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Latin America and International Law

Published online by Cambridge University Press:  04 May 2017

Alejandro Alvarez
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Extract

The entry of Latin America into the community of nations is one of the most important facts in the history of civilization. It resulted not only in widening the field occupied by International Law but also in radically modifying its character. Although the Latin States of America inherited the civilization of the peoples of Europe, they developed along different lines. In number, and in the fact of their common origin they were like the members of one large family who had been suddenly and almost simultaneously called into independent life.

This combination of circumstances caused these nations, upon their appearance in the general society of states, to exclude from their constitutions the principles of European public law which did not harmonize with the special character of their organization; and to reject, in their foreign relations, those principles and practices that were incompatible with their independent position or that did not favor their special conditions of development.

Type
Research Article
Information
American Journal of International Law , Volume 3 , Issue 2 , April 1909 , pp. 269 - 353
Copyright
Copyright © American Society of International Law 1909

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References

1 Every day, however, greater interest is being displayed in this continent in the investigation of that subject, as is shown by two very significant facts. The first is the initiative taken by the “American Academy of Political and Social Science” in publishing annually a volume devoted to a study of the contribution the Latin-American States have made to the advance of culture and the progress of civilization. The second is the meeting in Santiago, Chile, at the end of the year 1908, of the First Pan-American Scientific Congress in which all the States of the New World were represented and which devoted itself exclusively to the study and elucidation of problems of American interest.

2 It is not worthy of study, whether the colonies of Spanish-America were prepared or not for independent life; whether or not the idea of independence was diffused through the entire mass of the population ; whether they had any exact notion of what they proposed to bring about; in short, whether the movement of emancipation was due to a national sentiment duly matured or was merely a fulfillment of one of the laws of historical psychology, — that a people will take advantage of the difficult situation of another people in order to exercise against that other any rights to which it believes itself to be entitled, — or was, as we ourselves believe, due to a combination of the two.

3 Brazil secured its independence in 1822, preserving the monarchical form of government, forming therefore and because of difference of origin, a nation that did not closely unite with the republics of Spanish America. Because of its form of government, its greater population, the extension and richness of its territory, Brazil was better known to the European countries and held by them in greater esteem than the other Latin-American countries.

4 It is to be noted that these institutions of the United States were known in Latin-America principally through the intermedium of the French constitution of 1791 and the Spanish constitution of 1812, both of which derived their inspiration from the constitution of the United States of 1787 and from the writing of the French philosophers of the eighteenth century.

5 In the diplomatic history of Europe there is a case which is very analogous to that of the emancipation of the American colonies. Reference is made to the revolt, at the end of the Sixteenth Century, of the provinces of the Low Countries against Spain, from which they depended; and the reunion of the seven provinces of the North in a “Perpetual Confederation” which declared its independence from Spain in 1581 and adopted the republican form of government. Spain recognized the independence of these provinces almost a century afterwards, in the treaty of Münster of 1648.

6 In the project of the “Declaration of the Rights of the People of Chile” of 1810, (modified in 1811), the following principles are proclaimed which do honor to the clear-signtedness with which the statesmen of Chile discerned the future destinies of America: First, The peoples of Latin-America can not, isolated, defend their sovereignty; in order to develop, they must become united, not for reasons of domestic policy, but for security abroad, against the projects of Europe and to avoid wars among themselves. Second, This does not at all mean that the States of Europe should be regarded as enemies; on the contrary, it is indispensable to form, as far as possible, closer relations of friendship with them. Third, The nations of America should meet in a Congress for the purpose of organizing and strengthening themselves (On this last point, the Declaration states that “the day when America united in a Congress, whether of the Nation or of its two continents or of the South, speaks to the rest of the Earth, its word will be respected and its resolutions contradicted with difficulty”).

This was not the only time when ideas of this character were expressed by statesmen of Chile. In the proclamation addressed to the Chilian people by the Supreme Director O’Higgins, dated the 6th of May, 1818, mention is made of “ the great confederacy of the American Continent, capable of maintaining its political and civil liberty.”

7 This article was due to the initiative of the Peruvian Plenipotentiary, who, in article 16 of his draft of a treaty of confederation, presented to the Congress of Panama, provided that “two individuals will take it upon themselves to present in the coming year a draft of an American Code of Nations which will not be contrary to European customs.”

8 As to the importance given to it by the United States, vide, Moore: “A Digest of International Law,” (Washington, 1906), Vol. VII, page 940.

9 The expedition planned went to pieces early in 1847.

10 The above cited articles 2 and 9 were undoubtedly children of the dread that Argentine, Uruguay, and Brazil, at the time at war with Paraguay, should dismember this country.

11 On the 16th of May, 1867, the delegates of Chile, Ecuador, and Bolivia, in Lima, entered into a treaty upon principles of International Law, and, on the 3rd of October of the same year, the representatives of Chile, Peru, and Bolivia drew up a treaty almost identical to the above. These pacts, which were not ratified, contain provisions analogous to the conventions of “Union and Confederation” of 1848, 1856, and 1865.

12 In some of the conventions celebrated by Latin-American countries, the case is provided for in which new states should be formed in America by the dismemberment of those then existing: (e. g., Additional and Explanatory Convention of 1833 to the Treaty of Peace, Friendship, Commerce, and Navigation between Chile and the United States of America of May 16, 1832).

13 The term uti possidetis of 1810, is generally understood to mean the territory which the respective countries had the right to possess according to the Spanish administrative divisions obtaining at that date, the date of the beginning of the movement for emancipation.

14 Vid,, as to all the Brazilian boundary disputes, de Azevedo, G. Taumaturgo: “Límites Do Brazil” in the “Livro do Centenario,” (Rio Janeiro, 1902), Vol. III, pages 69–136 Google Scholar.

