International Law. A Treatise Volume I Part 6

[Sidenote: The period 1789-1815.]

-- 46. All progress, however, was endangered, and indeed the Law of Nations seemed partly non-existent, during the time of the French Revolution and the Napoleonic wars. Although the French Convention resolved in 1792 (as stated above, -- 30) to create a "Declaration of the Rights of Nations," the Revolutionary Government and afterwards Napoleon I. very often showed no respect for the rules of the Law of Nations. The whole order of Europe, which had been built up by the Westphalian and subsequent treaties of peace for the purpose of maintaining a balance of power, was overthrown. Napoleon I. was for some time the master of Europe, Russia and England excepted. He arbitrarily created States and suppressed them again. He divided existing States into portions and united separate States. The kings depended upon his goodwill, and they had to follow orders when he commanded. Especially as regards maritime International Law, a condition of partial lawlessness arose during this period. Already in 1793 England and Russia interdicted all navigation with the ports of France, with the intention of subduing her by famine.

The French Convention answered with an order to the French fleet to capture all neutral ships carrying provisions to the ports of the enemy or carrying enemy goods. Again Napoleon, who wanted to ruin England by destroying her commerce, announced in 1806 in his Berlin Decrees the boycott of all English goods. England answered with the blockade of all French ports and all ports of the allies of France, and ordered her fleet to capture all ships destined to any such port.

When at last the whole of Europe was mobilised against Napoleon and he was finally defeated, the whole face of Europe was changed, and the former order of things could not possibly be restored. It was the task of the European Congress of Vienna in 1814 and 1815 to create a new order and a fresh balance of power. This new order comprised chiefly the following arrangements:--The Prussian and the Austrian monarchies were re-established, as was also the Germanic Confederation, which consisted henceforth of thirty-nine member States. A kingdom of the Netherlands was created out of Holland and Belgium. Norway and Sweden became a Real Union. The old dynasties were restored in Spain, in Sardinia, in Tuscany, and in Modena, as was also the Pope in Rome. To the nineteen cantons of the Swiss Confederation were added those of Geneva, Valais, and Neuchatel, and this Confederation was neutralised for all the future.

But the Vienna Congress did not only establish a new political order in Europe, it also settled some questions of International Law. Thus, free navigation was agreed to on so-called international rivers, which are rivers navigable from the Open Sea and running through the land of different States. It was further arranged that henceforth diplomatic agents should be divided into three cla.s.ses (Amba.s.sadors, Ministers, Charges d'Affaires). Lastly, a universal prohibition of the trade in negro slaves was agreed upon.

[Sidenote: The period 1815-1856.]

-- 47. The period after the Vienna Congress begins with the so-called Holy Alliance. Already on September 26, 1815, before the second Peace of Paris, the Emperors of Russia and Austria and the King of Prussia called this alliance into existence, the object of which was to make it a duty upon its members to apply the principles of Christian morality in the administration of the home affairs of their States as well as in the conduct of their international relations. After the Vienna Congress the sovereigns of almost all the European States had joined that alliance with the exception of England. George IV., at that time prince-regent only, did not join, because the Holy Alliance was an alliance not of the States, but of sovereigns, and therefore was concluded without the signatures of the respective responsible Ministers, whereas according to the English Const.i.tution the signature of such a responsible Minister would have been necessary.

The Holy Alliance had not as such any importance for International Law, for it was a religious, moral, and political, but scarcely a legal alliance. But at the Congress of Aix-la-Chapelle in 1818, which the Emperors of Russia and Austria and the King of Prussia attended in person, and where it might be said that the principles of the Holy Alliance were practically applied, the Great Powers signed a Declaration,[43] in which they solemnly recognised the Law of Nations as the basis of all international relations, and in which they pledged themselves for all the future to act according to its rules. The leading principle of their politics was that of legitimacy,[44] as they endeavoured to preserve everywhere the old dynasties and to protect the sovereigns of the different countries against revolutionary movements of their subjects. This led, in fact, to a dangerous neglect of the principles of International Law regarding intervention. The Great Powers, with the exception of England, intervened constantly with the domestic affairs of the minor States in the interest of the legitimate dynasties and of an anti-liberal legislation. The Congresses at Troppau, 1820, Laibach, 1821, Verona, 1822, occupied themselves with a deliberation on such interventions.

