Obrázky stránek
PDF
ePub

peoples as absurd in itself," his doctrine being accepted by the rulers, to the effect that good government could come only from those who were by birth divinely appointed to rule. He did not regard masses as dangerous, but considered the middle class desiring political privileges as seized with a sort of "moral gangrene." Voltaire's idea was altogether different, and had influence certainly in France when he described society as like a keg of beer—“ froth at the top, dregs at the bottom, and wholesome in the middle." Metternich, dominating European international opinions so generally in the early half of the nineteenth century, could not even conceive of a lawful state organized by men who had as "their war cry, constitution'"; and he says, "We are not alone in questioning if society can exist with liberty of the press, a scourge unknown to the world before the latter half of the seventeenth century and restrained until the eighteenth." Such an attitude is in strong contrast to the constitutional provisions which were being inserted in the fundamenal laws of American States in the years of Metternich's power in Europe. In the American constitutions freedom of speech and freedom of the press were inserted as basic principles.

The accepted and long-recognized European claim of the right of intervention was denied by the American States. Meantime some of the rulers of Europe, denying the "paramount authority of the public will" and upholding "benevolent despotism," maintained that, entrusted by divine power and "placed beyond the passions which agitate society," they should “not abandon the people whom they ought to govern to the sport of factions, to error and its consequences, which must involve the loss of society." The American position, clearly and at times forcibly expressed, has been in general that there is in international law no right of intervention, but that there is the obligation of nonintervention a position widely separating for a time the European and American theories.

The American Continent, with its vast resources and area open to occupation and cultivation, afforded a tempting field for emigration. This movement of population to the American Continent was favored while the area was European colonial territory. After the colonies broke off from the mother countries the stream continued. The vigorous young life of the old countries was departing. This was welcomed in the new world across the sea. Doctrines of naturalization were developed and a theory of expatriation, entirely contrary to that of many European States, received support in America. The common European doctrine that allegiance was indelible and that the children followed the nationality of the parents, the jus sanguinis, was denied in some American States, leading to long conflicts, which in the latter part of the nineteenth century were solved by a general recognition in international relations of the right of expatriation.

Not merely in these broader aspects of international law has the New World reacted upon the old, but in many more special lines the national attitude toward law and justice has found response in approval by international conventions, congresses, practice, and law. Some examples of this may serve to illustrate many. Thus in the broader aspects of international law, particularly relating to the acquisition and exercise of territorial jurisdiction, American States, because of their development to some extent in an area not previously politically organized, made clear the law in regard to national title by occupation. Of this, Chief Justice Marshall speaks for the American Continent when he says in Johnson v. McIntosh in 1828:

The potentates of the Old World found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing on them civilization and Christianity in exchange for unlimited independence.

But as they were nearly all in pursuit of the same object, it was necessary in order to avoid conflicting settlements and consequent war with each other to establish a principle which all should acknowledge as the law by which the rights of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects or by whose authority it was made against all other European Governments, which title might be consummated by possession. The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives and establishing settlements upon it.

This same principle was recognized in regard to islands off Peru and islands off Venezuela when these were beyond the three-mile limit. Other and numerous controversies in regard to boundaries have arisen among the American States. Doctrines of prescription, of occupation, of accretion and other principles relating to territorial rights have been given general recognition.

As to the coast waters, there has been a tendency to accept the three-mile limit and to recognize the freedom of the seas and the right of innocent navigation. The Argentine Republic and Chile in 1881, by the treaty of July 23, agreed that Magellan's Straits are neutralized forever and free navigation is guaranteed to the flags of all nations. To insure this liberty and neutrality no fortifications or military defences shall be created that could interfere with this object."

66

Free navigation of rivers in American States has likewise been generally granted. Occasionally this has been limited to States having territory on a river. The treaty between the Argentine Republic and the United States of America in 1853 granted reciprocal freedom of river navigation. The South American States negotiated many of these treaties among themselves. In these new lands another question, early requiring consideration and remaining to the present time, is that of boundary lines. The uncertainty as to limits of territory was but natural. Surveys, if made at all, were usually hasty and inaccurate or indefinite. Friction among these young and growing States on account of growth was inevitable. Here ancient grants and modern claims often clashed, but these boundary disputes have usually been settled by application of equitable principles rather than by resort to war. The principle of uti possidetis was frequently recognized, but whatever the principle of decision, the resort to arbitration became common and this form of settlement of disputes among American States grew in strength and favor. When the long and heated controversy over the Brazilian-Argentine boundary line was, by the arbitral award of President Cleveland of the United States, settled in 1895 in a manner favorable to the contention of Brazil, the attitude of the Argentine Republic became not that of a defeated suitor, but that of a friend of its late opponent, rejoicing in the settlement of the difference and the removal of a cause of friction. Scarcely could the American ideal be more strikingly expressed than in the reply of the Argentine minister to the Brazilian secretary of state for foreign affairs, when in behalf of the Argentine Republic, even when Argentine's claim had not been maintained, he said: "I regard the question under arbitration which has just been decided as a triumph of both our nations, which equally strong, patriotic, and virile, have sought on the ground of right and justice a noble solution of controversies which can never be definitely settled by the transitory and ephemeral right of force."

