PANAMA

[§ 82

§ 82. Panama.

In November, 1903, the United States intervened to prevent the suppression by Colombia of the revolution of Panama. The acts of intervention took the form of the prevention of the landing of armed forces on the Isthmus, the bombardment of the town of Panama, and the recognition of Panama as a State.2 Justification was declared by President Roosevelt to be found in: first, our treaty rights; second, our national interests and safety; and, third, the interests of collective civilization.3

It was contended that by virtue of Article XXXV of the treaty of December 12, 1846, between the United States and New Granada (the predecessor of Colombia), the former not only assumed the duty to guarantee the constant "neutrality" of the Isthmus, but also acquired the right to maintain the free and open transit thereof, and incidentally the further right to prevent the commission of any warlike acts in the Isthmian Zone by whomsoever committed.1

charging that the catastrophe was to be attributed to 'the direct act of a Spanish official.' Its intervention rested upon the ground that there existed in Cuba conditions so injurious to the United States, as a neighboring nation, that they could no longer be endured. Its action was analogous to what is known in private law as the abatement of a nuisance."

1 See instructions to Naval Officers of the United States, Nov. 2–5, 1903, For. Rel. 1903, 247-248, Moore, Dig., III, 46.

2 President Roosevelt, special message, Jan. 4, 1904, For. Rel. 1903, 260, 272, Moore, Dig., III, 56, 71.

For. Rel. 1903, 273, Moore, Dig., III, 71.

Art. XXXV of the treaty of 1846 is in part as follows: "The Government of New Granada guarantees to the Government of the United States that the right of way or transit across the Isthmus of Panama upon any modes of communication that now exist, or that may be hereafter constructed, shall be open and free to the Government and citizens of the United States, and for the transportation of any articles of produce, manufactures or merchandise, of lawful commerce, belonging to the citizens of the United States; . . . And, in order to secure to themselves the tranquil and constant enjoyment of these advantages, and as an especial compensation for the said advantages, and for the favors they have acquired by the 4th, 5th, and 6th Articles of this treaty, the United States guarantee, positively and efficaciously, to New Granada, by the present stipulation, the perfect neutrality of the before-mentioned isthmus, with the view that the free transit from the one to the other sea may not be interrupted or embarrassed in any future time while this treaty exists; and, in consequence, the United States also guarantee, in the same manner, the rights of sovereignty and property which New Granada has and possesses over the said territory.' Malloy's Treaties, I, 312.

With reference to the divergent interpretations of the treaty on the part of Colombia and the United States, see President Roosevelt, special message, Jan. 4, 1904, For. Rel. 1904, 260-278, Moore, Dig., III, 56; also correspondence between Mr. Hay, Secy. of State, and Gen. Reyes, Colombian Envoy on special mission, December, 1903, and January, 1904, For. Rel. 1903, 283–314, Moore, Dig., III, 78–113.

INTERVENTION OF THE UNITED STATES IN THE WORLD WAR IN 1917. Concerning the causes which led the United States to become a belligerent on the side of the Allied Powers, see Maritime Warfare, infra, §§ 747-749.

§ 83. Certain Minor Instances.

In the course of the Chile-Peruvian war in 1881, Mr. Blaine, Secretary of State, fearful lest Chilean demands for Peruvian territory as a condition of peace might prove destructive of Peruvian nationality, instructed Mr. Trescot, special envoy to the belligerent States, to lodge such a protest and take such a stand as might have been fairly looked upon as amounting to intervention.1 The instruction was, however, a few weeks later modified by Secretary Frelinghuysen (Mr. Blaine's immediate successor), and the United States did not in fact, in its subsequent conduct, have recourse to such interference.2

