THE RIGHT OF SELF-PRESERVATION
The critics of Germany's invasion of Belgium affirm that, whatever breaches of her perpetual neutrality vows that country might secretly have committed, Germany, being unaware of them, having, at any rate, never formally protested against them, is not free to adduce them as an exculpation of her action in August, 1914.
Without subscribing to the soundness of such reasoning, it must be emphasized that, even if the guarantee under the treaties of 1839 could be considered still as of binding force, and even if all the parties to those treaties had faithfully fulfilled the duties incumbent on them, Germany's action would yet be perfectly justifiable, by the "right of self-preservation," universally recognized in international law.
As a matter of fact, the
German Chancellor, in his first
official statement on the invasion of
178 THE NEUTRALITY OF
sively by invoking
It will be seen from the following expressions of most prominent authorities on international law, that the right of self-preservation precedes and underlies every other obligation. All treaties are subordinated and subject to this basic and inherent right. It is implied, and read into, every treaty and contract, anything to the contrary said notwithstanding. This primary right cannot be lost or bargained away; it is unalienable.
Hugo Grotius, whom John Bassett Moore calls "the most illustrious of the great philosophical jurists," and who is universally recognized as the Father of International Law, says:
"Necessity, the great protectress of human infirmity,
1 See page 219.
THE RIGHT OF SELF-PRESERVATION 179
breaks through all human laws, and all those made in the spirit of human regulations."1
The same authority says with reference to the use of neutral soil by belligerents:
"Hence it may be inferred that, in the prosecution of a just war, any Power has a right to take possession of a neutral soil if there be real grounds, and not imaginary fears, for supposing the enemy intends to make himself master of the same, especially if the enemy's occupying it would be attended with imminent and irreparable mischief to that same Power."2
The English jurist Travers Twiss has the following to say on this subject:
"Of the primary or absolute rights of a nation the most essential, and as it were, the cardinal right, upon which all others hinge, is that of self-preservation. This right necessarily involves, as subordinate rights, all other rights which are essential as means to secure this principal end."3
With regard to the "right of anticipating attack," the same author says:
"When the safety of the State is at stake, the right of self-preservation may warrant a nation in extending the precautionary measures beyond the limits of its own dominions, and even in trespassing with that object on a neighbor's territory. As the right of self-preservation is prior and paramount to the right of dominion and prop-
1 Rights of War and Peace, Vol. II, Chap. 2, Par. 7.
2 Ibid., Vol. II, Chap. 2, Par. 10.
3 The Law of Nations in Time of Peace, Oxford Univ. Press (1861), page 144, Section 99.
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erty, in the case of individuals, so the right of self-preservation is prior and paramount to the right of territorial in-violability in the case of nations, and if ever these rights conflict, the former is entitled to prevail within the limits of the necessity of the case."
The famous jurist Phillimore says:
"The right of self-preservation is the first law of nations, as it is of individuals. . . . It may happen that the same right may warrant her in extending precautionary measures without these limits, and even in transgressing the borders of her neighbor's territory. For International Law considers the 'Right of Self-Preservation' as prior and paramount to that of Territorial Inviolability, and, where they conflict, justifies the maintenance of the former at the expense of the latter right."2
Another American authority, George B. Davis, writes in the following terms on the right of self-preservation:
"This is called into being whenever the corporate existence of a state is menaced and corresponds to the individual right of self-defense. The danger may be internal, as in case of insurrection or rebellion, or external, as in case of invasion, either real or threatened. The right of self-preservation is the first law of nations, as it is of individuals. A society which is not in condition to repel aggression from without is wanting in its principal duty to its members of which it is composed, and to the chief end of its institution. All means which do not affect the independence of other nations are lawful to this end. No na-
1 Law of Nations, Section 102, page 149.
2 International Law, Chap. 10 (CCXI).
tion has a right to prescribe to another what these means shall be, or to require any account of her conduct in this respect!"
