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Published online by Cambridge University Press: 04 May 2017
The invasion by German troops of the territories of Belgium and Luxemburg and the occupation by Japanese troops of Chinese territory to facilitate their attack upon the German forces at Kaio-Chau have raised one of the most fundamental questions of international law, namely, under what circumstances, if any, is a belligerent justified in violating the territory of a neutral for the purpose of prosecuting his military operations against the enemy. The German and Japanese offenses differ somewhat because in the one case the neutrality of the violated territory had been guaranteed by a special convention of long standing to which the violating belligerent was himself a party; in the other case the neutrality of the violated territory, although protected by a long established rule of international law, as well as by one of the Hague conventions, had not been made the subject of a special and solemn guarantee by a group of Powers. This fact, together with other circumstances, places the two acts upon a different moral if not a different legal footing.
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.
3 The texts of both treaties are printed in Descamps, pp. 287–288.
4 Statement of Sir Edward Grey in the House of Commons, August 31st.
5 The text of this proposal is printed in “The Case of Belgium,” p. 5.
6 Text in “The Case of Belgium,” p. 7.
7 English “White Book,” dispatch No. 159.
8 Dispatch of Sir E. Goschen to Sir Edward Grey, August 8th.
8 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.
11 Daily Telegraph War Book: How the War Began, p. xxiii.
12 Principes du Droit des Gens, Vol. I, p. 277.
13 International Law, Vol. I, p. 178. On the question of the right of a state to violate the neutrality of another state on the ground of self-preservation see Vattel, Droit des Gens, Bk. II, Chap. 7; Kluber, Droit des Gens, sec. 44; Twiss, Law of Nations, Vol. I, sec. 102; Halleck, International Law, Vol. I, p. 95; Rivier, Principes, Vol. I, sec. 20; Bonfils, Droit International Public, sec. 242 et seq.; Despagnet, Droit International Public, sees. 172–175; Pradier-Fodere, Droit International Public, Vol. I, sees. 211–286; Calvo, Droit International Public, Vol. I, sees. 208–209; Hall, International Law, 4th ed., pp. 57, 281, and Phillimore, Vol. I, sees. 210–220.
14 International Law, Part I, p. 315. The destruction of the Danish fleet,, says Westlake, is essentially similar to that of a belligerent having sure information that his enemy, in order to obtain a strategic advantage, is about to march an army across the territory of a neutral clearly too weak to resist, in which circumstances it would be impossible to deny him the right of anticipating the blow in the neutral territory.
15 War and Neutrality in the Far East, pp. 208 et seq.
16 War Rights in Land Warfare, p. 481.
17 See also Hershey, International Law in the Russo-Japanese War, pp. 70 et seq., and Smith & Sibley, International Law as Interpreted during the Russo-Japanese War, pp. 22–23.
18 Later the German press made the charge that both French and English troops had entered Belgium before the outbreak of the war. To this charge the Belgian Minister of War replied that “before August 3d, not a single French or English soldier had set foot on Belgian territory.” London Times (weekly ed.), Oct. 2, 1914.
19 Principes, Vol. 1, 278.
20 Lawrence’s Wheaton, p. 714, n. 2.
21 Droit des Gens, Bk. II, Ch. VII, sees. 119–121
22 Lawrence’s Wheaton, Part IV, Chap. III, sec. 8.
23 International Law, Vol. III, sec. CLIX.
24 Abdy’s Kent, p. 328.
25 Case of the Twee Gebroeders.
26 Law of Nations, sec. 218.
27 Précis, Vol. II, sec. 310.
28 Compare Halleck, Elements of International Law, Chap. XXII, sec. 5.
29 International Law in South Africa, p. 73.
30 International Law, p. 624.
31 International Law, Vol. II, p. 345.
32 Principles of International Law, 3rd ed., p. 524.
33 Droit International Codifié, tr. by Lardy, sec. 771.
34 See Campbell, Neutral Rights and Obligations in the Anglo-Boer War, p. 67, where the whole question of the right of Portugal to grant free passage to the British troops is fully examined.
35 War Rights in Land Warfare, p. 485.
36 International Law in South Africa, pp. 76–77.
37 Compare Campbell, op. cit., pp. 66–70.
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.”
40 Hall, International Law, 3rd ed., p. 345.
41 Droit International Codifié, tr. by Lardy, sec. 440.
42 Droit International Public, sec. 1010.
43 Op. cit., Vol. II , p. 104.
44 Op.cit., sec. 2611.
45 Droit International, Vol. III, p. 40.
46 Op. cit., p. 345.
47 International Law, Vol. I, p. 575.
48 Op. cit., sec. 440, n. 1.
49 Quoted in Descamps, La Neutrality de la Belgique, p. 295.
50 London Times, Sept. 16, 1914.
