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have not diminished in importance nor have their vigor or usefulness been materially impaired. The war which existed at the date of their promulgation was strictly internal in character; and, although the belligerency of the states in rebellion had been recognized by the Federal government, the character of the contest, in many of its aspects, differed materially from an external war, in which the belligerent parties were independent states.
The war policy of the United States toward the insurrectionary forces was, in the main, in accordance with the laws of war, as those laws were then accepted and understood. Its enemies, however, were
. its own citizens, who, for the time, denied its sovereign authority, and refused obedience to its laws. Its right to suppress the rebellion, and its right to choose its method of doing so, were alike beyond dispute. In the exercise of this right it was at perfect liberty to choose any policy between the methods provided by its municipal laws, on the one hand, and those provided by the law of nations on the other.
As a matter of fact it chose a war policy lying between the extremes above indicated. General operations in the field were carried on in accordance with the laws of war. In its treatment of the property of individuals in rebellion, in its views of occupation and of occupied territory, and in its policy toward the residents of such occupied territory, it pursued a course which it deemed best suited to the task upon which it was then engaged—the suppression of a rebellion against its authority. They will, therefore, continue to have value as a rule of conduct in internal wars in which it is attempted by a portion of the population of a state to throw off their allegiance to the parent government.
Subsequent codes are characterized by a certain vagueness and want of positiveness of statement which is calculated to seriously impair their usefulness when it is attempted to apply them to the practical operations of warfare on land. They are also objectionable in vesting too broad a discretion in the generals who exercise chief command
a of occupying armies. Colonel Birkhimer, in his Military Government and Martial Law, says, with very great truth:
The Instructions were adopted in the midst of a great war, the result of which none could foresee. Before being adopted they were examined by a board of eminent military officers who not only understood what the laws of war were theoretically, but from experience in the field knew their applicability and how they were to be carried into execution. Moreover, they were adopted under grave official responsibility, the officers who sanctioned having to use them during the continuance of the war as their rule of conduct in dealing with the enemy. Examination will evince that they bear the deep impress of this official responsibility. The justness of this statement is not impaired by the fact that the Instructions were adopted precisely as submitted to the board; this circumstance only furnishes additional evidence of the thoroughness with which they had been prepared. While they attempt to put into official shape the humanity of the land, they do not deprive a belligerent of all fair and reasonable means of successfully carrying on war. His hands are not tied by theories regarding the right of the other party belligerent, or of the inhabitants of territory militarily occupied. Yet throughout it is inculcated that the law of war imposes many restrictions on the modes formerly adopted to injure the enemy, based on principles of justice, faith, and honor. It may be confidently affirmed that the Instructions form a convenient and useful code of the essential laws of war on land; and, imbued as they are with the milder precepts of modern warfare, they may be expected successfully to withstand the mutations of time until at least the present moral sense of man has taken a long step in advance. The prediction is here ventured that they will continue to be the rule of hostile nations when criminations and recriminations are being indulged because of infractions to these later codes. To attempt by such agreements unreasonably to restrain the actions of a belligerent regarding coercive measures to be used against the enemy is only to invite their utter disregard when nations join in deadly strife.
On the other hand, the Brussels code, and also that agreed upon in 1880 by the Institut de droit International, which has been published to the world as the best modern thought on this subject, has the disadvantage of being adopted in times of peace, when the minds of men in dealing with military affairs turn rather to the ideal than the practical. It is not meant by this to disparage the learning, ability, and zeal of those who digested these codes. In this they stood preëminent before the world, and some were soldiers of great experience. The proceedings of these learned bodies show, however, that the propositions of each state were in greater or less degree generally rejected by the others as inadmissible, and the final result, particularly in the Brussels conference, was a compromise between conflicting interests. They may be expected to share the fate of compromises, generally, which are without a binding sanction-be broken at the convenience of the parties. The great powers at once divided upon the Brussels code. And here it may be observed that these powers alone are of real importance when an international code is to be adopted; if they do not make, they unmake them; yet in all conventions and conferences having in view the adoption of such codes, the smaller states are conspicuous by the part they take in their deliberations and published conclusions.
GEORGE B. Davis.
THE CALVO AND DRAGO DOCTRINES
Among the subjects scheduled for discussion at the third Pan-American conference, which met at Rio de Janeiro during July and August, 1906, was a resolution that the second peace conference at the Hague be requested to consider whether and, if at all, to what extent, the use of force for the collection of public debts is admissible.
There seems to have been some objection to the resolution in this form on the ground that such action would arouse the distrust of European capitalists and thus affect unfavorably the credit of Central and South American countries.
But a resolution was finally agreed upon on August 22, and unanimously adopted, which provided that the conference recommend to the governments represented that they consider the advisability of inviting the second peace conference at the Hague to examine the question of the compulsory collection of public debts, and, in general, the best means tending to diminish among nations conflicts of purely pecuniary origin.?
