ Probl&nes relatifs k la Sociyty des Nations” printed as Annexe I, 4 to the Message du Conseil Ftdbral A VAssemblie Fidirale concemant la question de Vaccession de la Suisse A la Sociiti des Nations {du 4 Ao&t, 1919), Berne, 1919, pp. 228-239; Littell, C. F., The Neutralization of States, Meadville, Pa., 1920; and Roussel le Roy, Andre, L'abrogation de la neutrality de la Belgique, Paris, 1923.

5 The neutrality of the Grand Duchy of Luxemburg, guaranteed by the Treaty of London of May 11, 1867, was violated by Germany August 2, 1914 (Neutrality du Grand Duchy pendant la guerre de 1914-1918: Attitude des Pouvoirs publics, Luxemburg, 1919, pp. iii, ix, xii, lx, 1-14), and by Austria in April, 1918 (ibid., p. 20). Cf. also Renault, Louis, Les premiers violations du Droit des Gens par VAllemagne, p. 18. Belgium's neutrality, established by the Treaty of London of April 19,1839, was violated August 4,1914, by Germany. (Cf. United States Naval War College, International Law Documents, 1917, pp. 53, 86.) Corfu and Paxo were neutralized by Article 2 of the Treaty of March 29, 1864, and the King of the Hellenes was obligated to maintain their neutrality (British and Foreign State Papers, Vol. 54, p. 11). At the end of 1915 the Allied Governments occupied Corfu and transferred thither the remnants of the Serbian army over the protest of the Greek Government and king (London Times, January 13,21,1916; Ion, T. P., “ The Hellenic Crisis,” this Journal, Vol. 12, p. 575). The Congo, neutralized by Article X of the General Act of the Berlin Conference of February 26, 1885, was violated by the British and French Governments in the middle of August, 1914, despite the desire of the Belgian Government that it remain neutralized and inviolate. (Cf. Belgian Gray Book, pp. 333-342, and Transactions of the Grotius Society, Vol. I, pp. 80-85.) The neutrality of the Straits of Magellan was violated in 1915 by the capture by a British cruiser of the Norwegian ship Bangor in “ neutralized” waters, on a charge of unneutral service. In validating the capture, Sir Samuel Evans admitted that it took place in neutral territorial waters “ neutralized forever” by the treatyof July 23,1881, between Argentina and Chile (British and Foreign State Papers, Vol. 72, p. 1103), but brazenly avoided “ any expression of opinion on the character of the Straits of Magellan as between Chile and other nations.” (The Bangor, Law Reports [1916], Vol. 87, A. C., pp. 218 ff.) The legal obstacles presented by the neutrality of the Suez Canal were conquered by the British proclamation of a protectorate over Egypt, November 3, 1914. It has been pointed out by Lord Cromer, however (Modern Egypt, II, 384), that the canal was in reality “ internationalized” and not “ neutralized” despite the wording of the Constantinople Convention of 1888.

6 Such is the view of Baumgartner, op. cit., esp. 25:30-32, Roussel le Roy, op. cit., pp. 2533; Redslob, Robert, Histoire des Grands Prindpe3 du Droit des Gens, pp. 35-6, 380.

7 By Art. 31 of the Treaty of Versailles the signatories, “ recognizing that the treaties of April 19, 1839, no longer correspond to the requirements of the situation,” abrogated their stipulations and deneutralized Belgium. By Art. 32 “ neutralized” Moresnet was ceded to Belgium; by Art. 40 the treaties neutralizing Luxemburg were renounced by Germany, while all parties accepted “ the abrogation of the regime of neutrality of the Grand Duchy.” By Art. 435 and its annex, the neutralized portions of Upper Savoy were deneutralized and relieved of the military servitudes imposed in 1815. The status of Switzerland, being protected by a recognition of its policy of permanent neutrality and by an additional territorial guarantee, remained unaltered. By Art. 13 of the Convention of Saint Germain of September 10,1919, the provisions of the Berlin Act of 1885 relative to the neutrality of the Congo Basin were abrogated. (Cf. Malloy, Treaties of the United States, III, 3745.) The deneutralization of Belgium has received confirmation in Art. 1 of the Belgo-Dutch treaty of April 3,1925 (L'Europe Nouvelle, Vol. VIII, pp. 1125-9, August 22,1925), and in the Locarno Security Pact of October 16-December 1,1925 (Preamble). (This Journal, Vol. 20. Supp. pp. 21-22.)

