CAB38-17 — Page 206

Page 206

10

Minute by Mr. Crowe.

Mr. Parker has gone very thoroughly into the historical facts which are essential for a proper understanding of the controversy.

It seems to me quite clear that the Netherlands Government are fully entitled to erect what fortifications they like at Flushing. In case of war, Holland has the same right as any other independent State, to defend her territory by such defences on the coast and elsewhere, as she may think necessary.

The free navigation of the Scheldt, as stipulated for in the treaty of Vienna, is the navigation by peaceful merchant vessels. The treaty does not deal at all with the question of the use of the river by men-of-war whether during peace or in times of war, whether by belligerents or by neutrals. The question therefore whether or not Holland would have the right, at a time when she herself is neutral, to bar access to Antwerp to a British (or French) naval force dispatched for the purpose of defending Belgian neutrality against a foreign (i.e., German) invader, is one which must be settled by reference not to the treaty stipulations respecting the free navigation of the Scheldt (by merchantmen in time of peace) but to the general principles of international law.

In ordinary circumstances not only neutral, but even belli- gerent war-ships are allowed to pass freely through the “maritime belt" of territorial waters of neutral States, but I fancy this is allowed as of comity, not as of right, except as regards such portion of the maritime belt as "forms part of the highways for international traffic (Oppenheim, vol. i, p. 312). This rule certainly applies to the narrow waters connecting two distinct sea- basins, such as the Sound, between North Sea and Baltic. But the estuaries of rivers, even of "international rivers" like the Scheldt, do not fall within that category.

It is perhaps open to argument, whether Holland, when at peace, would be entitled to forbid the access to the Scheldt to foreign belligerent war-ships on the way to Antwerp, so long as no act of belligerency were committed within Dutch territorial waters. It might be pleaded that Holland, by merely allowing such passage, would not lay herself open to the charge of a violation of neutrality. But the belligerent against whom Antwerp was, in the hypothesis, to be defended, might take a different view. He might urge that a Power through whose territory runs the lower course of a river giving access to another country, would not be fulfilling the obligations of a neutral if it allowed a belligerent fleet to pass up the river into the territory of other riparian States; and I think it would be difficult to contest the correctness of this view as a general proposition.

There remains the question whether the peculiar situation of Belgium, as a neutralized State under the guarantee of five Great Powers (a guarantee solemnly recognized by Holland) affects the problem. I think it does.

It seems to me that if the neutrality of Belgium were violated by the invasion of a German army, and Belgium appealed to the

Page 206

Page 206

Page 206