Suchergebnisse

The peace conference held at Paris in 1919 was called upon to consider no question of wider political or economic significance than that of the ordering of navigation on those great rivers usually designated as international and of which the Danube affords one of the most striking examples. In the long progress of 1800 miles from its source eastwards to the Black Sea this river traverses or bounds the territory of eight extensive states displaying a route capable of beneficial exploitation on the part of every country in Europe. Rising on the easterly slope of the Black Forest hill region in the extreme south of Baden, where it is formed by the union at Donaueschingen of two small streams flowing southerly from points near Villingen and Furtwangen, the Danube pursues a general easterly course across Wurtemberg and Bavaria. At Ulm it is joined by the Iller and now becomes navigable.

With the victorious growth of Napoleon's military power subsequent to the disastrous rupture in May, 1803, of the peace concluded at Amiens on March 27, 1802, the emperor determined to revive and develop certain conceptions already illustrated in decrees of the Directory and Consulate which had looked to the subversion of England through limitation or annihilation of its sea-borne commerce.

In a maritime war the formal announcements of national executives concerning principles of intended action possess an interest frequently transcending the occasion calling them into being since they may originate important modifications in the imprescriptible system of the law of nations and thus become touched with that universality of which the sea itself offers so constant and striking a suggestion. In the conflicts of the French revolution and the First Empire, as well as in the great war of our own day, we find produced on the part of the opposing governments a series of declarations (orders in council, arrêts) which have a permanent interest for the student of international law since they practically extend over the whole field of naval warfare and reach every aspect of belligerent action upon the high seas, while they may also become a cause oftentimes of strained relations between belligerent and neutral Powers arising through widely varying views touching the application of prize law to marine captures.

Not the least among the many problems of reconstruction facing civilization at the present moment is the establishment upon a secure basis of the principles of international law as a system of world conduct and protection. Of actually restraining principles, indeed, the late war has exhibited few; nor have these, so far as successfully asserted, prevented violations of neutral rights upon a vast scale, together with a similar disregard of privileges heretofore universally conceded to occupied territory; while still more appalling has been the exploitation of diplomatic immunity in the interest of treacherous propaganda, and the wholesale assassination of noncombatants on the high seas. To such action, the words in which Germanicus is represented by Tacitus as addressing his licentious soldiery may well be applied: "Ye have violated even rights accorded to enemies, as also the sanctity of embassy and the consecrated obligations of usage between peoples."

It has been finely said of Switzerland that while the present war has demonstrated in a sinister manner Swiss dependence upon its powerful neighbors for fuel and food, and thus for its very existence, nevertheless neither these neighbors nor the world at large could for a moment spare the example of heroism and devotion so constantly and consistently set by the Swiss nation in its political and social life. This quality of devotion has been illustrated during the war not alone by the struggles unavoidable in the maintenance of neutrality, but also in the far-reaching activities of the International Red Cross at Geneva. Indeed, the work accomplished through the agencies of this wonderful organization in the internment and care of wounded soldiers and their repatriation where permissible under belligerent agreement, in the repatriation of civilians driven from occupied territory, the transmission of mail to prisoners, and the discovery of vast numbers of the missing, constitute one of the most striking chapters in the war's history.

The recognition and guarantee of Swiss neutrality once definitely accomplished at the Congress of Paris in November, 1815, its subsequent progress was destined to be deeply affected by constitutional struggles in both federal and cantonal organizations.It will be recollected that the initial change in the ancient Swiss alliance to a more modern form of government was introduced as the result of invasion by the French revolutionary forces, and that from April 12, 1798, to February 19, 1803, Switzerland was governed under the Helvetic Constitution imposed by the French, which created a military state with the cantons as administrative divisions only in accordance with Title II, section 15 of the instrument:—
L'Helvétie est divisée en cantons, en districts, en communes et en sections ou quartiers des grandes communes. Ces divisions sont des divisions électives, judiciaires et administratives, mais elles ne forment point de frontiéres.

The conception of a permanent neutrality for Switzerland sharply differentiates itself from the various phases of neutralization created chiefly after the Congress of Vienna in Europe and elsewhere in the important respect that in the case of Switzerland the Powers did no more than attempt to crystallize in diplomatic and lasting form a political condition which had, as we have heretofore seen, characterized the country during nearly three centuries. The Powers, consequently, merely recognized an existing status and one deemed essential as well to the peace of Europe as to the welfare of Switzerland itself. But at Vienna it was clearly seen that recognition would prove valueless were it not supported by an international guarantee, and one, moreover, which would not only necessarily take the shape of an international protection of Switzerland against outside aggression, but also conserve a unitary and harmonious federal administration within the Swiss boundaries. We are not surprised, accordingly, to find the conception of such a guarantee appearing in the various diplomatic documents heretofore noted which create or attest Swiss neutrality, as in the Treaty of Lunéville, February 9, 1801, and the identical treaties concluded at Paris, May 30,1814, known as the First Peace of Paris (noted in Part I of this series, April, 1918, Journal, p. 241, at p. 246), in which Swiss independence and self-government are expressly recognized: "La Suisse, indépendante, continuera de se gouverner par elle-même." (Art. VI)

Switzerland's neutrality, as exhibited during the present European conflict and also on the occasion of other wars of the past century, does not found itself simply upon principles of international law, but rests directly upon a series of explicit international and constitutional documents and is deeply interlocked with the historical development of the country and with the foundation and growth of its government. Differentiating itself widely from that attitude of mere aloofness exhibited by a nation which declines to join a struggle in which others may be engaged, Swiss neutrality is an essential element of the country's governmental existence and is intended by the nature and sanctions of its origin to be as permanent as the nation itself. Such an aspect of neutrality is termed neutralization; though in origin quite dissimilar to that of Switzerland, this international quality was also characteristic, at the outbreak of the present war in 1914, of Belgium and Luxemburg, as well as of a variety of smaller governmental entities or adjuncts.

At the present moment, when the very existence of international law as a practical element in the conduct of human affairs is doubted or derided by many and when such precepts as are claimed to be fundamental in that law itself are daily set at nought by belligerents in the world conflict, it has been thought that a brief outline of the earliest conceptions characterizing international jurisprudence will prove neither, useless nor unwelcome.The term "International Law" has, in the usage of our day, quite superseded the earlier expression "law of nations," long since adopted as a translation of the Latin phrase jus gentium. The expression "International Law," however, so familiar to us, properly denotes a wholly variant conception. In modern days it is used by the celebrated D'Aguesseau and occurs in Volume II of his works, page 337 in the edition of 1773; it is shortly afterward employed by Bentham in his "Principles of Morals and Legislation" (XVII, 326, n. 1), and has since his time come into general use. D'Aguesseau's expression (droit entre les gens) is doubtless, in its turn, an adaptation from Zouche, Professor of Civil Law at Oxford, who uses, about 1650, the term jus inter gentes in harmony with the thought of Grotius as expressed in the opening paragraph of the Prolegomena to his De Jure Belli Ac Pacis, where Grotius explains at the outset the intended subject of his great treatise, — at jus illud quod inter populos plures aut populorum rectores intercedit, sire ab ipsa natura profectum, aut divinis constitutum legibus, sine moribus et pacto tacito introductum, attigerunt pauci, universim ac certo ordine tractavit hactenus nemo; cum tamen id fieri intersit humani generis.