INDEPENDENCE
38. +Manner of Exercise.+
39. +Balance of Power.+
40. +Monroe Doctrine.+
41. +Non-intervention.+
42. +Practice in Regard to Intervention.+
(_a_) For self-preservation.
(_b_) To prevent illegal acts.
(_c_) By general sanction.
(_d_) Other grounds.
(1) Treaty stipulations.
(2) Balance of power.
(3) Humanity.
(4) Civil war.
(5) Financial.
(_e_) Conclusion.
§ 38. Manner of Exercise of the Right
Strictly, there can be no limitation or restriction of independence, for
it is a recognized principle that independence must be absolute and
inalienable. In fact, every state voluntarily accepts either formally by
treaty or tacitly by practice, many conditions which restrain it in the
exercise of its powers. The independence of the state is not thereby
violated, since the restraint is exercised by the state itself, and is
not an act of external control. The number of these restraints which
states voluntarily assume is continually increasing, owing to the closer
relations of humanity.
The exercise of the right of independence involves the privilege of
making treaties, alliances, contracts, and municipal laws, so far as
these do not violate international law or the right of independence as
possessed by other states. A state may go to war to maintain its
independence. The international rights of a state are in general closely
related to the right of independence, and derive force from this
relationship.
§ 39. Balance of Power
Undoubtedly the idea of establishing a relationship among "neighboring
states more or less connected with one another, by virtue of which no
one among them can injure the independence or essential rights of
another without meeting with effectual resistance on some side and
consequently exposing itself to danger"[95] is not a modern idea.
Ancient states united to prevent the growth of some neighboring power to
such magnitude as would threaten their independence.[96] From the
beginning of the modern period of international law, Peace of Westphalia
(1648), the idea of maintaining an equilibrium among the powers of
Europe has had great influence, and until the latter part of the
nineteenth century was regarded as one of the fundamental principles of
European international practice. Many treaties aim to preserve this
balance among the European powers, and the words "balance" and
"equilibrium" often appear.[97] The Treaty of Utrecht in its provision
between Spain and Great Britain, July 13, 1713, gives as its object _ad
firmandam stabiliendamque pacem ac tranquillitatem christiani orbis
justo potentiæ equilibro_. The idea that independence was to be
preserved by some balance of power reappears in successive treaties.
This idea of the balance of power has led to most diverse action. Unjust
rulers have made it the cloak for action entirely outside the sanction
of international law. Many times it has "served as the pretext for a
quarrel, and repeatedly made hostilities general which would otherwise
have been shut up within a comparatively small area."[98] The feeling
that the balance of power was a necessary policy for the preservation of
European states, led to the idea that states should be constrained to
certain lines of action, which would prevent, in many cases, normal
growth. Frequently the independence of a state was violated to
anticipate an action which might disturb the European equilibrium. The
partitions of Poland show a violation of the principles of international
law for the sake of giving equal compensation to the parties to it.
The doctrine of the balance of power is not a principle of international
law, but merely a maxim of European political practice pretending to
state the means of maintaining the independence of European states.[99]
§ 40. Monroe Doctrine
Another maxim of political action is that which has become known as the
"Monroe Doctrine." While enunciated by a single state, it had in view
the maintenance of the independence of the states of the American
continent. For many years after the Revolutionary War the opinion
prevailed that Europe viewed with disfavor the growth of the American
republic. The Holy Alliance, formed on the downfall of Napoleon, was
followed by several congresses of European powers, at one of which, held
at Verona in 1822, the subject of helping Spain recover her revolting
colonies in America was discussed. This led to the declaration of
President Monroe in his message of Dec. 2, 1823, that there should be,
(1) no more European colonies on these continents, (2) no extension of
the European political system to any portion of this hemisphere, (3) no
European interposition in the affairs of the Spanish-American republics.
