2 X a reservation reasserting its intention not to depart either from CHAP. its policy of non-interference in the political affairs of foreign states or from its traditional attitude toward purely American questions.1 While the negative policy of non-interference in European political affairs, which has been a regular accompaniment of the Monroe Doctrine, raises no question of conflicting international rights, the positive features of the doctrine, the ban against territorial encroachment upon the Central and South American states, is a standing restriction upon the freedom of action of nonAmerican states in dealing with them. The implied acceptance of this restriction would seem to give to the doctrine a limited. legal character, without, however, obligating the United States to continue indefinitely to assert the claims now deferred to.3 The drafting of the Covenant of the League of Nations in 1919 raised the question of the effect of the obligations assumed under Articles 10-16 upon the Monroe Doctrine. On the one hand it was argued that the guarantees contained in the Covenant amounted to a world-wide adoption of the Monroe Doctrine, and that therefore there was no incompatibility between them and the doctrine. Against this position it was claimed that under the Covenant the United States would give up its right of individual action in circumstances calling for the application of the Monroe Doctrine, while European powers would acquire a joint right to take the collective action contemplated by the Covenant. In deference to these objections the draft Covenant was amended so as to provide that "nothing in this covenant shall be deemed to affect the validity of international engagements such as treaties of arbitration or regional understandings like the Monroe Doctrine for securing 1 Hague Conventions, 234, 242. The policy of isolation, as a measure of self-protection, dates from Washington's farewell address of September 17, 1796. Its connection with the Monroe Doctrine is accidental rather than essential, so that occasional departures from it, as in the signature of the General Act of the Algeciras Conference of 1906, in no way weakened the assertion of the Monroe Doctrine. Compare, however, the alleged connection of the two policies, in the Senate debates attending the rejection of the Treaty of Versailles, 1919-20. In 1914 Senator Root stated that "the doctrine is not international law but it rests upon the right of self-protection and that right is recognized by international law." Am. Journal, VIII (1914), 427. Again, in 1923, Secretary Hughes asserted that the doctrine "is not a part of international law, maintained by the consent of civilized powers and alterable only at their will.'' Am. Journal, XVII (1923), 611. In both these cases, however, stress was being laid upon the fact that the Monroe Doctrine originated as a policy of self-defense and has continued to be maintained by the United States without assistance from other states. Such, however, has been the case with many rules of international law which, beginning as assertions of individual claims, have in time been acquiesced in by other states. The Monroe and the Doctrine Covenant of the League of Nations CHAP. Parallel doctrines of other states d. Intervention: its legal basis the maintenance of peace.' Whether this article, conceding to the United States a privileged position in respect to questions affecting the American continent, can be reconciled with other provisions of the Covenant, Articles 10, 11, 16, cannot be determined so long as the United States remains outside the League. Taken in their literal terms the articles appear to be contradictory. Parallels to the Monroe Doctrine may be found in the foreign policies of a number of the leading states. Thus, Great Britain has long considered it essential to the safety of the empire that the maritime passage to India by way of the Mediterranean and the Suez Canal be kept from coming at any point under the control of other powers. Again, France has felt it imperative of recent years that the communications with her colonies in North Africa be secured against interruption, particularly in time of war. Italy has manifested of late a desire to hold unrivaled control of the Adriatic. Japan entered upon her war with Russia Vupon grounds similar to those underlying the Monroe Doctrine; while in 1917 she secured from the United States by the LansingIshii Agreement, since terminated, a recognition of her paramount interests in China. interest Precedents exist in which the right of self-defense against indirect attack has been made to justify interference by one state in the domestic affairs of another state, whether for the purpose of suppressing revolutionary movements which menace the security of the intervening state, or for the purpose of putting an end to conditions of misgovernment in the foreign state which disturb the its own domestic peace) These precedents, however, have been too irregular and inconsistent to make it possible to infer from them a definite rule of law. Interference of this kind is technically known as intervention, and it is more commonly, but less logically, treated in its negative aspect, as an exception to the independence of the other state. Its true character, however, can be better judged by its positive aspect, as an act of alleged selfdefense. Authors have disputed whether intervention is ever justifiable, being a direct violation of the independence of the state which is the object of it. But while many of the interventions carried out during the nineteenth century were contested by third states as being contrary to the principles of international law, and The denial by certain publicists that the Monroe Doctrine is a "regional understanding" would not seem to affect the intention to exclude that doctrine from the terms of the Covenant, as provided. For references, see Hershey, Essentials of International Law, 154 n. 18. X 1 Аураз directed revolu govern may well have been deserving of moral censure, other interventions CHAP. were undoubtedly acquiesced in, and were the logical consequence of an international system lacking executive agencies for the protection of rights. That intervention is justified on no other ground than that of self-defense would seem, however, to be an accepted principle, though apparently of little value in that general form. InterIntervention to overthrow revolutionary governments, or to vention prevent the spread of revolutionary principles,) has shown new against forms under changing conditions. In defense of their own mon- tionary archical claims Austria and Prussia intervened to check the prog- ments ress of the French Revolution in 1793. The Congress of Vienna in 1815 boldly reorganized the domestic governments of France, Spain and Portugal in the interest of a stable and conservative régime. In 1820 the Quadruple Alliance undertook to excommunicate from the family of nations "states which have undergone a change of government due to revolution, the results of which threaten other states"; and pledged themselves, if immediate danger threatened, to have recourse, if necessary, to arms "to bring back the guilty state into the bosom of the Great [Holy] Alliance." 