15 Chile and Bolivia contested the sovereignty over two geographical degrees, the 24° and 25° of south latitude. This conflict, after being the subject of the treaties of August 10, 1866, and August 6, 1874, completed by the treaty of June 21, 1875, was the remote cause of the War of the Pacific about which we will speak later on. The dispute over the territory of the Missions, between Brazil and Argentine, involved 30,670 sq. kilometres. The dispute as to the boundary line between Chile and Argentine, affected 94,000 sq. kilometres. Peru lays claim to about two-thirds of the territory which Equador maintains belongs without question to it, covering about 240,000 sq. kilometres. By a convention of August 1, 1887, the affair has been submitted to the arbitration of the King of Spain. (See, on the origin of this conflict, Prado and Barreda: “Alegato del Peru en el Arbitraje sobre sus límites conel Ecuador,” Madrid, 1905, pages 29-64.)

16 Bolivia and Argentine disputed with each other the possession of the Puna de Atacama, while the same contest was going on between Chile and Bolivia, without any controversy, however, between Chile and Argentine. After Bolivia had renounced its rights over the zone by treaty of May 10, 1889, with Argentine, the conflict went on betwen Chile and Argentine. The question was finally submitted to a commision, subsequently to an arbitral tribunal and finally to a “sur-arbitro,” the minister of the United States in the Argentine Republic. The award gave to Argentine about the whole of the territory in dispute.

Bolivia and Brazil laid claim at the same time to a considerable strip of the Acre territory, a portion of which was then, too, claimed by Peru. In order to put an end to the case, Peru and Bolivia submitted the question to the arbitration of the Argentine government by the treaty of December 30, 1902. Shortly afterwards, by the Treaty of Petropolis of November 17, 1903, Bolivia renounced all its rights over the territory in litigation in favor of Brazil, ceding thus to this state a country to which Peru laid claim. Because of this, a question has arisen as to what influence this cession may have upon the arbitral decision of the Argentine government which has not yet been given. (See, on this matter, Renault, Lapradelle and Politis: “de l’Influence sur la procédure arbitrale de la cession des droits litigieux” in the “Revue Générale de Droit International Public, Vol. XIII, 1906, pages 309-324.)

And finally, the region called Putumayo is claimed by Peru, Columbia, and Equador.

17 Sometimes to avoid the difficulties of this situation agreements called those of neutralization have been celebrated by which the states promise to forbear from exercising acts of possession, or not to disturb the modus vivendi in that territory (e. g., agreement of 1842 between Brazil and England in the dispute as to the boundary line of Guiana; of 1850 between England and Venezuela for the same reason; in 1889 between Chile and Argentine).

18 See on these contests, Alvarez, : “Des Occupations de Territoires contestés” in the “Revue Générale de Droit International Public,” Vol. X, pages 651 Google Scholar et seq.

19 To put an end to these conflicts, numerous conventions have been concluded, which may be placed in three categories, while laws have been passed declaring the navigation of those rivers to be free. (See, on the matter Alvarez, : “L’Histoire Diplomatique des Républiques Américaines” in the review just cited, Vol. IX, 1902, page 564 Google Scholar, note 1.) Some of these conventions are of special importance. In 1853, the Argentine Confederation celebrated with Great Britain, the United States and France, treaties over the free navigation of the rivers of Parana and Uruguay. In these treaties the contracting parties agree to use their influence to prevent the possession of the Island Martin Garcia by any state of the River Plate or its confluents, that had not given adhesion to the principle of free navigation.

20 In 1825, there broke out a war between the Empire of Brazil and the United Provinces of the River Plate, over the possession of the province of Montevideo. This had formed part of these provinces up to 1822, when Brazil annexed it under the name of “Provincia Cisplatina.” When this province declared its independence in 1825, Brazil and the United Provinces entered upon a war with each other, as both had desired to incorporate it into their respective territory. The war was terminated by the treaty of the 27th of August, 1828, concluded through the mediation of the British government and completed by the convention of January 2, 1859, between Brazil, Argentina, and Uruguay. In this, the neutrality of Uruguay was proclaimed, Brazil and Argentine binding themselves to defend its independence and integrity. The sovereignty of Uruguay was limited in this pact in various ways, in its exercise in foreign affairs: it might not unite itself, confederate itself or sign treaties of alliance, or place itself under the protectorate of any nation, or part with any portion of its territory under any pretext. By the Treaty of Peace and Friendship of 1856 between Brazil and Argentina, the declarations of the convention of August, 1828, relative to the maintenance by those two countries of the independence of Uruguay, are confirmed. The neutrality of the Island Martin Garcia in case of war, is also stipulated, and the two countries agree to prevent this island from going out of the possession of the states of the River Plate interested in the free navigation of that River. On the 25th of February, 1864, these two countries subscribed a protocol concerning the employment of the fortifications made by Argentina on this Island.

In 1836, a war broke out between Chile and a confederation of Peru and Bolivia which had been formed in 1835 by General Santa Cruz, a confederation which aimed at securing the hegemony of South America and a predominant influence over the nearest states, Ecuador and Chile. Upon aid being given to the political refugees of Chile in Peru, in 1836, to prepare an expedition against Chile, this country declared war on the allied states and obtained the triumph of its cause in Yungai in 1839, with the dissolution of the confederation. Very reliable data exist, which lead one to judge that the English government was ready to support the chief of the Confederation, General Santa Cruz, who, in return for this, was to grant said government large commercial concessions. In this war Chile declared that it would follow three rules of International Law, which were favorable to neutral commerce: that neutral merchandise on board an enemy’s ship could not be confiscated, that blockades must be effective, and that the flag covered the merchandise. And this, without requiring reciprocal treatment, that is to say, even though neutral nations did not recognize these rules.