It will be seen that the resolution in its final form, while in nowise binding upon the governments represented at the conference, recommends a consideration not only of the narrower Drago Doctrine, which merely forbids the forcible collection of public debts, but that it points to the broader Calvo Doctrine3 which absolutely condemns diplomatic as well as armed intervention as legitimate methods of enforcing any or all private claims of a purely pecuniary nature, at least such as are based upon contract or are the result of civil war, insurrection or mob violence.
* L. S. Rowe in the Independent for October 5, 1906. Dr. Rowe adds: “This feeling was strengthened by the fact that, prior to the meeting of the conference, the European press had exploited to the utmost the dangers incident to the enunciation of any such doctrine."
? From President Roosevelt's recent message to Congress of December 4, 1906.
3 Of course there is no express or implied endorsement the Calvo Doctrine contained in the above resolution. But in view of political and economic conditions and the teachings of publicists coupled with those of experience, there can be little question as to the state of public opinion on this subject in Latin America.
* Calvo does not distinguish between armed and diplomatic or pacific intervention except as a matter of form. He condemns the latter as well as the former. See Le Droit International (5th ed.), i, $110, p. 267.
In his discussion of the important and complicated subject of intervention in the first volume of Le Droit International, Calvo claims that European nations have followed a different rule or principle of intervention in their dealings with American states from that which has governed their relations with each other. He points out that during the greater part of the nineteenth century at least, intervention in Europe always rested upon some important principle of internal politics, such as the balance of power, or upon some great moral or religious interest favorable to the development of civilization; while in the new world the interventions of European states have rested upon no legitimate principles, being based upon mere force and a failure to recognize the complete freedom and independence of American states. This, he explains, is due to the traditions of the colonial system.
Aside from political motives these interventions have nearly always had as apparent pretexts, injuries to private interests, claims and demands for pecuniary indemnities in behalf of subjects or even foreigners, the protection of whom was for the most part in nowise justified in strict law. *** According to strict international right, the recovery of debts and the pursuit of private claims does not justify de plano the armed intervention of governments, and, since European states invariably follow this rule in their reciprocal relations, there is no reason why they should not also impose it upon themselves in their relations with nations in the new world.
In that portion of his work, entitled Mutual Duties of States, Calvo denies categorically that a government is responsible for any losses or injuries sustained by foreigners in time of internal troubles or civil
To admit in such cases the responsibility of governments, i. e., the principle of indemnity, would be to create an exorbitant and fatal privilege essentially favorable to powerful states and injurious to weaker nations, and to establish an unjustifiable inequality between nationals and foreigners.
ST. i, liv, iii. See especially $$185–206.
In sanctioning such a doctrine one would, he says, be guilty of a deep, although indirect, attack upon one of the fundamental elements of the independence of nations, viz: that of territorial jurisdiction. He adds:
Herein lies, in effect, the real significance of this frequent recourse (on the part of European governments] to the diplomatic channel for settling disputes which by their nature and surrounding circumstances belong to the exclusive domain of the ordinary courts. 8
After citing a number of opinions of statesmen and examples drawn from the general practice of nations, Calvo restates his doctrine and presents the following conclusions:
1 The principle of indemnity and diplomatic intervention in behalf of foreigners for injuries suffered in cases of civil war has not been admitted by any nation of Europe and America.
2 The governments of powerful nations which exercise or impose this pretended right against states, relatively weak, commit an abuse of power and force which nothing can justify and which is as contrary to their own legislation as to international practice and political expediency.10
In his discussion of the Aigues Mortes affair in the sixth volume of his work, Calvo also denies that a government, "in the absence of all fault on its part,” is legally liable for injuries to foreigners which result from mob violence on the grounds that a state is not responsible for acts of mere individuals and that aliens can not claim a more extended protection than is granted to its nationals.
On December 29, 1902, Señor Luis M. Drago, minister of foreign affairs for the Argentine Republic, sent a note to Señor Mérou, the Argentine minister at Washington, which attracted widespread attention in Europe as well as in the United States. In this note, which
8 Op. cit., 91280, p. 142. A few pages above ($1278, p. 140), Calvo speaks of the frequent attempts to impose upon American states the rule that "foreigners merit more consideration, and regards and privileges more marked and extended, than those accorded even to the nationals of the country where they reside.” Elsewhere (t. vi, $256, p. 231), he observes: “It is certain that foreigners who establish themselves in a country have the same protection as nationals, but they can not lay claim to a protection more extended. If they suffer any wrong they ought to expect the government of the country to pursue the delinquents, but they should not claim from the state to which the authors of the violence belong any indemnity whatever.”
• Ibid., $$1281-1296.