CHAP. X Interven- Its legal basis A more uncertain application of the right of self-defense is to be seen in the interventions that have from time to time taken place upon what are called "grounds of humanity." The phrase is not a scientific one, and it refers, it would seem, to those general principles of conduct which are held particularly sacred by all nations. The question is presented, What international right on the part of third states can arise in consequence of the brutal and inhuman conduct of a state toward its own citizens? Interventions of this character on the part of the Great Powers collectively were witnessed on a number of occasions during the nineteenth century, as, for example, in 1827, when Turkish methods of suppressing the rebellion in Greece shocked the conscience of Europe, or again in 1860 to protect the Christians of Mount Lebanon, or in 1878 to secure the deliverance of the Balkan states, or in 1891-96 following massacres in Armenia and Crete. The fact that these interventions were supported by public opinion among the leading nations stamped the action of the Great Powers as legally valid, whatever be the general principle of law to which it can be referred. Since international law is only a law between states as such,1 collective intervention "in the interest of humanity" might be interpreted as summary punishment inflicted upon a state which has disgraced the society of nations by its misconduct. Hall offers as a ground of intervention that such acts "are so inconsistent with the character of a moral being as to constitute a public scandal," giving rise to a right of intervention based upon the conditions upon which a state has been admitted as a member of the international community. Another explanation might be that a state has the right to protect the moral feelings of its people as well as their material interests, when injured by the acts of another state. The bond of a common race, as between Russia and Bulgaria in 1877, or of a common religion, as between the Christian states of Europe and their brethren in Turkey, gave rise to acute sympathy, with corresponding mental suffering, when reports of the massacres were received. Obviously this right of intervention is particularly susceptible to abuse, and is in urgent need of more specific definition by international statutory legislation." Op. cit., § 92. It is worthy of note that the guarantees given by the states recently admitted into the family of nations, looking to the protection of racial minorities within their national boundaries, promise to remove in large part the grounds for interventions of the above character. See above, p. 91; H. Rosting, "Pro X To the same general principle must be referred such minor CHAP. diplomatic interventions and official expressions of opinion as are exemplified in the refusal of the United States to renew the commercial treaty with Russia, upon its expiration in 1913, pending assurances from that Government of fairer treatment of its Jewish population; or, again, the resolution adopted by both Senate and House of Representatives of the United States in 1919 expressing sympathy with the desire of the Irish people for a government of their own choice.2 1 national honor In defense of its right of existence a nation may resent and Defense of demand redress for insults to its national honor. This inferential right is described by some authors as the "right to respect," and it is classed as a fundamental right because of the serious consequences that have at times followed the violation of it. It is a right to demand respect for the personality of the state as such, independently of the particular governmental agencies that may happen to represent it at the time. This respect is shown by a body of ceremonial observances reciprocally followed, such as honoring the flag of the state when officially flown, conforming to the etiquette of diplomatic correspondence, and conceding special privileges to diplomatic representatives and public vessels of the state. The reason why a disregard of these observances, and especially the manifestation of an open contempt for the dignity of the state as expressed through them, is regarded as a matter of such grave importance is the fact that an affront against the honor of the state would seem to imply an attack upon the very position of the state within the international community, a questioning of its sovereignty, a manifestation of hostility against the state's very existence. In all such cases the sharpest resentment has regularly been shown by the offended state. incident In the great majority of instances insults offered to the dignity The or national honor of a foreign state are not the deliberate act of Tampico tection of Minorities by the League of Nations,” Am. Journal, XVII (1923), 641. 'See Am. Journal, VI (1912), 186. 'It was freely asserted by publicists at the time that the Irish question was a "domestic problem" which Great Britain should be left free to handle in its own way. But it may be questioned whether, in view of international precedents, any problem can in point of law be considered as purely "domestic" when as a matter of fact the methods resorted to for its solution actually disturb the domestic peace of another country. Whether such interventions are morally justified by the particular circumstances is a point outside the sphere of positive international law, each nation in such cases being the judge of its own rights. CHAP. X e. The protection of citizens in foreign countries the government of the state, but rather the result of individual or mob violence beyond the power of the state to control, or they are the result of unauthorized acts on the part of subordinate officers of the state.1 An instance of redress demanded for insults to the national flag is to be seen in the Tampico incident between the United States and Mexico in 1914. After President Wilson had advocated a policy of patient waiting pending the restoration of stable political conditions in Mexico, he suddenly reversed his attitude in consequence of the temporary arrest of an American officer and crew in Tampico, and appeared before Congress to ask its approval of drastic measures to be taken to demand redress for the insult offered to the American flag under whose protection the whale-boat had tied up at the wharf. Congress thereupon. acceded to the request of the President that he be permitted to "use the armed forces of the United States in such ways and to such an extent as may be necessary to obtain from General Huerta and his adherents the fullest recognition of the rights and dignity of the United States." A further inferential right that may be