1 On the basis of this principle Austria intervened to suppress uprisings in Italy in 1821, France intervened for a similar purpose in Spain in 1823, and plans were made to assist the Spanish Government in recovering its rebellious colonies. Again, in 1849, the Austrian Government obtained aid from Russia to assist it in suppressing the revolt in Hungary. With the growth, however, of stable democratic governments, and with the practically universal adoption of constitutional limitations upon monarchical control in the second half of the nineteenth century, the occasions for such interventions largely disappeared. A unique reversal of conditions was witnessed when, upon the entrance of the United States into the World War, President Wilson demanded that the German people introduce some measure of parliamentary control over their government as a condition of the discussion of terms of peace. It was only after an assurance from the German Government that it could now speak in the name of the German people that the negotiations leading to the armistice were concluded. In contrast with this demand by the Allies for the elimination of the elements of absolutism in the German 1 Protocol adopted at Troppau. Reply to Pope Benedict, August 27, 1917; address to Congress, December 4, 1917. Cases of Germany and Russia in 1918 CHAP. X The removal of an international nuisance Case of and Serbia Government was the subsequent attitude of the Great Powers toward the Bolshevik Government of Russia. First by means of military intervention following upon the defection of Russia from the ranks of the Allies, and later by means of an economic blockade, the attempt was made to bring about the fall of a government which had proclaimed its intention of spreading its revolutionary principles throughout the world, and which was held to be disturbing by its paid agents the domestic peace of other nations.1 Intervention with the object of protecting the state against conditions of continued misgovernment in a neighboring state is strikingly illustrated in the declaration of war by the United States against Spain in 1898. International law has never explicitly recognized a right on the part of states similar to the common-law right of an individual to abate a nuisance. At the same time, in the absence of an international tribunal of compulsory jurisdiction, it has not been possible for a nation to sue out a writ of injunction against a foreign state. In the judgment of the United States Government the condition of chronic rebellion in Cuba, accompanied by military repression of a particularly odious character, as well as by the failure to establish proper sanitary measures against the spread of yellow fever, constituted a continuous disturbance to the peace of the United States. Whether war was the only available remedy was a question of public morality, not of positive law. The particular method of self-protection to be adopted under the circumstances was left by international law to the discretion of the injured party. The right of self-defense against misgovernment in a neighboring state was presented in acute form in the ultimatum of Austria-Hungary to Serbia on July 23, 1914. Overlooking the peremptory character of the ultimatum, which was without precedent in modern diplomacy, and leaving out of account the moral issue involved in the refusal of Austria-Hungary to submit to arbitration the points upon which Serbia refused to yield, the strictly legal aspects of the situation were as follows: The Dual Monarchy was a recognized person of international law and as such was entitled to maintain its territorial integrity, however unjustifiable its composite structure of dominant and subject races The earlier active intervention of Great Britain, France, and the United States must be distinguished from their later passive attitude of refusal to recognize the de facto Bolshevik Government. See address of President McKinley to Congress, April 11, 1898. Moore, Digest, VI, 909. X was. It had therefore a legal right to defend itself against what CHAP. it believed to be the attempt of agencies in Serbia to spread propaganda with the object of fomenting revolution in the Slavic districts of the state. That Serbia had on its part every reason to view with satisfaction the creation of disaffection in these districts, seeing that their inhabitants were powerless to assert at international law a right of self-determination, did not detract from the legal rights of Austria-Hungary. International law of 1914, lacking authoritative judicial and executive agencies, was simply inadequate to meet a situation in which the legal rights of one state conflicted with the equitable claims of another. against national International law recognizes a right of self-defense on the part selfof the nations collectively or individually against the menace of defens lawless conduct perpetrated by one state against another. In such intercases the principle is generally accepted that a serious violation outlawry of international law will, if permitted to pass unpunished, have the effect of undermining, all law and reduce the whole international system to anarchy. The coalition formed against Napoleon in 1805, when it appeared that the rights of neighboring states were being ruthlessly crushed underfoot, received the sanction of public opinion throughout Europe. The intervention of the United States in Mexico in 1865 would have been legally justifiable as a means of thwarting the illegal intervention of France, even had the United States had no traditional Monroe Doctrine to support J its action. So also, in 1914, the violation by Germany of the neutrality of Belgium would have offered legal grounds for intervention by Great Britain and other powers, even had they not been parties to the treaty of 1839. The fact that in such cases there was a conflict of rights between the state seeking to maintain the integrity of international law and the state asserting the necessity of overriding it in urgent self-defense does not imply that neither party could claim legal validity for its action, but merely that international law had no authoritative agencies to decide which right should prevail. International law in these instances, as in others, recognized certain general principles, but had no means of passing upon the application of the principles to concrete situations. Vattel correctly stated the principle "that all nations may put down by force the open violation of the laws of the society which nature has established among them, or any direct attacks upon its welfare." Droit des Gens (Eng. trans.), Introd., § 22. See above, p. 143. |