Arnoldson Klas Pontus
Pax mundi
Neither can any example in our time be pointed to of open violation of the rights of a small country in its quality of an independent State, as long as these rights have stood under the mutual guarantee of the great powers.
As evidence to the contrary, the London treaty of May 8th, 1853, has been adduced, which was intended to secure Denmark's neutrality; the Treaty of Paris, April 14th, 1856, respecting the Black Sea; and the fifth article of the Peace of Prague in 1866. But here the fault lies in a misunderstanding.
What the Treaty of London established was not the indivisibility of Denmark, but of the Dano-German monarchy. The German territory was to be fast linked to the Danish. This was admitted, as a principle, by the treaty to be fitting and right, but the treaty contained no trace of stipulations as to guarantee.
With respect to Russia's breach of treaty of the stipulations as to her banishment from the Black Sea as a military power,8 it must be remembered that the representatives of the powers, and of Russia also, on January 17th, 1871, signed a protocol, whereby it was settled as an essential axiom in international law, that no power can absolve itself from the obligations which are entered into by treaty without the consent of the contracting parties. Therefore Russia openly acknowledged that her declaration of not choosing to abide by the injunctions stipulated for in the Treaty of Paris respecting the Black Sea, was precipitate, and that, consequently, the treaty was permanently in force until it was formally abrogated. This took place in the new treaty of March 3rd, of the same year. Besides, here comes in what was said above about the value of such treaties as are concluded after brute force has determined the issue. And this not only was the case in the Black Sea stipulations, but also with respect to the unfulfilled promises of article 5 of the Treaty of Prague, whereby the Danish people was to be given the opportunity for a plebiscite in determining upon their reunion with Denmark. As to the peace treaties between the lesser States, which certainly have important trade relations one with another, but which, on account of their mutually distant position, cannot reasonably be expected to go to war with each other, it is true that one cannot in general attribute any special importance to them. Nothing is gained by over-estimating their value. But they deserve to be brought forward as enrichments of international law and guide-posts for other States. And that the small States need not wait until the great ones are ready to unite appears just as much in accordance with the nature of the case as with the interests of their own well-being.
Calvo, undeniably the first authority in these matters, emphasizes as a significant fact, that no single example can be pointed to in which States, after their mutual disputes have been referred to the consideration or judgment of arbitrators, have sought to withdraw from the operation of the decision. And according to Henry Richard and other authorities, by allowing international questions to be settled by arbitration, at least in sixty-seven instances, disputes of a menacing character have been averted.
I shall not here give a detailed account of all these instances, but only with the greatest conciseness refer to some of them.
In 1794 a contest between England and the United States of America respecting St. Croix river was settled by arbitration; in 1803 France was in the same way condemned to pay 18 million francs to the United States of America for unlawful seizure of vessels; in 1818 a threatening dispute between Spain and the United States of America was settled by arbitration, and a contention between these and England was arranged by the Emperor of Russia, who was chosen as arbitrator, etc.
The best known of such disputes was the so-called Alabama question, which threatened a desolating world-war. This affair sprang out of the North American civil war 1861-65. The Southern States had privateers built in England, among which the Alabama especially wrought great mischief to the Northerners. The Government of the Union considered that England had broken her neutrality in allowing the equipment of the privateer, and requested compensation.
A bitter feeling grew up and war appeared inevitable. But on January 24th, 1869, an agreement was happily entered into, which, with fresh negotiations, led to the Washington treaty, May 8th, 1871. In harmony with this the dispute was referred for settlement to a Court of Arbitration consisting of five members, of which England and the United States each chose one, and the neutral states of Italy, Switzerland, and Brazil, likewise each chose one. These five met on December 15th, 1871, as a tribunal of arbitration, at Geneva, and delivered their judgment on September 14th following (four votes against England's one), that the English Government had made a breach in its duty as a neutral power with respect to some of the privateers under consideration, and therefore England would have to pay an indemnity of 15½ million dollars to the United States.9
England bowed to the award and fulfilled her duty.
