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MISCELLANEOUS. No. 17 (1917).
,00RRESPONDENCE
RESPECTING
THE TRANSIT TRAFFIC ACROSS HOLLAND
OF MATERIALS SUSCEPTIBLE
OF EMPLOYMENT As MILITARY SUPPLIES.
Presented to both Houses of Parliament by Command of His Majesty.
- November 1917.
L ON DO N :
PUBLISHED BY HIS MAJESTY'S STATIONERY OFFICE.
To be purchased through any Bookseller or directly from
H.M. STATIONERY OFFICE at the following addresses:
IMPERIAL Hous E, KINGSWAY, LONDON, W.C. 2, and 28, ABINGDON STREET, LONDON, S.W. 1;
37, PETER STREET, MANCHESTER; 1, ST. ANDREW’s CRESCENT, CARDIFF;
23, FORTH STREET, EDINBURGH ;
or from E. PONSONBY, LTD., 116, GRAFTON STREET, DUBLIN.
1917.
º, [Cd. 8693.] Price 2d. met.
TABLE OF CONTENTs.

Name.
Date.
SUBJECT.
Page
3
Memorandum communicated
#by Netherlands Minister
Mr. Balfour to M. Van Swin-
deren -
Sir W. Townley ...
(Telegraphic
*
M. van Swinderen to Mr.
Balfour
Mr. Balfour to M. van Swin-
deren -
55 35
Oct.
26,
30,
. Nov. 6,
9, 1917
The Netherlands Government are bound by the
Rhine Convention on the one hand and tile
Fifth Hague Convention on the other. Thus
(a) only goods which have no connection with
military operations are allowed to pass through
|
the Netherlands from Belgium to Germany,
nor is passage allowed to requisitioned goods.
Certain melted copper, which was clearly non-
requisitioned, has, however, been allowed to
pass. (b) The amount of gravel, &c., allowed
to pass through the Netherlands from Germany
to Belgium has been restricted to the quantity
which seems to the Netherlands Government,
as the result of the investigation conducted in
Belgium by two Netherlands Engineer officers,
to be necessary for non-military purposes—
370,000 tons to be allowed through between
15th September and 15th November, in order to
arrive before the waterways freeze. The
Netherlands Government consider that in per-
mitting transit to the above extent they have
acted in full conformity with their duties as a
neutral and with their Conventional obliga-
tions. They are therefore painfully surprised
at the British Government's intention to dis-
continue all facilities for Dutch cables until
the transit traffic entirely ceases
Transmits reply of His Majesty’s Government to +
No. 1
Netherlands Minister for Foreign Affairs says
that M. van Swinderen's statement in No: 1,
that copper was being allowed to pass, was
made under a misapprehension, and that, in
fact, none has been allowed to go through
since his note of 10th June... • * * *
Gives certain references in answer to request
contained in No. 2 for information as to the
stipulations of the Rhine Conventions
Transmits a further memorandum to meet request
of Netherlands Government for evidence that
sand transited across Holland has in fact been
used for warlike purposes on arrival in
Belgium. Also a sworn declaration on the
subject ...
As to the arguments based by the Netherlands
Government on the treaties and regulations
referred to in No. 4 tº a º tº 9 º'
ANNEXES.
No. 1–Article VIII of the Treaty of Vienna of March 1815.
No. 2.-Preamble to the Rhine Convention of 31st March, 1831.
No. 3.-Article IX, sections 1 and 5, of the Treaty of London of 19th April, 1889.
No. 4.—Preamble and Article II of the Rhine Convention of 1868.
Correspondence respecting the Transit Traffic across Holland
of Materials susceptible of Employment as Military
Supplies. - &
No. 1.
Memorandum communicated by Netherlands Minister, October 9, 1917.
(a.) Transit of metals from Belgium to Germany through the Netherlands.
(b.) Transit of gravel, &c., from Germany to Belgium through the Netherlands.
THE Netherlands Government are bound from one side by the Rhine Convention,
which guarantees a free passage for all merchandise up and down the Rhine, and
from the other side by the Fifth Hague Convention, which does not allow the transit
of convoys either of munitions or provisions over their territory. g
The Netherlands Government had to reconcile these two in some respect
conflicting obligations. -
Ad (a.) In view of the above-mentioned difficulty they limited the obligatory
free passage from Belgium through [sic] Germany to goods which had no connection with
the military operations in Belgium. No requisitioned metals were, for that reason,
allowed to pass through Netherlands territory. The metal, however, which is
obtained in Belgium by melting ore imported for that purpose from Germany could
evidently not be considered as requisitioned metal, and the Netherlands Government
deem themselves therefore bound to allow its transit. When the Netherlands
Minister of Foreign Affairs wrote on the 10th June to Sir Walter Townley that the
transit of all metals would in future be forbidden on account of the great difficulty to
decide whether any metal was requisitioned or not, it did not occur to him that there
might in fact exist any kind of metal of which the non-requisitioning would be so
evident as in the case of the above-mentioned melted copper; as soon as this
eventually came to his knowledge, however, he immediately informed the British
Legation that this copper of course could not be prevented from passing through to
Germany. -
The Minister of Foreign Affairs begs to express his sincere hope that what in
fact was nothing but a comprehensible Omission on his part will not be considered by
the British Government as pointing to a tendency not to observe given assurances.
