Volume I Part 21 (2/2)

296-304--Phillimore, I. ---- 210-220--Twiss, I. ---- 106-112--Halleck, I. pp. 93-113--Taylor, ---- 401-409--Wheaton, ---- 61-62--Moore, II.

---- 215-219--Hartmann, -- 15--Heffter, -- 30--Holtzendorff in Holtzendorff, II. pp. 51-56--Gareis, -- 25--Liszt, -- 7--Ullmann, -- 38--Bonfils, Nos. 242-252--Despagnet, Nos. 172-175--Merignhac, I.

pp. 239-245--Pradier-Fodere, I. Nos. 211-286--Rivier, I. -- 20--Nys, II. pp. 178-181--Calvo, I. ---- 208-209--Fiore, I. Nos.

452-466--Martens, I. -- 73--Westlake, Chapters, pp. 110-125.

[Sidenote: Self-preservation an excuse for violations.]

-- 129. From the earliest time of the existence of the Law of Nations self-preservation was considered sufficient justification for many acts of a State which violate other States. Although, as a rule, all States have mutually to respect one another's Personality and are therefore bound not to violate one another, as an exception, certain violations of another State committed by a State for the purpose of self-preservation are not prohibited by the Law of Nations. Thus, self-preservation is a factor of great importance for the position of the States within the Family of Nations, and most writers maintain that every State has a fundamental right of self-preservation.[207] But nothing of the kind is actually the case, if the real facts of the law are taken into consideration. If every State really had a _right_ of self-preservation, all the States would have the duty to admit, suffer, and endure every violation done to one another in self-preservation. But such duty does not exist. On the contrary, although self-preservation is in certain cases an excuse recognised by International Law, no State is obliged patiently to submit to violations done to it by such other State as acts in self-preservation, but can repulse them. It is a fact that in certain cases violations committed in self-preservation are not prohibited by the Law of Nations. But, nevertheless, they remain violations and can therefore be repulsed. Self-preservation is consequently an excuse, because violations of other States are in certain exceptional cases not prohibited when they are committed for the purpose and in the interest of self-preservation, although they need not patiently be suffered and endured by the States concerned.

[Footnote 207: This right was formerly frequently called _droit de convenance_, and was said to exist in the right of every State to act in favour of its interests in case of a conflict between its own and the interests of another State. See Heffter, -- 26.]

[Sidenote: What acts of self-preservation are excused.]

-- 130. It is frequently maintained that every violation is excused so long as it was caused by the motive of self-preservation, but it becomes more and more recognised that violations of other States in the interest of self-preservation are excused in cases of _necessity_ only. Such acts of violence in the interest of self-preservation are exclusively excused as are necessary in self-defence, because otherwise the acting State would have to suffer or have to continue to suffer a violation against itself. If an imminent violation or the continuation of an already commenced violation can be prevented and redressed otherwise than by a violation of another State on the part of the endangered State, this latter violation is not necessary, and therefore not excused and justified. When, to give an example, a State is informed that on neighbouring territory a body of armed men is being organised for the purpose of a raid into its own territory, and when the danger can be removed through an appeal to the authorities of the neighbouring country, no case of necessity has arisen. But if such an appeal is fruitless or not possible, or if there is danger in delay, a case of necessity arises and the threatened State is justified in invading the neighbouring country and disarming the intending raiders.

The reason of the thing, of course, makes it necessary for every State to judge for itself when it considers a case of necessity has arisen, and it is therefore impossible to lay down a hard-and-fast rule regarding the question when a State can or cannot have recourse to self-help which violates another State. Everything depends upon the circ.u.mstances and conditions of the special case, and it is therefore of value to give some historical examples.

[Sidenote: Case of the Danish Fleet (1807).]

