« PreviousContinue »
Conceiving it as a doctrine touching our self-preservation (and the incidents of its application are squarely within the precedents of action for self-preservation) the definitions and discussions of selfpreservation by international law writers are of importance. Concerning self-preservation Phillimore says—
The Right of Self-Preservation is the first law of nations, as it is of individuals.
All means which do not affect the independence of other nations are lawful for this end. No nation has a right to prescribe to another what these means shall be, or to require any account of her conduct in this respect. (International Law, 3d ed., vol. 1, p. 312.)
After stating, as to the independence of a state, that "to interfere with it therefore is a wrong, unless it can be shown that there are rights or duties which have priority, either invariably or in certain circumstances, over the duty of respecting independence," Hall lays down the following rule:
That there is one such right is incontestable. Even with individuals living In well-ordered communities the right of self-preservation is absolute in the last resort. À fortiori it is so with states, which have in all cases to protect themselves. If the safety of a state is gravely and immediately threatened either by occurrences in another state, or aggression prepared there, which the government of the latter is unable or professes itself to be unable, to prevent, or when there is an imminent certainty that such occurrences or aggression will take place if measures are not taken to forestall them, the circumstances may fairly be considered to be such as to place the right of self-preservation above the duty of respecting a freedom of action which must have become nominal, on the supposition that the state from which the danger comes is willing, if it can, to perform its international duties. (International Law, 5th ed., p. 54.)
Of the absolute international rights of States, one of the most essential and important, and that which lies at the foundation of all the rest, is the right of self-preservation. It is not only a right with respect to other States, but a duty with respect to its own members, and the most solemn and important which the State owes to them. This right necessarily involves all other incidental rights, which are essential as means to give effect to the principal end. (Elements of International Law, par. 61.)
Westlake lays down the rule thus:
What we take to be pointed out by justice as the true international right of self-preservation is merely that of self-defence. A state may defend itself, by preventive means if in its conscientious judgment necessary, against attack by another state, threat of attack, or preparations or other conduct from which an intention to attack may reasonably be apprehended. In so doing it will be acting in a manner intrinsically defensive even though externally aggressive. In attack we include all violation of the legal rights of itself or of its subjects, whether by the offending state or by its subjects without due repression by it, or ample compensation when the nature of the case admits compensation. And by due repression we intend such as will effectually prevent all but trifling
injuries (de minimis non curat lex), even though the want of such repression may arise from the powerlessness of the government in question. The conscientious judgment of the state acting on the right thus allowed must necessarily stand in the place of authoritative sanction, so long as the present imperfect organisation of the world continues. If its legal rights or those of its subjects are concerned, and the necessity is not great and immediate, action on the right of self-preservation will seldom be conscientious unless arbitration has first been offered and refused; and there may be cases of a political kind not wholly unfitted for arbitration. (International Law, pt. 1, pp. 299-300.)
From the earliest time of the existence of the Law of Nations self-preservation was considered sufficient justification for many acts of a State which violate other States. Although, as a rule, all States are under a mutual duty to respect one another's personality, and are therefore bound not to violate one another, as an exception certain violations of another State committed by a State for the purpose of self-preservation are not prohibited by the Law of Nations. (International Law, vol. 1, par. 129.)
Rivier announces the rule thus:
When a conflict arises between the right of self-preservation of a state and the duty of that state to respect the right of another, the right of self-preservation overrides the duty. Primum vivere. A man may be free to sacrifice himself. It is never permitted to a government to sacrifice the state of which the destinies are confided to it. The government is then authorised, and even in certain circumstances bound, to violate the right of another country for the safety (salut) of its own. That is the excuse of necessity, an application of the reason of state. It is a legitimate excuse. (Translation of Principes du Droit des Gens, p. 277, as given by Westlake in International Law, pt. 1, pp. 296-297.)