In 1864, in consequence of civil wars, a war broke out between Brazil and Uruguay, terminating in 1865. That same year, by the Treaty of Alliance of the 1st of May, Brazil, Uruguay, and Argentina bound themselves together to declare war against Paraguay to overturn the government of that country. These three states contracted the treaty obligation of respecting the independence, sovereignty, and integrity of Paraguay (art. 6), but in article 16 it is stipulated that the allies would cause the government of Paraguay to conclude with them boundary treaties on the bases indicated in the Treaty of Alliance. In the final Treaty of Peace, of February 3, 1876, between the Argentine Republic and Paraguay, are to be found provisions which aim to secure the free navigation for the commerce of all nations of the rivers of Uruguay, Paraná, and Paraguay.

21 In some, the parties promised not to celebrate treaties of peace and friendship with the Spanish government until it had recognized the independence of all the states of America formerly Spanish, or, at least, of the signatory states (Treaty of Peace, Friendship, Commerce and Navigation between Chile And the United States of Mexico, of March 7, 1831, Art. 15).

22 As to this, see, Alvarez, : “La Nationalité dans le Droit International Américain” Paris, 1907), No. IV, pages 17 and 18 Google Scholar.

23 For example, the French intervention of 1838 and the Anglo-French inter vention of 1846 in the River Plate; the French intervention in Mexico in 1862; the war of Spain in the Pacific in 1864-1866, and various cases of the suppression by Spain of the attempts of Cuba to free itself.

24 In spite of the fact that the domination of Spain had completely ended in America with the battle of Ayacucho, in December, 1824, it was not until December 4, 1836, that the Cortes passed a law authorizing the Spanish government to celebrate with its former colonies of America treaties of peace and friendship on the basis of the recognition of their independence. The first state recognized by Spain was Mexico, (Treaty of December 28, 1836). The others were almost all recognized after 1844. When this law was passed, the governments of nearly all the new republics, although already recognized by the other countries, believed it wise to open up the negotiations with the mother country in order to avoid all doubts as to their international relations with the latter.

25 The reaty of 1800, famous for the above reasons in American diplomatic history and because it suggested the provision of the Treaty of Commerce signed in the Congress of Lima in 1848, proposed to assure the liberty of commerce not only in times of peace, on the basis, then, of the privilege of the most favored nation (arts. 6 and 11), but also, and chiefly, in the case of war. For this case, the liberty of commerce of neutrals was stipulated, except in contraband (art. 12), enemy’s goods in ships of the nationality of one of the parties is not to be confiscated unless it be contraband, but neutral goods in an enemy’s vessel may be confiscated, unless it had been put aboard before the declaration of war, or afterwards, in ignorance of this event (arts. 14 and 15); a list is given of the articles of contraband (art. 13) ; the right of visitation is regulated (arts. 16 to 22) and the exercise of privateering (arts. 23 to 27). No way to avoid conflicts between states is specified, but the conduct to be observed in case of conflicts is indicated, a certain period being fixed during which the citizens of each country will be able to freely abandon the territory of the other (art. 8).

26 See the protests made against this by the Secretary of State, Henry Clay, through the Minister of the United States in Mexico, which were directed to the Mexican Government because it refused to grant the United States the same favors as those granted to other American States. Hart, , “American History Told by Contemporaries,” Vol. III, pages 500 and 501Google Scholar.

27 As to this little known controversy, see Moore: op cit., Book I, § 81, pages 266-267.

28 By the Convention of 1857, this controversy was submitted for decision to the government of Spain, which, on the 30th of June, 1866, gave a decision entirely favorable to Venezuela.

29 By Convention of April 10, 1897, submitted to the Swiss Confederation for arbitration. The arbiter gave decision, April 1, 1900, in favor of Brazil.

30 This controversy, involving the possession of 109,000 sq. kilometres, is notable in American diplomatic history as being one of the clearest cases of the exercise of the hegemony of the United States, as we will see later on.

France and Holland also had a dispute as to the delimitation of Dutch Guiana, which was brought to an end by the award of the Czar of Russia on May 13-25, 1891.

31 In the first case, France justified her action in alleging the injustice of a law of the Argentine tyrant Rosas who attempted to naturalize and force to do military service foreigners residing for more than three years in the country and engaging in commerce or possessing real property. On this occasion, France interfered in the internal affairs of Argentine Republic and Uruguay. The conflict was ended by a compromise of the parties on October 29, 1840.

The second case involved the payment of a pecuniary claim. France blockaded the port of Vera Cruz, and took the fort of San Juan de Ulloa, whereupon Mexico declared war. Peace was established by the Treaty of March 9, 1839.

32 On the 24th of November, 1849, a treaty was celebrated between England and Argentine Republic, which put an end to the English intervention in that country. In this, there is a curious clause stating that Argentina is in the full enjoyment and exercise of all the rights possessed by an independent nation. This article was included in the treaty on the petition of Rosas who complained that the European powers denied to the Latin-American states the sovereign rights which they themselves possessed.