In the same way the powerful insular kingdom voluntarily submitted to settlement in the weary contention regarding the possession of Delagoa Bay and the surrounding region on the east coast of Africa. The dispute was entrusted for settlement, in 1874, to the President of the French Republic, MacMahon, and he decided in July, 1875, in favour of Portugal. That the new contention between these two States, which for some time now has excited an inflammable spirit, not only in Portugal, but in other countries as well, will be arranged in the same friendly manner, there is but little doubt.
The claim of Portugal is much older than that of England. Its special ground is the discovery of the coast which was made by Portuguese mariners three hundred years ago. The Portuguese urge, that since the coast is theirs, they have a right to go as far inland as they choose and place the country thus entered under their dominion. They say further, that they have made a treaty with a native ruler over a kingdom which stretches far inland, and that ruined fortresses are still to be found which show that they once had this distant region in possession. To this assertion Lord Salisbury answers, that where ruined fortresses are found they only testify to fallen dominion. The English Government could not recognise Portugal's construction of the contested question; according to that construction the question would virtually turn upon the possession of Shireland and Mashonaland (the inland country north and south of the Zambesi). It denied Portugal's claim to this territory as so entirely groundless that it could not enter into such a question; but has on the other hand made a peremptory claim, arising from Portugal's violence towards the natives who are under England's protection, for dishonour to the English flag, and for other international offences, etc.
The right of possession of the regions in question can no longer be regarded as doubtful, since Portugal had set aside the general international axiom, that the claim for possession according to colonial usage can only be held valid when colonization is actually carried out to the furtherance of civilization and public safety. Portugal's assertion that the signatories of the Congo Act would be the right adjudicators of the question was denied, upon the ground that Portugal had delayed to make her claim valid when Nyassaland was declared to belong to the sphere of England's interests. On July 1st, 1889, the Under-secretary, Sir James Fergusson, in the Lower House, explained that the Portuguese Government had been informed that they would be held answerable for all loss which Englishmen might suffer by the annulling of the Delagoa railway convention. The same day Lord Salisbury informed the Upper House that the English Government would send three war-ships to Delagoa Bay, to be ready in case of need. Portugal's conduct was, in his opinion, unjustifiable.
Then came the noble lord's ultimatum, with the demand that Portugal should recall all Portuguese officers and troops from the territory which stands under the sovereignty of England or lies within the sphere of England's interests, and give an answer within twenty-four hours; otherwise England would be compelled to break off her relations with Portugal. This threatening manner of procedure, by which a weaker nation was humbled by superior power, roused bad blood in Portugal and was sharply censured in many parts of Europe; yes, even in England, and in Parliament, in the press, and at many great public meetings. At one of these meetings, composed of 700 workmen delegates from various parts of England and 130 Members of Parliament, in quality of vice-presidents, it was unanimously resolved to protest against Lord Salisbury's conduct as at variance with the dignity of the British nation; and to request that the dispute should be settled by arbitration – so much the rather, as the more certain one is of being in the right, the more confidently can one's cause be placed in the hands of an impartial tribunal. Later on the English Government, together with the North American virtually resolved on this expedient for solving, the difficulties relating to Delagoa Bay. Portugal made difficulties and delays, but at length declared herself willing to enter into a proposal for arbitration.10 All three States were now united in asking the Government of Switzerland to choose three of her most distinguished jurist officials as arbitration judges.
At the time when the first Anglo-Portuguese contest was settled by the President of the French Republic there occurred a second example of both importance and interest. For many years there had been a menacing boundary dispute between Italy and Switzerland, just a little seed of quarrel, such as formerly always broke out into bloody strife, since according to the traditions of national honour not an inch of a patch of ground must be given up except at the sword's point. But the two kingdoms decided to commend the case to an arbitrator, viz., the United States minister in Rome, P. Marsh, who, after a careful study of the claims of the contending parties, declared judgment in favour of Italy, and so the contention was adjusted.
