« PředchozíPokračovat »
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;"'** 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), $$44-46; 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, $7, 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. 40 Letters of Historicus by Sir W. Harcourt, p. 41.
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.
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.
* See Moore on Arbitration, i, pp. 692-693.
The claims of France growing out of the Civil War were also settled by a mixed commission which met in 1880–84. They aggregated about $35,000,000. The amount actually awarded was $625,566.35, i.e., less than 2 per cent of the amount demanded. Many of the claims are said to have been fraudulent and others were greatly exaggerated. Most of the awards were for injuries inflicted by the armies of the United States, i. e., presumably for violations of the laws of warfare.50
The claims of the citizens of the United States against Mexico, presented to the mixed commission which met in July, 1869, and continued in session until January, 1876, amounted to the enormous sum of $470,000,000. The actual amount awarded was $4,000,000 or less than one per cent. The claims of citizens of Mexico against the United States amounted to $86,000,000. They received $150,000.51
The mixed commissions which adjudicated the claims against Venezuela at Caracas during the summer of 1903, awarded 2,313,711 bolivars to claimants of the United States out of 81,410,952 which were demanded; 1,974,818 to Spanish claimants who had demanded 5,307,626; 2,975,906 to Italian claimants who had asked for 39,844,258; 2,091,908 to German claimants who had demanded 7,376,685; 9,401,267 to British claimants instead of 14,743,572 as demanded; and 10,898,643 to Belgian claimants who had only demanded 14,921,805 bolivars.52 The demands of French claimants, which amounted to nearly $8,000,000 were cut down to $685,000.53
Besides being excessive in amount, it is believed that many of these claims are bottomed on fraud and tainted with illegality and injustice. It is notorious that the sums received by a government are often far below the face value of the loan and many of the claimants for losses during civil war or insurrection are not above a well-grounded suspicion of having themselves been engaged in unneutral or insurrectionary acts.
In view of the ill-founded character of many, if not most, of such claims and of the danger to the peace and safety of the states of Latin America resulting from their forcible collection by leading European powers, the United States would be fully justified even in advancing a step beyond the Drago Doctrine and declaring formally to the world that it could not see with indifference any attempt at the forcible collection of private claims of a pecuniary nature on the Western Continent. The Monroe Doctrine, at least in its present form, forbids the further acquisition, colonization, or permanent occupation of American territory by any European power, and it is believed that such a declaration would not only be in harmony with the spirit of that doctrine but that it would lend strength to the principle of non-intervention.
50 Moore, ii, pp. 1133 ff., 1156 ff. 51 Moore, ii, pp. 1319 ff.
52 These figures are taken from Latané's excellent article on "The Forcible Colleo tion of International Debts” in the Atlantic Monthly for October, 1906, p. 546.
53 This is based on a statement in the Outlook (1906), vol. 82, p. 104.
In view, however, of the fact that some of these claims may be wellfounded and that the judicial tribunals in certain portions of Central America are notoriously inadequate for the impartial and effective administration of justice, and because of the frequency of revolutions due mainly to fraudulent elections, it might be well to couple this declaration with another, insisting that all such claims be submitted to fair and impartial arbitral tribunals or mixed commissions composed of representatives from both the creditor and debtor nations.55
The United States has no desire to become a “debt collecting agency'' for European creditors or to establish a protectorate over the states of Latin America. For these reasons our government should avoid, if possible, the responsibility of an ex parte decision regarding the validity of these claims, although the assumption of such a burden would be preferable to their forcible collection by European powers. Our insistence upon arbitration in the case of the famous boundary dispute between Great Britain and Venezuela in 1895, points the way toward what is at once the easiest and most equitable settlement of such disputes.
Amos S. HERSHEY.
54 The wisdom of such a course is greatly strengthened by the decision of the Hague tribunal rendered on February 22, 1904, which granted the contention of the allies that they were entitled to preferential treatment in consequence of their coercion of Venezuela. For a recent thoroughgoing criticism of this decision, see a long article by M. Mallarmé in the Revue Générale D. I. P. for 1906, pp. 423-500.
56 Professor F. de Martens suggests the Hague tribunal as a suitable court for the arbitration of these claims, but in view of its decision in the Venezuela case, it would perhaps be better to retain the present system of mixed commissions.
INSURGENCY AND INTERNATIONAL MARITIME LAW
War in the full sense, according to international law, can exist only by declaration or recognition of belligerency by a state. War in the material sense of an actual contest of armed forces may and does often exist without such declaration or recognition. However desirous a party using armed force within a state and in opposition to it may be to be regarded as a belligerent, such a party has not the legal capacity to raise itself to a belligerent status. This status can be gained only by action of the parent state or of a foreign state. An armed contest may, nevertheless, exist and of this fact others must often take notice.
Between the struggle of individual with individual, and of state with state, there is a form of struggle varying according to the circumstances, but usually an armed struggle between organized groups or parties within a state for public political ends which has received the name of insurrection.
The Constitution of the United States distinctly provides that Congress shall have power
to provide for the calling forth of the militia to execute the laws of the Union, suppress insurrections, and repel invasions. (Art. 1, $ 8.)
The government also recognizes that insurrections may exist in foreign states as in Article 308 of the Regulations for the Government of the Navy of 1905:
The right of asylum for political or other refugees has no foundation in international law. In countries, however, where frequent insurrections occur, and constant instability of government exists, usage sanctions the granting of asylum; but even in the waters of such countries, officers should refuse all applications for asylum except when required by the interests of humanity in extreme or exceptional cases, such as the pursuit of a refugee by a mob. Officers must not directly or indirectly invite refugees to accept asylum.
The United States and other governments have admitted that insurrections were actually in existence. The United States in its relations to Cuba has frequently been called upon to consider the nature of