8 Cf. Knight, W. S. M., “ Neutrality and Neutralization in the 16th Century,” Journal of Comparative Legislation and International Law, 3rd Series, Vol. II, pp. 98-104, citing Henaux, Histoire du Pays de Liige, II, 237-238.

9 Cf. Nicollo, E. Toulmin, “ Neutrality of the Channel Islands,” Journal of Comparative Legislation and International Law, 3rd Series, Vol. II, pp. 238-244.

10 Cf. Dollot, R., op. cit., pp. 12 ff.; Redslob, op. cit., p. 228; Littell, op. cit., pp. 36-7; Sherman, loc. cit., at p. 228; Roussel le Roy, op. cit., pp. 64n-65n.

11 For the text of the preliminary treaty of London, October 1, 1801, cf. Clercq, A. J. de, Recueil des Traitis de la France, I, 464. ‘

12 Art. 92 of the Final Act of the Congress of Vienna (Hertslet, Map of Europe by Treaty, 1, 262, 370), and the Declaration of November 20, 1815 (British and Foreign State Papers, Vol. I l l , p. 360).

13 Martens, F. de, Recueil des Tmit&s, II, 327, 379; III, 24.

14 Treaty of April 21-May 3,1815 (Hertslet, 1,120, British and Foreign State Papers, Vol. 2, p. 74). This was revoked by the treaty of November 6,1846 (Hertslet, II, IWAff.), on the ground that, inter alia, “ by acts contrary to the tenor of the treaties, Cracow has on several occasions freed herself from the condition of strict neutrality imposed on her” and that “ these acts have on several occasions led to the armed intervention of the 3 Powers.”

15 Declaration of March 20, 1815 (British and Foreign State Papers, Vol. 2, p. 142), and Act of November 20, 1815 (idem, Vol. 3, p. 360; Hertslet, I, 370).

16 Redslob, op. cit., p. 386, points out that the equilibrative neutralizing principle was first applied (apparently in the interests of balanced naval activity in the Western Hemisphere) in the Clayton-Bulwer Treaty of 1850 to the proposed Isthmian Canal route; thereafter the same terminology was applied to canals, rivers, international lakes, straits, persons, steamboats, etc., most indiscriminately (Wicker, op. cit., Chap. I). This nebulous use of terminology, when subjected to critical analysis, has resulted in the adoption of the term inviolability, when applied to personnel of Red Cross and relief agencies and their establishments, and in the use of the term internationalization for rivers and straits or canals placed under international control, while since the World War extensive application has been made of the term demilitarized areas or zones to territorial or maritime frontiers (usually reciprocally disarmed) or to strategic locations placed under specific disabilities or servitudes (Befriedung). This usage virtually restricts the term neutralization to a residual application to states. (Cf. Krauel, Neutrality, neutralisation und Befriedung, p. 48.)

17 Art. 33, Treaty of Paris, March 30, 1856 (Hertslet, II, 1264), and convention of the same date {ibid., II, 1272-3). The latter simply stipulated that the Aaland Islands should not be fortified and that no military or naval establishment should be maintained or created there, it being the wish of the contracting parties “ to extend to the Baltic Sea the harmony so happily reestablished between them in the East.”

18 Art. 11, Treaty of Paris, and Black Sea Convention of the same date (Hertslet, II, 1256, 1270-1). This simply declared that “ the Black Sea is neutralized,” but apart from setting a limit to naval vessels therein and stating that in consequence “ the maintenance or establishment upon its coasts of military-maritime arsenals” had become “ alike unnecessary and purposeless” and was hence prohibited, nothing was done to enforce the guarantee, which Russia promptly repudiated in 1871.

19 The status of the Ionian Islands following 1863-4 merely involved a minor adjustment satisfactory to the claims of British naval power in the Mediterranean. The “ guarantee” extended to them by Art. 5 of the Treaty of July 13, 1863, was merely that they should be comprised within the “ Monarchial, Independent and Constitutional (Hellenic) State.” (Hertslet, II, 1547.) Cf. note 5, supra.

20 By Art. 29 of the Treaty of Paris (Hertslet, II, 1262), Serbia was virtually deprived of the war-making power, the power of garrisoning and policing the country being left in Turkish hands. In return for this it was provided, inter alia, that no external intervention into Serbia would be permitted without previous agreement between the Powers. Cf. also Roussel le Roy, op. cit., p. 34.