Lawrence, one of the leading English authorities, gives the following opinion on the temporary violation of neutral territory:
"Nevertheless all authorities admit that the exigencies of self-defense will justify a temporary violation of neutral territory. But it must be confined within the strictest limits required by the necessity of the case, and the power which is obliged to resort to it should tender a prompt apology. The act is illegal; but if the necessity is sufficiently imperative a wise neutral will condone it on the tender of proper explanations."2
Cyrus French Wicker, a member of the
would no doubt be justified in invading Savoyard territory, even though
neutralized, if it became evident that
The same subject was very luminously discussed in an article of the Fortnightly Review, for July, 1889, with regard to a possible French attack on
1 Elements of International Law (1908), page 93.
2 Principles of International Law (1805), page 501.
182 THE NEUTRALITY OF
"We may say,
then, that from the point of view of strategical
vantage—and this is all that is at present under consideration—a French
commander would be justified by military necessity in making Switzerland a base
for attacking Germany. . . . The moral aspect—if indeed it may so be styled—of
the question involved by the violation of Swiss territory for the temporary
purpose of war, need not be discussed at any length here. With her existence as
a nation at stake it is not likely that
A similar view with regard to the obligations of the "guarantors" of a neutralized state toward the latter is evidently held by the prominent Belgian lawyer, Ernest Nys, who writes:
"One must always remember that for the guarantor state the duty of its own preservation precedes every other duty (il convient de se souvenir toujours que pour l'Etat garant le devoir de sa propre conservation prime tout autre devoir."2
The famous English jurist, Edward William Hall, writes as follows:
1 Quoted from the New-Yorker Staats-Zeitung
2 Notes sur la neutralite in the Revue de droit international et de
legislation comparee, 2d serie,
"The right of self-preservation in some cases justifies commissions of acts of violence against a friendly or neutral state, when from its position and resources it is capable of being made use of to dangerous effects by an enemy, when there is a known intention on his part so to make use of it, and when, if he is not forestalled, it is almost certain that he will succeed, either through the helplessness of the country or by means of intrigues with a party within it."1
The above quotations, which could be increased ad libitum by concurring opinions of other authorities, show convincingly that a state when it is exposed to a grave, imminent danger, is fully justified in committing any action liable to avert that danger, even if, under normal conditions, such action would constitute a wrong and a violation of international law.
The situation then presented to the German
Government has already been outlined in Chapter V.2
1 A Treatise on International Law, page 273.
2 See page 92 and following.
to formulate conditions under which she would remain neutral,1
had clearly given it to be understood that she meant to stand firm by the
Triple Entente and actively join
1 M. P. Price of
On the other hand, it was sure that an immediate
advance of a German army through
It was under such conditions that
186 THE NEUTRALITY OF
Army, by way of
This action is commented
upon in the Introductory Narrative of Events to the British White Papers,
compiled and signed by the British Foreign Office under date of
Here, the German Chancellor has it attested from
the very best source (namely, that of
This is in keeping with
the British preparations for this contingency, but very much at variance with
the version which
1 M. P. Price, The Diplomatic History of the War, Appendix, page 8.
NOTE.—How one of the leading British statesmen, Lord Kitchener, regarded the role of Belgium in the event of an European war, prior to the outbreak of the present hostili-
ties, is set forth in an interview of
Mrs. J. S. Erskine to The World, published in that paper's issue of
Mrs. J. S. Erskine, widow of a former captain of the Tenth Royal Hussars, who was for a time attached to the staff of Lord Kitchener, now English War Secretary, has given to The World an interview in which she discusses the chief of the English war department at short range.
"It was the habit of the officers and their wives to play 'the game of war' in times of peace. This consisted of taking a map and, after sides had been chosen, sticking flags in the map, showing the advance and retreat of troops. One day a big European war was suggested and Lord Kitchener was enlisted as umpire.
what will happen?' I asked. I meant what would happen should
is in the lap of the gods,' was his reply. 'But I'll
tell you what I think would happen.
"Picking up one of the
little flags he said he thought