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The policy of the United Statesse in dealing with claims based on contracts was thus stated by Secretary Fish in 1871:
Our long-settled policy and practice has been to decline the formal intervention of the government except in cases of wrong and in jury to person and property such as the common law denominates torts and regards as inflicted by force, and not the result of voluntary engagements or contracts.
In cases founded upon contract, the practice of this government is to confine itself to allowing its minister to exert his friendly good offices in commending the claim to the equitable consideration of the debtor without committing his own government to any ulterior proceedings."
In 1881, Secretary Blaine laid it down as "a rule of universal acceptance and practice” that a person voluntarily entering into a contract with the government of a foreign country or with the subjects or citizens of such foreign powers, for any grievance he may have or losses he may suffer resulting from such contract, is remitted to the laws of the country with whose government or citizens the contract is entered into for redress.“
The representatives of the United States at the third Pan-American conference, which met at Rio de Janeiro during the months of July and August, 1906, were given the following instructions:
It has long been the established policy of the United States not to use its armed forces for the collection of ordinary contract debts due to its citizens by other governments. We have not considered the use of force for such a purpose consistent with that respect for the independent sovereignty of other members of the family of nations, which is the most important principle of international law and chief protection of weak nations against the oppression of the strong. It seems to us that the practice is injurious in its general effect upon the relations of nations and upon the welfare of weak and disordered states, whose development ought not be encouraged in the interests of civilization; that it offers frequent temptation to bullying and oppression and to unnecessary and unjustifiable warfare. We regret that other powers, whose opinions and sense of justice we esteem highly, have at times taken a different view and have permitted themselves, though we believe with reluctance, to collect such debts by force. It is doubtless true that the non-payment of public debts may be accompanied by such circumstances of fraud and wrongdoing or violation of treaties as to justify the use of force. This government would be glad to see an international consideration of the subject which shall discriminate between such cases and the simple nonperformance of a contract with a private person, and a resolution in favor of reliance upon peaceful means in cases of the latter class.
* For the opinions of American statesmen on this head, see Moore's and Wharton's Digest, 98916, 918, 995–998; and $8231-232, respectively.
40 Moore's Digest, vi, $995, p. 710. cf. Wharton, ii, $231, p. 656.
4? Wharton's Digest, ii, pp. 658–659. But exceptions have been made in cases where diplomacy furnished the only means of redress, as in case of non-performance of a government contract, or arbitrary confiscation of vested rights, or of annulment of charters or concessions. For examples, see Moore's Digest, vi, $8918, 996 and 997 and Wharton, ii, $232. “International commissions have frequently allowed claims based on the infraction of rights derived from contracts where the denial of justice was properly established,” Moore, p. 718.
It is not felt, however, that the conference at Rio should undertake to make such a discrimination or to resolve upon such a rule. Most of the American countries are still debtor nations, while the countries of Europe are the creditors. If the Rio conference, therefore, were to take such action it would have the appearance of a meeting of debtors resolving how their creditors should act, and this would not inspire respect. The true course is indicated by the terms of the program,
which propose to request the second Hague conference, where both creditor and debtors will be assembled, to consider the subject.“
It will thus be seen that whereas Great Britain has, generally speaking, refrained from diplomatic intervention in such cases purely from motives of policy or expediency, the United States appears to have been restrained, to a certain extent at least, by principle and by a regard for what it believed to be the law of nations.
When we turn to international practice, which is, generally speaking, the basis of international law, we find, it is true, a considerable number of instances not merely of pacific or diplomatic interposition, but of actual armed intervention on financial grounds, as e. g., in Mexico Egypt, Portugal, Nicaragua, Venezuela, and in Turkey. But a closer scrutiny and reflection will not fail to convince us that these cases are altogether exceptional and only serve to prove that the ordinary everyday rule is that of non-intervention.
It is obvious that the question of the forcible collection of all claims of a pecuniary nature (we are not speaking of diplomatic intervention or interposition) must be decided in accordance with the principles governing the intervention of one state in the internal affairs of another.
The subject of intervention is one of great difficulty and complexity. This arises from the fact that there exists nowhere else within the wide range of international relations such an apparent conflict between politi
12 From President Roosevelt's recent message to Congress of December 4, 1906. cal theory or fundamental principles on the one hand and actual international practice on the other. The whole modern or Grotian system of international law rests upon the doctrine of the absolute legal equality and complete independence of fully sovereign states. This presupposes full liberty of action on the part of each sovereign within his own sphere or jurisdiction and non-interference in the external or internal affairs of other sovereigns. The rule or doctrine of non-intervention is therefore a necessary corollary of the doctrine or principle of the complete equality and independence of sovereign states and is a fundamental principle of international law.
But international law is supposed to rest upon international practice as well as upon fundamental principles, and when we turn to examine the actual practice of sovereign states, and especially that of the great powers during the nineteenth century, we find numerous examples of armed intervention on all sorts of grounds and pretexts. Intervention on grounds of morality or humanity, e. g., to put an end to great crimes and slaughter or to various forms of cruelty and oppression (as in the case of religious persecution), to prevent the extermination of a race or a needless diffusion of blood, to assure the triumph of right and justice, etc.; intervention on grounds of policy or interest, e.g., to secure the balance of power or maintenance of political equilibrium in Europe, to enforce protection of the persons and property of citizens or subjects of the intervening state, to prevent the spread of political heresy or revolution, to advance the interests of civilization, etc.; interventions on so-called legal grounds, for the sake of self-preservation, to prevent or terminate the unjustifiable or illegal intervention of another state, to enforce treaties of guarantee or fundamental principles of international law: these are some of the grounds or pretexts which have been advocated as sufficient causes for armed intervention in particular cases.