This doctrine has been repeatedly affirmed by the United States, and in
some instances very liberally interpreted. It in no way embodies a
principle of international law, though the European and other states may
regard it as expressing the attitude of the United States upon the
points covered, and if desirous of avoiding friction, govern themselves
accordingly. If it were a principle of international law, the United
States would not be justified in changing its attitude upon the
doctrine, but probably it would not be seriously maintained that the
United States might not enunciate another policy setting aside the
Monroe Doctrine. Reddaway well says, "that it produced its desired
effect as an act of policy, but in no way modified the Law of
Nations."[100] This doctrine cannot be considered as outlining a
principle of non-intervention, as has sometimes been claimed, but it
rather announces a policy of intervention on the part of the United
States to anticipate intervention by other powers.
The doctrine has always failed of legislative indorsement, and has been
strenuously opposed by European powers. That it has been recognized,
however, to a certain extent, appears by the course of events.[101] It
was recently applied in the case of the intervention by the United
States in the dispute over the boundary between Venezuela and British
Guiana. Great Britain and the United States settled the difficulty by a
submission to arbitration.[102]
§ 41. Non-intervention
With the right of independence goes the correlative _obligation of
non-intervention_, _i.e._ of refraining from all acts that would
forcibly limit the freedom of another state. This obligation of
non-intervention does not extend to the limitation of acts involving no
display or threat of force, as in the case of mediation and arbitration.
Nor can it be claimed that the _obligation of non-intervention_ can be
urged against measures undertaken by a state to preserve its fundamental
right to existence. There is no _right_ of intervention, as has been
sometimes argued, though an act of intervention may be sometimes
justifiable in itself.[103] Intervention is the attempt of one or more
states, by means of force, to coerce another state in its purely state
action. The making of an alliance between two may influence a third
state in its action, but it cannot be considered an intervention, nor is
the tender of friendly offices in the settlement of a dispute to which a
state is a party, intervention; but when a state directly interferes
with the exercise of the authority in another state or by another state,
it constitutes intervention. Intervention may vary greatly in degree and
in character, whether it be armed or diplomatic. Each case must be
considered separately on its merits, and if in any degree a justifiable
measure, it must be on the highest grounds, and the motives of the
intervening state must be pure. While it is still necessary to discuss
the question of intervention in its various forms, yet, as Hall says:
"It is unfortunate that publicists have not laid down broadly and
unanimously that no intervention is legal, except for the purpose of
self-preservation, unless a breach of the law as between states has
taken place, or unless the whole body of civilized states have concurred
in authorizing it."[104]
§ 42. Practice in Regard to Intervention
The nineteenth century might be called the century of interventions, for
its whole political history has been closely related to the application
of measures of intervention of the most varied sort. Naturally, all
authorities do not agree as to the causes underlying the action of the
several states, nor as to the nomenclature which should be used in
describing these measures. A review of some of the cases of intervention
during the nineteenth century shows that while the doctrine of
non-intervention has been more and more widely professed, the practice
has been strongly influenced by political expediency.
Intervention for any cause may always be regarded by the state whose
independence is impinged as a hostile act, and a ground for war, thus
putting the matter outside the international law of peace.[105]
(_a_) =Intervention for Self-preservation.= As the right of existence is
the first right of a state and universally admitted, intervention may
sometimes be used as a means of maintaining this existence. In such a
case it is clearly a matter of policy as to the means which a state
shall use, and if it resorts to intervention rather than other means, it
must have ample grounds for its action in the particular case. A case of
intervention on the grounds of self-preservation which has caused much
debate is that of England in the two attacks upon Copenhagen in 1801 and
1807, on the ground that it was necessary for English supremacy of the
seas, which formed her chief defense, to prevent the union of the Danish
forces with those of the other powers. Intervention cannot be justified
by any appeal to general principles which inhere in the act itself. "The
facts of intervention are acts of the political existence of states.
Good or bad, according as the intervention is injurious or
beneficial."[106] Of intervention as a method of state action, Sir W.
Harcourt says: "It is a high and summary procedure which may sometimes
snatch a remedy beyond the reach of law. Nevertheless, it must be
admitted that in case of Intervention, as in that of Revolution, its
essence is illegality, and its justification is its success. Of all
things, at once the most injustifiable and the most impolitic is an
unsuccessful Intervention."[107] Non-intervention is the obligation
which international law enjoins. It gives no sanction to a "right of
intervention" which would be entirely inconsistent with the right of
independence. The question of intervention is one of state policy only,
and is outside the limits of the field of international law.