Not merely were territorial rights developed and an accepted international practice in regard to title to land recognized, but the rights of nationals in American States were guarded. The bills of rights in many American constitutions contained declarations similar to the following:

Con

The rights of man are the basis of and object of social institutions. sequently this State declares that all the laws and all the authorities of this country must respect and maintain the guaranties which the present constitution establishes.

The constitutional and legal guaranties of nationals were necessarily maintained in international relations and in the treaties, particularly between American States. These treaties often secured the rights of the nationals of one State when within the jurisdiction of another. The rights of man as such assumed a much more important place than formerly in International agreements. One of the earliest of these treaties, negotiated between the United States of America and the Republic of Colombia in 1824, provides for the freedom of citizens of each within the territory of the other, not only in navigation and commerce but also in matters of the exercise of judicial rights, and further in Article XI:

It is likewise agreed that the most perfect and entire security of conscience shall be enjoyed by the citizens of both the contracting parties in the countries subject to the jurisdiction of the one and the other, without their being liable to be disturbed or molested on account of their religious belief, so long as they respect the laws and established usage of the country. This was repeated in other treaties of this period, emphasizing one of the principles for which American civilization has often stood. Other rights of man as such were protected in international agreements as in domestic law. The bill of rights often embodied in the constitution gave to the national security and freedom within his own State, and this became general for the American States through most favored nation clauses and reciprocal agreements. This right of man to protection and freedom was recognized in America as inherent in man himself, and not, as in many European States, derived by a grant from some authority above.

As political freedom was one of the corner stones of the idea of American State policy, this principle was protected in national laws and received conventional sanction in international agreements. Naturally this protection for political freedom was guaranteed in extradition treaties by limitation upon the list of extraditable crimes in such manner as to exclude extradition of political offenders as criminals. This was often but a carrying of the national laws or national constitution into international agreements, as in the case of the Mexican treaties of extradition-treaties which conform to the article of the Mexican constitution which provides: "Treaties shall never be made for the extradition of political offenders." (Art. 15.)

Not merely have the American States stood for the right of man to political freedom but for his right to freedom of conscience and expression, even in speech and press, in order that the spirit of man may not be repressed or compelled to conform itself to standards externally imposed. What this contribution to the development of the human race may mean, when embodied in world practice, it is difficult to foretell.

It is true that the national law of American States embodied many principles that were regarded as visionary and idealistic, as was shown in the opinions of Metternich and others of his period, yet these States have had the courage and wisdom to maintain these principles, till now they meet with growing recognition in the world. The American States have not been afraid to test the principles of arbitration and judicial methods of settling disputes among themselves. Two American republics were the first parties to appear before the Hague tribunal to test the merits of the newly established international court of arbitration and to demonstrate its right to claim a place as one of the greatest institutions for the furthering of international justice.

[ocr errors]

The American nations have proven their ideals workable in the international relations of the States upon the Western Continent, and perhaps. when contrasted with European practice, in no manner more strikingly than in the protection of national territorial limits. Along thousands of miles of frontier in all the Americas not massive fortifications and armed forces, but simply boundary posts, supported by the confidence in the supremacy of national and international law, have been the most effective safeguards of the rights of jurisdiction and of peaceful possession.

As was said by Secretary of State Root at the University of San Marcos, Lima, September 14, 1906:

All international law and international justice depend upon national law and national justice. No assemblage of nations can be expected to establish and maintain any higher standard as between each other than that which each maintains within its own borders. Just as the standard of justice and civilization in a community depends upon the individual character of the elements of the community, so the standard of justice among nations depends upon the standard established in each individual nation.