Authorities on international law have always differed widely in their opinions as to what constitute legal or justifiable grounds for intervention or whether, indeed, there exists any such right at all. The only approach to unanimity is in respect to the right of self-preservation which is, properly speaking, not a law at all in the ordinary sense of that term as applied to positive rules and regulations, but is a fundamental right or principle which underlies and takes precedence of all systems of positive law and custom, and from whose operation neither nations nor individuals could escape if they would.
The present tendency among publicists is certainly toward the acceptance of the principle of non-intervention as the correct and normal or every-day rule of international law and practice ;43 but to admit intervention as a legitimate exercise of sovereign power in extreme or exceptional cases on high moral or political rather than on purely legal grounds, as for instance in case of great crimes against humanity (Greece, Armenia, and Cuba) or where essential and permanent national or international interests of far-reaching importance are at stake (Ottoman Empire, Mexico, or Panama).
Like war,“ intervention is not, strictly speaking, a right in the ordinary legal sense of that term, although, like war, it is a source of legal rights and duties. Like war it is an exercise of sovereign or high political power, a right inherent in sovereignty itself. “The government which intervenes performs a political act.”45 "It is a high and summary procedure which may sometimes snatch a remedy beyond the reach of law;":48 but which is either “above and beyond the domain of law;"'47 and a justifiable exception to the ordinary, everyday rule of non-intervention, or an act based upon the mere consciousness of physical force. Inasmuch as a sovereign who chooses to exercise this supreme assertion of political power cannot as a rule be restrained except by the counter use of force, it may become necessary for another or other interested sovereigns to exercise a similar political power and intervene against such unjust or injurious act of intervention.
43 Among modern authorities on international law, who either deny the right of intervention or accept the principle of non-intervention with or without exceptions, the following may be cited: Bonfils (Fauchille) $8295–324: Heffter (Geffcken), $944-46; Woolsey, $43; Wilson and Tucker, $41: Walker, Science, pp. 112, 151; De Floecker, De l'Intervention (1896), ch. 2, $3; F. de Martens, Traité, i, 876, pp. 394 ff.; Liszt, 87, pp. 60 ff., Despagnet, Cours, pp. 188 ff.; Funck-Brentano et Sorel, Précis, pp. 212–216; P. Fodéré, Traité, $355; Rivier, Principes, i, pp. 390 ff.; Nys, Le Droit Int. (1905), ii, pp. 182–193, especially p. 191; Merignac, Traité (1905), i, pp. 284 ff. Calvo is not among the champions of non-intervention. Several of the authorities above cited like P. Fodéré and Funck-Brentano et Sorel deny the legal character or validity of the principle of non-intervention as well as that of intervention. The view of the majority seems to be that the correct rule of international law is nonintervention, but that intervention is either legally or morally permissible in extreme and exceptional cases.
"It differs from war in that a mere threat to use force is sufficient to constitute an intervention. In case of resistance, it almost inevitably leads to war.
45 Funck-Brentano et Sorel, Précis, pp. 212-216. For a brief exposition of this view, which is believed to be that of the most advanced publicists in Europe, see an article by Professor Georg Jellinek in 35 Am. Law Review, pp. 56-62.
46 Letters of Historicus by Sir W. Harcourt, p. 41. 47 Lawrance, Principles, pp. 121.
We trust it is now sufficiently clear to all as to what our attitude as a nation is or should be toward the Calvo and Drago Doctrines. Both the wider Calvo and the narrower Drago Doctrines are essentially sound in principle and expedient as policy, although Calvo goes too far in condemning diplomatic interposition or the presentation of claims for indemnity in all cases under consideration, and he does not sufficiently allow for exceptions to general rules or principles which are otherwise sound and correctly stated by him. The range and character of these exceptions have been indicated in the first part of this article.
While we do not deny the responsibility of governments to foreigners and their liability in certain cases, even during times of civil war and insurrection, it is certain that the major part of such demands are usually far in excess of liability and are based on erroneous principles. The following examples, selected for the most part from Moore's Work on Arbitration, may serve to illustrate the exorbitant amounts of most of these claims. 18
The Civil War claims of Great Britain against the United States, which were settled by a mixed commission in 1873, amounted (with interest) to about $96,000,000. Less than $2,000,000 was actually awarded to the British claimants. Of the 478 British claims, 259 were for property alleged to have been taken by the military, naval or civil authorities of the United States; 181 for property alleged to have been destroyed by the military and naval forces of the United States; 7 for property destroyed by the Confederacy; 100 for damages for the alleged unlawful arrest and imprisonment of British subjects by the authorities of the United States; 77 for damages for the alleged unlawful capture and condemnation or detention of British vessels and their cargoes as prize of war by the naval forces and civil authorities of the United States.
$$ In a recent pamphlet, entitled Par la Justice vers la Paix, Professor F. de Martens calls special attention to the excessive and fraudulent character of many of these claims.
49 See Moore on Arbitration, i, pp. 692-693.