Two cargoes of this copper-metal have passed the Netherlands already, but it is
to be expected that others may follow. The Netherlands Government feel confident
that the British Government will admit the impossibility in which the Netherlands
Government is placed by the Rhine Convention to forbid the free transit of these
foods. -
8 Ad (b.) The Netherlands Government have given themselves all possible trouble
to inform themselves as fully and accurately as possible as to the destination of the
sand and gravel which is sent from Germany to Belgium, in Order to be able to
strictly limit these consignments to non-military purposes. Two Netherlands officers
of the Royal Military Engineer Corps were sent to Belgium to investigate the matter
on the spot, and their report was communicated to the British Legation on the
23rd October, 1916. The report was, in the eyes of the Netherlands Government,
conclusive as to the fact that the quantity of gravel, &c., which had passed through
the Netherlands from Germany to Belgium had in fact been used entirely for the
construction of non-military works, such as article 43 of the Fourth Hague Convention
obliges the belligerent to execute in an occupied territory. In order, however, to
make themselves still more sure in this respect, the same two Netherlands officers
were sent again to Belgium in the course of last summer. From their investigations
on the spot the Netherlands Government drew the conclusion that, the roads being
now all repaired, a further amelioration of them could serve military purposes only,
and they therefore decided to allow the further transport through the Netherlands no
ſign 3.3579 | - B 2
*...* C#
2
farther than on a very restricted scale, limiting it to the quantity apparently
necessary for the ordinary keeping up of the roads in the beginning of 1918. As
these cargoes had to arrive on the place of their destination before the waters may
be frozen, it was decided that a quantity of 370,000 tons would be allowed to pass
through, in two equal portions, between the 15th September and the 15th November.
The Netherlands Government have the intimate conviction that by allowing the
above transports within the limits indicated, they have acted in the fullest conformity
with their duties as a neutral and their conventional obligations. They have, therefore,
been most painfully surprised that in answer to their note of the 14th September, in
which they explained to the British Minister at The Hague the justification of their
attitude, Sir Walter Townley informed the Minister of Foreign Affairs on the
20th September that, unless an assurance would be given that the transit of gravel, &c.,
as well as of metals would cease, the British Government intended to discontinue any
facilities for the transmission of Dutch cable messages. In Government circles this
menace has not failed to make a most painful impression. The Netherlands Govern-
ment are convinced that in view of the Rhine Act they cannot take a line of action
different from the one pursued by them now. The terms of that convention oblige.
them to allow the transit of all merchandise of which they cannot state with certitude
that they are included in article 2 of the Fifth Hague Convention. They, therefore,
have great difficulty to believe that, for the sole reason that the attitude of the
Netherlands Government—though in itself fully correct – is contrary to the interests
of the British nation, the British Government would have recourse to a measure which
not only lacks all connection with the transit of metals or gravel but which would
assume the character of reprisals and against which the Netherlands are powerless.
Such a measure could hardly be considered otherwise than as an abuse of power of a
belligerent nation towards a neutral country which continually observes in the most
scrupulous way its duty of neutrality towards all belligerents, without regard to the
difficulties which it thereby creates for itself. The Netherlands Government have
never hesitated to render with impartiality to all belligerents any service congruent
with their neutrality, of which their offer to the British and German Governments to
give hospitality to several thousands of their prisoners of war is the most recent
example.
London, October 9, 1917.
No. 2. •
Mr. Balfour to M. van Swinderen.
Sir, - Foreign Office, October 23, 1917.
WITH reference to the difference which has arisen between our two Governments
relative to the passage into Belgium through Holland of materials susceptible of use
for the construction of concrete defences on the German front in Flanders and for other
warlike purposes, and to the passage across Holland in transit from Belgium to
Germany of metals and other materials intended for employment in the German
munition factories, I have the honour to send you herewith a memorandum in reply to
the legal arguments contained in your communication to this Department of the
9th instant.
I have, &c.
A. J. BALFOUR.
Enclosure in No. 2.
Memorandum containing the Reply of His Majesty's Government to Memorandum of the
Netherlands Minister of October 9, 1917.
IN a memorandum” dated 9th October, the Netherlands Minister was good enough
to formulate the arguments which he had used on behalf of his Government to justify
the transit across Netherlands territory of metals from Belgium to Germany, and of
sand and gravel from Germany to Belgium.
* See No. 1.
3
2. The memorandum separates the transit of metals from the transit of the sand
and gravel, and advances different contentions with regard to each. In the Opinion of
His Majesty's Government, there is no fundamental distinction between the two, and to
attempt to differentiate between them merely confuses the issue by the introduction of
minor and irrelevant considerations. In each case His Majesty's Government contend
that the Netherlands Government are allowing the German Government to make
use for military purposes of Dutch territory in a way contrary to the established
principles of international law and of public right. The German Government have
been and are being allowed to transport supplies required in connection with their
military operations from their own territory to territory in German occupation, and
vice versd, across the territory of a State taking no part in the war. The intention
and the result is materially to relieve the strain upon the railways and waterways of
the belligerent country essential to its military operations. That is the broad pro-
position for which His Majesty's Government contend, and they are unable to find in
the arguments contained in M. van Swinderen's memorandum any justification for
the direct assistance to their enemies which is in this way being rendered by the .
Netherlands Government. -
3. ln respect of the transit of metals from Belgium to Germany, the memorandum
maintains that when the Netherlands Minister for Foreign Affairs wrote to Sir W.