21 Protocol No. 19, Congress of Berlin, July 12, 1878 (Hertslet, IV, 2756).

22 Protocol No. 11, Congress of Berlin, July 2, 1878 (Hertslet, IV, 2746).

23 Protocol No. 14, Congress of Berlin, July 6, 1878 (Hertslet, IV, 2750). Cf. also Redslob, op. cit., p. 484.

24 By Art. 10 of the Berlin Act of February 26, 1885, the Powers signatory thereto declared that they, and other Powers acceding later, would “ bind themselves to respect the neutrality of the territories or portions of territories belonging to the said countries, comprising the territorial waters, so long as the Powers which exercise or shall exercise rights of sovereignty or protectorate over these territories, using their option of proclaiming themselves neutral, shall fulfill the duties which neutrality requires.” (Hertslet, Map of Africa by Treaty, II, 474.)

25 By Art. 1 of the Treaty of Berlin of June 14,1889 (Malloy, Treaties of the United States, Vol. II, p. 1577), it was declared that “ the Islands of Samoa are neutral territory.” No guarantee of either neutrality, or inviolability or independence was given, and the treaty was eventually terminated by the treaty of partition of December 2,1899 {ibid., II, 1596).

26 Buell, R. L. (International Relations, p. 553), holds that neutralization has been extended to Honduras and Albania while “ in addition Iceland has been neutralized by unilateral act.” An examination into the provisions of Art. 3 of the Central American Peace 'Treaty of December 20, 1907 (Malloy, Treaties of the United States, II, 2393), reveals that “ Taking into account the central geographical position of Honduras and the facilities which owing to this circumstance have made its territory most often the theater of Central American conflicts, Honduras declares from now on its absolute neutrality in event of any conflict between the other republics, and the latter, in their turn, provided such neutrality be observed, bind themselves to respect it, and in no case to violate the Honduranean territory.” It will be noted that this was merely a voluntary declaration of policy by Honduras, and in no way implied an imposed status. It was no bar to Honduras' entry into the World War. Finally, it was accompanied by a distinct and separate territorial guarantee, which was in no wise made contingent upon Honduranean neutrality. The omission of this provision in the revised treaties of 1923 is mute evidence of the greater force of the guarantees provided by membership in the League of Nations. As regards Albania, the alleged neutralization by the declaration of November 9, 1921, is not borne out by any stipulation laid down or recognized by either the Conference of Ambassadors or the Council of the League of Nations. {Cf. Official Journal of the League of Nations, Second Year, pp. 1195 ff.) As regards Iceland, cf. note 32 infra, and also Art. 19 of the neutralizing Act of the Danish Riksdag, November 30,1918 (British and Foreign State Papers, Vol. I l l , p. 706) which states that “ Iceland declares itself permanently neutral” . Cf. (also Lundborg, Die gegenw&rtigen Staalenverbindungen, p. 123).

27 Cf. the project of the Museo Social Argentina for the neutralization of the seas off the American continents (El Aislamiento Padfico de Amtrica, Buenos Aires, April, 1916), and the projects for wholesale neutralization of the seas in Babson, Roger W., The Future of World Peace, and Angell, Norman, The World's Highway (1915). For the views of Bernhard Dernburg and others, c/. Current History, Vol. 2, pp. 279-281, and Hershey, A. S., “ The German Conception o f the Freedom of the Seas,” this Journal , Vol. 13, pp. 207-226. It should b e noted that Professor Hershey virtually identifies neutralization with internationalization, in much the same way as others have erroneously assumed that internationalized rivers were neutralized. Cf. also note 16, supra.

28 Thus Esthonia, during 1918 and 1919 set forth a demand for an international guarantee of her neutrality or of her independence (cf. Mimoire sicr VJnd6pendan.ee de VEsthonie, presented to the Peace Conference in 1919, pp. 26, 46, 49, and the diplomatic brochure Pour VEsthonie, Copenhagen, 1918, pp. 8,11,15,18) and secured in advance from the Ukraine and Soviet Russia recognition of any eventual neutralization (League of Nations, Treaty Series, Vol. II, pp. 57,124, 131,136. But Esthonia made no special plea for an exceptional status within the League of Nations, as did Switzerland, when applying for membership, as she realized that “ the policy of neutrality was no longer a practical necessity, as the League of Nations was intended to guarantee the integrity of all nations” and apparently offered better prospects. The same thesis appears in Latvian diplomatic correspondence throughout 1918 (c/. La Revue Baltique, No. 1, p. 60), but is entirely absent from documents presented to the Peace Conference, showing that at a relatively early date Latvian diplomatic agents had come to realize the incompatibility of perpetual neutrality with formal sanctions under a League of Nations.

