to have that right respected and protected by all other nations, for
right and duty are correlative, and the right of one is the duty of all
to observe.
VI. International law is at one and the same time both national and
international; national in the sense that it is the law of the land and
applicable as such to the decision of all questions involving its
principles; international in the sense that it is the law of the
society of nations and applicable as such to all questions between and
among the members of the society of nations involving its principles.
This Declaration has been criticised as being too altruistic for a
world in which diplomacy has been occupied with selfish aims, yet Mr.
Root, in presenting it at the annual meeting of the American Society of
International Law, claimed that every statement in it was "based upon
the decisions of American courts and the authority of American
publicists."
The Mexican situation put the principles of the new Pan-Americanism to
a severe test. On February 18, 1913, Francisco Madero was seized and
imprisoned as the result of a conspiracy formed by one of his generals,
Victoriano Huerta, who forthwith proclaimed himself dictator. Four
days later Madero was murdered while in the custody of Huerta's troops.
Henry Lane Wilson, the American ambassador, promptly urged his
government to recognize Huerta, but President Taft, whose term was
rapidly drawing to a close, took no action and left the question to his
successor.
President Wilson thus had a very disagreeable situation to face when he
assumed control of affairs at Washington. He refused to recognize
Huerta, whose authority was contested by insurrectionary chiefs in
various parts of the country. It was claimed by the critics of the
administration that the refusal to recognize Huerta was a direct
violation of the well-known American policy of recognizing de facto
governments without undertaking to pass upon the rights involved. It
is perfectly true that the United States has consistently followed the
policy of recognizing de facto governments as soon as it is evident in
each case that the new government rests on popular approval and is
likely to be permanent. This doctrine of recognition is distinctively
an American doctrine. It was first laid down by Thomas Jefferson when
he was Secretary of State as an offset to the European doctrine of
divine right, and it was the natural outgrowth of that other
Jeffersonian doctrine that all governments derive their just powers
from the consent of the governed. Huerta could lay no claim to
authority derived from a majority or anything like a majority of the
Mexican people. He was a self-constituted dictator, whose authority
rested solely on military force. President Wilson and Secretary Bryan
were fully justified in refusing to recognize his usurpation of power,
though they probably made a mistake in announcing that they would never
recognize him and in demanding his elimination from the presidential
contest. This announcement made him deaf to advice from Washington and
utterly indifferent to the destruction of American life and property.
The next step in the President's course with reference to Mexico was
the occupation of Vera Cruz. On April 20, 1914, the President asked
Congress for authority to employ the armed forces of the United States
in demanding redress for the arbitrary arrest of American marines at
Vera Cruz, and the next day Admiral Fletcher was ordered to seize the
custom house at that port. This he did after a sharp fight with
Huerta's troops in which nineteen Americans were killed and seventy
wounded. The American chargé d'affaires, Nelson O'Shaughnessy, was at
once handed his passports, and all diplomatic relations between the
United States and Mexico were severed.
A few days later the representatives of the so-called ABC Alliance,
Argentina, Brazil, and Chile, tendered their good offices for a
peaceful settlement of the conflict and President Wilson promptly
accepted their mediation. The resulting conference at Niagara, May 20,
was not successful in its immediate object, but it resulted in the
elimination of Huerta who resigned July 15, 1914. On August 20,
General Venustiano Carranza, head of one of the revolutionary factions,
assumed control of affairs at the capital, but his authority was
disputed by General Francisco Villa, another insurrectionary chief. On
Carranza's promise to respect the lives and property of American
citizens the United States forces were withdrawn from Vera Cruz in
November, 1914.
In August, 1915, at the request of President Wilson, the six ranking
representatives of Latin America at Washington made an unsuccessful
effort to reconcile the contending factions of Mexico. On their
advice, however, President Wilson decided in October to recognize the
government of Carranza, who now controlled three fourths of the
territory of Mexico. As a result of this action Villa began a series
of attacks on American citizens and raids across the border, which in
March, 1916, compelled the President to send a punitive expedition into
Mexico and later to dispatch most of the regular army and large bodies
of militia to the border.
The raids of Villa created a very awkward situation. Carranza not only
made no real effort to suppress Villa, but he vigorously opposed the
steps taken by the United States to protect its own citizens along the
border, and even assumed a threatening attitude. There was a loud and
persistent demand in the United States for war against Mexico.
American investments in land, mines, rubber plantations, and other
enterprises were very large, and these financial interests were
particularly outraged at the President's policy of "watchful waiting."