Townley on the 10th June that the transit of all metals would in future be stopped,
he forgot that there might be some metals which it was obvious had not been
requisitioned and as to which there was consequently no reason for prohibiting the
traffic. The memorandum states that the Netherlands Government, being bound on
one side by the Rhine Convention and on the other by the Land War Neutrality
Convention, were obliged to reconcile these two conflicting obligations, and had done
so by prohibiting the transit of requisitioned goods.
4. His Majesty's Government regard this reasoning as unsound. The obligation
incumbent upon a neutral State is not merely to prohibit the passage of requisitioned
goods: it is founded upon the general principle that a neutral State must not
allow any use of its territory to be made by a belligerent for military operations—
the transit of belligerent convoys of munitions or provisions would be such a use, and
therefore their transit is prohibited by the convention mentioned above. What is
taking place in this case, even upon the facts as stated in the memorandum,
amounts to a use of neutral territory for such transit purposes, and thereby
constitutes a breach of the obligation incumbent upon a neutral State. If
Germany finds it necessary, for her own purposes, to send commodities containing
copper to Belgium to be smelted in order to extract the metal, and then to return the
metal from Belgium to her own territory for use in her munition factories, the carriage
of these supplies backwards and forwards, if permitted vià neutral territory, affords
relief to the direct military transport system between Belgium and Germany
and constitutes the use by Germany of Netherlands territory for military purposes.
For the Netherlands Government to permit this, is to fail in the observance of their
duties as a neutral.
5. The distinction between article 2 and article 7 of the Land War Neutrality
Convention is quite simple. The former article is aimed at the use of neutral territory
by a belligerent Government and comes into play whenever the belligerent State is
itself concerned with both the despatch and the receipt of the troops, stores, or supplies
forwarded. Article 7 deals with the transport of goods which have been acquired by a
belligerent State as the result of commercial transactions with private persons in foreign
countries. Such transactions primarily do not concern the neutral Government.
Measures which it thinks it desirable to impose for the purpose of preventing such
dealings by its nationals, or of preventing the export of such commodities from its
territory, or their passage across it, are taken not in order to carry out the obligations
of neutrality, but in the interest of the neutral nation itself.
6. The memorandum states that the transit of the metals is guaranteed by the
Rhine Conventions. A search of the provisions of the treaties as to the Rhine
navigation has been made by the appropriate Department of His Majesty's Government,
but no stipulation has been found which has any bearing on the question. These
treaties deal with the right of passage for goods up and down the Rhine between the
riverain States and the Sea. No stipulation has been found which obliges the
Netherlands Government to permit the passage of goods over the Dutch waterways
which were not on their way to or from the sea. His Majesty's Government would
therefore be grateful if the Netherlands Minister would indicate with greater precision
to what provision in these treaties he refers. In any case, His Majesty's Government
fe
4
would not be prepared to admit that the detailed arrangements which have been entered
into in order to carry out the principles as to freedom of commerce on rivers, laid down
by the Congress of Vienna, could be interpreted to justify, still less to compel, violations.
of the obligations of neutrality. -
7. With regard to the sand and gravel, M. van Swinderen's memorandum argues
that the Netherlands Government are bound under the Rhine Conventions to permit
the passage of all merchandise which cannot be stated with certainty to fall within
article 2 of the Land War Neutrality Convention, and that they have done their best to
limit the consignments which have been allowed to pass to those destined for
non-military purposes. From what has been stated above, the Netherlands Govern-
ment will realise that the view held by His Majesty's Government is that no sand and
gravel should be allowed to pass—not merely that the quantity should be limited to a
certain amount. This sand and gravel is sent from Germany to Belgium by the
German Government for its own purposes. It is immaterial whether those purposes are
alleged to be civil or alleged to be military. Germany is in occupation of Belgium
merely in pursuit of military objects, and there can be no purpose to which the sand
and gravel SO despatched vià the Dutch waterways can be put which does not constitute
a use of those waterways for the forwarding by the enemy of supplies which are
required in connection with the war. The suggestion that the sand, &c., is used for
purposes within the purview of article 43 of the Land War Regulations is beside the
point. Those regulations apply only to a power in military occupation of territory,
and supplies required in Order to carry out the obligations of a military occupant are
supplies required for military purposes. Even if these supplies, therefore, were sent
to Belgium viá Holland solely for the purpose of carrying out the obligation incumbent
upon the Occupant of Belgium under article 43 of the Land War Regulations, and
were limited in quantity to the amount required for that purpose, the fact would afford
no answer in law to the Netherlands Government. - |
8. The theory that the transit of these goods through Holland is justified on the
above grounds cannot indeed be maintained even upon the facts alleged by the
Netherlands Government. The sand and gravel which has been allowed to pass is far
in excess of anything which is required for civilian purposes in Belgium. There is
also the local output to be taken into account. Belgian quarries can themselves easily
produce all that is required for non-military purposes in the country; there can,
therefore, be no need to supplement those supplies by importations from Germany.
In this connection it may be observed that, since it is understood that the Belgian
quarries are being worked by prisoners of war, the output is doubtless being used for
civilian purposes. Were it not so, there would be a breach of article 6 of the Land
War Iłegulations, since it would be a case of employing the labour of prisoners of
war on work connected with military operations. Ample supplies of sand and gravel
for the civilian purposes of Belgium are secured from her own resources, and it follows
that any more sent in from outside must be employed for military works. His Majesty's
Government feel no doubt but that the Netherlands Government are allowing use to be
made of Dutch territory by the Germans for the purpose of forwarding to Belgium in
enormous quantities supplies which have an intimate connection with the military
defences of the German forces on the Western front; and they certainly are not disposed
to acquiesce in any arguments to the effect that the Netherlands Government are
bound to allow this traffic either under the Rhine Conventions or under any principle of
international law or public right. On the contrary, they maintain that the Netherlands
Government are bound to put an end forthwith to this transit traffic of the sand and
gravel equally with that of the metals.