[Footnote 43: See Martens, N.R. IV. p. 560.]

[Footnote 44: See Brockhaus, "Das Legitimitatsprincip" (1868).]

The famous Monroe Doctrine (see below, -- 139) owes its origin to that dangerous policy of the European Powers as regards intervention, although this doctrine embraces other points besides intervention. As from 1810 onwards the Spanish colonies in South America were falling off from the mother country and declaring their independence, and as Spain was, after the Vienna Congress, thinking of reconquering these States with the help of other Powers who upheld the principle of legitimacy, President Monroe delivered his message on December 2, 1823, which pointed out amongst other things, that the United States could not allow the interference of a European Power with the States of the American continent.

Different from the intervention of the Powers of the Holy Alliance in the interest of legitimacy were the two interventions in the interest of Greece and Belgium. England, France, and Russia intervened in 1827 in the struggle of Turkey with the Greeks, an intervention which led finally in 1830 to the independence of Greece. And the Great Powers of the time, namely, England, Austria, France, Prussia, and Russia, invited by the provisional Belgian Government, intervened in 1830 in the struggle of the Dutch with the Belgians and secured the formation of a separate Kingdom of Belgium.

It may be maintained that the establishment of Greece and Belgium inferred the breakdown of the Holy Alliance. But it was not till the year 1848 that this alliance was totally swept away through the disappearance of absolutism and the victory of the const.i.tutional system in most States of Europe. Shortly afterwards, in 1852, Napoleon III., who adopted the principle of nationality,[45] became Emperor of France.

Since he exercised preponderant influence in Europe, one may say that this principle of nationality superseded in European politics the principle of legitimacy.

[Footnote 45: See Bulmerincq, "Praxis, Theorie und Codification des Volkerrechts" (1874), pp. 53-70.]

The last event of this period is the Crimean War, which led to the Peace as well as to the Declaration of Paris in 1856. This war broke out in 1853 between Russia and Turkey. In 1854, England, France, and Sardinia joined Turkey, but the war continued nevertheless for another two years. Finally, however, Russia was defeated, a Congress a.s.sembled at Paris, where England, France, Austria, Russia, Sardinia, Turkey, and eventually Prussia, were represented, and peace was concluded in March 1856. In the Peace Treaty, Turkey is expressly received as a member into the Family of Nations. Of greater importance, however, is the celebrated Declaration of Paris regarding maritime International Law which was signed on April 16, 1856, by the delegates of the Powers that had taken part in the Congress. This declaration abolished privateering, recognised the rules that enemy goods on neutral vessels and that neutral goods on enemy vessels cannot be confiscated, and stipulated that a blockade in order to be binding must be effective. Together with the fact that at the end of the first quarter of the nineteenth century the principle of the freedom of the high seas[46] became universally recognised, the Declaration of Paris is a prominent landmark in the progress of the Law of Nations. The Powers that had not been represented at the Congress of Paris were invited to sign the Declaration afterwards, and the majority of the members of the Family of Nations did sign it before the end of the year 1856. The few States, such as the United States of America, Spain, Mexico, and others, which did not then sign,[47] have in practice since 1856 not acted in opposition to the Declaration, and one may therefore, perhaps, maintain that the Declaration of Paris has already become or will soon become universal International Law through custom. Spain and Mexico, however, signed the Declaration in 1907, as j.a.pan had already done in 1886.

[Footnote 46: See below, -- 251.]

[Footnote 47: It should be mentioned that the United States did not sign the Declaration of Paris because it did not go far enough, and did not interdict capture of private enemy vessels.]

[Sidenote: The period 1856-1874.]

