Self-preservation for Viola V SELF-PRESERVATION Vattel, ii. §§ 49-53, 119-121-Hall, §§ 8, 83-86-Westlake, i. pp. 312-317Phillimore, i. §§ 210-220-Twiss, i. §§ 106-112-Halleck, i. pp. 119-124 -Taylor, $$ 401-409-Wheaton, §§ 61-62-Hershey, No. 132-Moore, ii. §§ 215-219-Hartmann, § 15-Heffter, § 30-Holtzendorff in Holtzendorff, ii. pp. 51-56-Gareis, § 25-Liszt, § 7-Ullmann, § 38-Heilborn, pp. 280-299-Bulmerincq, § 22-Bonfils, Nos. 242-252- Despagnet, Nos. 172-175—Mérignhac, i. pp. 239-245-Pradier-Fodéré, i. Nos. 211286-Rivier, i. § 20-Nys, ii. pp. 218-221-Calvo, i. §§ 208-209-Fiore, i. Nos. 452-466-Martens, i. § 73-Westlake, Papers, pp. 110-125Cavaretta, Lo Stato di Necessità nel Diritto internazionale (1910)– Cybichowski, Studien zum internationalen Recht (1912), pp. 21-71Visscher in R.G., xxiv. (1917), pp. 74-108. § 129. From the earliest time of the existence of an Excuse the Law of Nations self-preservation was considered tions. sufficient justification for many acts of a State which violate other States. Although, as a rule, all States have mutually to respect one another's personality, and are therefore bound not to violate one another, as an exception, certain violations of another State committed by a State for the purpose of self-preservation are not prohibited by the Law of Nations. Thus, selfpreservation is a factor of great importance for the position of the States within the Family of Nations, and most writers maintain that every State has a fundamental right of self-preservation.1 But nothing of the kind is actually the case, if the real facts of the law are taken into consideration. If every State really had a right of self-preservation, all the States would have the duty to admit, suffer, and endure every violation done to one another in self-preservation. But such duty does not exist. On the contrary, although self-preservation is in certain cases an excuse recognised by International This right was formerly frequently called Droit de Convenance, and was said to consist in the right of every State to act in favour of its interests in case of a conflict between its own and the interests of another State. See Heffter, § 26. 1 Law, no State is obliged patiently to submit to violations done to it by such other State as acts in self-preservation, but can repulse them. It is a fact that in certain cases violations committed in self-preservation are not prohibited by the Law of Nations. But, nevertheless, they remain violations, may therefore be repulsed, and indemnities 1 may be demanded for damage done. Self-preservation is consequently an excuse, because violations of other States are in certain exceptional cases not prohibited when they are committed for the purpose, and in the interest, of self-preservation, although they need not be patiently suffered and endured by the States concerned. Acts of are § 130. It is frequently maintained that every viola- What tion is excused so long as it was caused by the motive Self-preof self-preservation; but it becomes more and more servation recognised that violations of other States in the in- Excused. terest of self-preservation are excused in cases of necessity only. Only such acts of violence in the interest of self-preservation are excused as are necessary in self-defence, because otherwise the acting State would have to suffer, or have to continue to suffer, a violation against itself. If an imminent violation, or the continuation of an already commenced violation, can be prevented and redressed otherwise than by a violation of another State on the part of the endangered State, this latter violation is not necessary, and therefore not excused and justified.2 When, to give an example, a State is informed that on neighbouring territory a body of armed men is being organised for the purpose of a raid into its territory, and when the danger can be removed through an appeal to the authorities of 1 See below, § 154 n. Mr. Webster, the American Secretary of State, defined the necessity which would be an excuse as a necessity of self-defence which See the neighbouring country, no case of necessity has arisen. But if such an appeal is fruitless or not possible, or if there is danger in delay, a case of necessity arises, and the threatened State is justified in invading the neighbouring country and disarming the intending raiders. And I believe that the term self-defence must not here be understood in its narrower sense, meaning defence against an act of individuals only, but also in its wider sense meaning the aversion of a disaster caused or threatened by the work of nature. For instance, if a river flowing successively through the territories of two States is provided with a lock in the lower State, and if, through a sudden rise of the upper part of the river, the territory of the upper State be dangerously flooded, and if there be not sufficient time to approach the local authorities, it would be an excusable act on the part of the upper State to send some of its own officials into the lower State to open the lock. The reason of the thing, of course, makes it necessary for every State to judge for itself whether a case of necessity in self-defence has arisen. On the one