International Law Part 7

INDEPENDENCE

38. +Manner of Exercise.+

39. +Balance of Power.+

40. +Monroe Doctrine.+

41. +Non-intervention.+

42. +Practice in Regard to Intervention.+ (_a_) For self-preservation.

(_b_) To prevent illegal acts.

(_c_) By general sanction.

(_d_) Other grounds.

(1) Treaty stipulations.

(2) Balance of power.

(3) Humanity.

(4) Civil war.

(5) Financial.

(_e_) Conclusion.

-- 38. Manner of Exercise of the Right

Strictly, there can be no limitation or restriction of independence, for it is a recognized principle that independence must be absolute and inalienable. In fact, every state voluntarily accepts either formally by treaty or tacitly by practice, many conditions which restrain it in the exercise of its powers. The independence of the state is not thereby violated, since the restraint is exercised by the state itself, and is not an act of external control. The number of these restraints which states voluntarily a.s.sume is continually increasing, owing to the closer relations of humanity.

The exercise of the right of independence involves the privilege of making treaties, alliances, contracts, and munic.i.p.al laws, so far as these do not violate international law or the right of independence as possessed by other states. A state may go to war to maintain its independence. The international rights of a state are in general closely related to the right of independence, and derive force from this relationship.

-- 39. Balance of Power

Undoubtedly the idea of establishing a relationship among "neighboring states more or less connected with one another, by virtue of which no one among them can injure the independence or essential rights of another without meeting with effectual resistance on some side and consequently exposing itself to danger"[95] is not a modern idea.

Ancient states united to prevent the growth of some neighboring power to such magnitude as would threaten their independence.[96] From the beginning of the modern period of international law, Peace of Westphalia (1648), the idea of maintaining an equilibrium among the powers of Europe has had great influence, and until the latter part of the nineteenth century was regarded as one of the fundamental principles of European international practice. Many treaties aim to preserve this balance among the European powers, and the words "balance" and "equilibrium" often appear.[97] The Treaty of Utrecht in its provision between Spain and Great Britain, July 13, 1713, gives as its object _ad firmandam stabiliendamque pacem ac tranquillitatem christiani orbis justo potentiae equilibro_. The idea that independence was to be preserved by some balance of power reappears in successive treaties.

This idea of the balance of power has led to most diverse action. Unjust rulers have made it the cloak for action entirely outside the sanction of international law. Many times it has "served as the pretext for a quarrel, and repeatedly made hostilities general which would otherwise have been shut up within a comparatively small area."[98] The feeling that the balance of power was a necessary policy for the preservation of European states, led to the idea that states should be constrained to certain lines of action, which would prevent, in many cases, normal growth. Frequently the independence of a state was violated to antic.i.p.ate an action which might disturb the European equilibrium. The part.i.tions of Poland show a violation of the principles of international law for the sake of giving equal compensation to the parties to it.

The doctrine of the balance of power is not a principle of international law, but merely a maxim of European political practice pretending to state the means of maintaining the independence of European states.[99]

-- 40. Monroe Doctrine

Another maxim of political action is that which has become known as the "Monroe Doctrine." While enunciated by a single state, it had in view the maintenance of the independence of the states of the American continent. For many years after the Revolutionary War the opinion prevailed that Europe viewed with disfavor the growth of the American republic. The Holy Alliance, formed on the downfall of Napoleon, was followed by several congresses of European powers, at one of which, held at Verona in 1822, the subject of helping Spain recover her revolting colonies in America was discussed. This led to the declaration of President Monroe in his message of Dec. 2, 1823, that there should be, (1) no more European colonies on these continents, (2) no extension of the European political system to any portion of this hemisphere, (3) no European interposition in the affairs of the Spanish-American republics.

