without payment of duties, from such British possessions through the territory of the United States for export from its ports.1

$196. The Same.

Conventions resulting from The World War made significant provisions for transit by land. Thus Germany, by the Treaty of Versailles of June 28, 1919, and Austria, by the Treaty of SaintGermain-en-Laye, of September 10, 1919, were obliged to undertake to grant freedom of transit through their respective territories, by the routes most convenient for international transit, by rail as well as by water, to persons, goods and vehicles of transportation coming from or going to the territories of any of the Allied or Associated Powers, whether or not contiguous, and without the imposition of transit or customs duties, or undue delays or restrictions, or unreasonable charges for transportation, or adverse discriminatory treatment. The obligation not to maintain control over transmigration traffic through those territories, save with respect to specified measures, was accepted. Arrangements in pursuance of these general requirements were amplified and given also particular application to international transport by rail. It was provided, however, that after periods of years, the continued right of an Allied or Associated Power to claim the benefits of the general stipulations respecting freedom of transit,

1 Malloy's Treaties, I, 712. By the same Article goods arriving at British North American ports and destined for the United States were to be under like conditions conveyed in transit through British territory, and similarly, goods were to be conveyed in transit on like terms from the United States, through the British possessions to other places in the United States, or for export from British American ports.

Cf. President Harrison, message of Feb. 2, 1893, Richardson's Messages, IX, 335; House Misc. Doc. No. 210, 53 Cong., 2 Sess., 37, declaring that this Article of the treaty was not considered to be in effect.

According to Rev. Stat., § 3005, as amended by the Act of May 21, 1900, Chap. 487, 31 Stat. 181: "All merchandise arriving at any port of the United States destined for any foreign country may be entered at the custom-house and conveyed, in transit, through the territory of the United States, without the payment of duties, under such regulations as to examination and transportation as the Secretary of the Treasury may prescribe."

See, also, the minor provisions contained in Art. XXXII of the treaty with Mexico of April 5, 1831, Malloy's Treaties, I, 1095, and in Art. VI of the treaty with that State of Feb. 2, 1848, id., 1111.

Not infrequently the conventions of the United States have accorded the nationals of the contracting parties a reciprocal exemption from all transit duties. See, for example, Art. VI of the treaty with Japan of Feb. 21, 1911, Charles' Treaties, 79.

2 Arts. 321-326 of the treaty with Germany; also Arts. 284-289 of the treaty with Austria.

3 Arts. 365-370, and 372-374, of the treaty with Germany; also Arts. 311317, and 319-325, of the treaty with Austria.

and certain special ones respecting railways, should depend upon the concession of reciprocal privileges.'

It may be observed that Germany agreed that the CzechoSlovak State might require within a specified period of time the construction at its expense of a railway line across German territory between the stations of Schlauney and Nachod,2 and that Austria agreed that Italy might within a like period require the construction or improvement of the new trans-alpine lines of the Col de Reschen and the Pas de Predil.3 "In view of the importance to the Czecho-Slovak State of free communication between that State and the Adriatic", Austria recognized the right of the Czecho-Slovak State to run its own trains over certain sections included within Austrian territory on specified lines. Moreover, the so-called "running powers were to embrace the right to establish running sheds with small shops for minor repairs to locomotives and rolling stock, and to appoint representatives where necessary to supervise the working

1 According to Art. 378 of the treaty with Germany, and Art. 330 of the treaty with Austria, such stipulations (which were specified) were to be subject to revision by the Council of the League of Nations at any time after the expiration of a fixed period of years (which was five in the German treaty and three in the Austrian) following the coming into force of the treaty. Failing such revision, or the prolongation by the Council of the period during which reciprocity could not be demanded, the principle of reciprocity was to become applicable.

It was declared in the treaty with Austria that the benefits of the stipulations could not be claimed by States to which territory of the former AustroHungarian Monarchy had been transferred, or which had arisen out of the dismemberment of that Monarchy, except upon the footing of giving, in the territory passing under their sovereignty in virtue of the same treaty, reciprocal treatment to Austria.

