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at once have been made. If, however, it belongs to Venezuela, some of the seizures, at least, may have been justified. In view of the geographical situation of the island, the fact that Great Britain has but recently taken formal possession of it, and the doubtful character of the British title at its best, there should be no reluctance on the part of Great Britain to submit the question of title or sovereignty to arbitration. An unwillingness to arbitrate this question would seem to indicate a fullness of confidence in the legality of her title, which the facts do not appear to justify, or a disposition to evade the Monroe Doctrine.
The seizure and confiscation of a British vessel on the high seas could only be justified on the theory that she had been engaged in rendering active assistance to the insurgents, or that she had violated an effective blockade. The so-called blockade, which President Castro claims to have established at the mouth of the Orinoco in the summer of 1902, seems, however, to have been wholly ineffective and was not recognized by either Germany or Great Britain.
But if Great Britain appears to have just and undoubted claims against Venezuela in a few cases, Venezuela would seem to be entitled to counter-damages for any injuries which she may have suffered in consequence of the escape of “The Ban Righ,” i. e., provided the British government can be convicted of any lack of “due diligence" in the matter. 8a The British government would also be liable in damages for the use of Trinidad as a base of military operations, i. e., the headquarters for the regular and constant supply of arms and ammunition to the insurgents; or for the fitting out of military or filibustering expeditions, provided these facts can be conclusively proven. It is now generally recognized that “international law imposęs upon third powers, in case of an insurrectionary movement or of civil war, certain obligations towards established or recognized governments which are engaged in a struggle with an insurrection,” and “it is especially interdicted to every third power to permit the organization within its domains of military expeditions hostile to established or recognized gove ernments."9 On the other hand, the mere furnishing of arms and ammunition to the insurgents in the ordinary way of trade merely justify their seizure as contraband of war, and would not involve any responsibility on the part of the British government.
8a This is not probable. The explanations offered by the British government seem to be entirely satisfactory.
In respect to the second class of claims, viz: the losses of British and German subjects during recent civil wars and revolutions, it is impossible to pronounce until all the facts regarding each particular claim are definitely known and ascertained. These claims are often grossly exaggerated10 and they should, in all cases, be passed upon by a mixed commission or by a court of arbitration. The general principles of international law which should govern all such awards are, however, sufficiently clear and well-established, and may be stated in a few words.
See Art. I and Art. II, 3, of the rules adopted by the Institut de Droit International in Annuaire for 1900.
10 The following examples selected from Moore's Work on Arbitration may serve to illustrate the gross attempts at fraud and exaggeration which usually, if not always, accompany these claims :
The Civil War claims of Great Britain against the United States, which were settled by a mixed commission in 1873, amounted (with interest) to about $96,000,000. Less than $2,000,000 was actually awarded to the British claimants. Of the 478 British claims 259 were for property alleged to have been taken by the military, naval or civil authorities of the United States; 181 for property alleged to have been destroyed by the military and naval forces of the United States; 7 for property destroyed by the Confederacy; 100 for damages for the alleged unlawful arrest and imprisonment of British subjects by the authorities of the United States; 77 for damages for the alleged unlawful capture and condemnation or detention of British vessels and their cargoes as prize of war by the naval forces and civil authorities of the United States. See Moore on Arbitration, I, pp. 692-93.
The claims of France growing out of the Civil War were also settled by a mixed commission which met in 1880-84. They aggregated about $35,000,000. The amount actually awarded was $625,566.35, i. e., less than 2 per cent of the amount claimed. Many of the claims are said to have been fraudulent and others were greatly exaggerated. Most of the awards are said to have been for injuries inflicted by the armies of the United States, i. e., presumably for violations of the laws of warfare. See Moore, II, pp. 1133 ff, 1156 ff.
The claims of the citizens of the United States against Mexico, which were presented to the mixed commission which met in July, 1869, and continued in session until January, 1876, amounted to the enormous sum of $470,000,000. The actual amount awarded was $4,000,000 or less than i per cent. The claims of citizens of Mexico against the United States amounted to $86,000,000. They received $150,000. See Moore, II, pp. 1319 ff.
The general rule is that “a sovereign is not ordinarily responsible to alien residents for injuries they receive on his territory from belligerent action, or from insurgents whom he could not control.” It is also “a received principle of public law that the subjects of foreign powers domiciled in a country in a state of war (or insurrection) are not entitled to greater privileges or immunities than the other inhabitants of the insurrectionary district. If, for a supposed purpose of the war, one of the belligerents thinks proper to destroy neutral property, the other cannot legally be regarded as accountable therefor. By voluntarily remaining in a country in a state of civil war they must be held to have been willing to accept the risks as well as the advantages of that domicile."11
These principles have repeatedly been enunciated by our leading statesmen as well as by those of Europe,12 and they have the sanction of nearly all the leading authorities on international law, like Calvo, Pradier-Fodéré, FunckBrentano et Sorel, Bluntschli, Rivier, Hall, etc. They have invariably been applied by European states in their relations with each other, although they have sometimes been violated in their dealings with weaker states, more particularly with China and the republics of South and Central America.
