" "In such a case," Calvo
concludes, "the fulfilment of the legal obligation cannot be regarded as
an assistance afforded to that belligerent and a violation of the duties
of neutrality."[21]
[Footnote 21: Baty, Int. Law in South Africa, p. 73, quoting Calvo. But
Calvo calls attention to the fact that this is his own "exception to the
general rule," in support of which he cites no authorities and only one
precedent--that of the passage of foreign troops across the Canton of
Schaffhausen in 1867 by virtue of a prior treaty between Switzerland and
the Grand Duchy of Baden. Obviously no general conclusion can be drawn
from the conduct of a neutralized state, such as Switzerland. The
general rule, not the exception, is sought in determining international
rights. Droit international, 3d Ed., III, Sec.2347.]
Basing his argument largely upon this authority, Mr. Baty asserts that
Calvo approves the granting of passage where this privilege has been
secured by previous treaty. But the following statement which he cites
from Calvo, taken in connection with the rule given above, would appear
to deny this conclusion: "During war neutrals may oppose, even by force,
all attempts that a belligerent may make to use their territory, and
may, in particular, refuse one of the belligerents a passage for its
armies to attack the enemy; _so much the more so, inasmuch as the
neutral who should allow a passage of the troops of one belligerent
would be false to its character and would give the other just cause of
war.
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