Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
Pub. Date
1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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GUARANTEE

II.126.1

GUARANTEE, International. The necessity of securing to one's self the right of property in one's part of a common conquest or inheritance, and more recently the necessity of protecting small states against the ambition of large ones, has given birth to international guarantees. The European balance of power can continue only by means of these guarantees: for how could Belgium and Switzerland on one side, and the Roumanian principalities and Servia on the other, maintain their independence without efficient protection, the one against France or Germany, the other against Russia or the Ottoman porte? The system of alliances between the weak and the strong would often attain the same object, but in the system of alliances small nations contract compromising obligations, and may at a given moment find themselves dragged into a European war, and they would be subject to its chances; while with the system of guarantees, whether the guaranteed states remain neutral, or even independent, their safety may be absolutely assured, they may escape the alternatives of the rivalry of great European states and pass the most dangerous crises as simple spectators. In this respect international guarantees present a considerable advantage to weak states. Hence, international guarantees are an improvement and a progress in the formation of the European equilibrium, which is such a difficult and laborious work. For several centuries all politicians capable of extending their views beyond the egotistical interests of their own country to the general good of mankind, have endeavored to establish a system of states, constituted with sufficient strength and durability to prevent Europe from becoming the prey of one of those large nations which are struggling for primacy—an event with which it has been several times threatened. Can international guarantees obtain this object partially? We think so. We shall cite several examples of these guarantees in order to show what they are. It is known that the powers assembled at the congress of Vienna joined in a final act dated June 9, 1815, and that all signed the various stipulations, relative to the territorial redistribution of Europe, which had become the object of several separate treaties. This act sets forth in its articles 84 and 94 that the neutrality of Switzerland is recognized and guaranteed. In a subsequent special act, exchanged at Paris, Nov. 20, 1815, under the name of "Declaration between Austria, England, France, Prussia and Russia," the contracting powers declare, that they recognize formally and authentically the perpetual neutrality of Switzerland, and guarantee the integrity and inviolability of its territory. After the events which brought about the independence of Belgium, Holland made peace with the new state by the treaty of April 19, 1839, of which article seven declares that Belgium forms an independent and perpetually neutral state, and that it will be held to observe this same neutrality with reference to all other states. Now, the same day several acts were exchanged, one between the five great powers and Belgium, another between the five great powers and Holland, the third between the five great powers and Belgium, Holland and the Germanic confederation; and in these treaties the convention concluded separately between Belgium and Holland, and in which their neutrality is stipulated, is placed under the guarantee of the five great powers. In 1867, after Switzerland and Belgium, a third neutral state was constituted in Europe, the grand duchy of Luxemburg. The treaty concluded at London, May 11, 1867, between Holland, England, Belgium, Austria, France, Italy, Prussia and Russia, declares that the grand duchy is a neutral state in perpetuity, and that this neutrality is placed under the collective guarantee of all the contracting powers, except Belgium, which is itself a neutral state.

II.126.2

—The stipulations of the final act of Vienna which we have cited above, show clearly what difference there is between an international convention and an international guarantee. The convention does not oblige the contracting party, against which the treaty is violated, to take up arms in defense of the treaty; this is a right, but not a duty. Thus the possession of Lombardy by Austria was stipulated in the final act of Vienna by the eight signatory powers; and nevertheless Austria was deprived of Lombardy by the arms of France in 1859, and Austria did not think of claiming the aid of any of the signatory powers. It is altogether different with the guarantee: the guaranteeing power has, to begin with, the right of intervening, if the treaty is violated, just as if a simple convention were in question; but in addition it is obliged to take up arms in defense of the thing guaranteed; it is obliged to do this on the demand of the guaranteed state or the co-guaranteeing states, whether the treaty has been violated by one of these or some other power. Such is the essence of the guarantee, without which it would not differ from the convention. It obliges the guarantor to take up arms at the moment required. A recent example shows that the guarantee should be understood in this sense. In 1870, when the war broke out between Prussia and France, it was feared that the neutrality of Belgium would be violated by one of the belligerents. England, according to the treaty of 1839, was one of the five great powers guaranteeing this neutrality; without appealing to the accompanying guarantee of Austria and Russia, she stipulated by two separate treaties of August 11, 1870, on one side with France, and on the other with Prussia, for the execution of the guarantee of 1839, and, in case this guarantee should be violated by one of the belligerent powers, she engaged to co-operate with arms in favor of this neutrality with that one of the two adversaries who should wish to defend it against the one violating it. England interpreted her duties soundly in thus declaring her readiness to take up arms even against one of the co-guaranteeing powers.