The President remained deaf to this clamor. No country had been so
shamelessly exploited by foreign capital as Mexico. Furthermore, it
was suspected and very generally believed that the recent revolutions
had been financed by American capital. President Wilson was determined
to give the Mexican people an opportunity to reorganize their national
life on a better basis and to lend them every assistance in the task.
War with Mexico would have been a very serious undertaking and even a
successful war would have meant the military occupation of Mexico for
an indefinite period. After our entrance into the World War many of
those Americans who dissented radically from Wilson's Mexican policy
became convinced that his refusal to become involved in war with Mexico
was a most fortunate thing for us.
It has been charged that there was a lack of consistency between the
President's Mexican policy and his Haitian policy. The difference
between the two cases, however, was that order could be restored in
Haiti with a relatively small force of marines, while any attempt to
apply force to Mexico would have led to a long and bloody conflict.
The most novel feature of the President's Mexican policy was his
acceptance of the mediation of the ABC Alliance and his subsequent
consultation with the leading representatives of Latin America. This
action brought the Pan-American ideal almost to the point of
realization. It was received with enthusiasm and it placed our
relations with Latin America on a better footing than they had been for
years.
It was suggested by more than one critic of American foreign policy
that if we were to undertake to set the world right, we must come
before the bar of public opinion with clean hands, that before we
denounced the imperialistic policies of Europe, we should have
abandoned imperialistic policies at home. The main features of
President Wilson's Latin-American policy, if we may draw a general
conclusion, were to pledge American republics not to do anything which
would invite European intervention, and to secure by treaty the right
of the United States to intervene for the protection of life, liberty,
and property, and for the establishment of self-government. Such a
policy, unselfishly carried out, was not inconsistent with the general
war aims defined by President Wilson.
IX
THE FAILURE OF NEUTRALITY AND ISOLATION
In Washington's day the United States was an experiment in democracy.
The vital question was not our duty to the rest of the world, but
whether the rest of the world would let us live. The policy of wisdom
was to keep aloof from world politics and give as little cause for
offense as possible to the great powers of Europe. Washington pointed
out that "our detached and distant situation" rendered such a course
possible. This policy was justified by events. We were enabled to
follow unhindered the bent of our own political genius, to extend our
institutions over a vast continent and to attain a position of great
prosperity and power in the economic world. While we are still a young
country, our government is, with the possible exception of that of
Great Britain, the oldest and most stable in the world, and since we
declared ourselves a nation and adopted our present constitution the
British Government has undergone radical changes of a democratic
character. By age and stability we have long been entitled to a voice
and influence in the world, and yet we have been singularly indifferent
to our responsibilities as a member of the society of nations. We have
been in the world, but not of it.
Our policy of isolation corresponded with the situation as it existed a
hundred years ago, but not with the situation as it exists to-day and
as it has existed for some years past. We no longer occupy a "detached
and distant situation." Steam and electricity, the cable and wireless
telegraphy have overcome the intervening space and made us the close
neighbors of Europe. The whole world has been drawn together in a way
that our forefathers never dreamed of, and our commercial, financial,
and social relations with the rest of the world are intimate. Under
such circumstances political isolation is an impossibility. It has for
years been nothing more than a tradition, but a tradition which has
tied the hands of American diplomats and caused the American public to
ignore what was actually going on in the world. The Spanish War and
the acquisition of the Philippines brought us into the full current of
world politics, and yet we refused to recognize the changes that
inevitably followed.
The emergence of Japan as a first-class power, conscious of achievement
and eager to enter on a great career, introduced a new and disturbing
element into world politics. Our diplomacy, which had hitherto been
comparatively simple, now became exceedingly complex. Formerly the
United States was the only great power outside the European balance.
The existence of a second detached power greatly complicated the
international situation and presented opportunities for new
combinations. We have already seen how Germany undertook to use the
opportunity presented by Russia's war with Japan to humiliate France
and that the United States took a prominent part in the Algeciras
Conference for the purpose of preventing the threatened overthrow of
the European balance of power. Thus, even before the World War began,
it had become evident to close observers of international affairs that
the European balance would soon be superseded by a world balance in
which the United States would be forced to take its place.