33 Its independence was again recognized by Spain in 1865.

34 The cause of this war clearly shows the international situation in which, Spain maintained, the new republics that she had not recognized, found themselves. In 1864, she sent to the Government of Peru, which was in this situation, a “Special and Extraordinary Commissioner of the Queen”, a title borne by the former inspectors charged with the supervision of affairs in the colonies. The Peruvian government declined to receive this individual save in the character of Confidential Agent. The envoy abandoned the country, and a Spanish fleet seized the Chinchas Islands, belonging to Peru, on the grounds of reaserting its rights of possession. Spain alleged, in fact, that, as it had not recognized the independence of Peru, that only a state of truce existed between the two countries since the time of the struggle for independence. On the 5th of December, 1865, a Treaty of Alliance was entered into by Peru and Chile to repel the agressions of Spain, an alliance which was entered into a little later by Bolivia and Ecuador. Chile, whose independence had been recignized by Spain in 1844, found herself involved in this war, owing to which the Spanish squadron blockaded and bombarded the port of Valparaiso. This act has given rise, among others, to an interesting question of International Law, as to what extent the bombardment of a purely commercial port entirely without fortifications is permissible.

On this occasion Spain gave assurance to the United States that the purpose of the war was not to change the republican character of these countries.

35 This war came to an end by the treaty of February 2, 1848, by which the United States annexed New Mexico and California.

36 Frequently, above all in ease of numerous claims, it is stipulated that these be decided by Arbitral Tribunals or by Mixed Commissions. This procedure has lent itself to abuses, because of which it is disappearing.

37 In various conventions of Latin-American States, such expressions as “American Public Law” and even “South American Public Law” are to be found (See, Preamble of the Treaty of April 20, 1886, between Peru and Bolivia on the fixing of boundaries), which manifest the solidarity of interests which is believed should exist between all the states of Latin America.

38 In emitting an opinion in 1880 which was different from that of 1856, the Argentine Republic obeyed a political purpose, — that of preventing Chile (at the time, victorious over Peru and Bolivia) which maintained strained relations with it on account of a boundary dispute, from annexing a portion of Peruvian territory.

39 The government of Chile, in view of the fact that the projected conference was intended principally to meddle in its foreign policy, not only refrained from ratifying the cited convention of 1880 and from participating in the Congress, but succeeded in prevailing upon several Latin states not to attend it.

40 These treaties have been ratified by Argentina (law of December 11, 1894), by Paraguay (law of September 3, 1889), by Peru (law of October 25, 1889), by Uruguay (October 1, 1892), and by Columbia (Decree of November 17, 1903). By virtue of a provision of those pacts permitting states which had not signed them to adhere to them later, France, Spain and Italy and Belgium became par ties to the Treaty on Copyrights, during 1896, 1899, 1900, and 1903, respectively.

41 See the agreement between Argentina and Uruguay, of January 14, 1876, which was not ratified.

42 One of the principal contests was that between Argentina and Paraguay as to the possession of the territory between the River Verde and the main branch of the Pilcomayo together with the Villa Occidental, submitted by the Convention of February 3, 1876 (art. V) to the decision of the President of the United States of America, who handed down his judgment on the 12th of November, 1878.

43 Upon declaring war, the government of Chile published in the Diario Oficial (October 10 and 20, 1879) the instructions which the United States issued for its armies in the field, as well as the declarations of several European international conferences (Brussels, Geneva, and St. Petersburg) on the laws and usages of war. These were given as a guide for the conduct of the Chilian army during the operations of war. The war was closed, as to Peru, by the treaty of October 20, 1883. By article 2 of this treaty, Peru ceded to Chile the province of Tarapaca and by article 3 placed Tacna and Arica under the sovereignty of Chile, postponing for 10 years a plebiscite which should decide the final sovereignty over these provinces. The plebiscite has not been taken, because the parties have not been able to agree as to the conditions under which it is to be celebrated. Respecting Bolivia, the war was suspended by the truce of April 4, 1884, according to which the territories lying between parallel 23 and the mouth of the River Loa in the Pacific, which had been occupied by the military forces of Chile during the war, should continue subject to the sovereignty of Chile. The final treaty of peace was arranged on October 20, 1904, in which the sovereignty of Chile over this region is recognized. Chile has been reproached without reason for having occupied these territories without a previous declaration of war. In fact, this country, after seeing that Bolivia rejected the offer of arbitration, not only addressed to Bolivia an ultimatum, but proceeded to occupy this zone of territory on the grounds of rei vindicatio inasmuch as Bolivia had violated the treaty of 1866, the purpose of which was to put an end under certain conditions to the old boundary dispute between the two countries as to parallels 23 and 24.

44 As to the importance of this matter, the problems involved in it, and the several solutions given to the problems by the laws of Europe and America, see Alvarez, : “La Nationalité dans le Droit International Américain,” Paris, Pedone, A., 1907 Google Scholar.

45 The most characteristic case is the concession made by Bolivia, by the law of December, 1901, to a North American syndicate, of a portion of the Acre territory, the title over which Bolivia disputed with Brazil. Brazil protested against the concession, and the controversy ended by the already mentioned treaty of Petropolis, by which Brazil paid indemnity to the syndicate whose concession was taken away. See Moore: Op cit., Vol. VI, pages 440-442.

46 Among these claims it is well to cite what arose between Italy and Columbia because of the confiscation in 1885 by the government of the Republic, of the property of the Italian subject Cerruti; this claim was settled by the Convention of August 18, 1894, by which the matter was submitted for decision to the President of the United States, who rendered his decision March 2, 1897.

47 Treaty of December 5, 1882 (art. 18), between Mexico and Germany; treaty of July 29, 1885 (art. 21), between Mexico and Sweden and Norway; treaty of November 27, 1886 (art. 11), between Mexico and France; treaty of April 16, 1889 (art. 12), and of April 16, 1890 (art. 12), between Mexico and Italy; treaty of July 23, 1892 (art. 20), between Columbia and Italy; treaty of June 7, 1895 (art. 15), between Mexico and Belgium’; treaty of September 22, 1897 (art. 16), between Mexico and Holland.