II.126.3

—In the three examples of contemporary guarantees which we have just cited, the states guaranteed are neutral. This neutrality was constituted in the interest of peace and the equilibrium of Europe, in order to hinder the great neighboring states from disputing over the possession of these small territories. The effect of the guarantee was to cause the neutral state to be respected, which without this would have been powerless for self-defense; and, on the other hand, the guarantee is subordinated to the observance of neutrality by the neutral state itself. If this state violated its neutrality, it would lose the benefit of the guarantee; every duty on the part of the guaranteeing states would disappear with reference to it; but the duty of making the neutrality respected would remain to the guarantors with respect to each other. For example, if Belgium had allied herself to France in 1870, we believe that Prussia would have had the right to require England, Austria and Russia to cause the treaty of 1839 to be respected by France and Belgium. But there is little probability that a neutral state would abandon a position so advantageous to itself, and put the guaranteeing powers in movement by its own ambition. These run the danger of having to protect it either from the attacks of one of themselves, or those of another nation. The case is different when the guarantee applies to a state not tied by international law, and which preserves the fullness of its liberty. Turkey since 1856 is the subject of a guarantee of this nature. By article seven of the treaty of Paris of March 30, 1856, which put an end to the Crimean war, Austria, England. France, Prussia, Russia, and Sardinia which subsequently became Italy, engaged each on its own behalf to respect the independence and territorial integrity of the Ottoman empire; they guaranteed collectively the strict observance of this engagement, and declared that they would consequently consider every act hostile to this as a question of general interest. A separate treaty, concluded April 15, 1856, between England, Austria and France, confirmed with reference to these three states the obligations resulting from the preceding treaty. This treaty declared that the three signatory states guaranteed collectively the independence and integrity of the Ottoman empire consecrated by the treaty of March 30, and that every infraction of this treaty would be considered by these signatory states of the treaty of April 15 as a casus belli. The guarantee thus given to Turkey differs from those touching Switzerland, Belgium and the grand duchy of Luxemburg in this, that the situation which it undertakes to maintain may be imperiled, not only by an act of the co-guaranteeing powers or other states which might attack Turkey, but also by an act of Turkey itself, which, not being held to neutrality, may, by making war on another nation, lose its integrity and independence. What in the last case would be the duties of the guaranteeing powers? We believe that the guarantee could not be invoked by Turkey, which would have compromised its position by its own fault, but we believe that one of the guaranteeing powers, in whose interest the integrity of Turkey was stipulated, might either interfere individually or appeal to the co-guarantors to interfere collectively. Thus in our opinion the obligations of the guarantee are different when applied to neutral states, from what they are when applied to independent states.

II.126.4

—The same treaty of March 30, 1856, constituted a guarantee of a third kind in favor of the two Roumanian principalities and the principality of Servia with respect to Turkey. Article 22 states that the principalities of Wallachia and Moldavia shall continue to enjoy, under the suzerainty of the porte and the guarantee of the contracting powers, the privileges and immunities which they possess. No exclusive protection shall be exercised over them by one of the guaranteeing powers. There shall be no particular right of interference in their internal affairs. Article 28 states that the principality of Servia shall continue to depend on the porte in conformity with the imperial hatti which fixes and determines its rights and immunities, placed henceforth under the collective guarantee of the contracting powers. Thus they became two vassal states guaranteed against their suzerain in the possession of their rights; this is a special and definite guarantee; it is limited to the case in which the suzerain should attempt to abuse his superior power. It is given to the vassal against the suzerain; it does not extend to the case in which a stranger state should attack the vassal.