Two dangerous disputes, which in 1874-75 and 1880 threatened an outbreak of war between China and Japan, but were happily solved by arbitration, might be named, but for fear of being prolix I dare not go more particularly into them, instructive as they are.
The first arose as a result of a murder of some Japanese on the island of Formosa, and was settled by the English minister in Pekin, who was chosen by both parties as arbitrator, who decided that China should give Japan in redress a large sum of money, which was done.11
The second of these disputes concerned the sovereignty of the Liu Kiu Islands, and was adjusted by a compromise brought about by ex-president Grant, who in a conversation with the Chinese Minister uttered these memorable words: "An arbitration between two nations will never satisfy both nations alike; but it always satisfies the conscience of humanity."12
Not to be tedious, I pass over here many other remarkable instances in which war and lesser misfortunes have been averted by arbitration; and will now name further only some of the latest date.
In 1887 a lengthened dispute about boundaries between Chili and the Argentine Republic was adjusted by arbitration, through the mediation of the United States Ministers in the two countries. After a complete and precise fixing of the boundary line, an agreement was added: That the Straits of Magellan shall for ever be neutralized; free passage shall be secured to ships of all nations, and the erection of forts or other military works on either of its shores shall be forbidden.
Fresh in the memory is the passionate quarrel between Spain and Germany about the Caroline Islands. That was submitted, on Prince Bismarck's proposal, to Pope Leo XIII. for settlement, and was adjusted by him.
Most people now living remember the Afghanistan boundary question, which was happily solved by the friendliness on both sides of the Russian and English Governments. The whole world followed for a while that dispute with anxiety and disquietude. The press unhappily, as usual, employed its influence in stirring up the national passions in both countries. But before it had gone too far, fortunately the feelings were quieted by the public being reminded that both England and Russia had taken part in the resolution of the Paris Congress, which declared that when any serious dispute arose between any of the contracting powers, it should be referred to the mediation of a friendly power. Upon this ground the English Government proposed to the Russian that the "dispute should be referred to the ruler of a friendly State, to be adjusted in a manner consistent with the dignity of both lands." This proposal was accepted, but did not come into practice. It was not needed. The Afghanistan boundary commission itself carried out its duties to a successful issue.
Still later many smaller international disputes have been solved by arbitration; for instance: —
Between Italy and Colombia in South America, respecting Italian subjects who had suffered loss through the last revolution in Colombia, in which Spain as arbitrator decided in favour of Italy.
Between Brazil and Argentina respecting their boundaries, a dispute in which both parties appealed for a settlement to the President of the United States of America, and which was adjusted by him.
Between the United States of North America and Denmark, in which the latter was, by the chosen arbitrator, the English Ambassador at Athens, Sir Edward Monson, after long delay freed from the obligation to pay compensation to the Americans, because the Danish authorities had fired at an American ship which in 1854 was escaping out of the harbour of St. Thomas, and which was suspected of carrying supplies to Venezuela, at that time in insurrection.
In conclusion it can be urged, —
That France and Holland agreed to have the boundary between their possessions in Guiana determined by arbitration.13
That the international committee which met in Washington to arrange the impending fishery question between Great Britain, Canada and the United States, decided to recommend the creation of a permanent tribunal of arbitration for adjusting future disputes respecting these relations; also:
That the council of the Swiss Confederation, at the combined request of Portugal and of the Congo State Government has undertaken to arbitrate the possible disputes which may arise respecting the regulation of boundaries amongst their African territories.
Besides these and other instances which I am acquainted with, many others have certainly taken place, though attracting less attention.
The idea of arbitration goes peacefully and quietly forward, and the world therefore takes little notice of it.
It is quite otherwise with the crash of war, whose external show of greatness and glory, and whose inward hatred and crime, are desolating the happiness of the nations and are accompanied by distress and gloom.
The one is a fearful hurricane which rends the mountains and breaks in pieces the rocks.