29 Cf. note 7, supra. On the question of Luxemburg's status, cf. Wehrer, Albert, “ Le Statut du Luxembourg et la Soei6t6 des Nations,” Revue Gtnbrale de Droit International Public, S6rie II, Tome VI (1924) p. 179 jf., and Borsi, V., “ La neutralizzazione del Lussemburgo e la sua ammissione nella Societa delle Nazione,” Rivista di Diritto Intermizionale, 1925, pp. 3-17. The latter account questions ?whether Luxemburg's neutralization has actually ceased, inasmuch as the Grand Ducal constitution, which confirmed the neutralization as a part of the fundamental law, has not been modified. Such a view is based on a misconception of the legally contractual nature of the neutralization process evidenced in the Treaties of Versailles and Saint Germain, and would imply that the neutralization was a unilateral act of Luxemburg itself.

30 Cf. Treaty of Saint Germain, Articles 301-308.

31 Cf. the Straits Convention of July 24,1923, and Art. 23 of the Treaty of Lausanne, of the same date, Supplement to this J o u r n a l , Vol. 18, pp. 11, 53-67. Cf., also, De Visscher, F., “ Le regime nouveau des Ddtroits,” Revue de Droit International et de Legislation Comparte, Vol. 51, pp. 13-57 (1924). The author denieB the Straits were given “ un statut juridique de neutrality,” described it as a “ neutralisation locale” and adds: “ Nous croyons superflu d'insister ici sur les differences fondamentales qui apparent la neutralisation locale, appelleeaussi par les allemands Befriedung, de la neutralisation d'un Etat. La premiere laiase intacte la liberty de l'Etat souverain de recourir & la guerre; la seconde enleve si. un Etat le droit de guerre, sauve pour sa propre defense” (pp. 37n-38n).

32 Such, for example, was the project proposed by the Russian publicist, F. de Martens, for Denmark (“ La neutralisation du Danemark,” Revue des Deux Monies, 5* sfirie, XVIII, 1903), in order to form a barrier of self-neutralized states from Belgian to the North Cape. While Denmark did not take up the idea in that form, she did endeavor, by unilateral act, to neutralize Iceland in 1918, at the same time that the new-born Baltic States were seeking neutralization. (See also note 26, supra.) But such an act, in the words of an eminent American authority, “ can scarcely be said to be recognized.”

33 The movement for self-neutralization is critically discussed by Professor George Grafton Wilson in “ Neutralization in Theory and Practice,” Yale Review, Vol. IV, pp. 474-486, at pp. 482-5. Noting that the whole neutralization movement appears to have been based on the assumption “ that the simple creation of the status assured in some unexpected way a respect for the neutralized entity which could not be gained under any other name,” and that “ there has been an expectation that treaties of neutralization, whether or not accompanied by a guarantee (italics mine), would be more strictly observed than other international agreements,” he shows how the movement for unilateral self-neutralization fell, in pre-war days, into the hands of irenic propagandists. At this point the doctrine was taken up by the Interparliamentary Union, which sought to remove most of the objections to the unilateral character of self-neutralization by providing for a general international convention of neutralization to which any countries anxious to neutralize themselves could be invited to adhere. The blanket notification urbi el orbi of self-neutralization would thus, under the terms of the proposed convention, become in reality a procedural formality—the notification of accession to a neutralization convention. Signatories to such a convention were to be bound to refrain from acts against the neutrality of a neutralized state, and in case of the violation of any self-neutralized state were to “ act together to take means to give the neutralized state satisfaction,” such action being taken through the Bureau of the Permanent Court of Arbitration at The Hague. (Cf. Annuaire de V Union Interparlementaire, 1913, pp. 111-113.) It is believed that the type of guarantee sought under such a proposal was not, in reality, a guarantee of neutrality, and the concerted action behind it would have been directly violative of the essence of neutrality. It is interesting to note, however, that the project was based upon two fundamental, underlying, but unexpressed conceptions: (1) the assumption by the self-neutralizing state of obligations not to go to war, and (2) the essential solidarity of all signatory states, both of which principles later became cornerstones of the League of Nations. But both principles were distinctly at variance with the code that governed the pre-war world.