-- 48. The next period, the time from 1856 to 1874, is of prominent importance for the development of the Law of Nations. Under the aegis of the principle of nationality, Austria turns in 1867 into the dual monarchy of Austria-Hungary, and Italy as well as Germany becomes united. The unity of Italy rises out of the war of France and Sardinia against Austria in 1859, and Italy ranges henceforth among the Great Powers of Europe. The unity of Germany is the combined result of three wars: that of Austria and Prussia in 1864 against Denmark on account of Schleswig-Holstein, that of Prussia and Italy against Austria in 1866, and that of Prussia and the allied South German States against France in 1870. The defeat of France in 1870 had the consequence that Italy took possession of the Papal States, whereby the Pope disappeared from the number of governing sovereigns.

The United States of America rise through the successful termination of the Civil War in 1865 to the position of a Great Power. Several rules of maritime International Law owe their further development to this war.

And the instructions concerning warfare on land, published in 1863 by the Government of the United States, represent the first step towards codification of the Laws of War. In 1864, the Geneva Convention for the amelioration of the condition of soldiers wounded in armies in the field is, on the initiation of Switzerland, concluded by nine States, and in time almost all civilised States became parties to it. In 1868, the Declaration of St. Petersburg, interdicting the employment in war of explosive b.a.l.l.s below a certain weight, is signed by many States. Since Russia in 1870 had arbitrarily shaken off the restrictions of Article 11 of the Peace Treaty of Paris of 1856 neutralising the Black Sea, the Conference of London, which met in 1871 and was attended by the representatives of the Powers which were parties to the Peace of Paris of 1856, solemnly proclaimed "that it is an essential principle of the Law of Nations that no Power can liberate itself from the engagements of a treaty, or modify the stipulations thereof, unless with the consent of the contracting Powers by means of an amicable arrangement." The last event in this period is the Conference of Brussels of 1874 for the codification of the rules and usages of war on land. Although the signed code was never ratified, the Brussels Conference was nevertheless epoch-making, since it showed the readiness of the Powers to come to an understanding regarding such a code.

[Sidenote: The period 1874-1899.]

-- 49. After 1874 the principle of nationality continues to exercise its influence as before. Under its aegis takes place the partial decay of the Ottoman Empire. The refusal of Turkey to introduce reforms regarding the Balkan population led in 1877 to war between Turkey and Russia, which was ended in 1878 by the peace of San Stefano. As the conditions of this treaty would practically have done away with Turkey in Europe, England intervened and a European Congress a.s.sembled at Berlin in June 1878 which modified materially the conditions of the Peace of San Stefano. The chief results of the Berlin Congress are:--(1) Servia, Roumania, Montenegro become independent and Sovereign States; (2) Bulgaria becomes an independent princ.i.p.ality under Turkish suzerainty; (3) the Turkish provinces of Bosnia and Herzegovina come under the administration of Austria-Hungary; (4) a new province under the name of Eastern Rumelia is created in Turkey and is to enjoy great local autonomy (according to an arrangement of the Conference of Constantinople in 1885-1886 a bond is created between Eastern Rumelia and Bulgaria by the appointment of the Prince of Bulgaria as governor of Eastern Rumelia); (5) free navigation on the Danube from the Iron Gates to its mouth in the Black Sea is proclaimed.

In 1889 Brazil becomes a Republic and a Federal State (the United States of Brazil). In the same year the first Pan-American Congress meets at Washington.

In 1897 Crete revolts against Turkey, war breaks out between Greece and Turkey, the Powers interfere, and peace is concluded at Constantinople.

Crete becomes an autonomous half-Sovereign State under Turkish suzerainty with Prince George of Greece as governor, who, however, retires in 1906.

In the Far East war breaks out in 1894 between China and j.a.pan, on account of Korea. China is defeated, and peace is concluded in 1895 at Shimonoseki.[48] j.a.pan henceforth ranks as a Great Power. That she must now be considered a full member of the Family of Nations becomes apparent from the treaties concluded soon afterwards by her with other Powers for the purpose of abolishing their consular jurisdiction within the boundaries of j.a.pan.

[Footnote 48: See Martens, N.R.G. 2nd Ser. XXI. (1897), p. 641.]