Foreign Office, October 23, 1917.
No. 3.
Sir W. Townley to Mr. Balfour.—(Received October 26.)
(Telegraphic.) The Hague, October 25, 1917.
IN a written communication the Netherlands Minister for Foreign Affairs informs
me that no copper of any kind has passed through Holland from Belgium to Germany
since his note of the 10th June, and that M. van Swinderen acted under a misappre-
hension in stating the contrary in the communication which he made to His Majesty's
5
Government on the 9th October.” Yesterday, in the course of conversation, his
Excellency said that the Netherlands Minister must have confused copper with the
lead on the “Ristelhübers” which has formed the subject of correspondence in the
past.
* See NO. 1.
No. 4.
M. van Swinderen to Mr. Balfour.—(Received October 27.) O
Légation des Pays-Bas, Londres,
- le 26 Octobre, 1917.
M. le Secrétaire d'État,
DANS le paragraphe 6 du mémorandum
que votre Excellence a bien woulu me faire
parvenir par sa note du 23 courant* elle
me prie de l'informer plus précisément sur
les stipulations de la Convention du Rhin
qui imposeraient au Gouvernement néer-
landais l'obligation de garantir la libre
navigation sur les fleuves et canaux autres
que le Rhin proprement dit.
Pour satisfaire à cette demande, je me
permets de fixer son attention Sur l'article 2
de la Convention du Rhin (17 Octobre,
1868), qui garantit la liberté de navigation
sur les eaux intermédiaires entre le Rhin
et la Belgique. En outre, j’ai l’honneur
de me référer a l'article 9, paragraphes 1
et 5 du Traité de Londres du 19 avril,
1839, entre la Belgique et les Pays-Bas,
ainsi qu’à l'article 7 du réglement parti-
culier relatif a la navigation de l’Escaut
contenu dans annexe 16 de l’Acte du
Congrès de Viênne.
Veuillez agréer, &c.
R. DE MAREES WAN SWINDEREN.
(Translation.)
Netherlands Legation, London,
Sir, October 26, 1917.
IN paragraph 6 of the memorandum
which your Excellency was good enough
to send me in your note of the 23rd
instant* you request me to give you more
precise information concerning the stipula-
tions of the Rhine Convention which
impose on the Netherlands Government
the obligation to guarantee the free navi-
gation of rivers and canals other than
the Rhine itself.
To satisfy this request, I venture to
draw your attention to article 2 of the
Rhine Convention (of the 17th October,
1868), which guarantees free navigation
on the waters lying between the Rhine
and Belgium. In addition, I have the
honour to refer to paragraphs 1 and 5 of
article 9 of the Treaty of London of the
19th April, 1839, between Belgium and
the Netherlands, and also to article 7 of .
the special regulations respecting the
navigation of the Scheldt contained in
annex 16 to the Act of the Congress of
Vienna.
Please accept, &c. -
R. DE MAREES WAN SWINDEREN.
* See No. 2.
.*-ar-smºsºs in ºf sº
No. 5.
Mr. Balfour to M. van Swinderen.
Foreign Office, October 30, 1917.
IN continuation of the memorandum respecting the transit traffic across Holland
enclosed in my note of the 23rd instant,” I have the honour to send you herewith, for
communication to your Government, a further memorandum on the subject, the purpose
of which, as you will observe, is to meet the request of the Netherlands Government for
evidence that sand and gravel transited across Holland has, in fact, been used for
warlike purposes on arrival in Belgium. -
2. His Majesty's Government learn from His Majesty's Minister at The Hague that
the Netherlands Government are anxious to publish at an early date the correspondence
between our two Governments respecting this question. His Majesty's Government
welcome such intention, and trust that the papers to be published by the Netherlands
Government will cover, without Omission of any material document, the whole period
of the controversy, dating back to November 1915. -
Sir,
* See No. 2.
6
3. His Majesty's Government intend on their part to lay the complete correspon.
dence before Parliament as soon as the necessary arrangements can be made. But as
these arrangements will entail a certain delay, they propose, as a preliminary step,
immediately to publish the more recent correspondence, including your memorandum
of the 9th instant, and the further exchange of communications between us which has
since taken place. -
* I have, &c.
A. J. BALFour.
Enclosure 1 in No. 5.
Memorandum.
1. THE memorandum enclosed in Mr. Balfour's note of the 23rd instant* dealt with
the legal contentions put forward by the Netherlands Government in connection with
the controversy about the transit of sand and gravel through Holland. It did not,
however, deal at any length with the contention advanced by the Netherlands Govern-
ment in M. van Swinderen's memorandum of the 9th October, to the effect the
Netherlands Government did not deny that if the sand and gravel was intended to be
used by the Germans for military purposes its transit should not be allowed, but that
the Netherlands Government were not aware of any proof of such intended use, and
asked to be furnished with it.
2. His Majesty's Government, as already explained, cannot admit that the actual
method of using the sand and gravel is under the circumstances decisive as to the
legitimacy of permitting its transit ; they, nevertheless, think it right to explain to
the Netherlands Government the reasons which have induced them to come to the
conclusion that beyond all reasonable doubt the sand and gravel transited across
Holland is, in fact, used by the Germans for direct military objects, such as the
construction of concrete defences in their entrenched lines.