It is worthy of note that neither England nor the United States have ever wished to conclude treaties of this kind with Latin-American states. These states have, however, entered into treaties of this nature with each other. For a list of these eases, see Alvarez, : “L’Histoire Diplomatique des Républiques Américaines” in the “Révue de Droit International Public,” Vol, IX, page 563 Google Scholar, note 1.

48 While the territorial history of the Latin states reduces itself to a struggle over boundaries, that of the United States is that of the extension of territory. See, as to this expansion of the United States, Viallate, : “Essais d’Histoire Diplomatique Américaine” (Paris, 1905), pages 3–56 Google Scholar. In this growth, Latin countries on the south and west were absorbed. The contribution which this element has made to the culture of the great republic has never been properly studied.

49 Richardson’s Messages, 1:222, cited by Foster: “A Century of American Diplomacy” (1901), page 439.

50 Writings of Jefferson, 9:213, cited by Foster, op cit., page 440.

51 Jefferson’s Works (1854), 7:168, cited by Foster, op. cit., pages 440 and 441.

52 Hart, : “American History Told by Contemporaries” (1902), Vol. III, page 496 Google Scholar. In a note of January 19, 1816, to the Spanish Minister de Onis, Monroe-considered the Latin-American Republics as belligerents.

53 Hart, op. cit., Vol. III, page 495.

54 For this reason the doctrine contained in these declarations has subsisted up to the present time, when it is being applied and interpreted, while other declarations made subsequently in various messages by other presidents of the United States and referring to important American affaire have been completely forgotten.

55 This doctrine exerted a palpable influence in the treaty of January 2, 1859, between Brazil, Argentina, and Uruguay, relative to the recognition of the independence of the last-named country ( art. V ).

56 The contradiction which Secretary Clay reproached Mexico with in a letter of November 9, 1825, to Poinsett, Minister of the United States in that country, does not, then, exist. This letter states that Mexico considers the United States as a member of the American family of nations and invokes its protection when it believes that its independence is menaced by Europe, while placing the United States in the same category as Europe when the matter at issue is one of commerce, since it refuses to grant to the United States those special favors which it has given to other American states. See American State Papers, Foreign Relations, 2d Series, Washington, 1859, VI, pages 579-583, cited by Hart, op. cit., Vol. III, page 501.

57 Among other objections urged against the Monroe Doctrine, see the statements of Prof. Münsterberg of Harvard University, in Moore, op. cit., Vol. VI, pages 528 and 529.

58 Moore, op. cit., Vol. VI, page 473.

59 Idem, pages 488 et seq.

60 Idem, pages 445-446 and 607.

61 Idem, pages 515-518.

62 For example, the declaration of Hayes in 1880, of Garfleld in 1881, of Secretary of State Blaine in the same year, and the Hay-Pauncefoote Treaty of 1901.

63 Moore, op. cit., Vol. III, pages 130-262. In 1862 occurred another act of the United States which is “anti-Monroe.” At that time, when Colombia asked the aid of the United States in accordance with the treaty of 1846, for the purpose of reestablishing order on the Isthmus of Panama, the Secretary of State (Seward) asked the governments of Great Britain and France to join the United States in taking measures to maintain freedom of transit on the isthmus. The two European governments declined the invitation. The government of Mexico protested to the government of the United States against the effort to introduce the intervention of Europe in American affairs. Mr. Seward in reply declared himself to share the opinion of the Mexican government, adding that the attitude of the United States had been incorrectly interpreted. (Diplomatic Correspondence 1863], page 1150.)

64 Moore, op. cit., Vol. VI, pages 533-583.

65 It is another error of publicists to confuse the leadership of the United States with imperialism, or, at least, not clearly to distinguish between these ideas. The former has to do exclusively with the politics of the American continent, while imperialism is the natural path followed to-day by all nations which have attained great military and economic progress, the end of which leads to the extension and development of commerce as well as political supremacy. It principally shows itself in the effort to obtain more territory, especially for colonies; to exercise more or less influence in the affairs of certain countries of Asia and Africa in order to procure markets favorable to the commerce of the foreign power, or to intervene in matters having to do with the European balance of power. According to this, the extension of the frontier of the United States, embracing Texas, California, and Puerto Rico, is imperialistic in character and not the result of acts of hegemony. The purpose of this study is not to show to what point imperialism destroys the principle of liberty and equality of all the states and how far this policy, which has exercised such a deep influence in the development of International Law, is justified.

66 Holls, “The Peace Conference at The Hague” (New York, 1900), pages 270–272 Google Scholar. Compare “Rapport de la Delegation Française,” page 40, cited by Mérignhac, A.: “La Conférence Internationale de la Paix” (Paris, 1900), page 337 Google Scholar.

67 Moore, op. cit., Book II, pages 1113-1120.

68 Moore, op. cit., Book VI, page 476.

69 Idem, Book VI, page 508.

70 Idem, Book VI, pages 436-436.

71 See Salomon, : “L’Occupation des Territoires Sans Maître” (Paris, 1889), No. 93 Google Scholar. Cf. Jeze, : “Etude Théorique et Pratique sur l’Occupation” (Paris, 1896), pages 161–165 Google Scholar.

