state responsibility, and after either an attempt has been made to obtain local redress, or evidence has been shown that such redress could not satisfactorily be obtained, recourse is had to diplomacy. The injured alien makes representations to the local representative of his own state, who transmits the facts and his recommendations. to the foreign office of his government. He then receives instructions how to proceed. If the home office finds that a just claim exists, its diplomatic representative is instructed to present a formal note to the Minister of Foreign Affairs in the state to which he is accredited, stating the grounds of complaint and demanding redress. From this point on, the temper of the governments, and the tact, skill, ability, and judgment of the diplomats determine whether agreement shall be reached, the claim shall stand as a continuous incentive to ill-feeling, settlement shall be reached by arbitration, or only by resort to war. Agreement is not always reached without straining relations nearly to the breaking-point. It is an indication of a genuine desire not to be forced into hostilities that states persist in maintaining relations even when the head of a diplomatic mission finds it necessary to withdraw. In such cases the expedient is used either of leaving the embassy in the hands of a chargé, or of placing the interests of the aggrieved state in the care of the agents of a friendly third state. One example of the operation of diplomacy in the diplomatic protection of citizens abroad must suffice us here. It illustrates the difficulties as well as the accomplishments of diplomacy, but it is also an example of prevention of war.1 On October 15, 1890, the chief of police of New Orleans was murdered, and a number of Italians were arrested for complicity in the crime. While they were in prison, it was claimed that the Italians were mistreated by the officials, and the Italian government protested. On March 13, 1891, a jury found three of the Italians not guilty, and failed to agree as to the others. The citizens of New Orleans were greatly incensed, feeling that there had been a failure of justice, and mob violence was threatened. 'Stowell and Munro: International Cases, 1: 264-270. The Italian consul protested to the Governor of Louisiana, asking him to send troops to protect the prisoners. He replied that he was powerless to act without the request of the Mayor, who could not be found. On March 14, 1891, a mob of about 8,000 persons broke into the jail, took out eleven prisoners and lynched them. Apparently the authorities made no attempt to restrain the mob. The Italian government now protested to the United States government and demanded satisfaction. A demand was made under the treaty of February 26, 1871,1 between the United States and Italy which guaranteed reciprocal protection of persons and property of each state in the territory of the other state. Mr. Blaine, Secretary of State, recited this treaty to the Governor of Louisiana, and asked that all offenders against the law might be promptly brought to justice. The reply was that a Grand Jury was already investigating the case, but it was added that only two or three of the prisoners were Italian citizens. The Italian government was not satisfied with this and demanded immediate action claiming that violation of the treaty of 1871 was already established. Mr. Blaine did not admit this, but explained that investigation must first be made by the state of Louisiana under the Federal system of government. Under instructions from his foreign office, the Italian minister then left Washington, leaving the mission in charge of a subordinate. On May 5, 1891, the New Orleans Grand Jury reported that it could find no grounds for indictments. The Federal courts were found to have no jurisdiction under the United States Constitution and the matter had reached an impasse. The difficulty would have remained unsettled, a standing cause for disagreement, and an example of miscarriage of justice to aliens if executive action had not been taken. The incident was closed when the United States offered and Italy accepted an indemnity of 125,000 francs. The Italian minister then returned to Washington. The third outstanding opportunity for coöperation in diplomacy is in the negotiation of treaties, which will be discussed in the next chapter. 'Malloy: Treaties, 1: 969-977. REFERENCES FOR CHAPTER XV BERNARD. Four Lectures on Subjects Connected with Diplomacy, p. 111-161. BORCHARD. Diplomatic Protection of Citizens Abroad. A Hundred Years of American Diplomacy. Principles of American Diplomacy. MYERS. Notes on the Control of Foreign Relations. NEILSON. How Diplomats Make War. SATOW. Guide to Diplomatic Practice. STOWELL AND MUNRO. International Cases, 1: 264-270. CHAPTER XVI TREATIES AND COÖPERATION THERE is only one circumstance in which a state is obliged to make a treaty; namely, the situation in which Germany found herself on June 28, 1919. She had been decisively defeated, had been stripped of her effective military and naval arms, and was cut off from commercial relations with the rest of the world. The existence of the state itself depended on compliance with the terms of the Allies. Although she signed under protest, in theory it was a voluntary act, because a choice was made of the lesser of two evils. The rule of international law that treaties are invalid without the free consent of the contracting states does not preclude the use of force in bringing a state to an understanding of conditions; but it prevents the use of threats of personal violence and placing the negotiators under constraint. All other treaties are practically as well as theoretically coöperative agreements. They are based on compromise and mutual concessions; and they are the formal expression of mutual good-will. Only so long as this good-will continues do they have their full effect. Rules of international law govern the methods of negotiation, drafting, signing, ratification, interpretation, enforcement, and termination of treaties; but the subject matter of interstate agreement is limited only by mutual desires. A glance at the subjects listed in the index to Malloy's Treaties will show what the scope of treaty-making by the United States has been in the past. Some of the headings are: abduction, African slave trade, agriculture, Alabama claims, alliance, Amazon River, arbitration, arson, assassination, assaults on ships, asylum, balloons, bankruptcy, bigamy, blockade, boundaries, Boxer trouble, bribery, burglary, citizenship, claims, coaling stations, coasting trade, coinage, com merce and navigation, consuls, contraband goods, contract debts, copyright, corporations, counterfeiting, customs, deserters from ships, diplomatic officers, drugs, embargoes, embezzlement, emigration, extradition, extra-territoriality, fisheries, forgery, fraud, fur seals, gunpower and arms, health, house-breaking, Indians, industrial property, infanticide, judicial procedure, kidnapping, land warfare, larceny, letters of marque, liquors, manslaughter, maritime warfare, military exemptions, mining, murder, mutiny, naturalization, neutrality, parricide, patents, peace, perjury, piracy, poisoning, political offences, prize courts, property, railroads, reciprocity, religious liberty, robbery, shipwrecks, Sound dues, submarine cables, tobacco, trade-marks, visitation and search of vessels, war, weights and measures, and the white slave trade. There is, in fact, no human relationship between citizens of different states which may not become the subject of international agreement. Attention to the foregoing list will show that there are two great classes of treaties, namely, political and non-political treaties. Political treaties are those which affect the state as a collective entity, such as treaties of alliance, of arbitration, guaranty, boundary treaties, treaties of peace, etc. Non-political treaties are engagements on behalf of the subjects of a state, such as treaties concerning copyright, patents, trade-marks, postal service, agriculture, commerce, shipping, etc. As respects the parties to agreements, they may be bipartite or multipartite. The latter involve a greater degree of cooperation than the former, because they affect at one and the same time a large group of states all of which must have reached a common understanding. Even though an equal number of states, by pairs, should conclude identical treaties, a less effective result would be obtained; for each is a separate agreement affecting only two states. Withdrawal is easier, and the coöperative system is subject to gradual disintegration. It is therefore a significant sign that conventions affecting the interests of many states have in increasing number been concluded by diplomatic conferences and congresses. Many of these are listed by Satow.! Coöperation in regard to treaties is found not only in concluding Diplomatic Practice, 2: 3-4, 95–96. |