Volume I Part 76 (1/2)

[Footnote 940: The important part that treaties of guarantee play in politics may be seen from a glance at Great Britain's guarantee treaties. See Munro, ”England's Treaties of Guarantee,” in _The Law Magazine and Review_, VI. (1881), pp. 215-238.]

[Footnote 941: See above, -- 95.]

[Footnote 942: Thus Great Britain, France, and Russia have guaranteed, by the Treaty with Denmark of July 13, 1863, the independence (but also the monarchy) of Greece (Martens, N.R.G. XVII. Part. II. p. 79). The United States of America has guaranteed the independence of Cuba by the Treaty of Havana of May 22, 1903 (Martens, N.R.G. 2nd Ser. x.x.xII. p.

79), and of Panama by the Treaty of Was.h.i.+ngton of November 18, 1903 (Martens, N.R.G. 2nd Ser. x.x.xI. p. 599).]

[Footnote 943: Thus the integrity of Norway is guaranteed by Great Britain, Germany, France, and Russia by the Treaty of Christiania of November 2, 1907; see Martens, N.R.G. 3rd Ser. II. p. 9. A condition of this integrity is that Norway does not cede any part of her territory to any foreign Power.]

[Sidenote: Effect of Treaties of Guarantee.]

-- 575. The effect of guarantee treaties is the creation of the duty of the guarantors to do what is in their power in order to secure the guaranteed objects. The compulsion to be applied by a guarantor for that purpose depends upon the circ.u.mstances; it may eventually be war. But the duty of the guarantor to render, even by compulsion, the promised a.s.sistance to the guaranteed depends upon many conditions and circ.u.mstances. Thus, first, the guaranteed must request the guarantor to render a.s.sistance. When, for instance, the possession of a certain part of its territory is guaranteed to a State which after its defeat in a war with a third State agrees as a condition of peace to cede such piece of territory to the victor without having requested the intervention of the guarantor, the latter has neither a right nor a duty to interfere. Thus, secondly, the guarantor must at the critical time be able to render the required a.s.sistance. When, for instance, its hands are tied through waging war against a third State, or when it is so weak through internal troubles or other factors that its interference would expose it to a serious danger, it is not bound to fulfil the request for a.s.sistance. So too, when the guaranteed has not complied with previous advice given by the guarantor as to the line of its behaviour, it is not the guarantor's duty to render a.s.sistance afterwards.

It is impossible to state all the circ.u.mstances and conditions upon which the fulfilment of the duty of the guarantor depends, as every case must be judged upon its own merits. And it is certain that, more frequently than in other cases, changes in political constellations and the general developments of events may involve such vital change of circ.u.mstances as to justify[944] a State in refusing to interfere in spite of a treaty of guarantee. It is for this reason that treaties of guarantee to secure permanently a certain object to a State are naturally of a more or less precarious value to the latter. The practical value, therefore, of a guarantee treaty, whatever may be its formal character, would as a rule seem to extend to the early years only of its existence while the original conditions still obtain.

[Footnote 944: See above, -- 539.]

[Sidenote: Effect of Collective Guarantee.]

-- 576. In contradistinction to treaties const.i.tuting a guarantee on the part of one or more States severally, the effect of treaties const.i.tuting a _collective_ guarantee on the part of several States requires special consideration. On June 20, 1867, Lord Derby maintained[945] in the House of Lords concerning the collective guarantee by the Powers of the neutralisation of Luxemburg that in case of a collective guarantee each guarantor had only the duty to act according to the treaty when all the other guarantors were ready to act likewise; that, consequently, if one of the guarantors themselves should violate the neutrality of Luxemburg, the duty to act according to the treaty of collective guarantee would not accrue to the other guarantors.

This opinion is certainly not correct,[946] and I do not know of any publicist who would or could approve of it. There ought to be no doubt that in a case of collective guarantee one of the guarantors alone cannot be considered bound to act according to the treaty of guarantee.