1 Mr. Blaine expressed surprise and regret at the treatment accorded the Calderon government of Peru by Chile, which had forbidden that government to exercise its functions within territory occupied by the Chilean army, and which had arrested President Calderon. The Secretary declared that if it should be avowed that the motive for such action was resentment by Chilean authorities on account of the continued recognition by the United States of the Calderon government, the proceeding would be regarded by the President as an intentional and unwarranted offense" and regarded by the Government of the United States "as an act of such unfriendly import as to require the immediate suspension of all diplomatic intercourse." Mr. Blaine added that should the Chilean government, while disclaiming any intention of offense, maintain its right to settle its difficulties with Peru without the friendly intervention of other powers, and refuse to allow the formation of any government in Peru which did not pledge its consent to the cession of Peruvian territory, it would be Mr. Trescot's duty in language as strong as was consistent with the respect due an independent power, to express the disappointment and dissatisfaction felt by the United States at such a deplorable policy. He admitted that if Peru was unable or unwilling to furnish adequate indemnities for specified purposes, the right of conquest put it in the power of Chile to satisfy itself, and that the reasonable exercise of that right, however to be regretted, was not a legitimate ground of foreign complaint. He declared, however, that the Government of the United States felt that the exercise of the right of absolute conquest was dangerous to the best interests of all republics of the American continents, and that from it were certain to spring other wars and political disturbances. He maintained that Peru had the right to demand that opportunity be allowed her to find the requisite indemnity and guarantee, and he announced that the United States could not admit that a section of territory could be properly exacted far exceeding in value the amplest estimate of a reasonable indemnity. He declared that if the good offices of the United States were rejected and the policy of absorption of an independent State were persisted in, the United States would consider itself discharged from any further obligation to be influenced in its action by the position which Chile had assumed, and would hold itself free to appeal to the other American republics to join it in an effort to avert consequences which could not be confined to Chile and Peru, but which threatened with extremest danger the political institutions, the peaceful progress, and the liberal civilization of all America. Mr. Blaine, Secy. of State, to Mr. Trescot, No. 2, Dec. 1, 1881, For. Rel. 1881, 143, Moore, Dig., VI, 39.

2 Mr. Frelinghuysen, Secy. of State, to Mr. Trescot, No. 6, Jan. 9, 1882, For. Rel. 1882, 57, Moore, Dig., VI, 40. Also Same to Mr. Phelps, Minister to Peru, No. 6, July 26, 1883, For. Rel. 1883, 709, Moore, Dig., VI, 42; Same to Same, No. 8, Aug. 25, 1883, For. Rel. 1883, 711, Moore, Dig., VI, 42.

In 1913, President Wilson not only declined to recognize the Mexican government of General Huerta, but also, as has been noted (supra, § 44) made known to certain foreign powers his sense of duty to require Huerta's retire

CERTAIN MINOR INSTANCES

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In the process of its acquisition of rights of sovereignty over the Island of Tutuila and adjacent islands in the Samoan group, the United States seems to have had recourse to intervention, in so far as it caused the Samoans to accept the form of government prescribed by the General Act of the Conference at Berlin in 1889,1 to yield to a cessation of hostilities in the fight for the kingship, and to bow to the tri-partite agreement of 1899, concluded by the United States with Great Britain and Germany.2 It was by virtue of British and German renunciations therein of territorial pretensions, rather than by any other means, that the United States appears to have perfected its rights. No native government in those islands seems to have been regarded at that time as possessed of rights of political independence or of property and control which the parties to the arrangement regarded themselves as obliged to respect.3

ment, and his opinion that the United States should proceed to employ such means as might be necessary to secure that result. Those powers were, accordingly, called upon to exert their influence to impress upon Huerta the wisdom of retiring in the interest of peace and constitutional government in Mexico. For. Rel. 1913, 856.

1 President Cleveland, Annual Message, Dec. 3, 1894, For. Rel. 1894, xv-xvi, Moore, Dig., I, 548. For the text of the General Act for the Neutrality and Autonomous Government of the Samoan Islands, concluded June 14, 1889, by the United States, Great Britain and Germany, see Malloy's Treaties, II, 1576.

2 Malloy's Treaties, II, 1595.

3 See, generally, documents in Moore, Dig., I, 536–554.

DEMANDS OF THE ALLIED POWERS ON CHINA FOLLOWING THE BOXER TROUBLES OF 1900. Following the military operations of the allied expedition in China in 1900, to raise the siege of the legations at Peking, the United States in conjunction with Austria-Hungary, Belgium, France, Great Britain, Germany, Italy, Japan, Russia and Spain, compelled China to yield to heavy demands. These embraced not only various forms of reparation for wrongs sustained in the course of the so-called "Boxer" troubles, but also measures specially designed to prevent a recurrence of acts such as had been committed. These measures, which were embodied in the final protocol of Sept. 7, 1901, Malloy's Treaties, II, 2006, involved the relinquishment by China of certain important rights. Thus she was obliged to yield the special reservation of the so-called Legation quarter in Peking, together with the exclusive control thereof, embracing the fullest right of defense, to the interested Powers. Art. VII. She was forced to consent to the razing of the forts at Taku and those which might impede free communication between Peking and the sea, Art. VIII, and the occupation by the Powers of certain points for the maintenance of communication between the capital and the sea. Art. IX. She was compelled to agree to prohibit the importation of arms and ammunition, as well as materials used exclusively in their manufacture. Art. V. She was obliged also to transform her Office of Foreign Affairs (Tsungli Yamen) into a Ministry of Foreign Affairs on lines indicated by the Powers, and to give it precedence over the other six Ministries of State, and simultaneously modify the existing ceremonial respecting the reception of foreign diplomatic representatives. Art. XII. Save for these and kindred concessions, the United States had, however, no design which was at variance with the policy announced by Secretary Hay in July, 1900, and which aimed to "preserve Chinese territorial and administrative entity." For. Rel. 1900, 299. The interference with the political

The nature and extent of the right asserted by the United States to restrict the freedom of action of foreign powers with respect to certain forms of action affecting States of the American continents, and by virtue of what is known as the Monroe Doctrine, require separate examination.1

h

§ 84. The League of Nations and Intervention.