The occasions when this right has been exercised are many. The more frequently cited instances have been summarized as follows:
Those classed as acts of self-defense:
part of the eighteenth century as (Halleck apparently reprobating and Phillimore also classifies under this
Halleck (p. 96) and Phillimore (p. 561) cite the intervention of the powers in the French Revolution in the latter illustrations of the exercise of this right Phillimore justifying the intervention). head the intervention of the powers in the partitions of Poland in 1772, 1793, 1795, and 1815, interventions which he characteriizes as "public crimes" and "national wickedness" (p. 563). Phillimore also classifies under this head as being the "offspring of necessity" the intervention of the powers in Greece in 1856 (p. 567), and also quotes at least one earlier exercise of the right in the "conduct of Hiero, King of Syracuse, who, though an ally of Rome, sent aid to Carthage during the war of the auxiliaries" (p. 576). Lawrence seems also to classify the British intervention in Egypt in 1882 under the head of self-defense (p. 133).
The authorities appear to regard this kind of intervention variously. Halleck states that this usually is a mere 66 excuse (p. 96). Phillimore contends that "in cases like the foregoing (that is, the intervention in the French Revolution) the Right of Self-Defence justifies other nations in intervening and demanding and if necessary by force of arms compelling, the abolition of a Government
avowing a principle of hostility to the existing Governments of all other nations. But this, like the other grounds of Intervention, is very liable to be abused" (citing the partitions of Poland, p. 562).
Lawrence appears to approve the principle (p. 117), as does also Hall (pp. 264 et seq., 279).1
Those classed as acts of self-preservation:
Hall, Phillimore, and Oppenheim treat the subject of Self-Preservation as distinct from the question of intervention, Phillimore, indeed, specifying as one of the grounds of intervention the closely allied "Right of Self-Defense." All three authors (Phillimore, p. 315; Hall, p. 265; Oppenheim, p. 180) cite the case of the destruction, in 1839, of the Caroline on the Niagara River by British forces crossing over into American territory as an instance of the exercise of this right. Phillimore adds (p. 315) the instance of the British Government sending troops to Portugal in 1826 (Portugal being her ally) in order to assist Portugal in meeting the mustering and equipment of Portuguese rebels on the Spanish frontier unchecked by the Spanish authorities. Hall (p. 268) and Oppenheim (p. 179) cite the seizure by the British forces in 1807 of the Danish fleet, which, under certain secret articles of the treaty of Tilsit, was to be used by France against England. Hall (p. 270) also cites in this connection the case of the Virginius, where Spain exercised the right of visit and search during the insurrection in Cuba, a state of belligerency not having been recognized. In the case of the Virginius the United States and Great Britain both protested against the summary execution of certain of their citizens and subjects found on board the vessel. Oppenheim (p. 180) also cites the case of Amelia Island, whose piratical inhabitants were put down by this Government because of their preying upon American commerce as an instance of this kind. Finally, Hall (pp. 273-277) classes under this heading of "Self-Preservation" the protection of subjects abroad. On this point further discussion will be made hereafter.
Regarding the right of self-preservation as contrasted with other alleged rights of intervention, Halls says (p. 284):
It is unfortunate that publicists have not laid down broadly and unanimously that no intervention is legal, except for the purpose of selfpreservation, unless a breach of the law as between states has taken place, or unless the whole body of civilised states have concurred in authorising it. Interventions, whether armed or diplomatic, undertaken either for the reason or upon the pretexts of cruelty, or oppression, or the horrors of a civil war, or whatever the reason put forward, supported in reality by the justification which such facts offer to the popular mind, would have had to justify themselves, when not authorised by the whole body of civilised states accustomed to act together for common purposes, as measures which, being confessedly illegal in themselves, could only be excused in rare and extreme cases in consideration of the unquestionably extraordinary character of the facts causing them, and of the evident purity of the motives and conduct of the intervening state. The record of the last hundred years might not have been much cleaner than it is; but evil-doing would have been at least sometimes compelled to show itself in its true colours; it would have found more difficulty in clothing itself in a generous disguise; and international law would in any case have been saved from complicity with it.2
1 Right to Protect Citizens in Foreign Countries by Landing Forces (2d rev. ed.), p. 9.
'Ibid., pp. 21–22.