II.126.5

—It will be observed that in all the conventions which establish international guarantees, no term of duration is assigned to the guarantee. The obligation contracted is therefore perpetual, unless the contract is canceled according to the forms admitted by all other international contracts. We have a quite recent example of the modification of a treaty by the common consent of the contracting parties. The treaty of March 30, 1856, was revised by the treaty of London, March 13, 1871, in its provisions relative to the neutralization of the Black sea. In the same way the guarantees may come to an end by the consent of the co-guarantors; but is it right that in default of this common agreement a nation should remain bound forever by agreement full of danger to itself? We think not. Contracts of an international guarantee, like contracts of a similar nature concluded by private persons, should have only a limited duration. It is not right that either nations or individuals should find themselves so situated that they can not free themselves from an engagement which has become impossible, except they do so through a dishonest act, or by making an heroic sacrifice. The utility of international guarantees for the peace and repose of Europe is very great. They should not, therefore, be too risksome for the co-guarantors. The responsibilities which they impose may be very onerous as was shown by the double convention which England was obliged to conclude in 1870 to preserve the neutrality of Belgium. The danger revealed by this event aroused in England a general uneasiness with regard to various international guarantees in which it was involved, an uneasiness which had manifested itself as early as 1867 after the treaty relative to the grand duchy of Luxemburg. Lord Stanley, in the house of commons in 1867, calmed this feeling by the argument that each one of the guaranteeing powers, in a treaty which stipulates a collective guarantee, is not held individually, but only collectively with all the co-guaranteeing powers. At the same time the earl of Derby enunciated the same doctrine in the house of lords, and cited the treaty of March 30, 1856, as an example of the collective guarantee which obliges all together, and none separately, and the treaty of April 15, 1856, as an example of the individual guarantee which obliges each guarantor whatever the conduct of the co-guarantors. The question was again discussed in the house of lords, March 6, 1871, between Lord Malmesbury and Lord Granville, and April 12, 1872, in the house of commons, where Mr. Gladstone, in language very carefully worded, made an explanation from which it results that the engagements of international guarantees are not binding in an absolute manner on the contracting powers, and that their execution may be subordinated to circumstances. This doctrine is not admissible; it is as contrary to the text of the treaties as to morals, and there is no need of refuting it. But we find the distinction established by Lord Stanley and the earl of Derby partially correct, according to which England was not bound by the guarantees regarding the grand duchy of Luxemburg and Turkey except in so far as the co-guarantors decided to fulfill their obligations. This interpretation is too absolute, for if the co-operation of all the co-guarantors is necessary to render the obligation binding, the had faith of one of the parties may annul the whole guarantee. What may be admitted is this, that if the majority of the guaranteeing powers refuse to co-operate, the minority are freed from their obligations and retain merely the right of interfering if they think proper. The difference noted by the earl of Derby between the treaties of March 30, 1856, and April 15, 1856, is a real one; the first mentions a collective guarantee and the second a guarantee of all and each. The latter, according to the principles of private law, binds each power individually even if the others should not act. The interests of European peace require that international guarantees should be serious, and in order that they should be so we think their duration should be limited to a definite period, and treaties should explain more precisely the obligations they impose.

F. A. HÉLIE.

II.126.6

We wish to insist, above all, on the necessity of limiting the guarantee to a certain number of years. It is impossible to foresee events long in advance; it is imprudent, therefore, to bind one's self for an indefinite period. It is doubtless impossible to foresee circumstances even for a relatively short period, ten or twelve years, for example. But as in political and social life it is impossible to go so far as to refuse every engagement concerning the future, the risk is lessened by limiting the engagement to a fixed period. We can generally calculate with sufficient accuracy the probable chances for ten or twenty years; these are very short periods for a non-revolutionary nation.

II.126.7

—On the other hand, a serious and efficacious guarantee of ten or twenty years duration, (and not one in name, which is no guarantee at all), would generally suffice either to consolidate a new state (established and maintained by its own population), or to allow the danger to pass which comes of the claims or the selfishness of a man, or from passion of any kind. If, on the contrary, the object of the guarantee is to assure permanence to any state of things, what is there to hinder a periodical renewal of the treaty of guarantee? Consequently our advice is to guarantee rarely, to guarantee only for a definite period and in specific cases, and to guarantee only with serious intent.

MAURICE BLOCK.

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