The other is the still small voice, mightier than the devastating storm, since it speaks to us in the name of everlasting righteousness, because it is the voice of God.
NEUTRALITY
Side by side with the idea of arbitration, another pacific idea, already powerful, is pressing forward, and growing into an International Law, namely, the Law of Neutrality.
He is neutral, who neither takes part for, nor against, in a dispute. Neutrality is the impartial position which is not associated with either party. The State is called neutral which neither takes part in a war itself, nor in time of war sides with any of the warring parties.
In ancient times neutrality was not understood as a national right. Neither the Greek nor the Latin language has any word to express the idea. In the days when Roman policy was seeking to drag all the nations of the earth into its net, the Romans saw in other peoples only tributaries who had been subdued by their armies, subject nations who had submitted to the Roman yoke, allies who were compelled to join in their policy of conquest, or lastly enemies, who sooner or later would have to bow before their victorious legions. Neutral States there were none.
The centuries immediately following the dissolution of the Western Roman Empire were filled with constant strife. This continued long before the refining power which exists in the heart of Christianity began to show itself in the foreign relations of States.
The foundations of modern Europe were laid in war.
During the Crusades the whole of our continent was under arms. The struggle against the "infidel" was not simply a contest between one State and another, it was also a contest between Christian Europe and Mohammedan Asia. To be neutral in such a struggle would, according to the judgment of the time, have been equivalent to denying the faith. Within the European States, feudalism exerted no less a hindrance to the embodiment of the principle of neutrality. It would have been thought the gravest crime to loosen the bond of military service which compelled vassals to support with arms the cause of their feudal lords. It was only with the close of the age of feudalism, when Europe began to separate into three or four great monarchies, that neutrality in politics became a means of preserving the balance.
In later times increasing communication and trade have above all contributed to the development of neutral laws. Without the sanction of these, a naval war between two great nations would have made any maritime trade all but impossible. Down to the close of the last century, however, neutral rights were dependent either on national statutes or on special treaties concluded between one State and another. The law only gained certain international importance towards the close of the eighteenth century through the neutral alliances which from time to time were contracted between States.
In the period between 1780 and 1856 the subject gained an entrance by degrees among all maritime nations except England, who, independent of it, and always relying on her own strength, continuously sought to maintain unlimited domination at sea.
In 1854-56 begins, so far as neutrality is concerned, a new era of international law.
From this time the opposition which England raised to the practical application of neutrality in naval war may be regarded as having broken down. On the 30th of March, 1854, the French Minister of Foreign Affairs, Drouyn de Lhuys, published a communication, including, amongst other things, that the neutral flag during the then begun (Crimean) war, should be regarded as a protection for all neutral and hostile private property, except contraband of war. The same day the English Government gave forth in the London Gazette a similar declaration, and on April 19th of the same year the Russian Government notified in the Official Gazette of St. Petersburg that Russia would, during that war, act upon the same rules as the Allied powers.
The provisions, which thus the Western powers on one side, and Russia on the other, believed themselves bound to observe towards neutral states, were at the Peace of Paris, 1856, solemnly ratified as International Law in force for all time. The principles which the plenipotentiary signatories of the Peace Treaty of Paris agreed upon in a proclamation of April 16th, 1856, are as follows: —
1. Privateering is and shall be abolished. 2. The neutral flag shall protect property belonging to the enemy, with the exception of contraband of war. 3. Neutral goods, except contraband of war, may not be seized under the enemy's flag. 4. Blockades in order to be obligatory must be fully effectual; that is, shall be maintained with a strength really sufficient to prevent approach to the enemy's coast.
The Governments which signed the treaty bound themselves also, in this proclamation, to communicate the resolutions to the States which were not called to take part in the Paris Conference, and to invite them to agree in these decisions. All the European States except Spain, and a number of powers outside Europe, declared themselves ready to carry out in practice the entire resolutions of the proclamation.