It does not come within the limits of this study to determine the meaning that should be ascribed to the phrase “American continent” in that which relates to the question of occupation: i. e., whether it applies only to the great continental mass or includes the adjacent archipelagos, the islands situated it a great distance from the coast but within the American zone, and the polar regions. The eminent geographer, Reclus, treating incidentally of this question, considers the American continent as consisting not only of the great mass of territory with the adjacent archipelagos and islands, but also the islands situated at a distance of less than one thousand kilometres from this group ( Reclus, : “Nouvelle Géographie Universelle,” Paris, 1893 Google Scholar, Book XVIII, page 895, and Book XIX, page 786). Happily this question has not arisen with respect to the islands and archipelagos, since the nearest states have annexed them (e. g., the Galapagos Islands by Ecuador; the Lobos Islands by Peru; the Juan Fernandez Islands by Chile, etc.). As to the controversy between the United States and Haiti as to Navassa Island, see Moore, op. cit., Vol. I, Chap. 81, pages 266-267. Regarding the notion of “American continent” which was formed by Spain, it is useful to bear in mind that, when France occupied the Falkland Islands in 1764, the Spanish government claimed that they were subject to its sovereignty because a part of South America. Westlake characterizes this pretension as extravagant (“Études sur les Principes du Droit International,” French translation of Nys, 1895, page 185). Not long ago the government of Spain, in its arbitral award of June 30, 1865, in the controversy between Venezuela and Holland, as to the Aves Islands, declared that they belonged to Venezuela on the grounds that Spain had formerly considered this island as a part of its dominions, although it had never actually occupied it.

72 Fiere: “Il Diritto Internazionale Codificato,” art. 541.

73 See, on this point, Moulin, : “L’Affaire du Territoire de l’Acre et la Colonisation interne” in “La Révue Générale de Droit International Public” (1904), Vol. XI, pages 181 Google Scholar et seq.

74 Especially, that between Colombia and Venezuela, which was settled by arbitral decision of the Queen of Spain in 1891 ; the question of the Missions, between Brazil and Argentina, which, submitted to arbitration by the treaty of the 7th of September of 1889, was decided by President Cleveland, the 5th of February of 1895, in favor of Brazil; that between Chile and Argentina, which, submitted to arbitration by the treaty of the 17th of April of 1896, was ended by the decision of His British Majesty, the 20th of November of 1902 (in regard to this decision and a criticism thereof, see Alvarez, : “Des Occupations des Territoires Contestés,” in the “Révue Générale de Droit International Public,” Vol. X, pages 674–687)Google Scholar; also that between Bolivia and Brazil over a portion of the Acre territory, brought to an end by the treaty of Petropolis of November 17, 1903. (On this subject, see Moulin, : “L’Affaire du Territoire d’Acre” in the “Révue Générale de Droit International Public,” Vol. XI [1904], pages 150–191 Google Scholar.)

75 The conflict between Venezuela and Great Britain over the boundary of British Guiana, of which we have already spoken; the conflict between Brazil and France over the boundary of French Guiana, also referred to; and that between Brazil and England over the boundary of British Guiana, submitted to the King of Italy for arbitration, by the treaty of November 6, 1901. The decision was rendered June 6, 1904. (For this decision, and a critical discussion of it, see Lapradelle, and Politis, N.: “L’Arbitrage Anglo-Brésilien de 1904” in the “Révue de Droit Public et de la Science Politique” [Paris, 1905], No. 2, and pages 61 Google Scholar et seq. of the Supplement [Paris, 1905J.) Compare Fanciulle, : “Le Conflit de limites entre le Brésil et la Grande-Bretagne” in the “Révue Générale de Droit International Public,” Vol. XII (1905), pages 25–142 Google Scholar.

76 It should be remembered, however, that the permanent Court of Arbitration of The Hague, in its decision of February 22, 1904, recognized that Germany, England, and Italy, because of having blockaded the coast of Venezuela, had the right of preference in the payment of the credits which they might establish against that country.

77 This system is worthy of attention, as it is without precedent and is, in our opinion, a welcome innovation as compared with the protectorates exercised by the nations of Europe. By this system, the state over which the guardianship is exercised preserves its qualities of independent and sovereign state; but, in case of grave disturbance of the internal political order, and under certain conditions in foreign relations, the United States intervenes directly in the first case, and limits the exterior sovereignty in the second. This almost tutelar system, which does not, like the protectorate, offend the dignity and national spirit, will gradually disappear in proportion as the progress of the new states renders it unnecessary.

78 This policy should not be confused with the efforts made by the United States to increase its commerce in Latin America, for these efforts are characteristic of all countries. There is undoubtedly, however, an intimate relation between the two policies of the United States. Mr. Rowe, in his article on “The Danger of National Isolation,” published in The North American Review, June, 1907, pages 420-425, has clearly set forth the obstacles still in the way of a satisfactory commercial approximation between the United States and the Latin-American countries.

79 See a methodical resumen of the opinions of the press of the United States in Prince, A.: “Le Congrès des Trois Amériques” (Paris, 1891), pages 12–34 Google Scholar.

80 A. Prince, op. cit., pages 45-68; also Pradier-Fodéré, : “Amérique Espagnole,” in the “Révue de Droit International et de Législation Comparée,” Vol. XX (1888), page 515 Google Scholar.

81 The governments of Europe to which this desire was communicated by the United States did not attach great importance to the invitation.

82 While adhering to the conventions of the Hague Conference, and consequently, to the “voluntary arbitration” established in one of those conventions, the delegates of nine countries — Argentina, Bolivia, Santo Domingo, Guatemala, El Salvador, Mexico, Paraguay, Peru, and Uruguay — subscribed, under date of January 29, 1902, that is to say, three days before the close of the First Conference, to a general treaty of obligatory arbitration, in which the parties bound themselves to settle in that manner all controversies existing or that might arise between them, provided, however, that said controversies affect, in the exclusive judgment of one of the interested nations, neither the independence nor the honor of the nation (art. 1). It is agreed, further, to submit to the Permanent Court of Arbitration of The Hague all the controversies to which the treaty refers, unless one of the parties prefer that a special jurisdiction be organized fart. 3).