It took a world war, however, to dispel the popular illusion of
isolation and to arouse us to a temporary sense of our international
responsibilities. When the war began the President, following the
traditions of a hundred years, issued, as a matter of course, a
proclamation of neutrality, and he thought that the more scrupulously
it was observed the greater would be the opportunity for the United
States to act as impartial mediator in the final adjustment of peace
terms. As the fierceness of the conflict grew it became evident that
the role of neutral would not be an easy one to play and that the vital
interests of the United States would be involved to a far greater
extent than anyone had foreseen.
Neutrality in the modern sense is essentially an American doctrine and
the result of our policy of isolation. If we were to keep out of
European conflicts, it was necessary for us to pursue a course of rigid
impartiality in wars between European powers. In the Napoleonic wars
we insisted that neutrals had certain rights which belligerents were
bound to respect and we fought the War of 1812 with England in order to
establish that principle. Half a century later, in the American Civil
War, we insisted that neutrals had certain duties which every
belligerent had a right to expect them to perform, and we forced Great
Britain in the settlement of the _Alabama_ Claims to pay us damages to
the extent of $15,500,000 for having failed to perform her neutral
obligations. We have thus been the leading champion of the rights and
duties of neutrals, and the principles for which we have contended have
been written into the modern law of nations. When two or three nations
are engaged in war and the rest of the world is neutral, there is
usually very little difficulty in enforcing neutral rights, but when a
majority of the great powers are at war, it is impossible for the
remaining great powers, much less for the smaller neutrals, to maintain
their rights. This was true in the Napoleonic wars, but at that time
the law of neutrality was in its infancy and had never been fully
recognized by the powers at war. The failure of neutrality in the
Great War was far more serious, for the rights of neutrals had been
clearly defined and universally recognized.
Notwithstanding the large German population in this country and the
propaganda which we now know that the German Government had
systematically carried on for years in our very midst, the invasion of
Belgium and the atrocities committed by the Germans soon arrayed
opinion on the side of the Allies. This was not a departure from
neutrality, for it should be remembered that neutrality is not an
attitude of mind, but a legal status. As long as our Government
fulfilled its obligations as defined by the law of nations, no charge
of a violation of neutrality could be justly made. To deny to the
citizens of a neutral country the right to express their moral
judgments would be to deny that the world can ever be governed by
public opinion. The effort of the German propagandists to draw a
distinction between so-called ethical and legal neutrality was
plausible, but without real force. While neutrality is based on the
general principle of impartiality, this principle has been embodied in
a fairly well-defined set of rules which may, and frequently do, in any
given war, work to the advantage of one belligerent and to the
disadvantage of the other. In the Great War this result was brought
about by the naval superiority of Great Britain. So far as our legal
obligations to Germany were concerned she had no cause for complaint.
If, on the other hand, our conduct had been determined solely by
ethical considerations, we would have joined the Allies long before we
did.
The naval superiority of Great Britain made it comparatively easy for
her to stop all direct trade with the enemy in articles contraband of
war, but this was of little avail so long as Germany could import these
articles through the neutral ports of Italy, Holland, and the
Scandinavian countries. Under these circumstances an ordinary blockade
of the German coast would have had little effect. Therefore, no such
blockade was proclaimed by Great Britain. She adopted other methods of
cutting off overseas supplies from Germany. She enlarged the lists of
both absolute and conditional contraband and under the doctrine of
continuous voyage seized articles on both lists bound for Germany
through neutral countries.
As to the right of a belligerent to enlarge the contraband lists there
can be no doubt. Even the Declaration of London, which undertook for
the first time to establish an international classification of
contraband, provided in Article 23 that "articles and materials which
are exclusively used for war may be added to the list of absolute
contraband by means of a notified declaration," and Article 25 provided
that the list of conditional contraband might be enlarged in the same
manner. Under modern conditions of warfare it would seem impossible to
determine in advance what articles are to be treated as contraband.
During the Great War many articles regarded in previous wars as
innocent became indispensable to the carrying on of the war.
Great Britain's application of the doctrine of continuous voyage was
more open to dispute. She assumed that contraband articles shipped to
neutral countries adjacent to Germany and Austria were intended for
them unless proof to the contrary was forthcoming, and she failed to
draw any distinction between absolute and conditional contraband. The
United States protested vigorously against this policy, but the force
of its protest was weakened by the fact that during the Civil War the
American Government had pursued substantially the same policy in regard
to goods shipped by neutrals to Nassau, Havana, Matamoros, and other
ports adjacent to the Confederacy. Prior to the American Civil War
goods could not be seized on any grounds unless bound directly for a
belligerent port. Under the English doctrine of continuous voyage as
advanced during the Napoleonic wars, goods brought from the French West
Indies to the United States and reshipped to continental Europe were
condemned by the British Admiralty Court on the ground that
notwithstanding the unloading and reloading at an American port the
voyage from the West Indies to Europe was in effect a continuous
voyage, and under the Rule of 1756 Great Britain refused to admit the
right of neutral ships to engage in commerce between France and her
colonies. Great Britain, however, seized ships only on the second leg
of the voyage, that is, when bound directly for a belligerent port.