3

The Covenant of the League of Nations, in so far as it establishes a right of interference in case of a breach of the agreement by a member of the League, as manifested, for example, in aggression against the territorial integrity or political independence of a member,2 or in disregard of the undertaking not to resort to war under specified conditions, is not at variance with any principle of international law pertaining to intervention. It is the consent to interference under the contingencies set forth in the compact which prevents such action when taken against any member proving to be a covenant-breaker from resembling the case where external opposition is in plain defiance of the will of the State which is thwarted.

A different situation is contemplated, however, when it is designed to compel a State which has not accepted the Covenant to refrain from action which as an independent sovereign it sees fit to take. According to Article XVII of the Covenant, in the event of a dispute between a member of the League and a State which is not a member, if the latter refuses the invitation (which is to be made to it upon such conditions as the Council of the

independence of China, manifested in the demands made of her, was a natural incident or consequence of the military expedition of the Powers to relieve the legations, and was necessitated by the nature and extent of the disturbances which led to that expedition. Concerning events which preceded the raising of the siege of the legations, see Landing of Foreign Forces, infra, § 202.

1 The United States at various times objected to the exercise of a protectorate by Great Britain over the Mosquito Indians, on the ground that such action was in violation of the convention between the United States and Great Britain of April 19, 1850, known as the Clayton-Bulwer Treaty, as well as in conflict with the spirit of the Monroe Doctrine. See statement of Mr. Buchanan, Minister to Great Britain for the Earl of Clarendon, Jan. 6, 1854, Brit. and For. State Pap., XLVI, 244, 247, H. Ex. Doc. 1, 34 Cong., 1 Sess. 55, Moore, Dig., III, 154, 159; statement of Lord Clarendon for Mr. Buchanan, May 2, 1854, Brit. and For. State Pap., XLVI, 255, H. Ex. Doc. 1, 34 Cong., 1 Sess., 80, Moore, Dig., III, 161; Memorandum of General Cass, Secy. of State, of conversations with M. Sartiges, Dec. 1, 1858, MS. Inst. Am. States, XVI, 22, Moore, Dig., III, 178, note; Mr. Bayard, Secy. of State, to Mr. Phelps, Minister to Great Britain, Nov. 23, 1888, For. Rel. 1888, I, 759-767, Moore, Dig., III, 227, 236.

2 Art. X.

3 Arts. XII and XV.

PRELIMINARY

[$ 85 League may deem just) to accept the obligations of membership in the League for the purposes of adjusting the dispute, and resorts to war against a member of the League, the war-waging State exposes itself to the drastic measures to be applied by the League and its several members against a covenant-breaker.1 In a word, the States constituting and adhering to the League assert the right to interfere with and prevent the making of war by an outside power upon one of their members save under contingencies which they prescribe. These deserve attention. War is in no case to be made until three months after an arbitral award or a report by the Council of the League. If arbitration is in fact avoided, the issue must be referred to the Council whose report, with its recommendations for the just settlement of the controversy, if unanimously agreed to by the members thereof other than the representatives of the parties to the controversy, deprives the losing State of the right to go to war with its adversary complying with those recommendations. It is the right of an outside State to refuse to submit to such procedure, with the incidental obligation not to fight under such a contingency, which the members of the League of Nations appear to challenge. Technically their interference with such a State must be regarded as amounting to intervention, the propriety of which on principle would depend upon the merits of the particular case, unless it be admitted that the States constituting the League may by virtue of their organization alter the principles of international law. The United States is not as yet prepared to make such an admission.

7

THE MONROE DOCTRINE

§ 85. Preliminary.

a

In examining the practice of the United States in attempting to check the conduct of foreign powers by reason of its special relation to States or territory situated in the Western Hemisphere, the attempt is here made primarily to observe the precise charac

1 Art. XVI. Art. XVII also provides that if both parties to a dispute, when so invited, refuse to accept the obligations of membership in the League for the purposes of such dispute, the Council may take such measures and make such recommendations as will prevent hostilities and will result in the settlement of the dispute. This provision would appear to cover the case where neither party to the controversy is a member of the League.

2 Arts. XII and XV.