hand, therefore, it is impossible to lay down a hard and fast rule regarding the question when a State may or may not have recourse to self-help which violates another State, and on the other hand, the door is open to abuse. Everything depends upon the circumstances and conditions of the special case, and it is therefore of value to give some historical examples.1 § 131. After the Peace of Tilsit of 1807, the British Government 2 was cognisant of a secret article of this treaty, according to which Denmark should, under 1 See Cybichowski, op. cit., pp. 46-56, where a number of examples are discussed which are not mentioned here. 2 I follow Hall's (§ 85) summary of the facts. See also Alison, His tory of Europe, etc., ed. 1849, viii. pp. 246-267; Holland Rose, Napoleonic Studies (1904), pp. 133152; and the same writer's paper in the Transactions of the Royal His torical Society, New Ser. xx. (1906), pp. 61-77. the (1807). certain circumstances, be coerced into declaring war Case of against Great Britain, and France should be enabled Danish to seize the Danish fleet so as to make use of it against Fleet Great Britain. This plan, when carried out, would have endangered the position of Great Britain, which was then waging war against France. As Denmark was not capable of defending herself against an attack of the French army in North Germany under Bernadotte and Davoust, who had orders to invade Denmark, the British Government requested Denmark to deliver up her fleet to the custody of Great Britain, and promised to restore it after the war. And at the same time the means of defence against French invasion and a guaranty of her whole possessions were offered to Denmark by England. Denmark, however, refused to comply with the British demands; whereupon the British considered a case of necessity in self-defence had arisen, shelled Copenhagen, and seized the Danish fleet.1 § 132. Another example is supplied by the case of Case of Amelia Island. Amelia Island, at the mouth of St. Island Mary's River, and at that time in Spanish territory, (1817). was seized in 1817 by a band of buccaneers, under the direction of an adventurer named M'Gregor, who in the name of the insurgent colonies of Buenos Ayres and Venezuela preyed indiscriminately on the commerce of Spain and of the United States. The Spanish Government not being able or willing to drive them off, and the nuisance being one which required immediate action, President Monroe called his Cabinet together in October 1817, and directed that a vessel of war should proceed to the island and expel the marauders, destroying their works and vessels.' 2 The action of England in this case, while condemned by most Continental writers, is approved of by many British and American publicists. See, however, Reddie, Re searches, ii. pp. 37-41, who dis- 2 See Wharton, i. § 50a, and Amelia Case of (1837). § 133. In 1837, during the Canadian rebellion, several Caroline hundreds of insurgents got hold of Navy Island on the Canadian side of the River Niagara and chartered a vessel, the Caroline, to carry supplies from the port of Schlosser, on the American side of the river, to Navy Island, and from there to the insurgents on the mainland of Canada. The Canadian Government, informed of the imminent danger, on December 29, 1837, sent across the Niagara, to the port of Schlosser, a British force which obtained possession of the Caroline, seized her arms, set her on fire, and then sent her adrift down the falls of Niagara. During the attack on the Caroline two Americans were killed and several others were wounded. The United States complained of this British violation of her territorial supremacy, but Great Britain asserted that her act was necessary in selfpreservation, since there was not sufficient time to prevent the imminent invasion of her territory through application to the United States Government. The latter admitted that the act of Great Britain would have been justified if there had really been necessity in selfdefence, but denied that, in fact, such necessity existed at the time. Nevertheless, since Great Britain had apologised for the violation of American territorial supremacy, the United States Government did not insist upon further reparation.1 § 133a. Although, in October 1915, the United States had recognised General Carranza's Government as the 1 See Wharton, i. § 50c, Moore, ii. § 217, and Hall, § 84. With the case of The Caroline is connected the case of M'Leod, which will be discussed below, § 446. Hall, § 86, Martens, i. § 73, and others quote also the case of The Virginius (1873) as an example of necessity of selfpreservation, but it seems that the Spanish Government did not plead self-preservation but piracy as justification for the capture of the vessel (see Moore, ii. § 309, pp. 895903). That a vessel sailing under another State's flag can nevertheless be seized on the high seas in case she is sailing to a port of the capturing State for the purpose of an invasion or bringing material help to insurgents, there is no doubt. No better case of necessity of self-preservation could be given, since the danger is imminent and can be frus trated only by capture of the vessel. |