During the American Civil War the United States seized goods under an
extension of the English doctrine on the first leg of the voyage, that
is, while they were in transit from one neutral port to another neutral
port, on the ground that they were to be subsequently shipped in
another vessel to a Confederate port. Great Britain adopted and
applied the American doctrine during the Boer War. The doctrine of
continuous voyage, as applied by the United States and England, was
strongly condemned by most of the continental writers on international
law. The Declaration of London adopted a compromise by providing that
absolute contraband might be seized when bound through third countries,
but that conditional contraband was not liable to capture under such
circumstances. As the Declaration of London was not ratified by the
British Government this distinction was ignored, and conditional as
well as absolute contraband was seized when bound for Germany through
neutral countries.
While Great Britain may be charged with having unwarrantably extended
the application of certain rules of international law and may have
rendered herself liable to pecuniary damages, she displayed in all her
measures a scrupulous regard for human life. Her declaration that "The
whole of the North Sea must be considered a military area," was
explained as an act of retaliation against Germany for having scattered
floating mines on the high seas in the path of British commerce. She
did not undertake to exclude neutral vessels from the North Sea, but
merely notified them that certain areas had been mined and warned them
not to enter without receiving sailing directions from the British
squadron.
The German decree of February 4, 1915, establishing a submarine
blockade or "war zone" around the British Isles, on the other hand, was
absolutely without legal justification. It did not fulfill the
requirements of a valid blockade, because it cut off only a very small
percentage of British commerce, and the first requirement of a blockade
is that it must be effective. The decree was aimed directly at enemy
merchant vessels and indirectly at the ships of neutrals. It utterly
ignored the well-recognized right of neutral passengers to travel on
merchant vessels of belligerents. The second decree announcing
unrestricted submarine warfare after February 1, 1917, was directed
against neutral as well as enemy ships. It undertook to exclude all
neutral ships from a wide zone extending far out on the high seas,
irrespective of their mission or the character of their cargo. It was
an utter defiance of all law.
The citizens of neutral countries have always had the right to travel
on the merchant vessels of belligerents, subject, of course, to the
risk of capture and detention. The act of the German ambassador in
inserting an advertisement in a New York paper warning Americans not to
take passage on the _Lusitania_, when the President had publicly
asserted that they had a perfect right to travel on belligerent ships,
was an insolent and unparalleled violation of diplomatic usage and
would have justified his instant dismissal. Some action would probably
have been taken by the State Department had not the incident been
overshadowed by the carrying out of the threat and the actual
destruction of the _Lusitania_.
The destruction of enemy prizes at sea is recognized by international
law under exceptional circumstances and subject to certain definite
restrictions, but an unlimited right of destruction even of enemy
merchant vessels had never been claimed by any authority on
international law or by any government prior to the German decree. The
destruction of neutral prizes, though practised by some governments,
has not been so generally acquiesced in, and when resorted to has been
attended by an even more rigid observance of the rules designed to
safeguard human life. Article 48 of the Declaration of London provided
that, "A captured neutral vessel is not to be destroyed by the captor,
but must be taken into such port as is proper in order to determine
there the rights as regards the validity of the capture."
Unfortunately Article 49 largely negatived this statement by leaving
the whole matter to the discretion of the captor. It is as follows:
"As an exception, a neutral vessel captured by a belligerent ship, and
which would be liable to condemnation, may be destroyed if the
observance of Article 48 would involve danger to the ship of war or to
the success of the operations in which she is at the time engaged."
The next article provided the following safeguards: "Before the
destruction the persons on board must be placed in safety, and all the
ship's papers and other documents which those interested consider
relevant for the decision as to the validity of the capture must be
taken on board the ship of war."
The Declaration of London was freely criticised for recognizing an
unlimited discretionary right on the part of a captor to destroy a
neutral prize. Under all the circumstances the main grievance against
Germany was not that she destroyed prizes at sea, but that she utterly
ignored the restrictions imposed upon this right and the rules designed
to safeguard human life.