3. In support of this view they desire in the first place to call attention to the actual
quantities transited, in relation to the estimated needs of Belgium for civilian purposes.
The Netherlands Government are aware that this matter has been under discussion
between the two Governments for a considerable period. As early as November 1915
His Majesty's Government addressed to the Netherlands Government remonstrances on
the subject, and in consequence of these remonstrances on the 11th July, 1916, the
Netherlands Minister for Foreign Affairs informed the British representative at
The Hague that the Netherlands Government had provisionally decided to restrict the
transit of gravel to the amount of 75,000 tons per month or 900,000 tons a year, on the
ground, presumably, that that was all that could be required for Belgian pacific
purposes. Shortly afterwards, however, in consequence of representations by a
German expert, the Netherlands Government altered their decision, and agreed to
permit a transit of no less than 420,000 tons a month in the two months of August and
September 1916, being at the rate of 5,000,000 tons in the year, or six times what the
Netherlands Government had themselves thought necessary. His Majesty's Government
were seriously dissatisfied with this decision, and in consequence of further
remonstrances on their part two Dutch officers were directed to proceed to Belgium to
enquire what, in their opinion, was reasonably necessary for Belgian civilian needs.
His Majesty's Government do not attach great importance to the report of these
officers. It appears that they were not allowed to visit the so-called “Etappen-Gebiet,”
or military Zone, so that they could form no opinion, and, as is understood, did not
attempt to form any opinion whether sand and gravel transited across Dutch water-
ways was in fact used for works of fortification.
4. It appears from their report that large quantities of sand and gravel were required
for the remaking and maintenance of roadways, the double-ballasting and maintenance
in repair of railways and the strengthening and upkeep of river and canal embank-
ments and maritime and riverside quays. But all these works serve the communications
of an army. Is it reasonable then to suppose that they are reconstructed and kept in
repair by the Germans, not because of the military purposes which they serve, but because
the Belgian population, following their normal peace-time Occupations, require to make
use of them 2 Is there the slightest evidence that the Germans have ever considered
the interests of the Belgian civilian population ? Is it not notorious that deliberately
and as part of their settled policy they have destroyed the industrial and economic
* See No. 2. f See No 1.
7
resources of Belgium because the Belgians would not consent to use those resources
for German benefit 2 Is it not then clear that if road surfaces in Belgium have been
transformed from one type to another, and important railway embankments strengthened
doubly beyond what was found necessary in peace-time, all this has been done in order
to improve the lines of communication of the German army and that roads, railways,
&c., in Belgium are kept in repair simply in order that they may carry the military
traffic which requires to pass over them.
5. The Netherlands Government state that they sent their officers a second time to
Belgium this summer, and from their investigation arrived at the conclusion that all
roads had been repaired, and they have informed the British Government that a
quantity of 1,650,000 tons annually was all that should be transited to Satisfy the
civilian needs of Belgium. A French expert, M. Tur, making calculations on the basis
of the civilian works existing in Belgium before the war, and assuming a peace-time
rate of wear and tear, estimated that 1,345,000 tons represented the non-military
requirements of Belgium. It is right to observe that these estimates are in all
probability greatly excessive for the actual civilian use of roads and other non-military
works, which might reasonably be supposed to require sand and gravel for their
up-keep, since civilian life in Belgium is practically, at a standstill, and there is, in
consequence, no civilian use of the roads or anything else. Nevertheless, for the
purpose of the contention now being put forward, His Majesty's Government are
content to assume, contrary to their own opinion, that the figures adopted by the
Netherlands Government, namely 1,650,000 tons, are correct. It is admitted that far
more than that, namely some 2,300,000 tons of sand and gravel have already been
transited across Holland during this year, and it seems, therefore, abundantly clear
that a considerable proportion of the sand and gravel so transited—amounting to some
600,000 or 700,000 tons—has been used for non-civilian purposes. -
6. Nor does the case stop there. There are quarries in Belgium which in peace time
produce upwards of 5,000,000 tons of these materials. It is understood that these
quarries are now being worked for the Germans by Russian prisoners of war. Possibly
their output is considerably less than it would be in peace time, though according to
the information in the possession of His Majesty's Government they are being
vigorously and efficientiy worked. Even allowing for a very largely diminished
output it is perfectly plain that sand and gravel more than sufficient to cover the
assumed civilian needs of Belgium can be and, in all human probability, is being
obtained from these quarries. It is suggested that the output of these quarries is
being used for military purposes, but His Majesty's Government are surprised at such
a suggestion, and cannot accept it. The quarries are being worked by prisoners of
war, and by article 6 of the Hague Land War Regulations it is illegal to use prisoners
of war for military work. His Majesty's Government cannot believe that the Nether-
lands Government would contend without proof that the output of the quarries was in
fact being used for military purposes, or that they would suggest that if it was being
so used they were justified in supplying sand and gravel for the civilian purposes of
Belgium, so as to enable the Germans to commit this breach of international law.