This doctrine has been repeatedly affirmed by the United States, and in some instances very liberally interpreted. It in no way embodies a principle of international law, though the European and other states may regard it as expressing the att.i.tude of the United States upon the points covered, and if desirous of avoiding friction, govern themselves accordingly. If it were a principle of international law, the United States would not be justified in changing its att.i.tude upon the doctrine, but probably it would not be seriously maintained that the United States might not enunciate another policy setting aside the Monroe Doctrine. Reddaway well says, "that it produced its desired effect as an act of policy, but in no way modified the Law of Nations."[100] This doctrine cannot be considered as outlining a principle of non-intervention, as has sometimes been claimed, but it rather announces a policy of intervention on the part of the United States to antic.i.p.ate intervention by other powers.

The doctrine has always failed of legislative indors.e.m.e.nt, and has been strenuously opposed by European powers. That it has been recognized, however, to a certain extent, appears by the course of events.[101] It was recently applied in the case of the intervention by the United States in the dispute over the boundary between Venezuela and British Guiana. Great Britain and the United States settled the difficulty by a submission to arbitration.[102]

-- 41. Non-intervention

With the right of independence goes the correlative _obligation of non-intervention_, _i.e._ of refraining from all acts that would forcibly limit the freedom of another state. This obligation of non-intervention does not extend to the limitation of acts involving no display or threat of force, as in the case of mediation and arbitration.

Nor can it be claimed that the _obligation of non-intervention_ can be urged against measures undertaken by a state to preserve its fundamental right to existence. There is no _right_ of intervention, as has been sometimes argued, though an act of intervention may be sometimes justifiable in itself.[103] Intervention is the attempt of one or more states, by means of force, to coerce another state in its purely state action. The making of an alliance between two may influence a third state in its action, but it cannot be considered an intervention, nor is the tender of friendly offices in the settlement of a dispute to which a state is a party, intervention; but when a state directly interferes with the exercise of the authority in another state or by another state, it const.i.tutes intervention. Intervention may vary greatly in degree and in character, whether it be armed or diplomatic. Each case must be considered separately on its merits, and if in any degree a justifiable measure, it must be on the highest grounds, and the motives of the intervening state must be pure. While it is still necessary to discuss the question of intervention in its various forms, yet, as Hall says: "It is unfortunate that publicists have not laid down broadly and unanimously that no intervention is legal, except for the purpose of self-preservation, unless a breach of the law as between states has taken place, or unless the whole body of civilized states have concurred in authorizing it."[104]

-- 42. Practice in Regard to Intervention

The nineteenth century might be called the century of interventions, for its whole political history has been closely related to the application of measures of intervention of the most varied sort. Naturally, all authorities do not agree as to the causes underlying the action of the several states, nor as to the nomenclature which should be used in describing these measures. A review of some of the cases of intervention during the nineteenth century shows that while the doctrine of non-intervention has been more and more widely professed, the practice has been strongly influenced by political expediency.

Intervention for any cause may always be regarded by the state whose independence is impinged as a hostile act, and a ground for war, thus putting the matter outside the international law of peace.[105]

(_a_) =Intervention for Self-preservation.= As the right of existence is the first right of a state and universally admitted, intervention may sometimes be used as a means of maintaining this existence. In such a case it is clearly a matter of policy as to the means which a state shall use, and if it resorts to intervention rather than other means, it must have ample grounds for its action in the particular case. A case of intervention on the grounds of self-preservation which has caused much debate is that of England in the two attacks upon Copenhagen in 1801 and 1807, on the ground that it was necessary for English supremacy of the seas, which formed her chief defense, to prevent the union of the Danish forces with those of the other powers. Intervention cannot be justified by any appeal to general principles which inhere in the act itself. "The facts of intervention are acts of the political existence of states.

Good or bad, according as the intervention is injurious or beneficial."[106] Of intervention as a method of state action, Sir W.

Harcourt says: "It is a high and summary procedure which may sometimes s.n.a.t.c.h a remedy beyond the reach of law. Nevertheless, it must be admitted that in case of Intervention, as in that of Revolution, its essence is illegality, and its justification is its success. Of all things, at once the most injustifiable and the most impolitic is an unsuccessful Intervention."[107] Non-intervention is the obligation which international law enjoins. It gives no sanction to a "right of intervention" which would be entirely inconsistent with the right of independence. The question of intervention is one of state policy only, and is outside the limits of the field of international law.