See, in this connection, communication of M. Clemenceau, President of the Peace Conference, June 16, 1919, to the President of the German Delegation, with respect to the requirements of the German treaty, Misc. No. 4 (1919), [Cmd. 258], p. 62; also David Hunter Miller, "The International Régime of Ports, Waterways and Railways", Am. J., XIII, 669, 670–672, quoting the foregoing communication.

Cf., also, reciprocal provisions for freedom of transit contained in Art. XVII of treaty of June 28, 1919, between the Principal Allied and Associated Powers and Poland, British Treaty Series No. 8 (1919), [Cmd. 223], p. 9; also those contained in Art. XV of the treaty between the Principal Allied and Associated Powers and the Serb-Croat-Slovene State, of Sept. 13, 1919, British Treaty Series, 1919, [Cmd. 461].

2 Art. 373 of the Treaty of Versailles of June 28, 1919. "The two towns mentioned, Nachod in Czecho-Slovakia, and Schlauney (or Schlanei) in Germany, are about two and one-quarter miles distant from each other in a direct line. The chief purpose of the proposed rail connection is to facilitate the transport of coal from upper Silesia. The road to be built would probably be less than a mile in length, as the existing lines are at one point only about half a mile apart." David Hunter Miller, in Am. J., XIII, 684.

3 Art. 321 of the Treaty of Saint-Germain-en-Laye, of Sept. 10, 1919. Arrangement was here made for the ultimate adjustment of the cost.

Art. 322 of the same treaty.

of trains.1 To Austria was accorded "free access to the Adriatic." That State was with such object to be permitted to enjoy freedom of transit over the territories and in the ports severed from the former Austro-Hungarian Monarchy.2

The foregoing provisions appear to mark the establishment of a conventional régime which if feasible in operation may be expected to win increasing approval.3 It may be doubted, however, whether the United States, in view of the location, extent and condition of its continental possessions, would consent to a rule compelling it on the demand of a foreign State to agree to a reciprocal arrangement conferring privileges of transit across American territory such as have been yielded by Austria and Germany. Nor would it be disposed to admit that the requirements of the underlying principles are such as to call for a uniform application with respect to every territory of every State.

(11)

The Protection of Areas by Neutralization and Other Processes. International Waterways

197. In General.

(a)

A group of States may undertake to accord permanent protection from hostile operations to a particular area of land or water within or between the territories of any of their number. The arrangement may provide that certain persons and things shall be immune from attack, or that hostilities shall not be committed within the area, or that it shall not serve a belligerent purpose, such, for example, as a means of facilitating the transportation of military forces. The agreement may even mark the

5

1 Art. 323, and also 324. See, also, in this connection, convention relative to transit through Salonica, concluded between Greece and Serbia, May 10, 1914, Am. J., XIII, Supp., 441.

2 Art. 311 of Austrian treaty of peace of Sept. 10, 1919.

3 It may be noted that according to Art. XXIII of the Covenant of the League of Nations and constituting a part of the treaties of peace with both Germany and Austria, the Members agree to make provision to secure and maintain freedom of communications and of transit and of equitable treatment for the commerce of all Members of the League.

4 Such an attempt may be made even though the area constitutes a part of the territory of a State, which it is not sought otherwise to neutralize.

5 See, for example, Arts. I and XXI of the public act of Nov. 1, 1865, ratified at the Conference of Paris of March 28, 1866, with respect to the works, establishment and administration of the Danube, Brit. and For. State Pap., LV, 94, 99, quoted in Joseph P. Chamberlain, The Danube, Dept. of State, confidential document, 1918, 87.

attempt to impose a condition of permanent neutrality upon the area.1

Two distinct aspects of such undertakings deserve consideration. The one concerns a matter of feasibility or expediency; the other involves a question of law; and both appear in a new light since occurrences of The World War.