Moreover, the British Government have caused an analysis to be made of concrete
actually used in German military works on the Flanders front recently captured by
the British, and they find that it is composed of material which comes unquestionably
from German quarries and not from Belgium. This strongly supports the presumption
that the output of the Belgian quarries is being used for what are called Belgian civilian
purposes, and that, since that output is more than sufficient for the purposes in
question, any sand and gravel transited across Holland from Germany into Belgium
must be used for other than civilian, that is for military, purposes. *
7. In support of this view the Netherlands Government are reminded that it is
clear from the history of the controversy that they themselves have felt great doubts
as to the use of the sand and gravel transited across Holland. When the matter was
first raised in 1915–16 they thought it right to ask the German Government to be
furnished with certificates as to the employment of the sand and gravel, and the
German Government readily furnished them with “scraps of paper ‘’ certifying that
the sand and gravel was required for civilian purposes only. The Netherlands Govern-
ment came to realise that it would not be right to attach very great importance to
these certificates, and it was in spite of them that they decided in the summer of 1916
to restrict the transit of sand and gravel to 75,000 tons a month, as already mentioned.
It is true that the Netherlands Government subsequently altered their minds on the point,
and after much hesitation and obvious misgivings decided to continue to accept these
certificates. Even so they were not satisfied, because early in July of the present year
[1121] - C
8
they announced to the German Government that they had arrived at the conclusion that
sufficient sand and gravel had been transited for the whole of Belgian pacific needs,
and that they were resolved no more should go after the 15th August. This decision
Was communicated to the British Government in July, and it was therefore with no
little amazement they heard a little later that the Netherlands Government had
decided to allow transit of an additional 300,000 or 400,000 tons of sand and gravel
up to the 15th November, upon the ground that some such quantity would be
legitimately sent in the early months of next year, and that at that time there might
be a frost which would prevent the use of Dutch waterways. It seems only necessary
to point out that if there was a frost in the early months of next year, it would be
clearly impossible to utilise the sand and gravel for concrete or road work, or indeed
for any other purposes, and that, even if by some accident of the weather such use
became possible, there could be no real objection to deferring for a month or two the
works which would otherwise have been done in those months. |
8. His Majesty's Government cannot resist the conclusion that the reason the German
Government demanded the transit of the 300,000 or 400,000 tons before November
was because they wanted it for immediate use for military purposes, and much to their
regret they find it difficult to believe that the Dutch Government was not perfectly
well aware that such was the purpose of the German Government. *.
9. Finally, the attention of the Netherlands Government is called to the annexed
copy" of a sworn affidavit from a Belgian who recently escaped, which states in precise
and definite terms that some, at any rate, of the sand and gravel transited across
Holland is taken up across the Belgian waterways to convenient places, from which it
is used for the construction of military fortifications by the Germans. |
10. His Majesty's Government have no wish to embitter the controversy which has
arisen between them and the Netherlands Government on this subject. On the
contrary, they are exceedingly anxious, as they always have been, to live on the most
friendly terms with their Dutch neighbours, and to return as soon as possible to
normal relations with them in all respects. They venture therefore very earnestly to
press upon the Netherlands Government that the proofs which they have hereinbefore
enumerated of the military use of the sand and gravel transited across Holland are in
the aggregate overwhelming. It is perfectly true that the sand and gravel was not
openly consigned to the military zone in Belgium, or declared to be intended to be
used for military purposes by the Germans. It is true that it cannot be shown what
was done with any particular barge-load of sand or gravel, nor can the actual military
work constructed with it be pointed out—that is obviously impossible. But, short of
that, the proof required by the Netherlands Government could scarcely be clearer or
more cogent. - - - -
11. In the first place, there is the fact that since the German occupation there has
been little or no pacific use of Belgian roads, railways, and quays. Then there are the
quantities of sand and gravel transited into Belgium, vastly in excess of any possible
civilian requirements. Then there is the proof that such civilian requirements, if they
exist, could be and almost certainly have been supplied from sources in Belgium
itself. Next there is the certain knowledge that the German demands for these supplies
for direct military objects, such as fortifications, is enormous, and there is the evidence
that the concrete used for such fortifications is derived from material which comes
from Germany—comes, that is, from the source from which the transited gravel comes,
and not from the Belgian quarries. And, finally, there is the direct sworn evidence
that certain loads of sand and gravel which had been transited were in fact used for
military objects. - 2.
12. It is difficult to imagine what more any enquirer, really anxious to get at the
truth, could ask to be convinced that the sand and gravel transited through Holland
is being used for the purpose of directly assisting the military operations of one of the
belligerents. -
Foreign Office, October 30, 1917.
* See Enclosure 2 in No. 4.
9
Enclosure 2 in No. 5.
In the Matter of “The Statutory Declarations Act, 1835,” and in the Matter o f the
Transit of Sand and Gravel across Holland.
I, ......................................................... of .......................................
follows:—
1. I am a Belgian subject, and escaped from ............ on the .....................
1917. *&
I am well acquainted with, the conditions prevailing in Belgium, and especially
Antwerp, up to the time,of my departure. Being out of employment, I had exceptionally
good opportunities of seeing what was taking place in connection with the trafficiof
gravel and sand, and I am able, therefore, to state the facts which I mention as the
result of my own observation and knowledge. -
2. No sand or gravel is obtainable in Belgium which is suitable for making
COncrete. -
3. In sheds Nos. 2, 3, 4, and 5 at South Antwerp the Germans are working night
and day making concrete blocks about 1 metre long and 60 centim. high and broad,
having slots and protuberances that fit one into the other. Similar work is being
carried out at Bürcht and at one of the Hoboken factories. t -
4. There were at the time of my departure from Antwerp about 3,000,000 tons of
gravel and sand stacked at Antwerp at the Kattendijk and New Docks.