34 The lack of any guarantee in the British treaty draft led to strong objections from Prussia, Austria, France, the Netherlands and Russia. “ They all felt,” writes an American scholar, “ that Luxemburg must be placed under a European guarantee. The Prussian representative saw a very marked difference between the guarantee of territorial integrity and that of neutralization… . The proposed treaty, as it stood, had no general clause of guarantee for all of it, hence the principle of neutralization was merely recognized.” Cf. Caton, C., The Neutralization of Belgium, Chap. I l l , Sec. 2., Leland Stanford Junior University Thesis MSS., 1915. See also Sherman, G. E., loe. cit., at p. 233: “ … in Switzerland the neutralization of the country was at the Congress of Vienna expressly recognized by the great Powers of Europe while its territorial integrity tod inviolability were guaranteed; in the case of Belgium … it is the neutrality and independence of the country that fall within the international guarantee: for Luxemburg … there is an international guarantee of neutrality alone.” Finally, Ion, T. P. (“ Treaties of Neutrality,” Michigan Law Review, Vol. XIII, at p. 383), quotes the Earl of Derby as stating that “ the guarantee of the possession of Luxemburg to the King of Holland was a joint and several guarantee similar to that which was given with regard to the independence and neutrality of Belgium; it was binding individually and separately upon each of the Powers. That was the nature of guarantee which was given with regard to Belgium and with regard to the possession of Luxemburg by the Duke-King. Now a guarantee of neutrality is very different from a guarantee of possession … but as it is, … the guarantee is only collective, i.e., it is binding only upon all the Powers in their collective capacity. They all guarantee to maintain the neutrality of Luxemburg, but not one of the Powers is bound to fulfill that guarantee alone.” (Hansard, CLXXXVIII, 146.)

35 By Art. 10 of the Berlin Act of February 26, 1885, “ the High Signatory Parties to the present Act, and those who shall hereafter adopt it, bind themselves to respect the neutrality of territories or portions of territories belonging to the said countries, … so long as the Powers shall fulfill the duties which neutrality requires.” (Hertslet, Map of Africa by Treaty, II, 475.)

36 Cf. Redslob, op. cit., 343; Sherman, loc. cit., at 222 ff.) Iittell, op. cit., 27-35; Baumgartner, Queen's Quarterly, No. 25, pp. 54-89, at 66 and 88, and Annexe III, 12 c, of the Message du Conseil F(d6ral d VAssemblie F(dirale amcemant la question de Vaccession de laSuisse d la Soc&M des Nations, pp. 346-347, for the authentic text of the Act of November 20, 1815. Its essential portions state that “ les Puissances Signataires de la Declaration de Vienne du vingt mars font, par le present acte, une reconnaissance formelle et authentique de laneutraliU perpMueUe de la Suisse, et Elies lui garantissent VinUgriti et Vinviolability de son territoire dans ses nouvelles limites… . Les Puissances reconnaissent et garantissent 6galement la neutrality des parties de la Savoie, d6signies par l'acte du Congres de Vienne du 29 mars mil huit cent quinze, et par le traits de Paris de ce jour, comme devant jouir de la neutrality de la Suisse de la meme manifere que si elles appartenaient & celle-ci.” It will be noted that no territorial guarantee was extended to Savoy. The Swiss constitutional lawyers have always maintained the distinction between the territorial guarantee and the recognition of their neutrality as a permanent, but voluntarily adopted national policy. Hence in the elaboration of the League of Nations Covenant and the Treaty of Versailles, Switzerland asked for and obtained, under their terms, a re-recognition of the November guarantee of 1815, such a stipulation being regarded as a “ regional understanding for securing the maintenance of peace” under Article 21 of the Covenant, and as “ guarantees constituting international obligations for the maintenance of peace” under Article 435 of the treaty. Cf. also Rougier, Antoine, “ Le Traits de Versailles et la neutrality de la Savoie,” Revue Gin&rale de Droit International Public, 2* s6rie, tome II, pp. 49 jf. (1920).

