Count Beust to Count Andrassy, March 6, 1872
No. 66. Count Beust to Count Andrassy.
In dispatch of 10th December last, your excellency charged me to address the inquiry to the foreign office here, whether and when the proposed ratification of the fundamental principles agreed upon in the treaty of Washington was to be expected, and I had in pursuance thereof the honor to report, on the 22d of the same month, how Lord Granville had answered this inquiry to the effect that both the government of Great Britain as well as that of the United States intended to transmit such communication to the other powers; that, however, a difference of opinion in regard to some matters of detail had occurred, before the solution of which a united communication could not follow.
Since that time that difference had become developed and increased to such a degree that the notification, which depended upon such solution, appears postponed to a distant period.
Inasmuch as in the mean time the acrimony of the situation, and the notorious necessity on both sides of a solution, might in spite of all difficulties produce the latter sooner than at this moment seems probable, therefore it might not be superfluous to entertain the question, whether the powers to whom the said communication is intended to be made, and from which, directly or indirectly, a demand of their concurrence will be sought, should have reason to hold an approving, if not perhaps rather a dissenting, attitude.
Notwithstanding the comprehensive parlance which the organs of public opinion have hitherto devoted to the Alabama affair, still is this side of the question now referred to and interesting ourselves left almost entirely disregarded, namely, the general operation of the Washington treaty in the first—then, in the eventual further development of the affair, of the decision of the Geneva tribunal—in the second place, upon the international position of the neutrals toward belligerent powers.
England has agreed (Article VI of the treaty of 8th May, 1871) to acknowledge three of the rules proposed by the Government of the United States, the immediate object of which is to specifically define the duties of the neutral power during the naval war. The importance and extensive bearing of these rules are clearly manifest.
On the other side, the British government, with the admission of the application of the stipulated rules of law to the case of the Alabama, has joined in the express protest against the position stated therein, “that these rules were internationally operative at the time of the origin of the Alabama claims.” Both powers have farther agreed, that in the decision of the disputed question the international principles that have hitherto been in force may be employed only so far as they do not derogate from the three new rules. Finally, England and America have agreed to consider the newly-settled fundamental principles of law, not only as binding upon themselves in future, but have agreed to bring them to the knowledge of the other naval powers with the formal invitation to adopt them. These movements, when they confirm on one side the importance of the new rules of law, present also the proof that the treaty-contracting powers acknowledge in them a completely new principle of law.
Next to the prominent chief significance of this present novelty in maritime law, also its practical extent and capability of further expansion deserve to be well considered. In this view the history of the Washington treaty offers a very instructive illustration. And even in the case that the Geneva arbitration tribunal should not reach the desired aim, the theoretical and practical significance of the Washington neutrality rules, viewed from a general international stand-point, ought not to be under-estimated.
The latter are manifestly in favor of the belligerent powers. In the same degree as they narrow this sphere of rights belonging to neutrals towards the belligerents, they extend that of the contending parties as against those who stand aside from the contest. Further, the newly-imposed duties are so much the more oppressive, inasmuch as the responsibility and obligation to indemnity, arising from their non-performance by the neutrals, may be regarded as becoming extensive and comprehensive in the highest degree possible.