5. Lighters of about 1,200 tons are constantly employed in bringing Sand, gravel,
stone, timber, and cement from Germany through Holland to Antwerp and Ghent.
These cargoes are discharged on to the quays, and then reloaded into small lighters,
the crews of which are Belgian and French, and they and the Owners of the vessels
are forced to work by the Germans under pain of punishment. When these lighters
arrive in the military Zone the crews are put ashore and housed in armed cement
dug-outs. These lighters are of about 250–270 tons burden, and about 1,500 are in
constant use. In addition to the lighters, 280 tugs of about 25 tons each are constantly
engaged in the traffic. g
6. Large amounts of dressed timber cut into measured lengths go through in
lighters, which are loaded also with sand and pontoons.
And I make this solemn declaration conscientiously believing the same to be true
and by virtue of “The Statutory Declarations Act, 1835.”
(Signed) ................................................
Declared at the Admiralty, in the County of London, this 30th day of October
1917, before me : -
ARTHUR F. B. WELCH,
- Commissioner for Oaths.
No. 6.
Mr. Balfour to M. van Swinderen.
Sir, Foreign Office, November 6, 1917.
YOUR note of the 26th October” referred me to the particular provisions in the
Rhine Conventions which, in the opinion of the Netherlands Government, oblige them
to permit the passage through the Dutch waterways of the sand and gravel which is
forwarded by the German authorities to Belgium. These provisions are article 2 of
the Rhine Convention of the 17th October, 1868; paragraphs 1 and 5 of article 9 of
the Treaty of London of the 19th April, 1839, between Belgium and the Netherlands;
and article 7 of the Regulations relating to the Navigation of the Scheldt annexed to
the Proceedings of the Congress of Vienna. *
2. Since the receipt of your note the stipulations in question have been subjected
to careful examination in this Department, but the result has not been in any way to
modify the views expressed in my memorandum of the 23rd October.f
* See No. 4. f See Enclosure in No. 2.; ;
[1121] . . . D
10
3. The Rhine Convention of the 7th October, 1868, was a treaty between France,
Baden, Bavaria, Hesse, the Netherlands, and Prussia, entered into for the purpose of
revising the earlier treaty of the 31st March, 1831, between the same parties (including
Nassau). Such revision was necessary because the earlier treaty had undergone
numerous modifications, and had ceased in part to harmonise with the existing
conditions of the Rhine navigation. Both the treaties were intended to assure to the
riverain States of the Rhine that freedom of navigation of rivers passing through
several States on which the Congress of Vienna had determined, and to protect them
against the levying of taxation or the imposition of restrictions by particular States
through whose territory the commerce of the others must pass. The more immediate
objects which each treaty was destined to achieve are indicated by their preambles
and by the general nature of their contents.
4. Article 2 of the convention of 1868 does, it is true, make mention of boats and
rafts passing from the Rhine to Belgium, but if the article is read as a whole its
purpose is clear. There were various channels which might be used for the purpose
of passing from the Rhine to Belgium, and these channels were in Holland; boats of
other riverain States coming from the Rhine were to be allowed to choose whichever
they pleased, so that if one channel should become impracticable for navigation, any
other channel which was open to Dutch boats should also be open to them ; in short,
the purpose of the article was to prevent the Netherlands Government discriminating
in favour of Dutch boats. The provision does not extend the general scope of this
convention or carry it beyond the general object of the decisions come to at the
Congress of Vienna. The stipulation relates Only to commerce in its ordinary sense—
the passage of goods which are the subject of mercantile transactions. It can have
no bearing on the measures which a State may be bound to take, or may be justified in
taking, in defence of its neutrality. - |
5. Paragraphs 1 and 5 of article 9 of the Treaty of London of 1839 are the next
provisions to which you refer. It is not usual to regard the treaty of the 19th April,
1839, between Holland and Belgium as included among the Rhine Conventions. The
object of the treaty was to secure the recognition by Holland of the independence and
permanent neutrality of Belgium : as part of the arrangement, the freedom of
navigation stipulated for by the Congress of Vienna was to apply to the waterways
separating the two countries or traversing them both (section 1), and the commerce of
the two countries was to benefit by the channels between the Scheldt and the Rhine
being free and subject only to moderate tolls (section 5). |
6. Article 7 of the Regulations of 1815 relating to the navigation of the Scheldt
does not appear to affect the question. It merely stipulates that any further arrange-
ments which it may be necessary to make as to the navigation of the Scheldt shall be
as favourable as possible to commerce and navigation, and shall be analogous to the
regulations established on the Rhine. If the treaty provisions which are at present in
force relating to the freedom of the navigation of the Scheldt are regarded by the
Netherlands Government as preventing in any way the enforcement of their obligations
as a neutral State, His Majesty's Government do not understand on what ground the
Netherlands Government claimed to prevent the departure from Antwerp of the German
ships which had been captured at that place by the Belgian forces. |
7. The detailed examination which I have made above will suffice to demonstrate
that His Majesty's Government cannot admit that the provisions of the Rhine Convention
of 1868, or that the other treaty stipulations to which reference has been made, can
afford any justification to the Netherlands Government for failing to enforce their
obligations as a neutral State and to put a stop to the use of the Dutch waterways by
the German Government for forwarding their supplies of commodities such as Sand
and gravel for Belgium.
I have, &c.
A. J. BALFOUR.
11
ANNEXES.
Eºmºsºmsº-sºme mºs
No. 1.