In America the United States intervene in 1898 in the revolt of Cuba against the motherland, whereby war breaks out between Spain and the United States. The defeat of Spain secures the independence of Cuba through the Peace of Paris[49] of 1898. The United States acquires Porto Rico and other Spanish West Indian Islands, and, further, the Philippine Islands, whereby she becomes a colonial Power.

[Footnote 49: See Martens, N.R.G. 2nd Ser. x.x.xII. (1905), p. 74.]

An event of great importance during this period is the Congo Conference of Berlin, which took place in 1884-1885, and at which England, Germany, Austria-Hungary, Belgium, Denmark, Spain, the United States of America, France, Italy, Holland, Portugal, Russia, Sweden-Norway, and Turkey were represented. This conference stipulated freedom of commerce, interdiction of slave-trade, and neutralisation of the territories in the Congo district, and secured freedom of navigation on the rivers Congo and Niger. The so-called Congo Free State was recognised as a member of the Family of Nations.

A second fact of great importance during this period is the movement towards the conclusion of international agreements concerning matters of international administration. This movement finds expression in the establishment of numerous International Unions with special International Offices. Thus a Universal Telegraphic Union is established in 1875, a Universal Postal Union in 1878, a Union for the Protection of Industrial Property in 1883, a Union for the Protection of Works of Literature and Art in 1886, a Union for the Publication of Custom Tariffs in 1890. There were also concluded conventions concerning:--(1) Private International Law (1900 and 1902); (2) railway transports and freights (1890); (3) the metric system (1875); (4) phylloxera epidemics (1878 and 1881); (5) cholera and plague epidemics (1893, 1896, &c.); (6) Monetary Unions (1865, 1878, 1885, 1892, 1893).

A third fact of great importance is that in this period a tendency arises to settle international conflicts more frequently than in former times by arbitration. Numerous arbitrations are actually taking place, and several treaties are concluded between different States stipulating the settlement by arbitration of all conflicts which might arise in future between the contracting parties.

The last fact of great importance which is epoch-making for this period is the Peace Conference of the Hague of 1899. This Conference produces, apart from three Declarations of minor importance, a Convention for the Pacific Settlement of International Conflicts, a Convention regarding the Laws and Customs of War on Land, and a Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention. It also formulates, among others, the three wishes (1) that a conference should in the near future regulate the rights and duties of neutrals, (2) that a future conference should contemplate the declaration of the inviolability of private property in naval warfare, (3) that a future conference should settle the question of the bombardment of ports, towns, and villages by naval forces.

[Sidenote: The Twentieth Century.]

-- 50. Soon after the Hague Peace Conference, in October 1899, war breaks out in South Africa between Great Britain and the two Boer Republics, which leads to the latter's subjugation at the end of 1901. The a.s.sa.s.sination on June 10, 1900, of the German Minister and the general attack on the foreign legations at Peking necessitate united action of the Powers against China for the purpose of vindicating this violation of the fundamental rules of the Laws of Nations. Friendly relations are, however, re-established with China on her submitting to the conditions enumerated in the Final Protocol of Peking,[50] signed on September 7, 1901. In December 1902 Great Britain, Germany, and Italy inst.i.tute a blockade of the coast of Venezuela for the purpose of making her comply with their demands for the indemnification of their subjects wronged during civil wars in Venezuela, and the latter consents to pay indemnities to be settled by a mixed commission of diplomatists.[51] As, however, Powers other than those blockading likewise claim indemnities, the matter is referred to the Permanent Court of Arbitration at the Hague, which in 1904 gives its award[52] in favour of the blockading Powers. In February 1904 war breaks out between j.a.pan and Russia on account of Manchuria and Korea. Russia is defeated, and peace is concluded through the mediation of the United States of America, on September 5, 1905, at Portsmouth.[53] Korea, now freed from the influence of Russia, places herself by the Treaty of Seoul[54] of November 17, 1905, under the protectorate of j.a.pan. Five years later, however, by the Treaty of Seoul[55] of August 22, 1910, she merges entirely into j.a.pan.

[Footnote 50: See Martens, N.R.G. 2nd Ser. x.x.xII. p. 94.]

[Footnote 51: See Martens, N.R.G. 3rd Ser. I. p. 46.]