83 Above all, the resolution recommending the creation of special sections dependent on the departments of foreign affairs of the respective governments, which should have for their object, among others, to urge the approbation of the conventions approved in those assemblies.

84 Drago, : “Les Emprunts d’État et leurs Rapports avec la Politique Internationale” in the “Révue Générale de Droit International Public,” Vol. XIV, pages 270–272 Google Scholar.

85 For the reason already mentioned, we can not accept the opinion sustained by a distinguished European publicist that the Drago Doctrine is the indispensable complement of the Monroe Doctrine because it aims at the financial independence of the states of the New World and consequently the refusal to recognize the former would be equivalent to a refusal to recognize the latter. (See Moulin, : “La Doctrine de Drago” in the “Révue Générale de Droit International Public,” Vol. XIV, pages 417 Google Scholar et aeq.)

Early in 1906 we declared our opinion that the Drago Doctrine, examined from the purely doctrinal standpoint, was too absolute. We justified our objection in the following terms: “Intervention, armed or otherwise, against a bona fide state, is inadmissible when it has for sole object to exact payment of a public debt, or the fulfillment of any compromise whatsoever, much more so when it aims to compel the State to recognize obligations not in accordance with International Law. * * * Against such States, claims should be made always in accordance with the procedure established by International Law. Furthermore, in dealing with those that act in bad faith, or that through their own fault find themselves unable to satisfy their obligations, or that cause or permit to be caused injuries to foreigners, compulsory measures are admissible, but only after all diplomatic means have been exhausted. A State may be said to act in bad faith only when, without plausible excuse, it refuses to pay debts liquidated or places obstacles in the way of the liquidation of a debt arising from a convention, from arbitral award rightfully pronounced or from the principles of International Law universally recognized.”

In regard to the antecedents of the Drago Doctrine and the criticisms and opinions thereon, see the work “La Republica Argentina i el Caso de Venezuela,” by Drago, Luis M. (Buenos Aires, 1903)Google Scholar, and the Appendix to this work published in 1906. Compare Basdevant: “L’Action Coercitive Anglo-Germanc-Italienne contre le Venezuela” in the “Révue Générale de Droit International Public,” Vol. XI, pages 362-458. The writings in this last period have been most numerous. That question has been the subject of an important discussion in the annual meeting of the “American Society of International Law” of 1907 (Proceedings of the American Society of International Law at its First Annual Meeting, pages 100-149).

86 The Latin-American states have concluded, since those conferences, numerous conventions among themselves on the subjects treated therein, which are modeled very closely after the conventions of those conferences. In this there has been a real abuse, for the conventions subscribed to in the conferences have for their object to unite all the states in one single convention.

87 On December 20, 1907, the five republics signed in Washington a general treaty of peace and friendship, by virtue of which they bound themselves to decide all disagreements that might arise between them, by means of a “Central American Court of Justice” established by convention of that same date. They likewise subscribed to a treaty of extradition and another on the establishment of a Central American International Office. (The texts are given in the Supplement of this Journal, Vol. 2, pages 219-265.)

88 With Uruguay, June 8, 1899, and additional December 21, 1901; with Paraguay, November 6, 1899, and additional January 15, 1902; with Bolivia, February 3, 1902; with Chile, May 28, 1902; and explanatory act of July 10, 1902; with Brazil, September 17, 1905; and with Italy, October 12, 1907; these last two not yet ratified.

89 See Supplement, Vol. 1, page 294; and for the protocol of January 2, 1903, see idem, Vol. 1, page 297.

90 Those same sentiments, which both countries had before exhibited, inspired a treaty on boundaries, of July 23, 1881, which in article 5 declares the Magellan Straits forever neutral. See Supplement to this issue of the Journal, p. 121.

91 The most important common problem is that relative to the unification of Civil Law. This problem does not present great difficulties, taking into consideration the sources from which the laws of those countries have been drawn.

In the Third Scientific Congress we had occasion to consider this subject.

We should mention here, also, the doctrine which a distinguished Ecuadorian Plenipotentiary, Doctor Tobar, has formulated for the purpose of preventing civil wars in the Latin countries of America. In his opinion, the best means of securing this object would be that those countries should all bind themselves not to recognize governments de facto born of a revolution. This idea of preventing civil wars, we have seen, has been one of the considerations of the Latin states of America in the congresses which they held in the first period of their history; and the resolutions adopted in this respect in some of those congresses appear to us more acceptable, as they are less absolute, than those of Doctor Tobar.

92 This American cooperation would replace advantageously the doctrine of “international police,” according to which it would devolve upon the United States to see that the Latin states of America comply promptly with their obligations toward the states of Europe.

93 Pan-Americanism counterbalances particularly Spanish-Americanism, though that does not mean to say that there exists between the two any irreconcilable opposition.

Spain has sought for some time, for political and economic reasons, to create a close unity of interest between itself, Portugal, and the countries of Latin America. In fact, there has been formed in Madrid a powerful scientific society aiming at that object. In the same city, under the auspices of the Spanish government, two international congresses have been held which have sought the same ends. In 1892, in connection with the celebration of the Fourth Centennial of America, a Spanish-American Juridical Congress was held, in which various important matters were discussed, especially arbitration. In 1900, a “Spanish-American Social and Economic Congress” was held, the object of which, plainly stated, was to draw closer the bonds of every kind, and especially the economic, between the Spanish-American peoples. That assembly followed very closely the programme of the First Pan-American Conference, even going so far as to propose the establishment of a Spanish-American Bank. (See “Congreso Social y Economico Hispano-Americano,” two volumes, Madrid, 1902.)