In the interest of the powers there exists undeniably the increasing, if not universal, acknowledgment of the principle that forms the actual foundation of a correct position of neutrals, namely, the free and untrammeled activity to be exercised by the state individually, especially in the direction of unlimited protection of its own commercial interests. The fact of a war, originating quite independently of the will of a neutral state, between two other powers, should impose upon the first the least possible limitation of its national rights, as well as the least possible measure of duties, in regard to the condition of war created without its own instrumentality. This tendency is in harmony with the opinion existing largely, if not wholly, in all civilized countries, and recently practical attempts to fairly comply with the same have not been wanting. Everybody remembers the efforts made at the Paris Peace Congress to protect the rights of neutrals against the unjust violence of belligerent maritime powers. Let me be permitted to point to an appropriate example in the history of recent time. This is the dispute between the foreign office and the North German embassador in London, in regard to the privileges of the neutral commerce, during the war of 1870 and 1871. In this case it was the English minister who successfully opposed the attempt to inflict upon the duties of neutrality a construction limiting neutral commerce. Now, however, appear the neutrality rules of the Washington treaty, and still more the material tendency of this latter to be directed toward producing limitation and excessive responsibility on the part of neutrals; also, they are in full contradiction to the most recent development of international law; wherefore a universal acknowledgment appears that the leading ideas founded in the Washington treaty may be considered not only as an obstacle to the suitable, natural, further development of maritime law, but even as contributing to retrograde movement therein. The want of confidence against such a reform of maritime law can only be confirmed through the fact that the Americans are willing immediately, by the first practical application of the new rules of law, to draw thence the consequences in as comprehensive a degree as possible. In justification of the new formula of the duties of neutrality, certainly various arguments may be brought forward; for example, the clearer the rules upon neutrality duties maybe, so much the fewer will be the points of controversy, so much less occasion for dispute. The more regulated the conduct to be observed by neutrals, so much the easier is it for the government in question to hold their citizens to a close observation of neutrality duties. The more precisely these duties are defined,’ so much more successful will be the defense against any accusation brought by one or the other of the belligerent parties, of favoring the other belligerent party, &c., &c., &c. These and similar arguments do not, however, meet the actual marrow of the question. The close limitation of the circle of the rights and duties of neutrals possesses, certainly, a great formal value for promoting a long duration of friendly international relations, but it appears important that this should not take place in such a manner as would increase to an intolerable degree the responsibility of neutrals, and almost wholly forbid proper commercial communication with belligerent states. Should the dangerous ground of a minute limitation of neutrality duties be once trodden, there would, in consequence of the national tendency of each close definition of rights, constantly new points for a farther limitation of neutrals be found in the experience of every new war. One point of view should always, therefore, be held firmly: the endeavor to decisively dissent from every transformation of international principles which does not exist in the natural development of international right.
The powers would have the more reason for taking into serious consideration the theories upon neutrality accepted by England, and America, and intended for adoption by all maritime powers, inasmuch as the penalty sanction, which the Government of the United States, at least according to the theory, wishes to incorporate into the new law, is certainly a monstrous one.
With logical conclusion, one would reach the result, that a neutral upon whom a hostile intention can in no manner be proved, but who shall not everywhere comply with its neutrality duties with necessary zeal, will be made responsible for the sum of war expenses, which may appear to have been occasioned, in a direct or indirect way, by its violation of neutrality.
England and America have indeed not yet, up to the present time, in an official manner, unreasonably requested the other maritime powers to adopt their neutrality theory. They have simply continued in the announcement of such an unreasonable request. Should they carry out this project, the fact that two of the most powerful powers have formally acknowledged the new rules of law, and have made it the foundation of a most important international transaction, is to-day a matter of history, and forms a source of possible prejudice, which, under certain circumstances, deserves fullest consideration.
The “Second Rule” of Article VI appears to be entitled to special attention, in so far as the settle clearly gives an advantage to England, on account of her numerous naval stations, over other countries which have not at their disposal similar convenience, and therefore, in consequence of the facility afforded by the said stations for taking in coal and repairing vessels, such nations would suffer great disadvantage. I know that in some states, which might suffer possibly more than Austria-Hungary on this account, already much anxiety has been occasioned in regard to the subject.
When the Imperial and Royal government shall, at the proper time, come to an understanding with other governments, namely, with those of Germany and Italy, then would an equal degree of preference be obtained.
Already the governments of Austria, Prussia, and Italy, by their concurrent declarations at the opening of the war in 1866, observed the procedure of a conduct most liberal and conducive to commerce, in as much as at the beginning of the German-French war we remained faithful to corresponding principles, and without hesitation pronounced for their observance. This met with a favorable reception in Germany. A possible ratification of the fundamental principles agreed upon between England and America will therefore, consequently, become not only a subject of adoption or rejection, but a point of departure for entirely new negotiation, in case we wish to render valid and effectual the fundamental principles of full freedom and full protection of private property in case of war, with the exception, however, of contraband of war. America was formerly not opposed to this fundamental principle, but was willing, as is well known, in return for its acknowledgment on the part of England, to consent to the abolition of privateering; whereas England, however, viewed in its introduction the loss of one of her most powerful weapons. Therefore, other countries must consider at what price they are willing to submit to limitation of their former freedom.
Accept, &c., &c., &c.