[Footnote 52: See Martens, N.R.G. 3rd Ser. I. p. 57.]

[Footnote 53: See Martens, N.R.G. 2nd Ser. x.x.xIII. p. 3.]

[Footnote 54: See Martens, N.R.G. 2nd Ser. x.x.xIV. p. 727.]

[Footnote 55: See Martens, N.R.G. 3rd Ser. IV. p. 24.]

The Real Union between Norway and Sweden, which was established by the Vienna Congress in 1815, is peacefully dissolved by the Treaty of Karlstad[56] of October 26, 1905. Norway becomes a separate kingdom under Prince Charles of Denmark, who takes the name of Haakon VIII., and Great Britain, Germany, Russia, and France guarantee by the Treaty of Christiania[57] of November 2, 1907, the integrity of Norway on condition that she would not cede any part of her territory to any foreign Power.

[Footnote 56: See Martens, N.R.G. 2nd Ser. x.x.xIV. p. 700.]

[Footnote 57: See Martens, N.R.G. 3rd Ser. II. p. 9, and below, -- 574.]

The rivalry between France and Germany--the latter protesting against the position conceded to France in Morocco by the Anglo-French agreement signed at London on April 8, 1904--leads in January 1906 to the Conference of Algeciras, in which Great Britain, France, Germany, Belgium, Holland, Italy, Austria-Hungary, Portugal, Russia, Sweden, Spain, and the United States of America take part, and where on April 7, 1906, the General Act of the International Conference of Algeciras[58]

is signed. This Act, which recognises, on the one hand, the independence and integrity of Morocco, and, on the other, equal commercial facilities for all nations in that country, contains:--(1) A declaration concerning the organisation of the Moroccan police; (2) regulations concerning the detection and suppression of the illicit trade in arms; (3) an Act of concession for a Moorish State Bank; (4) a declaration concerning an improved yield of the taxes and the creation of new sources of revenue; (5) regulations respecting customs and the suppression of fraud and smuggling; (6) a declaration concerning the public services and public works. But it would seem that this Act has not produced a condition of affairs of any permanency. Since, in 1911, internal disturbances in Morocco led to military action on the part of France and Spain, Germany, in July of the same year, sent a man-of-war to the port of Agadir. Thus the Moroccan question has been reopened, and fresh negotiations for its settlement are taking place between the Powers.[59]

[Footnote 58: See Martens, N.R.G. 2nd Ser. x.x.xIV. p. 238.]

[Footnote 59: It should be mentioned that by the Treaty of London of December 13, 1906, Great Britain, France, and Italy agree to co-operate in maintaining the independence and integrity of Abyssinia; see Martens, N.R.G. 2nd Ser. x.x.xV. p. 556.]

Two events of importance occur in 1908. The first is the merging of the Congo Free State[60] into Belgium, which annexation is not as yet recognised by all the Powers. The other is the crisis in the Near East caused by the ascendency of the so-called Young Turks and the introduction of a const.i.tution in Turkey. Simultaneously on October 5, 1908, Bulgaria declares herself independent, and Austria-Hungary proclaims her sovereignty over Bosnia and Herzegovina, which two Turkish provinces had been under her administration since 1878. This violation of the Treaty of Berlin considerably endangers the peace of the world, and an international conference is proposed for the purpose of reconsidering the settlement of the Near Eastern question.

Austria-Hungary, however, does not consent to this, but prefers to negotiate with Turkey alone in the matter, and a Protocol is signed by the two Powers on February 26, 1909, according to which Turkey receives a substantial indemnity in money and other concessions. Austria-Hungary negotiates likewise with Montenegro alone, and consents to the modifications in Article 29 of the Treaty of Berlin concerning the harbour of Antivary, which is to be freed from Austria-Hungarian control and is henceforth to be open to warships of all nations. Whereupon the demand for an international conference is abandoned and the Powers notify on April 7, 1909, their consent to the abolition of Article 25 and the amendment of Article 29 of the Treaty of Berlin.[61]

[Footnote 60: See Martens, N.R.G. 3rd Ser. II. p. 101.]