Intervention is a method of state action which is justifiable only in rare cases, and less and less justifiable as the growing mutual dependence of states makes possible other methods less open to objection. International law at the present day undoubtedly regards intervention when _strictly_ necessary to preserve the fundamental right of the intervening state to its existence as a permissible act though contravening the right of independence in another state.

(_b_) =Intervention to prevent Illegal Acts.= As international law must rest upon the observance of certain general principles, it may in extreme cases be necessary to intervene in order that these principles may be respected by certain states in their dealings with other states which, though weaker in physical force, have equal rights in international law. How far any state will act as champion of the law of nations is a question which it must decide for itself. Unquestionably international law would look with favor upon measures _necessary_ for its own preservation.

(_c_) =Intervention by General Sanction.= Some authorities have maintained that intervention when sanctioned by a group of states is justifiable. It is probable that a group of states would be less liable to pursue an unjust course than a single state, and that intervention under such sanction would be more liable to be morally justifiable. It is, however, no more legal than the same act by a single state; and if general consent is the only sanction, while the act may be expedient, advantageous, and morally just, it cannot be regarded as upheld by international law, nor can a single act of this kind establish a principle. The several cases of such intervention under general sanction can hardly be regarded as sufficiently similar to establish a principle even upon the Eastern Question in Europe.[108] It may be concluded that while general sanction of a considerable group of states may, for a given interference, free a state from moral blame and warrant the act as a matter of policy, yet it does not give any international law sanction for intervention by general consent.

(_d_) =Other Grounds of Intervention.= Many reasons have been advanced as justifying such measures as intervention.

(1) Intervention to carry out _provisions of treaties of guaranty_ was formerly common, _e.g._ intervention by one state to preserve the same form of government in the other or to maintain the ruling family. It is now held that no treaty can justify interference in the internal affairs of a state not party to the treaty.

In general, intervention, because of treaty stipulations, even when the state subject to the intervention is a party to the treaty, is a violation of independence unless the treaty provides for such measures, in which case the state has become a protected state or entered into relations by which it has not full state powers. Such treaties must be clearly state acts and not acts of individuals "who from their position have the opportunity of giving to their personal agreements the form of a state act."[109] While there is still difference of opinion as to the question of intervention under treaty sanction, the weight of opinion seems to be decidedly to the effect that such intervention has no ground of justification in international law.

(2) Intervention to preserve the _balance of power_, which was regarded as a necessary means for the preservation of European peace, has been considered as justifiable till recent times. Since the middle of the nineteenth century the position has received less and less support, though advanced in behalf of the preservation of the Turkish Empire and the adjustment of the Balkan states. In 1854 Great Britain and France, on the appeal of the Sultan for a.s.sistance against the Russian aggressions, determined to aid him, "their said Majesties being fully persuaded that the existence of the Ottoman Empire in its present Limits is essential to the maintenance of the Balance of Power among the States of Europe."[110] The att.i.tude at the present time is stated by Lawrence.

"The independence of states is not to be violated on the ground of possible danger to some imaginary equilibrium of political forces."[111]

(3) Interventions upon the broad and indefinite ground of _humanity_ have been common and were generally upheld by the writers to the time of Vattel. Since his day opposition to intervention of this kind has gradually obtained favor. What the grounds of humanity are, and which nation's ideas of humanity shall be accepted as standard, have been questions difficult to settle to the general satisfaction of states. For a state to set itself up as judge of the actions of another state and to a.s.sume that it has the right to extend its powers to settling and regulating affairs of morals, religion, and the relations of public authority to the subjects in another state, on the ground of maintaining the rights of mankind as a whole, is to take a ground which the conduct of any modern state, even the most civilized, would hardly warrant.