37 Examples may be noted in the various territorial settlements of Balkan questions, such as the Treaties of Paris (1856) and Berlin (1878) by which the great Powers confirmed the territorial clauses and set themselves up as guarantors of execution. Cf., also Art. 1 of the Treaty of November 18, 1903, by which “ the United States guarantees and will maintain the independence of the Republic of Panama” (Malloy, Treaties of the United States, II, 1348). An excellent example of a territorial guarantee not involving any idea of neutrality is seen in the treaty of May 1, 1865 between Argentina, Brazil and Uruguay, guaranteeing “ the independence, the sovereignty, and the territorial integrity of Paraguay.” (Cf. British and Foreign State Papers, Vol. 68, p. 463.)

38 Redslob (op. cit., pp. 35-6), regards neutralization as consensual inequality on a par with the capitulations and as “ a serious restriction of liberty” (p. 380); Baumgartner (loc. cit., pp. 23 ff.), concludes that it “ divides states as to autonomy and sovereignty into two essentially different classes, which is inconsistent with the nature, aim and function of the state in human society,” and that states existing or arising of themselves are weakened internally by neutralization. Kleen (op. cit., I, 95 jj.), is the extreme upholder of this view. Writing after the war, Roussel leRoy is likewise very insistent on these limitations (Chaps. I, IV), and on their rescission.

39 It has been alleged that Belgium furnished, under the treaties of 1839, just such an instance of this type of guarantee. But an examination of the documentary sources concerning the neutralization of Belgium hardly confirms this view. The first neutralization proposals of January 20,1831, made by Talleyrand, prescribed in Article V that Belgium, as territorially described, should form a permanently neutral state. “ The Five Powers shall guarantee this permanent neutrality, as well as the integrity and inviolability of its territory, within the limits mentioned above.” According to Article VI, “ By a joint reciprocity, Belgium shall be bound to observe this same neutrality towards all other states, and to disturb in no way their internal or external integrity.” (Talleyrand, M&moirs, tome IV, 15 n.; and Protocols of the Conference of London relative to the Affairs of Belgium, 1830-1832, p. 34 cited by Littell, op, cit., p. 41.) In this way Talleyrand managed to embody in Articles IX and X of thetreaty of June 26, 1831, a specific territorial guarantee to Belgium and to place Belgium's acknowledged neutrality on a parity with that of Switzerland. (“ La neutrality reconnue de la Belgique place d^sormais ce pays dans le m§me position que la Suisse.” Talleyrand, Mtmoirs, tome IV, pp. 19, 38.) But the problem arises of “ explaining how this guarantee of the inviolability of Belgian territory which figures in the treaty of the Eighteen Articles of June 26,1831, is not found in the treaty of 1839. Must it be said that the Powers designedly discarded the mention of inviolability?” (Roussel le Roy, op. cit., p. 111.) In the opinion of Merignhac and Lemonon {Le Droit des Gens et la Guerre de 1914-1918, tome II, p. 321), if the definitive texts had effected so radical a change, some traces of the discussion would be available in the record of the diplomatic negotiations, but these are silent. They conclude that the terms of the preliminaries had had to specify in detail all the consequences of neutrality while the guarantee clause of the final treaty, being of a general character, did not have to mention the special objects of the guarantee. Thus, observes Roussel le Roy, ‘1 there can be no contradiction between the preliminary treaty and the definitive one. The clause of territorial inviolability expressly formulated in the first subsists implicity in the second.” (Op. cit., 112.) The doctrine of implicit subsistence is corroborated by the attitude of the Belgian Government in 1914 in appealing to England, France and Russia to cooperate as guarantors, in the defence of Belgian territory. It requested “ concerted and common action ” to resist Germany's violation of Belgian neutrality, “ and at the same time to guarantee the maintenance of the independence and of the integrity of Belgium in the future.” (Belgian Gray Book, No. 40, August 4, 1914.)

40 Of this situation Professor Rafael Erich writes: “ II convient d'abord de constater que d'apres des principes dominants de la Soci^td des Nations, le regime de neutralisation, anterieurement pratique avec un succ&s assez problematique, doit etre consider^ comme tres peu applicable, sinon comme tout a fait exclu.” Revue de Droit International et de Legislation Comparie, Vol. 52, p. 349 (1925).

41 Cf. the Message du Conseil Fidiral, etc., of August 4, 1919, previously cited, esp. pp. 26-49 and 228-237, and the Message CompUmentaire (Ad 1119) of February 17, 1920, pp. 5-11.

42 Oppenheim, L., International Law (3d ed., 1920), Sec. 99.