94 There has not been sufficient study given to the influence exerted by the discovery and conquest of America on the community of nations, especially in the development of the Law of Nations. In regard to this last, see Fernandez Prida : “ Influencia del Descubrimiento y Conquista de America en el Derecho Internacional “ in his “ Estudios de Derecho Internacional,” Madrid, 1901, pages 141-213.

95 Not only do no territories “nullius” exist on the American continent, but further, and in consequence thereof, no international value is given to the possession of certain regions held since time immemorial by native tribes not recognizing the sovereignty of the country within whose limits they find themselves. Two important consequences follow therefrom: that the occupation of those regions by the natives is a matter of internal public law of each country and not of International Law; and second, that the governments have, in certain cases, an international responsibility for the acts of the natives within their boundaries, even though those natives do not recognize the sovereignty of the state.

96 Consequently, some American countries, in replying to the invitation to adhere to the resolutions of the Congress of Paris of 1856, stated that they had no difficulty in accepting because those resolutions were already forms of their foreign policy and incorporated in conventions already celebrated by them.

97 The Latin states have chosen as arbiter in their conflicts, governments of Europe, and rarely governments of America. This is due principally to the fact that they expect to find in those governments real impartiality and grounds for respecting their award. In conflicts between American and European states, only once has a Latin-American government been chosen arbiter, — in the conflict between England and the Argentine Republic occasioned by damages claimed by the former from the latter because of the closing of the port of Buenos Aires to six English merchantmen which had touched at Montevideo, which port had been declared blockaded by the Argentine government. By virtue of the stipulation in the protocol of July 15, 1864, the question was submitted for arbitration to the government of Chile, which, after hearing the dictamen of the Supreme Court of Justice, rendered its decision on the 1st of August, 1870.

98 Regarding arbitration in Latin America, see Toro, : “Notas Sobre Arbitraje Internacional en las Republicas Latino-Americanas” (Santiago de Chile, 1898)Google Scholar; also Quesada, : “Arbitration in Latin America” (Rotterdam, 1907)Google Scholar.

99 One of the acceptations of the term is that of “ a collection of concrete cases in international questions which have occurred in America.” In this sense the expression has been taken by Pradier-Fodéré: “Traité de Droit International Public Européen et Américain,” and Seijas: “El Derecho Internacional Hispano-Americano Publico y Privado” (Caracas, 1884).

In this connection, some publicists of the United States have gathered together and classified methodically the international questions which interest their country and which have been the subject either of conventions, or of diplomatic negotiations, or of decisions by tribunale of justice. These works also have been referred to as American International Law: e. g., Wharton, : “A Digest of the International Law of the United States,” and Moore: “A Digest of International Law,” 8 vols. (Washington, 1906)Google Scholar.

Another meaning given to that term is in contradistinction to “European” International Law: to indicate that there is an antagonism of interests between the Old and the New Continent. In this sense, the existence of an “American” International Law provokes, and justly, warm protests on the part of the states of both hemispheres, as it is clearly absurd to hunt for and suppose antagonisms where everything should tend toward solidarity. And because of the expression having been taken in this acceptation, some members of the First and Second Pan-American Conferences denied the existence of an “American” International Law. (See “Conferencia Internacional Americana,” official edition, Washington, 1890, Vol. II, pages 969-970.) Compare “Actas y Documentos de la Segunda Conferencia Pan-Americana,” Mexico, 1902, Vol. I, pages 342-343.

A third acceptation of the term indicates by the expression “American Public Law” and even “South American Public Law” (e. g., in the preamble of the treaty of April 20, 1886, between Peru and Bolivia, settlement of boundaries) the solidarity of interests existing between the states of these groups.

A fourth acceptation is in the sense of “the international rules which the states of America expressly recognize in the Pan-American Conferences and to which they give great importance.” In this sense, the First Pan-American Conference recognized arbitration, and the Second Conference recognized the principles stated in the three conventions signed at the First Hague Conference as rules of “American International Law.”

Finally, a fifth acceptation of the term considers as rules of “American” International Law certain principles “sui generis” which it is sought to establish as a privilege for America because of their being of vital interest to that portion of the world and which form an exception to the general precepts of the Law of Nations. A like application is made to the Drago Doctrine by its author himself. (See, regarding this acceptation, Drago, : “Les Emprunts d’Etat et leurs Rapports avec la Politique Internationale” in the “Révue Générale de Droit International Public,” Vol. XIV (1907), pages 271 Google Scholar in fine and 287. Compare Moulin, : “La Doctrine de Drago” in the same Révue, Vol. XIV, pages 466 Google Scholar and 468.

100 Alcorta, : “Cours de Droit International Public,” Vol. I (the only one published), Paris, 1887 Google Scholar, Preface, Chap. II, No. II; Chap. IV, Sec. No. VI.

101 At the Third Latin-American Scientific Congress, which was held in Rio Janeiro in August, 1905, we, in our capacity of delegates of Chile, presented a motion to have that assembly recognize the existence of an “American” International Law in the sense which we have just indicated, and recommend its study in the universities of the New Continent. We solicited, likewise, that all the questions to be considered in the next Congress, to be held in Santiago in December, 1908, should be exclusively of an American character.

At the first Pan-American Scientific Congress, held at Santiago, Chile, in December, 1908, the following resolution was moved by the writer, and adopted: “ The First Pan-American Scientific Congress recognizes that in the New World there exist problems sui generis or of a character completely American; and that the states of this hemisphere have regulated by means of more or less general treaties, matters which interest only themselves or which, though of a universal interest, have as yet not been incorporated in a world-wide convention. In this last case there have been incorporated in international law principles of American origin. The sum of these materials constitutes what may be called American problems and situations in international law. The Congress recommends to all states of this continent that in their faculties of jurisprudence and the social sciences special attention shall be given to the study of this subject.”