X

during which the rioters laid siege to the foreign legations in CHAP. Peking and killed a number of Europeans, the Great Powers intervened, and, after sending military detachments to the rescue of the legations, demanded a heavy indemnity from China.1

received

civil war

It is equally unsettled as a point of law how far a state has Injuries the right to intervene in favor of its citizens who are injured as a during result of civil war in a foreign country. The general principle appears to be accepted that a state may not intervene to demand of the foreign government special protection for its citizens when that government is for the time being powerless to control the acts of the insurgents. The insurrection is treated, from the point of view of a right of intervention by third states, as on a par with the situation of public war. Aliens in such cases must share the fate of citizens of the foreign state itself; having identified themselves with the citizens of the foreign state, they must abide by the misfortunes as well as share the benefits of their temporary allegiance. Here again, however, the weaker and more unstable states, particularly those of Central and South America, have been the object of special interventions. On account of the frequency of insurrections in those states, the stronger states have not been willing to regard such insurrections as on a par with regular civil war, and they have pressed their claims at times to the point of forcible intervention. In answer to this policy Señor Calvo put forth in 18873 the principle, now known as the Calvo Doctrine, that neither armed nor diplomatic intervention is justified as a means of enforcing the claims of citizens in foreign countries on account of losses sustained in time of civil war or armed insurrection. While the doctrine has received general approval of the South American states, it cannot be said to have obtained as yet the status of a rule of law.*

involving

Special difficulty has arisen in connection with the intervention Cases of states to protect the rights of their citizens acquired as the re- contract sult of contracts entered into with foreign governments. In prin- rights ciple there might seem to be no distinction between property losses arising from mob violence and civil war and property losses caused by the failure of a foreign government to meet its bonded debts, except that in the latter circumstance the government is directly

'See Moore, Digest, V, §§ 808-810.

'Ibid., VI, § 1032.

Droit International, III, §§ 1271-1297.

For a discussion of the doctrine, see A. S. Hershey, "The Calvo and Drago Doctrines," Am. Journal, I (1907), 26.

CHAP.

X

Intervention in connection with the Monroe Doctrine

responsible for obligations which it has itself assumed, whereas in the former the government is only indirectly responsible. Nevertheless, states have been, on the whole, reluctant to intervene in support of claims of their citizens arising out of monetary transactions with foreign states. This attitude would appear to be based partly on the consideration that persons entering into such contracts do so with a knowledge of the risks involved, and with expectation of correspondingly large returns upon their investment, and partly upon the ground that a state whose citizens engage in such ventures on a large scale would find its relations with foreign states embarrassed by the numerous appeals made to it by citizens to intervene on their behalf.

"1

In 1902, at the time of the blockade of Venezuela by the combined fleets of Great Britain, Germany, and Italy, with the object of enforcing contractual and other claims against Venezuela, Dr. Drago, foreign minister of the Argentine Republic, formulated the doctrine, now known by his name, that "a public debt cannot give rise to the right of intervention, and much less to the occupation of the soil of any American nation by any European power.' The Drago Doctrine was thus advanced by its author as supplementary to the Monroe Doctrine. International attention was directed to the question during the next few years, with the result that the subject was taken up at the Second Hague Conference and a convention, known by the name of the United States delegate, General Porter, was adopted in which the contracting powers agreed "not to have recourse to armed force for the recovery of contract debts claimed from the Government of one country by the Government of another country as being due to its nationals." The agreement, however, was made subject to the condition that the debtor state should not refuse to reply to an offer of arbitration or, having accepted it, fail to abide by the award.2

The peculiar interest of the United States in respect to the question of the forcible collection of contract debts arises from the complications of that question with the Monroe Doctrine. In 1902 President Roosevelt acquiesced in the blockade of Venezuela by Great Britain, Germany, and Italy, undertaken in the interest of the contractual claims of their citizens, only after receiving asIn a note to the Argentine minister at Washington. Moore, Digest, VI, The convention was signed with numerous reservations, entered principally by the Latin-American states. See Hague Conventions, 242 ff.; Higgins, Hague Peace Conferences, 191 ff.

592.