Thus in American States law, proceeding from and resting upon the fundamental rights of the nationals under its jurisdiction, has in the national sphere been formulated to meet the needs of all. That such principles should be rec ognized in international law is but natural, since the broad principles of equity and fair dealing must be even more pervasive in the sphere of international relations. That these principles are to have more weight in international affairs is evident when the growing participation of American States in the councils of nations is considered. At the first international conference at The Hague in 1899, of the 26 powers whose plenipotentiaries assembled, two only were American and four others non-European; and even then the voice of America was heeded, as it stood for the reign of law. At the second international conference at The Hague in 1907, of the 44 powers whose plenipotentiaries assembled, 18 were American ond 4 others were non-European. That American ideals must receive consideration in these conferences of nations requires, then, no theoretical demonstration. These American ideals of justice and of the rights of man have passed from the national laws into international agreements and practice, though up to the present time often without any purposeful and cooperating effort upon the part of American States. The American principles of right and justice have been tested and found good for the development of mankind and the maintenance of peace, both in national and international life. In the twentieth century the American nations have been admitted to full participation in the councils of the world where international law is formulated. The dreams of the founders of these States have been realized, yet now the prospect of the greater triumph of the fundamental principles of the national law of American States in the sphere of international relations is a vision possible of realization through the intelligent cooperation of the American nations working unselfishly for the international ideal, the well-being of mankind.

The CHAIRMAN. I have the pleasure now of presenting to you Dr. Norman Dwight Harris, professor of diplomacy and international law in Northwestern University, who will address us upon the subject of "The duties and obligations of neutral governments, parties to The Hague conventions, in case of actual or threatened violations by belligerents of the stipulations of the said conventions."

THE DUTIES AND OBLIGATIONS OF NEUTRAL GOVERNMENTS,
PARTIES TO THE HAGUE CONVENTIONS, IN CASE OF ACTUAL
OR THREATENED VIOLATIONS BY BELLIGERENTS OF THE
STIPULATIONS OF THE SAID CONVENTIONS.

By NORMAN DWIGHT HARRIS,

Professor of Diplomacy and International Law in Northwestern University. The present great European conflict has drawn in a striking manner the attention of all students of international law, and of all thinking men to the socalled laws of neutrality. Not only has a sort of cynical skepticism arisen in certain quarters as to the real value of such laws; but it has also become apparent to the careful observer that the existing rules governing the relations between neutrals and belligerents have proved woefully inadequate to meet the conditions created by the present unprecedented international situation. If all the belligerents and neutrals had honestly tried to live up to the obligations imposed upon them by the laws of neutrality, the existing rules even then would not have sufficed to enable the European States to meet all the demands of the present emergency in an equitable manner. Important changes in the methods of modern warfare alone have been sufficient to render desirable the modification of a number of rules heretofore deemed wise and useful. But the deliberate and, in some cases, unjustifiable violations of generally accepted principles by certain belligerents have made the situation much worse. And the tragic fate of Belgium, the pressure put on certain of the smaller powers to induce them to join the belligerents or to permit infractions of their neutrality, and the enormous expense and heavy burden imposed upon those neutral countries whose territories unfortunately border upon the theater of the war, to prevent the invasion or misuse of their possessions, have laid upon an ill-defined neutrality code a burden much too heavy for it to bear, and one that it really was not intended to carry.

To discuss this topic intelligently, we must, then, summarize briefly what are the duties and obligations of neutrals and of belligerents, draw attention to the chief inadequacies of these rules as applied to modern conditions, and suggest, if we can, some method by which these rules may be amended to meet the new situation, to secure protection for neutrals, and to compel obedience by belligerents.

The duties and obligations of neutral States may be embraced in "three classes involving, respectively, abstention, prevention, and acquiescence," as Professor Thomas E. Holland' has so succinctly put it. The present paper is confined in its discussion to the last two divisions: The preventing of bellig. erents from violating neutral territory or waters, and the acquiescence of neutral States in any act of a belligerent that would violate the laws of neutrality. The efforts of neutral Governments to carry out these obligations have been rendered doubly difficult by two things-the lack of carefully defined regulations governing the action of neutrals and the defiant position assumed by the military authorities of belligerent States. The public action of neutral Governments has unfortunately never been as distinctly elaborated in any form as the duties of the citizens or subjects of neutral States have been. This has been due chiefly to certain inherent though not unsurmountable difficulties, and to the natural desire of States not to see any restraint placed upon their power of independent action, nor to have the field of their political activities limited."

1" Neutral Duties in a Maritime War," Proceedings of the British Academy, II, 2. John Westlake, International Law, pt. II, p. 204.

2

« PředchozíPokračovat »