While it is admitted that a state or states may sometimes interfere to prevent one state from unduly oppressing another, as in the intervention of the powers in Greece in 1827, yet it is generally held that to interfere because the internal affairs of a given state are not conducted in a manner pleasing to the foreign state is to give a sanction to an act that would result in far more evil than good. Such intervention has often taken place. The "Holy Alliance," in attempting to guard Europe from "the curse of Revolution," advocated in practice a most dangerous form of intervention.[112] Indeed, much of the European history of the nineteenth century is but a history of successive interventions. In spite of all this, as Walker says, "the rule regularly progresses towards more general recognition, that non-intervention in the internal affairs of a state is a law which admits of no exception to foreign powers, so long as the operations of that state are confined in their effect to the limits of the national territory."[113]

Nevertheless, the United States interfered in the affairs of Cuba on the ground of humanity. The President, in his message of April 11, 1898, says, after a long statement of the facts: "I have exhausted every effort to relieve the intolerable condition of affairs which is at our doors. Prepared to execute every obligation imposed upon me by the Const.i.tution and the law, I await your action."[114] By joint resolution of Congress of April 20, 1898, demand was made upon Spain to relinquish its authority in Cuba, and the President was authorized to use land and naval forces to carry the resolution into effect.[115]

(4) In time of _civil war_, on invitation of both parties, a foreign state may act as mediator, but unless the revolting party has been recognized, this is mediation in a domestic sense rather than intervention in the sense of international law.

Under other conditions there is a diversity of view as to the proper course of action.[116] Some deny with Vattel, G. F. de Martens, Heffter, Fiore, Bluntschli, Woolsey, and others maintain or permit intervention in civil war at the request of one of the parties, though some of the authorities do not permit intervention except on the invitation of the parent state and not on that of the rebelling party. Bluntschli (-- 476) and Woolsey (-- 42) admit intervention only in behalf of the party representing the state; Vattel and some others permit intervention in behalf of the party which the intervening state considers to have the right of the contest, thus opening the arbitration of the contest to a foreign state. Both of these positions are receiving less and less of sanction. Intervention in behalf of the established state implies a doubt as to which power within the state is the _de facto_ power, and as Hall says: "the fact that it has been necessary to call in foreign help is enough to show that the issue of the conflict would without it be uncertain, and consequently that there is a doubt as to which side would ultimately establish itself as the legal representative of the state."[117] It is plain to see that intervention in behalf of the rebelling party is a violation of the independence of the existing state. It is equally clear that international law does not give a foreign state a right to judge upon the justice or merits of domestic questions in another state.

The principle may now be regarded as established by both theory and practice that the invitation of neither party to a domestic strife gives a right to a foreign state to intervene, and that no state has a right to judge as to the merits of the contest and to interfere in behalf of the party it thinks in the right. Indeed, intervention because of civil war only is in no case justifiable, though the consequences of such a disturbance may warrant intervention upon other grounds.[118]

(5) Intervention on the ground of _financial transactions_ is not now sanctioned. A state may make any injustice done its subjects by a foreign state a matter of diplomatic negotiations. It has sometimes been held that contracts running between a state and the subject or subjects of another state may, if violated, become grounds of just intervention, and that the subjects had a right to demand action by their sovereign. This ground is manifestly insufficient, though each state is judge as to what measures it will take in a given case.

International law does not guarantee the payment of loans which are merely personal transactions between the individual and the state in its corporate capacity, nor can the public law of one state be expected to hold in another. Interference on such grounds is a matter of expediency and not a matter of right.

(_e_) =Conclusion.= In general, the best authorities seem to agree that at the present time, owing to the ease with which other measures may be taken, intervention can be admitted only on the single ground of self-preservation. The numerous cases of intervention upon varied grounds amply show that any other ground would be open to wide abuse, as has often been the case. For general purposes of remedy for injury such measures as retorsion, reprisals, embargo, and pacific blockade may be taken when a state deems it expedient and is willing to a.s.sume the responsibility for such measures.[119] While intervention is, for the sake of preserving the existence of a state, a justifiable measure, it is not a _right_, but merely a means sometimes justifiable to preserve a right,--the right of a state to exist, which alone supersedes the obligation of non-intervention.

CHAPTER X

EQUALITY

43. +Equality in General.+