X

surances that no occupation of territory was contemplated.1 CHAP. In 1905 he was confronted with a similar situation in Santo Domingo. Seeing the republic embarrassed by its foreign debts, and in danger of having its ports occupied by the governments of its creditors, he concluded a treaty with it by which the United States agreed to undertake the adjustment of outstanding Dominican debts, domestic as well as foreign, and with that object to take charge of and administer the custom-houses.2 The proposed treaty was rejected by the Senate; but in 1907 a new treaty was negotiated providing for the issue of new bonds and the appointment by the President of the United States of a receivergeneral of customs. In the message accompanying the earlier treaty, President Roosevelt explained the situation as presenting the alternative of the adoption of effective measures by the United States to see to the payment of the foreign debts of the republic, or its acquiescence in the measures taken by foreign governments to safeguard the interests of their citizens, the latter choice implying the abandonment of the traditional policy of the Monroe Doctrine.*

3

5

nature

vention

It is frequently stated that intervention of a forcible char- General acter, to which the term is more properly restricted, is not "a law of interor a right in the ordinary legal sense of these terms," but is a political act, a summary procedure above the law, an exercise of sovereignty. This view, however, is correct only in so far as it relates to the concrete situations which have arisen as a result of the attempt of one nation to put into effect a general principle of law which another nation concedes in the abstract but denies to be applicable under the circumstances. It thus happens that, in the absence of an international tribunal competent to pass upon the application of general principles to concrete cases, the plaintiff state will assert a right without a corresponding recognition on the part of the defendant state of a duty to acquiesce in that right. Owing to the complex character of international relations, and to the presence in the same act of intervention of legal rights and questionable ulterior designs, it is next to impossible to draw clear

1 See above, p. 148.

'See Hollander, "The Convention of 1907 between the United States and the Dominican Republic," Am. Journal, I (1907), 287.

For the text of the treaty, see Malloy, Treaties, I, 418.

•Congressional Record, Vol. 40, Part I, p. 7. For further details, see Moore, Principles of American Diplomacy, 261-265.

Hershey, Essentials of International Law, 155; Wilson and Tucker, International Law, § 42; Oppenheim, International Law, I, § 129.

CHAP.

X

inferences from the variety of precedents which mark the history of the nineteenth and twentieth centuries. In this field of the law, more perhaps than in any other, the lack of international judicial institutions of compulsory jurisdiction has resulted in creating a chaotic condition of conflicting claims, while the consequent uncertainty in respect to so fundamental a matter has had the effect, in turn, of making resort to judicial tribunals all the more precarious. This is the situation underlying the refusal of nations to submit "questions involving vital interests" to arbitration. Its solution must await the development of constructive rules of statutory law, accompanied by the establishment of an international executive agency.2

'See below, p. 407.

It should be observed that the wide scope of the international right of selfdefense, including resistance to indirect as well as direct attack, is due to the absence of a collective responsibility on the part of the community of nations as a whole for the protection of its individual members. See above, p. 40. For the same reason it is impossible to draw any practicable distinction between offensive and defensive wars. Under the existing system of individual selfdefense, attack must be anticipated before it has become too formidable to resist.

CHAPTER XI

THE RIGHT OF INDEPENDENCE: JURISDICTION OVER PERSONS

of the

inde

The right of independence or of liberty of action or, as it is a. Nature more generally called, of "sovereignty, is by the traditions of right of international law a fundamental right, in that the international pendence system which has prevailed since 1648 has been based upon it as an essential postulate. But although a fundamental right, it is subject to numerous restrictions and limitations, which are the result of the conflicts of international claims and the necessary adjustment of the rights of one state to those of another. In the theory of the law the right of self-preservation on the part of one state may, under certain circumstances, take precedence of the right of independence on the part of another. What these circumstances are has been described in the preceding chapter; but the fact must be again adverted to that in these cases the state whose independence is temporarily encroached upon by the act of another usually does not acknowledge a duty to acquiesce in the act. What gives such encroachments a legal character, if indeed they can be said to have such, is the fact that public opinion of the nations at large may sanction them, although the particular state which is the victim of them does not. Other restrictions upon the independence of a state are the result of treaties voluntarily entered into or of concessions and privileges granted by custom to the public ministers, vessels of war, and merchant ships of foreign countries. These have, for the most part, a clear and definite legal character.

The right of independence has two distinct aspects, one relating to the freedom of the state in respect to the management of its domestic affairs, the other relating to the freedom of the state in respect to its position in the world of nations. The former is known as the "internal independence" or "internal sovereignty of the state, and it involves the supreme jurisdiction of the state to control all persons and property within the boundaries of its territorial domain; the latter is known as the "external indepen1See above, pp. 150-151.

Distinction external

between

and inter

nal inde

pendence