VIENNA CONGRESS TREATY, MARCH 1815.
Annex XVI.
Regulations for the Free Navigation of Rivers.
Articles concerning the Navigation of the Necker, the Mayne, the Moselle, the Meuse,
- - and the Scheldt.
ARTICLE VII.
Future Regulation of the Navigation of the Scheldt.
EVERYTHING relating to the navigation of the Scheldt, which may need
ulterior arrangement, besides the freedom of navigation on this river, specified in
article I, shall be definitively regulated in a manner the most favourable to commerce
and navigation, and the most analogous to the regulations established on the Rhine.
No. 2.
CoNVENTION BETWEEN THE RIVERAIN STATES OF THE RHINE ; AND REGULATIONS
FOR THE NAVIGATION OF THAT RIVER, SIGNED AT MAYENCE, MARCH 31, 1831.
Preamble.
The completion of the definitive regulation for the navigation of the Rhine, in
accordance with the stipulations of the Act of the Congress of Vienna, having
experienced difficulties arising out of the manner in which the riverain Governments
interpreted the general principles of that Act to the vessels coming from Germany
and crossing the Netherlands in a direct line to the open sea and vice versá ;
considering that His Majesty the King of the Netherlands has maintained that his
rights of sovereignty extended without any restriction whatever over the sea bathing
his States, even where it mixes with the waters of the Rhine, and that, in accordance
with the conferences previous to the Act of the Congress of Vienna, the Leck Only
was to be considered as the continuation of that river in the Netherlands; whilst
His Majesty the King of Prussia, His Majesty the King of Bavaria, and His Royal
Highness the Grand Duke of Hesse have maintained that the Act of the Congress of
Vienna had placed certain restrictions on the exercise of those rights in so far as they
might apply to vessels passing from the Rhine into the sea, and vice versö; and that
under the denomination of the Rhine the said Act included the whole course, also the
branches, and all the mouths of that river in the Netherlands, without any distinction
—views in which His Majesty the King of the French and His Royal Highness the
Grand Duke of Baden now equally concur; the riverain States have thought proper to
leave intact all questions mooted on the general principles of the Act of the Congress
of Vienna bearing upon the navigation of the Rhine, as well as the inferences which
might be drawn therefrom, and to concert measures and regulations which the
navigation of the Rhine can no longer dispense with, on the basis of joint proposals
reciprocally made and accepted, under the express reservation, nevertheless, that such
understanding shall in no wise be prejudicial to the rights and principles maintained
on either side.
12
ACT of ACCESSION ON THE PART OF THE GERMANIC CoNFEDERATION Tô THE TERRITORIAL
ARRANGEMENTS CONCERNING THE GRAND DUCHY OF LUXEMBURG, LAID DOWN IN.
THE TREATY OF APRIL 19, 1839. LONDON, APRIL 19, 1839. |
- -
ARTICLE IX. - -
§ 1. The provisions of Articles CVIII to CXVII, inclusive, of the General Act of
the Congress of Vienna, relative to the free navigation of navigable rivers, shall be
applied to those navigable rivers which separate the Belgian and the Dutch territories,
or which traverse them both. - & -
$5. It is also agreed that the navigation of the intermediate channels between
the Scheldt and the Rhine, in order to proceed from Antwerp to the Rhine, and
vice versá, shall continue reciprocally free, and that it shall be subject only to
moderate tolls, which shall be the same for the commerce of the two countries.
|
|
No. 4. - * |
*
CONVENTION BETWEEN FRANCE, GRAND DUCHY OF BADEN, BAVARIA, GRAND DUCHY OF
HESSE, NETHERLANDS, AND PRUSSIA, RELATIVE TO THE NAVIGATION OF THE RHINE.
SIGNED AT MANNHEIM, OCTOBER 17, 1868. * -
|
|
|
Preamble.
The convention relative to the navigation of the Rhine concluded on the
31st March, 1831, between the riverain Governments, having since then under-
gone numerous modifications, and a part of the stipulations contained therein being
no longer in harmony with the actual conditions of the navigation, His Majesty the
Emperor of the French, His Royal Highness the Grand Duke of Baden, His Majesty
the King of Bavaria, His Royal Highness the Grand Duke of Hesse, His Majesty the
Eing of the Netherlands, and His Majesty the King of Prussia have resolved, by
common consent, to revise that Convention, maintaining, nevertheless, the principle of
the free navigation of the Rhine in matters of commerce, and have, to that effect,
appointed Commissioners Plenipotentiary, namely:-
ARTICLE II.
Wessels affected to the navigation of the Rhine, and rafts or floats of timber
coming from the Rhine, shall have the right to choose whichever route they wish in
traversing the Netherlands on their way from the Rhine to the open sea or to Belgium,
and vice versä. If one of the navigable channels connecting the open sea and the
Rhine vià Dordrecht, Rotterdam, Hellevoetsluis, and Brielle becomes impracticable
for navigation from natural causes or by reason of mechanical works, the navigable
channel which is appointed for the use of Netherlands vessels in place of the obstructed
channel shall be equally open for navigation by the other riverain States. Any
vessel having the right to carry the flag of one of the riverain States and able to
prove that right by a document issued by the competent authority shall be considered
as affected to the navigation of the Rhine.
Printed under the authority of His Majesty's Stationery Office
By HARRISON AND SONS,
PRINTERS IN ORDINARY TO HIS MAJESTY,
ST. MARTIN'S LANE, LONDON, W.C.
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