Many wars since then have shaken Europe; but under all these misfortunes the warring States have not only conscientiously observed the principles laid down in 1856, but they have gone further, in certain points, in applying them, than they by it were bound to do. Thus the Austrian Government issued an order, during the war with France and Sardinia, with respect to maritime national law, in many points far beyond what hostile or neutral powers had any ground for requesting. The Imperial decree not only charged its military and civil officers to follow strictly the injunctions of the proclamation, but Sardinian and French vessels, which lay moored in Austrian waters, were also to be permitted to load freight and proceed to foreign seas, on condition that they took on board no contraband of war or prohibited goods of any description. Immediately on the outbreak of war, the same principles were adopted by France and Sardinia. These States, however, went a step further than Austria, inasmuch as they unreservedly declared that they would not regard coal as a contraband of war.
During the Dano-German War, in 1864, and the war between Austria and Prussia and Italy, in 1866, the international principles of maritime law received a similarly wide interpretation.
During the North American Civil War important questions came up, which more or less affected the principle of neutrality. The question, which became one of the greatest importance, arose in respect of the injury which the commerce and navigation of the Union suffered during the war from various privateers which were built in England on the Southerners' account.
The Alabama Question took its name from the privateer which went out from Liverpool and occasioned the greatest devastation while the war lasted. Although the executive of the Union at Washington duly directed the attention of the English Government to the fact that allowing the pirate to leave the English port would be equivalent to a breach of the peace, yet the Government took no measures to prevent the vessel leaving. The American Government, who with reason regarded this omission as a violation of the laws of neutrality, claimed from England full compensation for the property which had been destroyed in the course of the civil war by the Southern privateer which came from an English port. I have previously given more particularly the constitution and functions of the Court of Arbitration appointed to settle the threatening dispute which arose on this occasion. The arbitration award had to be adjudicated in accordance with the three following fundamental principles of international law: —
A neutral Government is bound: —
1. To guard assiduously against any vessel being armed or equipped in its ports, which there is reason to believe would be employed for warlike purposes against a peaceful power, and with equal assiduity to prevent any vessel designed for privateering, or other hostility, from leaving the domain of the neutral State:
2. Not to allow any belligerent power to make use of its ports or harbours as the basis of its operations, or for strengthening or repairing its military strength, or for enlisting:
3. To use every care within its ports and harbours and over all persons within its domain, to prevent any violation of the obligations named.
The contracting parties to this treaty agreed to hold themselves responsible for the future, and to bring them before the notice of other Maritime powers, with the recommendation that they also should enter into them.
The historical facts here produced show that the mutual interest nations have in the inviolability of the seas has effectually contributed to the development of an accepted international law.
When the necessity of making the principles of neutrality binding at sea was once understood, it was not long before the value of adopting them on land became apparent.
In the documents, for instance, by which Belgium, Switzerland and Luxemburg are neutralized, it is distinctly stated that the permanent neutrality of these States is in full accord with the true interests of European policy.
According to the actual modern law of nations, there is a permanent neutrality guaranteed by international deeds of law and treaties, and one occasionally resting upon free decisions.14
As instances of permanent and guaranteed neutrality, we have: The Neutralization of Switzerland. Ever since the unhappy Italian war in the beginning of the sixteenth century, the Swiss Confederation has endeavoured to assure to the country the security which neutrality gives.
This neutrality was recognised and guaranteed by the great European powers at the Congress of Vienna in 1815 (art. 84 and 92), and later was further solemnly confirmed by a special act of the powers at Paris, Nov. 20th of the same year, in which it was stated:
"The powers declare … by a permanent act that the permanent neutrality and inviolability of Switzerland, as well as its independence of foreign influence, accords with the true interests of European policy."15
The Neutralization of Belgium. In virtue of the Treaty of London, Nov. 15th, 1831 (art. vii.), further confirmed by the powers April 19th, 1839, a permanent neutrality was awarded to Belgium.
This country, which for centuries had served as a battle-ground for foreign powers, especially for France and Germany, was hereby secured against such dangers, and at the same time the field for European warfare was materially narrowed.