Intervention is a method of state action which is justifiable only in
rare cases, and less and less justifiable as the growing mutual
dependence of states makes possible other methods less open to
objection. International law at the present day undoubtedly regards
intervention when _strictly_ necessary to preserve the fundamental right
of the intervening state to its existence as a permissible act though
contravening the right of independence in another state.
(_b_) =Intervention to prevent Illegal Acts.= As international law must
rest upon the observance of certain general principles, it may in
extreme cases be necessary to intervene in order that these principles
may be respected by certain states in their dealings with other states
which, though weaker in physical force, have equal rights in
international law. How far any state will act as champion of the law of
nations is a question which it must decide for itself. Unquestionably
international law would look with favor upon measures _necessary_ for
its own preservation.
(_c_) =Intervention by General Sanction.= Some authorities have
maintained that intervention when sanctioned by a group of states is
justifiable. It is probable that a group of states would be less liable
to pursue an unjust course than a single state, and that intervention
under such sanction would be more liable to be morally justifiable. It
is, however, no more legal than the same act by a single state; and if
general consent is the only sanction, while the act may be expedient,
advantageous, and morally just, it cannot be regarded as upheld by
international law, nor can a single act of this kind establish a
principle. The several cases of such intervention under general sanction
can hardly be regarded as sufficiently similar to establish a principle
even upon the Eastern Question in Europe.[108] It may be concluded that
while general sanction of a considerable group of states may, for a
given interference, free a state from moral blame and warrant the act as
a matter of policy, yet it does not give any international law sanction
for intervention by general consent.
(_d_) =Other Grounds of Intervention.= Many reasons have been advanced
as justifying such measures as intervention.
(1) Intervention to carry out _provisions of treaties of guaranty_ was
formerly common, _e.g._ intervention by one state to preserve the same
form of government in the other or to maintain the ruling family. It is
now held that no treaty can justify interference in the internal affairs
of a state not party to the treaty.
In general, intervention, because of treaty stipulations, even when the
state subject to the intervention is a party to the treaty, is a
violation of independence unless the treaty provides for such measures,
in which case the state has become a protected state or entered into
relations by which it has not full state powers. Such treaties must be
clearly state acts and not acts of individuals "who from their position
have the opportunity of giving to their personal agreements the form of
a state act."[109] While there is still difference of opinion as to the
question of intervention under treaty sanction, the weight of opinion
seems to be decidedly to the effect that such intervention has no ground
of justification in international law.
(2) Intervention to preserve the _balance of power_, which was regarded
as a necessary means for the preservation of European peace, has been
considered as justifiable till recent times. Since the middle of the
nineteenth century the position has received less and less support,
though advanced in behalf of the preservation of the Turkish Empire and
the adjustment of the Balkan states. In 1854 Great Britain and France,
on the appeal of the Sultan for assistance against the Russian
aggressions, determined to aid him, "their said Majesties being fully
persuaded that the existence of the Ottoman Empire in its present Limits
is essential to the maintenance of the Balance of Power among the States
of Europe."[110] The attitude at the present time is stated by Lawrence.
"The independence of states is not to be violated on the ground of
possible danger to some imaginary equilibrium of political
forces."[111]
(3) Interventions upon the broad and indefinite ground of _humanity_
have been common and were generally upheld by the writers to the time of
Vattel. Since his day opposition to intervention of this kind has
gradually obtained favor. What the grounds of humanity are, and which
nation's ideas of humanity shall be accepted as standard, have been
questions difficult to settle to the general satisfaction of states. For
a state to set itself up as judge of the actions of another state and to
assume that it has the right to extend its powers to settling and
regulating affairs of morals, religion, and the relations of public
authority to the subjects in another state, on the ground of maintaining
the rights of mankind as a whole, is to take a ground which the conduct
of any modern state, even the most civilized, would hardly warrant.