regarded as an extension of the right of self-protection is the right of a state to protect its citizens when temporarily present, or when permanently resident, in a foreign country. In the absence of an international court, having jurisdiction over individuals similar to that possessed by the United States Supreme Court over suits between citizens of different States of the Union, or over suits brought by an individual under the federal law, the nations have come to identify to a limited extent the interests of their citizens abroad with their own national interests. Though the ground for this identification would appear as a matter of fact to be more sentimental than real, since it cannot be said that as a practical issue the existence of the state is in any real sense involved in the injustice that may be shown by foreign governments to its individual citizens, nevertheless as a point of law the state is regarded as having a very clear right to see that no injustice is done to members of its citizen body in other countries; and serious crises have at times arisen over relatively minor incidents. For the distinction to be made between acts for which a state is directly responsible and acts for which it can be held only indirectly responsible, see below, Chap. XXIII. 2 The position taken by the President is summarized in his address before Congress, April 20, 1914. Congressional Record, Vol. 51, 6908. 'Resolution approved April 22, 1914. X protection demanded Once certain leading principles have been laid down, however, CHAP. no part of international law is subject to more uncertainties than this. As a general rule a state may demand for its citizens in Extent of foreign countries protection of person and of property, in ac- that may be cordance with the laws of the particular foreign state. The full measure of the rights which the foreign state may decide to permit aliens to enjoy is for itself to determine; but the recognition of certain fundamental rights of person and of property is implied in the fact of the admission of aliens into the country. If an injury is done to the alien in respect to these rights he must first seek redress in the courts of the foreign state, where he will, in the assumption of the law, obtain the same justice that would be meted out to the citizens themselves. Only in cases where the laws of the foreign state are not justly administered, or where they are discriminatory in character, or in certain instances where the substance of the law is flagrantly oppressive, may the state take up the claim of its citizen as a matter of immediate consequence to itself. The question then becomes no longer a domestic issue between the injured alien and the foreign government, but a public issue between the two foreign offices. The circumstances under which a state may take up the claim of its citizens are so far lacking in definiteness, and precedents are so irregular and conflicting, that beyond the acceptance of certain general principles international law has few specific rules to offer. The United States Department of State has issued from time to time a "Claims Circular" giving instructions to persons seeking the interposition of the department in the enforcement of their claims against a foreign state, and stating the conditions under which the Government will undertake to intervene in their behalf. In a number of cases the United States has intervened in behalf of its citizens before the latter have exhausted the remedies offered by the local courts. These cases have generally arisen in connection with backward countries, whose judicial systems have been considered defective, or whose executive acts have not been subject to review by the courts. In the recent case of the arrest and prosecution by the Mexican courts of Mr. W. O. Jenkins, 1 See below, p. 178. 'For a discussion of the standard which must be maintained by the judicial system of a state, see Hyde, International Law, I, §§ 266-267. 'See circular of January 30, 1920; Senate Document No. 67, 66th Congress, 1st sess. For illustrations, see Moore, Digest, VI, §§ 988-989. CHAP. X Cases of mob violence consular agent at Puebla, in November, 1919, on the charge of perjury in a judicial declaration, the Department of State immediately intervened on the ground that the prosecution was but a means of evading responsibility for the acts of bandits who had seized Mr. Jenkins and held him for ransom. The Mexican Government challenged the propriety of the intervention of the United States pending a trial according to Mexican law; but upon further pressure from the State Department the Mexican court first released the prisoner on bail and later dismissed the charges against him.1 The extent to which a state may demand redress for injuries inflicted upon its citizens in foreign states when such injuries are the result of mob violence cannot be determined by any strict rule of law. It is agreed that in such cases a demand may be made that the foreign state use "due diligence" to maintain law and order, whether by precautionary measures or by due punishment of the offenders. A failure on the part of the foreign state in this respect warrants the interposition of the state of which the injured person is a citizen. This holds good even though the injured alien has suffered no greater loss from the outbreak than other citizens of the offending state. Further, intervention would appear to be legally justified when the alien resident has been the victim of mob violence in consequence of his particular nationality, so that the attack upon him may be regarded as an attack upon his state. Apart from these two situations, the practice of states. has not been uniform. The Great Powers have generally been ready to exercise a fuller right of intervention in respect to backward states than they have acknowledged on the part of others in respect to their own territories. While the United States has on the whole been insistent upon the protection of its citizens in China, Turkey, and the Central and South American states, it has been reluctant to view with the same degree of seriousness injuries inflicted upon aliens resident in the United States. In several instances, such as on the occasion of the riots at New Orleans and at Key West in 1851,2 the massacre of Chinese at Rock Springs, Wyoming, in 1885,3 and the Mafia riots at New Orleans in 1891,* the executive department refused to admit a liability to make compensation, although Congress proceeded to grant the same as a matter of grace. In the case of the Boxer riots in China in 1901, 1 For details of the case, see Hyde, op. cit., I, § 286. See Moore, Digest, VI, § 1023. 8 Ibid., 1025. Ibid., 1026. |