Article vii. of the London protocol runs thus: "Belgium shall, within the boundaries established in art. i. and iv., form an independent State. The kingdom is bound to observe the same neutrality towards all States."16
During the Franco-German war 1870-1, the neutralization of Belgium was threatened with violation by France, and further guarantees were given in new protocols arranged by England.
The Neutralization of the Archduchy of Luxemburg resulted from the London protocol of May 11th, 1867.
As an evidence of the power and importance in our day of entering into agreements of neutrality, the following may be adduced: —
During the Franco-German war, 1870-1, the Prussian Government complained to the guaranteeing powers of conduct at variance with neutrality on the part of Luxemburg, and threatened no longer to respect the neutrality of the Archduchy. (Despatch of Prince Bismarck, Dec. 3rd, 1870.)
In consequence of this, Count Beust, the Austrian chancellor, in an opinion given Dec. 22nd of the same year, remarked, that upon the ground of the principle of European guarantee, it belonged to the powers who had signed the document of neutralization, to inquire into and to settle whether a violation had taken place on the part of the neutral State, and not to one of the belligerent powers.17
Besides the States named, a permanent neutrality has been secured to the Ionian Islands according to the treaties of London, 1863-64; and also to the Samoan Islands, in virtue of the agreement between England, Germany, and the United States of North America, whereby, amongst other things, it was settled that in case of any difference of opinion arising; an appeal should be made to arbitration; and that a supreme tribunal should be created with a supreme judge, whom the King of Sweden and Norway has been empowered to name.
One general advantage which neutralization affords is the simplification with respect to foreign policy thereby obtained.
The attitude of a neutralized State can be reckoned on beforehand by all parties.
In proportion to its military importance and position, a neutral country constitutes in many ways a security to all the powers.
It is in close connection with neutralization that in these days an ever-growing need is becoming apparent to localize wars as much as possible; that is, to confine them to those who begin them.
As a result of the extraordinarily rapid development of world-wide trade and intercourse, and the consequent community of interests, a war between two States necessarily occasions more or less derangement to the rest.
In this increasing solidarity lies the surest guarantee that neutrality will be respected.
We may already be justified in drawing the conclusion that the security of neutral States will continually increase.
Supported upon these foundations of history and of international law, a discussion was raised on the neutralization of Sweden, in the First Chamber by Major C.A. Adelsköld, and by myself in the Second, in the hope thereby not only to oppose the King's bill for the extension of the war department, but also especially to open the way for a profitable solution of the tough, old, threadbare question of Defence.18
Before this resolution was brought into the Riksdag, I had read it to seventy members of the Riksdag, who unanimously accepted it, as did also, later on, in the main, a majority of the [Norwegian] Storting. 19And as soon as the purport of the resolution became generally known through the press, there came in from popular meetings all over Sweden numerous congratulatory addresses to Major Adelsköld and myself.
But from its very commencement the proposition met with an unconquerable opposition from those in power.
With great unanimity efforts were made in this quarter to depreciate the value and the historical importance of the principle of neutrality. All possible means were used with this object, to touch the tenderest fibres of the national feelings. It would be a disgrace to us, it was said, to employ any other than military power in asserting our primeval freedom. We should thereby break off from our glorious history, and draw a black line over its brilliant warlike reminiscences. There were certainly neutral countries to be found, but their neutrality was not the result of their own desire, but proceeded from the great powers themselves. Should we then, they say further, be the first people to take such a step? Would it not be equivalent to begging peace of our neighbour, and declaring ourselves incapable before the whole world? The sensible thing would be to further develop and strengthen our army. The resolution was called a political demonstration of indigence; a disgusting nihilist plot, and so on. One member of the Riksdag proposed that it should be consigned to a committee charged with arranging for sending beasts abroad. Scoffs came thick as hail; and when it became known that the mover in the Second Chamber was its author, the really guilty one, he was branded as a universal traitor, – just as the year before, when he raised a peaceable question about extended liberty of conscience.