While it is admitted that a state or states may sometimes interfere to
prevent one state from unduly oppressing another, as in the intervention
of the powers in Greece in 1827, yet it is generally held that to
interfere because the internal affairs of a given state are not
conducted in a manner pleasing to the foreign state is to give a
sanction to an act that would result in far more evil than good. Such
intervention has often taken place. The "Holy Alliance," in attempting
to guard Europe from "the curse of Revolution," advocated in practice a
most dangerous form of intervention.[112] Indeed, much of the European
history of the nineteenth century is but a history of successive
interventions. In spite of all this, as Walker says, "the rule regularly
progresses towards more general recognition, that non-intervention in
the internal affairs of a state is a law which admits of no exception to
foreign powers, so long as the operations of that state are confined in
their effect to the limits of the national territory."[113]
Nevertheless, the United States interfered in the affairs of Cuba on the
ground of humanity. The President, in his message of April 11, 1898,
says, after a long statement of the facts: "I have exhausted every
effort to relieve the intolerable condition of affairs which is at our
doors. Prepared to execute every obligation imposed upon me by the
Constitution and the law, I await your action."[114] By joint resolution
of Congress of April 20, 1898, demand was made upon Spain to relinquish
its authority in Cuba, and the President was authorized to use land and
naval forces to carry the resolution into effect.[115]
(4) In time of _civil war_, on invitation of both parties, a foreign
state may act as mediator, but unless the revolting party has been
recognized, this is mediation in a domestic sense rather than
intervention in the sense of international law.
Under other conditions there is a diversity of view as to the proper
course of action.[116] Some deny with Vattel, G. F. de Martens, Heffter,
Fiore, Bluntschli, Woolsey, and others maintain or permit intervention
in civil war at the request of one of the parties, though some of the
authorities do not permit intervention except on the invitation of the
parent state and not on that of the rebelling party. Bluntschli (§ 476)
and Woolsey (§ 42) admit intervention only in behalf of the party
representing the state; Vattel and some others permit intervention in
behalf of the party which the intervening state considers to have the
right of the contest, thus opening the arbitration of the contest to a
foreign state. Both of these positions are receiving less and less of
sanction. Intervention in behalf of the established state implies a
doubt as to which power within the state is the _de facto_ power, and as
Hall says: "the fact that it has been necessary to call in foreign help
is enough to show that the issue of the conflict would without it be
uncertain, and consequently that there is a doubt as to which side would
ultimately establish itself as the legal representative of the
state."[117] It is plain to see that intervention in behalf of the
rebelling party is a violation of the independence of the existing
state. It is equally clear that international law does not give a
foreign state a right to judge upon the justice or merits of domestic
questions in another state.
The principle may now be regarded as established by both theory and
practice that the invitation of neither party to a domestic strife gives
a right to a foreign state to intervene, and that no state has a right
to judge as to the merits of the contest and to interfere in behalf of
the party it thinks in the right. Indeed, intervention because of civil
war only is in no case justifiable, though the consequences of such a
disturbance may warrant intervention upon other grounds.[118]
(5) Intervention on the ground of _financial transactions_ is not now
sanctioned. A state may make any injustice done its subjects by a
foreign state a matter of diplomatic negotiations. It has sometimes
been held that contracts running between a state and the subject or
subjects of another state may, if violated, become grounds of just
intervention, and that the subjects had a right to demand action by
their sovereign. This ground is manifestly insufficient, though each
state is judge as to what measures it will take in a given case.
International law does not guarantee the payment of loans which are
merely personal transactions between the individual and the state in its
corporate capacity, nor can the public law of one state be expected to
hold in another. Interference on such grounds is a matter of expediency
and not a matter of right.
(_e_) =Conclusion.= In general, the best authorities seem to agree that
at the present time, owing to the ease with which other measures may be
taken, intervention can be admitted only on the single ground of
self-preservation. The numerous cases of intervention upon varied
grounds amply show that any other ground would be open to wide abuse, as
has often been the case. For general purposes of remedy for injury such
measures as retorsion, reprisals, embargo, and pacific blockade may be
taken when a state deems it expedient and is willing to assume the
responsibility for such measures.[119] While intervention is, for the
sake of preserving the existence of a state, a justifiable measure, it
is not a _right_, but merely a means sometimes justifiable to preserve a
right,--the right of a state to exist, which alone supersedes the
obligation of non-intervention.