There are, however, a number of exceptions which must be made to these general principles. Indemnity is due by way of exception in the following cases: (1) Where the act from which the foreigners have suffered was directed against foreigners in general as such, or against these as the subjects of some particular state. (2) Where the injury has resulted from an act contrary to the laws or treaties of the state in which the act was committed, and for which no
u See Wharton's Digest, II, pp. 576-78.
" See especially the notes of Prince Schwartzenberg and Count Nesselrode, in behalf of the Austrian and Russian governments respectively, in reply to certain claims of the British government which were based upon injuries to British subjects during the revolutions in Tuscany and Naples in 1848. Cited by Pradier-Fodéré, I, § 205, PP. 343-45.
redress can otherwise be obtained. (3) When there has been a violation of the principles of international law, inore particularly of the laws of legitimate warfare. (4) In cases where there has been an evident denial or a palpable violation of justice, or where there has been an undue discrimination against foreigners in the administration thereof.13
In the application of these principles to the claims under consideration, constant reference must be made to the laws of modern warfare, more especially to the fundamental law of reasonable military necessity, viz: that only so much violence is permissible in war as is sufficient to destroy the eneiny's power of resistance. Pillage is strictly forbidden and private property on land is not subject to capture except in the regular way of fines, requisitions, and contributions. The invader has an undoubted right to levy or collect these at his own discretion, and he may, if he chooses, make war support itself. But they should be as orderly and as light as possible, and they should not exceed the needs of the troops or the resources of the district in which they are levied. Still it must always be borne in mind that the law of reasonable military necessity is the highest law of the land in time of war, and that foreigners do not occupy a privileged position and are, by no means, exempt from the operation of this law. On the other hand, they are exempt from military service and the exaction of forced loans for the support of military operations, although they may be called upon to support the war in the ordinary way of taxation.
In respect to the third class of claims, viz: those of British and German bondholders and British and German creditors whose investnients have been guaranteed by the Venezuelan government, a very few words must suffice here. The few authorities, comparatively speaking, who discuss this question are almost equally divided in their opinions. The right of a state to use coercive measures in the collection of debts due its subjects by another state in asserted, e. g., by Hall, Phillimore, and Rivier; but it is denied by Calvo, Pradier
* See the rules adopted by the Institut de Droit International in Annuaire for 1900; Pradier-Fodéré, $$ 204 and 1336; and Wharton's Digest, II, SS 225 and 230.
Fodéré, de Martens, and Rolin-Jaequemyns. It is argued, on the one hand, that the public faith, the so-called “honor of the prince,” is peculiarly engaged in behalf of contracts of this nature; that the foreigner may have no other means of redress than that of appealing to the government of the state to which he owes allegiance, and which is supposed to have an interest in the fortunes and prosperity of its citizens abroad; and that stock in the public debt held even by an enemy is exempt from seizure and its interest payable even in time of war, On the other hand, it is urged that hazardous loans and investments should be discouraged as much as possible; that those making them do so as a rule with a full knowledge of the risks involved and in the hope of exceptionally large returns; that the natural penalty of a failure on the part of a state to pay its debts is a loss of credit; that coercive measures for the collection of bad debts have never been employed except against a weaker state; and that in any case foreigners cannot expect to be preferred to native creditors.
The leading statesmen of England and America also occupy opposite sides in this controversy. The English view, as stated by Lord Palmerston in 1848 in a circular addressed to representatives of Great Britain in foreign countries, insists that the question as to whether such claims are to be made a subject of diplomatic negotiation is “for the British government entirely a matter of discretion, and by no means a question of international right."'14 With a view, however, of discouraging the investment of British capital in hazardous loans to foreign governments and of encouraging investment in profitable undertakings at home, “the British government has hitherto thought it the best policy to abstain from taking up as international questions the complaints made by British subjects against foreign governments which have failed to make good their engagements in regard to such pecuniary transactions.” But he intimates that such losses might become so great as to make a change of policy in this respect advisable. This view was reaffirmed by Lord Salisbury in 1880.
Mr. Blaine, acting in his capacity as Secretary of State " Cited, e. g., by Phillimore, II, Chap. 3.