[Footnote 30:  Ibid., p. 34]

The only applicable portion of Article 12 says:  “The Portuguese Government engages to permit and to facilitate transit for all persons and goods of every description over the water-ways of the Zambezi, the Shire, the Pungwe, the Busi, the Limpopo, the Sabi and their tributaries; and also over the land ways which supply means of communication where these rivers are not navigable."[31]

[Footnote 31:  British and Foreign State Papers, Vol. 83, p. 36.]

The only other clause of the treaty which bears on the case is a portion of Article 14:  “In the interests of both Powers, Portugal agrees to grant absolute freedom of passage between the British sphere of influence and Pungwe Bay for all merchandise of every description and to give the necessary facilities for the improvement of the means of communication."[32]

[Footnote 32:  Ibid., pp. 39-40.  Italics our own.]

It is obvious that Article 14 could not apply to anything more warlike than “merchandise” being transported from Pungwe Bay, where Beira is situated, to the British sphere of influence.  It is admitted by Mr. Baty that Article 12 is inapplicable to any routes other than the water-ways specified and the land routes and portages auxiliary to them.  It is also admitted that the only other stipulation that might apply, Article II, “obviously applies to the territory far to the north, and concerns the question of access to British Central Africa."[33]

[Footnote 33:  International Law in South Africa, p. 76.]

Mr. Baty, however, contends that it was not a new right, that of passage through Portuguese territory, but was one created by this treaty.  Upon the supposition that if the right still existed in times of war it must have been by virtue of Article II, he says, “The question arises, ’Was it such a grant as could be valid in war time?’"[34]

[Footnote 34:  Ibid., p. 76.]

It should be remembered that Mr. Baty has concluded that Calvo asserts the possibility of a neutral, without violating its neutral obligations, allowing a belligerent to pass troops over neutral territory for the purpose of attacking a State which is on friendly terms with the Government granting the privilege.  Mr. Baty asserts that a real easement existed in favor of England if she might “force her way along” the routes stipulated in the treaty, “without going to war with Portugal,” But he says this interpretation is always “subject to the consideration, that the terms of the treaty do not seem to contemplate the use of the road as a military road at all,” a conclusion which would seem to settle the question, and deny that any shred of justification existed for the use to which neutral territory was put in time of war.  But Mr. Baty in the same breath says:  “There can be such a thing as a military road across neutral territory.  The German Empire has such a road across the canton of Schaffhausen, and there used to be one between Saxony and Poland.  But it seems very questionable whether the roads indicated by the treaty of 1891 were not simply commercial, and not for the purposes of war at all."[35] And this English writer reluctantly admits, “The treaty has, therefore, to be pressed very far to cover the grant of an overland passage for troops from Beira inland."[36]