For a collective guarantee can have the meaning only that the guarantors should act in a body. But if one of the guarantors themselves violates the object of his own guarantee, the body of the guarantors remains, and it is certainly their duty to act against such faithless co-guarantor.

If, however, the majority,[947] and therefore the body of the guarantors, were to violate the very object of their guarantee, the duty to act against them would not accrue to the minority.

[Footnote 945: Hansard, vol. 183, p. 150.]

[Footnote 946: See Hall, -- 113; Bluntschli, -- 440; and Quabbe, op. cit.

pp. 149-159.]

[Footnote 947: See against this statement Quabbe, op. cit. p. 158.]

Different, however, is the case in which a number of Powers have _collectively and severally_ guaranteed a certain object. Then, not only as a body but also individually, it is their duty to interfere in any case of violation of the object of guarantee.

[Sidenote: Pseudo-Guarantees.]

-- 576_a_. Different from real Guarantee Treaties are such treaties as declare the policy of the parties with regard to the maintenance of their territorial _status quo_. Whereas treaties guaranteeing the maintenance of the territorial _status quo_ engage the guarantors to do what they can to maintain such _status quo_, treaties declaring the policy of the parties with regard to the maintenance of their territorial _status quo_ do not contain any legal engagements, but simply state the firm resolution of the parties to uphold the _status quo_. In contradistinction to real guarantee treaties, such treaties declaring the policy of the parties may fitly be called Pseudo-Guarantee Treaties, and although their political value is very great, they have scarcely any legal importance. For the parties do not bind themselves to pursue a policy for maintaining the _status quo_, they only declare their firm resolution to that end. Further, the parties do not engage themselves to uphold the _status quo_, but only to communicate with one another, in case the _status quo_ is threatened, with a view to agreeing upon such measures as they may consider advisable for the maintenance of the _status quo_. To this cla.s.s of pseudo-guarantee treaties belong:--

(1) The Declarations[948] exchanged on May 16, 1907, between France and Spain on the one hand, and, on the other hand, between Great Britain and Spain, concerning the territorial _status quo_ in the Mediterranean.

Each party declares that its general policy with regard to the Mediterranean is directed to the maintenance of the territorial _status quo_, and that it is therefore resolved to preserve intact its rights over its insular and maritime possessions within the Mediterranean. Each party declares, further, that, should circ.u.mstances arise which would tend to alter the existing territorial _status quo_, it will communicate with the other party in order to afford it the opportunity to concert, if desired, by mutual agreement the course of action which the two parties shall adopt in common.

[Footnote 948: See Martens, N.R.G. 2nd Ser. x.x.xV. p. 692, and 3rd Ser.

I. p. 3.]

(2) The Declarations[949] concerning the maintenance of the territorial _status quo_ in the North Sea, signed at Berlin on April 23, 1908, by Great Britain, Germany, Denmark, France, Holland, and Sweden, and concerning the maintenance of the territorial _status quo_ in the Baltic, signed at St. Petersburg, likewise on April 23, 1908, by Germany, Denmark, Russia, and Sweden. The parties declare their firm resolution to preserve intact the rights of all the parties over their continental and insular possessions within the region of the North Sea, and of the Baltic respectively. And the parties concerned further declare that, should the present territorial _status quo_ be threatened by any events whatever, they will enter into communication with one another with a view to agreeing upon such measures as they may consider advisable in the interest of the maintenance of the _status quo_.

[Footnote 949: See Martens, N.R.G. 3rd Ser. I. pp. 17 and 18.]

There is no doubt that the texts of the Declarations concerning the _status quo_ in the North Sea and the Baltic stipulate a stricter engagement of the respective parties than the texts of the Declarations concerning the _status quo_ in the Mediterranean, but neither[950] of them comprises a real legal guarantee.

[Footnote 950: Whereas Quabbe (p. 97, note 1), correctly denies the character of a real guarantee to the Declarations concerning the Mediterranean, he (p. 105) considers the Declarations concerning the North Sea and the Baltic real Guarantee Treaties.]

[Sidenote: Treaties of Protection.]