-- 131. After the Peace of Tilsit of 1807 the British Government[208] was cognisant of the provision of some secret articles of this treaty that France should be at liberty to seize the Danish fleet and to make use of it against Great Britain. This plan, when carried out, would have endangered the position of Great Britain, which was then waging war against France. As Denmark was not capable of defending herself against an attack of the French army in North Germany under Bernadotte and Davoust, who had orders to invade Denmark, the British Government requested Denmark to deliver up her fleet to the custody of Great Britain, and promised to restore it after the war. And at the same time the means of defence against French invasion and a guaranty of her whole possessions were offered to Denmark by England. The latter, however, refused to comply with the British demands, whereupon the British considered a case of necessity in self-preservation had arisen, sh.e.l.led Copenhagen, and seized the Danish fleet.

[Footnote 208: I follow Hall's (-- 86) summary of the facts.]

[Sidenote: Case of Amelia Island.]

-- 132. ”Amelia Island, at the mouth of St. Mary's River, and at that time in Spanish territory, was seized in 1817 by a band of buccaneers, under the direction of an adventurer named McGregor, who in the name of the insurgent colonies of Buenos Ayres and Venezuela preyed indiscriminately on the commerce of Spain and of the United States. The Spanish Government not being able or willing to drive them off, and the nuisance being one which required immediate action, President Monroe called his Cabinet together in October 1817, and directed that a vessel of war should proceed to the island and expel the marauders, destroying their works and vessels.”[209]

[Footnote 209: See Wharton, -- 50 a, and Moore, II. -- 216.]

[Sidenote: Case of the _Caroline_.]

-- 133. In 1837, during the Canadian rebellion, several hundreds of insurgents got hold of an island in the river Niagara, on the territory of the United States, and with the help of American subjects equipped a boat called the _Caroline_, with the purpose of crossing into Canadian territory and bringing material help to the insurgents. The Canadian Government, timely informed of the imminent danger, sent a British force over into the American territory, which obtained possession of the _Caroline_, seized her arms, and then sent her adrift down the falls of the Niagara. The United States complained of this British violation of her territorial supremacy, but Great Britain was in a position to prove that her act was necessary in self-preservation, since there was not sufficient time to prevent the imminent invasion of her territory through application to the United States Government.[210]

[Footnote 210: See Wharton, I. -- 50 c, Moore, II. -- 217, and Hall, -- 84.

With the case of the _Caroline_ is connected the case of Macleod, which will be discussed below, -- 446. Hall (-- 86), Martens (I. -- 73), and others quote also the case of the _Virginius_ (1873) as an example of necessity of self-preservation, but it seems that the Spanish Government did not plead self-preservation but piracy as justification of the capture of the vessel (see Moore, II. -- 309, pp. 895-903). That a vessel sailing under another State's flag can nevertheless be seized on the high seas in case she is sailing to a port of the capturing State for the purpose of an invasion or bringing material help to insurgents, there is no doubt. No better case of necessity of self-preservation could be given, since the danger is imminent and can be frustrated only by capture of the vessel.]

VI

INTERVENTION

Vattel, II. ---- 54-62--Hall, ---- 88-95--Westlake, I. pp.

304-308--Lawrence, ---- 62-70--Phillimore, I. ---- 390-415A--Halleck, I. pp. 94-109--Taylor, ---- 410-430--Walker, -- 7--Wharton, I. ---- 45-72--Moore, VI. ---- 897-926--Wheaton, ---- 63-71--Bluntschli, ---- 474-480--Hartmann, -- 17--Heffter, ---- 44-46--Geffcken in Holtzendorff, II. pp. 131-168--Gareis, -- 26--Liszt, -- 7--Ullmann, ---- 163-164--Bonfils, Nos. 295-323--Despagnet, Nos.

193-216--Merignhac, I. pp. 284-310--Pradier-Fodere, I. Nos.

354-441--Rivier, I. -- 31--Nys, II. pp. 185-193, 200-205--Calvo, I.

---- 110-206--Fiore, I. Nos. 561-608, and Code, Nos.

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