COMMERCIAL EMBARGOES Another class of acts which relates somewhat to the enforcement of duties of prevention are the embargo acts passed at different times. The acts of 1898 and 1914 requiring an embargo on arms under certain conditions have already been mentioned. Of somewhat different character are commercial embargoes," 68 the most important of which were those passed during Jefferson's administration, while the United States was a neutral during the Napoleonic wars in Europe. There is not and never was a rule of international law which requires a neutral state to prevent shipments of merchandise or of arms to a belligerent or to any one else. This is specifically stated in the Hague Conventions of 1907.69 The selfmade "international law" in the extraordinary Berlin and Milan decrees of Napoleon and the British order in council forbade neutral commerce with practically all of Europe, and it might be inferred that the American Embargo of 1807 to 1809 was in aid, of these decrees. It must be understood, however, that these decrees and orders did not assert that neutral states were under obligations to prevent their subjects engaging in such commerce. They simply asserted that the ordinary rule of self-help, by which belligerents can seize neutral vessels as prize, would be applicable to a much wider range of circumstances than permitted by the ordinary rules of blockade, contraband and unneutral service. The embargo and non-intercourse acts are therefore to be regarded as rules of domestic policy, dictated by reasons entirely unrelated to international law. It was not to aid in the enforcement of its duties as a neutral either under international law or under the law asserted by Napoleon's decrees or the British orders in council that they were enacted. Their purpose was rather one of retaliation against these extensions of international 68 Embargo acts, Mch. 26, 1794, I stat. 400; Apr. 2, 1794, I stat. 401; Apr. 18, 1794, I stat. 401; May 22, 1794, I stat. 396; June 4, 1794, I stat. 372; Dec. 22, 1807, 2 stat. 451; Jan. 9, 1808, 2 stat. 453; Mch. 12, 1808, 2 stat. 473; Apr. 25, 1808, 2 stat. 499; Jan. 9, 1809, 2 stat. 506, act of Dec. 22, 1807 repealed Mch. 1, 1809 and non-intercourse act in reference to France and England substituted. See Moore's Digest, 7:142-144. 69 Hague conventions, 1907, v, art. 7, Malloy, p. 2298; xiii, art. 7, Malloy, p. 2359. 70For text of British Orders in Council and Napoleon's decrees, see Am. St. Pap., For. Rel., 3;262-286; British and Foreign State Papers, 8;401-513; De Martens, Nouveau Recueil, 1;433-549. law. It is noteworthy that the enactment of the embargo by the United States permitted Napoleon to extend his view of international law even further by his Bayonne decree ordering the seizure of all United States vessels at sea on the ground that he was simply helping the United States enforce its own law. This view was of course unwarranted. No domestic law of the United States could add to the belligerent rights of either party to the war. INTEROCEANIC CANALS 74 The United States has recognized special obligations of prevention as encumbent upon it in relation to the Panama Canal, by treaty, and has provided for their enforcement by executive orders. In its treaties with New Granada, (now Colombia) of 1846,72 and with Nicaragua of 1867,78 the United States guaranteed the neutrality of any canal that might be constructed in either of these countries. In the Clayton-Bulwer treaty with Great Britain of 1850, the two countries agreed jointly to guarantee the neutrality of any interoceanic canal in the central American region, but it was provided that neither should exercise exclusive control of such a canal. The Hay-Pauncefote treaty of 190175 superseded this treaty. Great Britain accorded the United States the right to construct and maintain a canal and to provide regulations for managing it. The United States agreed to adopt substantially the rules of the Suez canal convention to ensure its neutralization. Specific regulations require the United States to prevent, in the canal or adjacent waters to a three mile limit, blockades, the exercise of belligerent rights, hostile acts, the revictualing of belligerent vessels, the embarkation or disembarkation of troops or munitions of war except in case of accidental hindrance of transit. It must compel vessels to complete transit with the least possible delay and must enforce the twenty-four hour stay and twenty-four hour interval rules. To perform these duties the United States is authorized to use necessary military force. In its treaty of 1903 with the Republic of Panama" the United States guaranteed that country's independence and was 71 Bayonne Decree, Am. State Pap., For. Rel., 3;291. 75 Treaty with Great Britain, 1901, Malloy, p. 782. 76 Treaty with Panama, 1903, art. 1, 18, 23, Malloy, p. 1349. guaranteed complete sovereign rights in perpetuity over a strip of territory known as the Canal Zone, extending five miles either side of the canal route exclusive of the cities of Panama and Colon. The United States guaranteed the perpeutal neutrality of the canal and agreed to use armed force and if necessary erect fortifications in the canal zone for that purpose. 77 The canal was completed in 1914 and regulations for its operation and navigation were promulgated by executive order July 9, 1914. Following the outbreak of European war in August, 1914, the president promulgated supplementary rules under date of Nov. 13, 1914,78 designed to carry out treaty requirements for preventing unneutral acts in the canal. The regulations were based on the Hay-Pauncefote and Panama treaties, the Suez Canal convention of Oct. 29, 1888,79 the rule issued thereunder on Feb. 10, 190480 following the outbreak of the Russo-Japanese war, and the general requirements of neutrals as defined in the Hague conventions.81 These rules defined public armed vessels and auxiliary belligerent vessels, for both of which classes it prescribed the rules required by the treaties mentioned. The enforcement of these regulations was ensured by requiring vessels to give written assurances to obey them before entering the canal. In addition to the treaty requirements the regulations forbade the presence of more than six war vessels of one belligerent or its allies in the canal or adjacent waters at a time, and the passage of air craft over the Canal Zone. A protocol was concluded with the Republic of Panama in October, 1914,82 to ensure the cooperation of that republic in carrying out the neutrality requirements that a war vessel be prevented recoaling in the same country within a period of three months. For the purpose of this requirement, the Republic of Panama and the Canal Zone were considered the same country. 