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on the 10th of March the following statement was given out at the White House:
An adequate force will be sent at once in pursuit of Villa with the single object of capturing him and putting a stop to his forays. This can and will be done in entirely friendly aid of the constitutional authorities of Mexico and with scrupulous respect for the sovereignty of that Republic.
There can be no doubt that steps should immediately have been taken to secure a reparation for the violation of American sovereignty, that the perpetrators of the outrage—for outrage it was should be punished, and that measures should be taken by Mexico to prevent a recurrence of the incident. Under ordinary circumstances the facts would have been laid before the Mexican Government, with a request that it be disavowed, that reparation be made, and that the perpetrators be apprehended and punished, and it would seem that the sending of American troops across the frontier into Mexico in pursuit of Villa and his band would constitute a violation of Mexican sovereignty, just as Villa's invasion of American soil had constituted a violation of American sovereignty.
But the situation in Mexico, and particularly in the north of Mexico, is extraordinary, not ordinary, and though the United States has recognized General Carranza's government as the de facto government of Mexico, the General is not in the saddle in all parts of his distracted country. However, having recognized General Carranza's government, it would seem that the United States is estopped from taking action which would deny in fact what the United States had recognized in theory, and that American troops should not cross the boundary except with the knowledge and permission of the government which the United States had recognized. It would seem that General Carranza should have been called upon as the de facto government of Mexico to disavow the outrage and to undo the wrong as best it might be done. Upon his unwillingness or inability to do so the United States would then be in a position to decide for itself whether it should enter Mexico to capture Villa and his band, if in the opinion of the American authorities such action should seem to be requisite. With the presence of Villa's troops in the north of Mexico and with the possibility of a renewed invasion of American territory, the American authorities might, it is believed, properly consider his presence as a nuisance and, taking the law in their own hands, proceed to abate the nuisance either without the coöperation or consent of the de facto authorities.
As examples of abating a nuisance in adjoining jurisdiction, the action of Great Britain in the case of the steamboat Caroline (2 Moore's Int. Law Dig., 409 414) may be cited, in which a party from Canada, during the insurrection of 1837, under the leadership of one McLeod, entered American jurisdiction and seized and destroyed the Caroline, a small steamer engaged in carrying arms and ammunition to the rebels.
The case of Amelia Island (1 Wharton's Int. Law Dig., 2d ed., pp. 222–4), is one in which the United States took possession of Amelia Island, then in possession of Spain, at the mouth of St. Mary's River, "the nuisance being one which required immediate action.”
Mexico and the United States have had a long and trying experience with incursions of Indians near the international boundary into one or the other country. The views of the United States and the incidents in which those views were applied are to be found in 1 Wharton's Digest, 2d ed., pp. 229-234, and Moore's Digest, Vol. II, pp. 418-425, and were stated by a very distinguished Secretary of State, Mr. Marcy, in terms applicable to both countries. In regard to the right of the United States to enter Mexico, he said in a note dated February 4, 1856, to Mr. Almonte: “If Mexican Indians whom Mexico is bound to restrain are permitted to cross its border and commit depredations in the United States, they may be chased across the border and then punished.” (Wharton's Digest, Vol. I, p. 230.)
In regard to the right of Mexico to enter American territory under like circumstances, Secretary Marcy said in the same note:
If Indians whom the United States are bound to restrain shall, under the same circumstances, make a hostile incursion into Mexico, this Government will not complain if the Mexican forces who may be sent to repel them shall cross to this side of the line for that purpose, provided that in so doing they abstain from injuring the persons and property of citizens of the United States. (II Moore's Dig., p. 421.)
Admitting that the right exists in international law for a country to abate a nuisance in an adjoining country, and admitting the right, as stated by Secretary Marcy, to enter foreign territory in order to pursue and to punish marauders of that country who have committed depredations within the territory of the invaded state and have sought refuge in their own country, it is believed to be bad policy to exercise this right and to take the law into one's own hands. The proper method is for the countries threatened by the acts of marauders to come to an agreement by which raids of the kind specified shall be prevented and, if it be necessary for one country to enter the territory of another in
pursuit of marauders and there to punish them, that this permission shall be expressly given and the methods of its exercise determined in order that disputes and bitterness of feeling may not arise between the contracting countries. This is what Mexico and the United States have done in a series of agreements beginning in the year 1882, and to be found in Malloy's Treaties, Conventions, etc., 1776-1909, Vol. I, pp. 1144, 1145, 1157, 1158, 1162, 1170, 1171, 1177. These treaties or protocols relate only to Indians, but they consecrate the principle, and a bandit is a bandit, whether he be an Indian or not.
It is to be hoped and it is to be presumed that the United States and Mexico either have or will come to an agreement regarding the pursuit of Villa which, granting the right, will prescribe its method of exercise in such a way as to allay unjust fears that a punitive expedition can have any ulterior motives inconsistent with the sovereignty and dignity of Mexico.