Those classed as acts of imminent danger:
Lawrence (p. 121), seemingly having in mind much the same idea as that covered by Hall and others under the heading of "Self-Preservation," instances the action of the British Government when, in 1804, the British Ministry discovered that Spain had entered into arrangements to assist France, then at war with England, and was preparing a naval armament in the harbor of Ferrol, and states that the Ministry were justified in commencing hostilities when their remonstrances were disregarded. Lawrence also instances the case of Austria in 1813, when that Government, at the close of an armistice granted by Napoleon after the battle of Bautzen, "joined Russia and Prussia against France, the reason being that the French Emperor had rejected its (Austria's) offers of mediation on the basis of reasonable concessions on his part, and had brought up the army of Italy to intimidate it."3
It is of first importance to have in mind that Monroe's declaration in its terms, relates solely to the relationships between European states on the one side, and, on the other side, the American continents, the Western Hemisphere, and the Latin American Governments which on December 2, 1823, had declared and maintained their independence which we had acknowledged.
It is of equal importance to note, on the other hand, that the declaration does not apply to purely inter-American relations.
Nor does the declaration purport to lay down any principles that are to govern the interrelationship of the states of this Western Hemisphere as among themselves.
The Doctrine states a case of United States vs. Europe, not of United States vs. Latin America.
Such arrangements as the United States has made, for example, with Cuba, Santo Domingo, Haiti, and Nicaragua, are not within the Doctrine as it was announced by Monroe. They may be accounted for as the expression of a national policy which, like the Doctrine itself, originates in the necessities of security or selfpreservation—a policy which was foreshadowed by Buchanan (1860) and by Salisbury (1895), and was outlined in what is known as the "Roosevelt corollary" to the Monroe Doctrine (1905) in connection with the Dominican debt protocol of 1904; but such arrangements are not covered by the terms of the Doctrine itself.
Should it become necessary to apply a sanction for a violation of the Doctrine as declared by Monroe, that sanction would run against the European power offending the policy, and not against the Latin American country which was the object of the European aggression, unless a conspiracy existed between the European and the American states involved.
In the normal case, the Latin American state against which aggression was aimed by a European power, would be the beneficiary
'Ibid., p. 22.
of the Doctrine not its victim. This has been the history of its application. The Doctrine makes the United States a guarantor, in effect, of the independence of Latin American states, though without the obligations of a guarantor to those states, for the United States itself determines by its sovereign will when, where, and concerning what aggressions it will invoke the Doctrine, and by what measures, if any, it will apply a sanction. In none of these things has any other state any voice whatever.
Furthermore while the Monroe Doctrine as declared, has no relation in its terms to an aggression by any other state than a European state, yet the principle "self-preservation" which underlies the Doctrine-which principle, as we shall see, is as fully operative without the Doctrine as with it—would apply to any non-American state in whatever quarter of the globe it lay, or even to an American state, if the aggressions of such state against other Latin American states were "dangerous to our peace and safety," or were a "manifestation of an unfriendly disposition towards the United States," or were "endangering our peace and happiness"; that is, if such aggressions challenged our existence.
In other words, there is a broad domain occupied by selfpreservation which is incapable of definite boundary as to its extent, or of definition as to the kind of act which lies within it, because new conditions, new advances in the arts and sciences, new instrumentalities of international contact and communication, new political theories and combinations, vary from age to age and can not be certainly foretold. As the law stands, whatever falls within the necessities of self-preservation, under existing or future conditions, lies within the boundaries of the domain of the principle.
By his declaration President Monroe occupied and bounded but a narrow portion of this whole domain-that portion which contained situations immediately threatening. But that can hardly be said to have changed under the rules and principles of international law the fundamental character of the acts defined and bounded. These acts still remained within the domain of selfpreservation, for, obviously, if they would constitute a menace to our existence, such menace would not disappear by virtue of their being listed.
In this view, the Monroe Doctrine as such might be wiped out and the United States would lose nothing of its broad, international right; it would still possess, in common with every other member of the family of nations, the internationally recognized right of self-preservation, and this right would fully attach to the matters specified by the Doctrine if and whenever they threatened our existence, just as the right would attach in relation to any other act carrying a like menace.