77 Rules and Regulations for the operation and navigation of the Panama Canal, July 9, 1914. 78 Proclamation prescribing rules and regulations for the use of the Panama Canal by belligerent vessels, Nov. 13, 1914. For text see Supp. Am. Jour. Int. Law., 9;126, Jan. 1915. See also editorial comment in Am. Jour. Int. Law., 9;167, Jan. 1915. 79Convention of Constantinople, Oct. 28, 1888, Martens, Nouveau Recueil, ser. II; 15;557; British and Foreign State Papers, 78;18. 80 Rules for the use of the Suez Canal by belligerent vessels, Feb. 10, 1904, British and Foreign State Papers, 102;591. 81 Hague conventions, 1907, xiii, Malloy, p. 2352. 82 Protocol with Panama, 1914, Supp. Am. Jour. Int. Law., 9;128, Jan. It will be seen that the duties of prevention undertaken in these regulations are largely the same as those required of all neutral territory. The requirements are, however, stricter in some cases, as the rights of fueling, repairing, and replenishing stores are more limited. The regulation interprets the twentyfour hour stay rule as permitting a twenty-four hour stay in addition to the time occupied in transit of the canal. The regulations seem to have adequately covered the duties specifically undertaken by the United States in reference to the Canal, as well as the duties encumbent upon it for preserving the neutrality of all its territory. ACTS BY AGENCIES OF GOVERNMENT Aside from the duties of prevention incumbent upon the United States in reference to its civil population, international law and treaty require it to prevent unneutral acts by public officers. On the outbreak of wars, special instructions have been generally sent to diplomatic officers, often relating especially to duties imposed upon such officers in belligerent countries in case affairs of the other belligerent are entrusted to them. On the outbreak of the Russo-Japanese war in 1904 an executive order directed "all officials of the government, civil, military and naval-not only to observe the President's proclamation of neutrality but also to abstain from either action or speech which can legitimately cause irritation to either of the combatants.83"> The Navy regulations enjoin naval officers to observe strict neutrality on all occasions. These regulations can be enforced by court martial, a procedure resorted to in the case of an unneutral act by a naval commander in 1844 during the war between Montevideo and Buenos Ayres.85 The obligations of prevention incumbent upon neutral states have been recognized by the United States in treaties and statutes, and the duties thus recognized seem to be in accord with international law. The failure of statutes to recognize the duty to prevent sales of armed vessels to belligerents is only an apparent exception, as the United States has acceded to this principle in the Treaty of Washington and the Hague conventions of 1907, 83 Executive Order, March 10, 1904, For. Rel., 1904, p. 185, Moore's Digest, 7;868. See also instructions to diplomatic and consular officers, Aug. 17, 1914, Supp. Am. Jour. Int. Law, 9;118, (Jan., 1915). 84 Navy Regulations, 1913, sec. 1502, 1633-1624, 1645, 1647. which are according to the constitution a part of the law of the land. The means relied on for enforcing these duties are (1) the deterrent effect of criminal punishment by fines and imprisonment, (2) the forfeiture of property involved in violations of neutrality, (3) the requirement of bonds of good behavior in suspicious cases, (4) the grant of jurisdiction to courts over cases involving breaches of neutrality, with implied power to enforce their judgments, (5) direct executive action to enforce criminal provisions, expel or detain foreign vessels, and otherwise prevent illegal acts, with a resort to the army, navy, and militia of the United States if necessary, (6) control of public officers by executive action and by courts martial. While specific provision is made by statute for the use of these means in many cases, it seems probable that where such authority is not given by statute, executive and judicial officers can apply appropriate means for enforcing the duties specified by treaty or the Hague conventions. Treaties are part of the law of the land, and the executive and judiciary, being under oath to enforce the laws, can, it would seem, use all available means to enforce them. In the field of international law defining neutral duties the United States holds an honored position. Its early neutrality statutes enforcing obligations in this field laid down a standard of conduct which was not required by international law at that time but has since become recognized as obligatory. The neutrality act of 1794 was influential in creating new international law. Canning said of American practice in this respect, "If I wished for a guide in the system of neutrality, I should take that laid down by America in the days of the presidency of Washington and the secretaryship of Jefferson.''86 This unique position 86Cited, Syngman Rhee, Neutrality as influenced by the United States, Princeton, 1912, p. 106. See also opinion of J. W. Foster, and of Rhee, Ibid., pp. 104,111. W. E. Hall, not inclined to flatter the United States, says of its practice in reference to neutrality obligations, "The policy of the United States in 1793 constituted an epoch in the development of the usages of neutrality. There can be no doubt that it was intended and believed to give effect to the obligations then incumbent upon neutrals. But it represented by far the most advanced existing opinion as to what these obligations were, and in some points it even went farther than authoritative international custom has up to the present time advanced. In the main, however, it is identical with the standard of conduct which is now admitted by the community of nations." W. E. Hall, A Treatise on International Law, 4th ed., London, 1895, p. 616. |