A number of States, such, for example, as those whose territories are traversed or separated by an international river, may profess concern as to conditions of navigation in time of conflict, and conclude an agreement designed to protect the stream and its establishments should war ensue. Upon its outbreak, if the contracting States are aligned as opposing belligerents, there is likely to be a sharp conflict of interest with respect to the proper uses of the river, and one so vital as to encourage disregard of the compact by that party which would suffer a relative strategic detriment should it observe the restraints imposed. The danger of contempt for the arrangement is shown to be proportional to the opportunity which it leaves open to any contracting belligerent party to utilize the stream for a military end. An agreement imposing a duty to protect merely the works and establishments pertaining to navigation, offers a frail bond of restraint. Nor are provisions devised to localize hostilities by forbidding their commission in a particular stream in close proximity to, or in the very path of belligerent operations likely to prove a real deterrent. So long as a waterway is permitted to remain a means of military communication and transportation serving one belligerent and barred against its foe, the latter must be expected to make extraordinary effort to obstruct passage and stop navigation.2 Con

1 "Neutralization is the imposition by international agreement of a condition of permanent neutrality upon lands and waterways.' Cyrus F. Wicker, Neutralization, I.

2 Declares an authoritative commentator with respect to the belligerent uses of the Danube during The World War: "The active naval operations on the river, with the mines which were their consequence, all clear breaches of the treaty of Berlin, illustrate the difficulty in the way of attempts by treaty to prevent strong States from using any force at their disposal to beat the enemy, and emphasize the impossibility of preventing naval activity on a river forming a military line unless military activity on each side of and across that river is also prevented. . .

"Experience in two wars, 1877 and 1914, has conclusively shown that neutralization of the Danube is impracticable. If troops are allowed to cross the river, if shore batteries can bombard forts and towns on the hostile opposite bank, then reasonable means of defense on the water should not be prohibited. The existing treaty limitations (treaty of Berlin, Article LII) on fortifications and the use of warships on the river were never effectively enforced, and the result has been to limit the freedom of Roumania to protect her own territory." Joseph P. Chamberlain, The Danube, Dept. of State, confidential document, 1918, 76, 107-108.

ventions which ignore such probabilities and purport merely to impose minor restraints upon the contracting parties fall far short of those designed to attach to an area a status of permanent neutralization. They reveal no collective design to isolate it from warlike operations, and still less a joint undertaking to guarantee the maintenance of such a condition.1 An international arrangement may, however, give appropriate expression to such a purpose. If it provides for the impressment of permanent neutralization, forbidding all acts within the area or uses thereof as would be denied a belligerent with respect to neutral territory, and especially if it is buttressed by a common guaranty of interested powers, there is automatically established a check which, by reason of its very nature, minimizes the grounds and invalidates the excuses for a possible breach.

The States most concerned in the treatment to be applied to an international waterway or other area may not, however, be disposed to consent to an arrangement of large and permanent design. Such reluctance gives rise to the inquiry whether a legal duty rests upon a State to acquiesce in a plan contemplating permanent neutralization or in one of less magnitude. It must be recognized that normally no State is obliged to agree to abandon the right when a belligerent to commit hostile acts within a zone of land or water belonging to or controlled by its enemy, or to yield to foreign powers the right to attach an artificial condition such as a new status to a portion of its own domain. On the other hand, it must be acknowledged that a particular area,, especially if it be an international waterway, may bear such a relationship to a special group of maritime States through its connection with their territories, and to others as a necessary channel of communication between oceans or a means of access to interior ports, as to establish a solid and equitable demand for neutralization. Thus the society of maritime States may be practically united in such a claim. The point to be emphasized is that this

1 See, in this connection, Cyrus F. Wicker, Neutralization, 3-4, 7, 39. The Straits of Magellan were said to be "neutralized forever" and free navigation guaranteed to the flags of all nations, by the provisions of Art. V of the treaty between the Argentine Republic and Chile of July 23, 1881. Brit. and For. State Pap., LXXII, 1103. Prior to the negotiation of this treaty, Mr. Evarts, Secy. of State, in a communication to Mr. Osborn, Jan. 18, 1879, declared that the United States would not tolerate any exclusive claims of any foreign nation over the straits, and would hold responsible any government undertaking to lay any impost or check on American commerce passing through. MS. Inst. Chile, XVI, 238, Moore, Dig., I, 664, note. See, also, Jean Marie Abribat, Le Détroit de Magellan au Point de Vue International, Paris, 1902.