JAMES BROWN SCOTT.
INSTRUCTIONS TO FRENCH NAVAL OFFICERS
On December 19, 1912, the French Government issued to its naval forces instructions in regard to the operation of international law in case of war. The one hundred and sixty-six articles of these instructions set forth clearly the general rights and duties which the naval officer should consider in taking action. In these instructions were embodied many of the principles stated in the Declaration of London of 1909. As these instructions were drawn up in time of peace it might be supposed that here would be found the body of international law binding, according to the French opinion, upon naval commanders and the law according to which hostilities would be conducted by others.
So far as the same subjects were treated in the manual relating to the laws of maritime war in relations between belligerents adopted by the Institute of International Law at its Oxford meeting in 1913, there were few differences. It seemed then, therefore, that the maritime law of war was becoming fairly clearly recognized. Of course there are matters which have arisen since July, 1914, for which no provision was made as there were at that time no precedents or grounds for action.
It is serviceable, therefore, to estimate as far as may be while rules are still under great strain how far rules prepared dispassionately and in time of peace have withstood the test of war. This is made possible by the issue early in the year 1916 by the French Government of a decree promulgating instructions to naval officers in regard to the operation of international law in war.
A comparison of the French instructions of 1912, drawn up in time of peace, and those of 1916, drawn up in time of war, shows elaboration and definition of several articles of the instructions of 1912. This is not in the nature of change in principle or practice. In general, also, it may be said that there is no tendency toward greater exemption of enemy private property at sea from capture. The list of contraband both absolute and conditional has been greatly enlarged, now even including soap, and ultimate destination of the goods is made the criterion regardless of intervening transportation. In consignments of goods to order, consignments to enemy or occupied territory, and when consignee is not stated, the burden of proof of innocence is placed upon the owners. Neutral vessels whose papers show neutral destination are liable to capture till the end of the voyage if, in spite of the papers, they make an enemy port. It is made clear that the use of radio apparatus may be regarded as unneutral service.
Even granting these modifications, the one hundred and sixty-six articles of the instructions of 1916 are so nearly identical with the like instructions of 1912 as to show that, except in case of the wide extension of the list of contraband, there has been little change other than of an explanatory nature. Such a fact, which is likewise evident in the rules of some other countries, is testimony to the sound basis of maritime international law and significantly hopeful for its future development.
GEORGE GRAFTON WILSON.
THE RIGHT OF NEUTRALS TO PROTEST AGAINST VIOLATIONS OF INTER
It is frequently stated that a neutral nation does not have the right to protest or to make a representation to a belligerent if an act of the latter in violation of neutral rights only affects another neutral of the society of nations and does not affect the persons or property of the neutral whose right to protest or to make a representation is questioned. It is true that a neutral may not have the duty to protest or to make representations unless the life or property of its citizens be affected by the unlawful act of the belligerent, but it is believed that the right so to protest exists.
Confusion seems to arise because of the difference in the nature and application of municipal law, on the one hand, and international law on the other, and the failure to appreciate that what might be forbidden under one system may be required under another. Municipal law is determined by a particular country; it may be wise or unwise, it may be good or bad, but it is the affair of the particular country whose law it is.
The case is wholly different with international law, which is a thing of usage and custom and convention of the nations which, taken together, form the loose union, but nevertheless the union, which we call the society of nations. As Chief Justice Marshall said in 1825, in deciding the case of the Antelope (10 Wheaton, 66, 122):
No principle of general law is more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality that no one can rightfully impose a rule on another. Each legislates for itself and its legislation can operate on itself alone.
As no nation can prescribe a rule for others, none can make a law of nations.
It follows necessarily, therefore, that it is not the usage or custom of one nation or practice or law of any one nation that can make a law of nations, and if international law, as is the fact, is in large measure usage, custom and practice extending over a long period of time, and such usage and practice is not and cannot be the usage, custom and practice of any one nation, it follows that each nation must either cooperate in the process or must accept the results of the process in order that the law of nations thus formed shall bind it. Lest the practice of a nation, claimed by that nation to be in accordance with international law, may seem to be accepted by silence of the nations and thus become international law, it behooves a nation objecting to that practice to state its objection and to make it clear that it will not be bound by it.
In the case of municipal law a protest might not be justified by the mere presence of a law upon the statute book, because it may not appear that, however formal in terms, it would be applied in such a way as to violate the rights of other nations under international law. It would no doubt be proper to suggest the possibility and to point out the conflict between the municipal statute and international law, but until the statute had been applied in such a way as to violate the rights of foreign countries under international law it could not definitely be said that it would be so interpreted and applied.
In international law, on the other hand, the mere claim to exercise