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of the government, and is beyond the power of municipal law to control.
USE OF FORCE AGAINST FOREIGN STATES OR THEIR SUBJECTS
The use of force may be resorted to (1) against a foreign state itself, as in intervention, war or general reprisals; (2) against subjects of a foreign state by way of special reprisals, or (3) against foreigners for breaches of municipal law. The use of force against aliens within the territorial jurisdiction in the usual process of enforcing municipal law may unquestionably be exercised, and gives rise to no duty of abstention. The law of peace, however, requires a government to abstain from using force against foreign states or their subjects outside of its territory.
Such a use of force against the foreign state or within its territory is known as intervention. In treaties with Cuba and Panama the United States has been specifically given the right to intervene.16
(1) The Hague convention relating to the pacific settlement of international disputes, which recommends mediation, commissions of inquiry and arbitration in cases of disagreement,17 well as numerous individual arbitration treaties, is recognizes the duty to abstain from the use of force against foreign states. Another of the Hague conventions19 requires the United States to abstain from the use of armed force for the collection of contract debts. These treaties have been ratified and are law in the United States, but they are addressed to the political department of the government. The courts in applying the law will recognize sovereign acts of force even when prohibited by treaty. No power of municipal law can compel resort to arbitration or prohibit intervention or a resort to arms, but the definite statement in treaties of an obligation to abstain from the use of armed forces
16 Treaty with Cuba, 1903, Malloy, p. 362, permits intervention to preserve independence, and with Panama, 1903, art. 23, p. 1356, to protect the canal.
17 Hague conventions, 1899, i; 1907, i.
18 There are two kinds of individual arbitration treaties; special, relating to the arbitration of specified claims alone, as the treaty of Washington with Great Britain, of 1871; and general, requiring arbitration of all questions of a certain class. Conventions of the latter class were concluded with a large number of powers in 1908 to last for five years, recourse to the Hague court being provided for.
19Hague conventions, 1907, ii.
undoubtedly, in itself, offers a sanction to the observance of this duty by the political authorities of government. The constitutional provision giving congress alone power to declare war appears also to prevent a hasty resort to arms. Experience has, however, demonstrated that the executive can create a situation from which congress can not recede.20 The use of force in cases not amounting to war, such as naval demonstration, or the employment of armed forces to protect embassies in time of insurrection, has generally been authorized by congress. Such action is not however, required by law. A number of cases have occurred, notably the Boxer uprising in China, when armed force was used without express authorization, and its use subsequently ratified by congress.21
The use of force on foreign territory to suppress marauders and pirates and prevent maltreatment of citizens has been justified on the grounds of self defense. Thus Jackson's invasion of Florida in 1819, and various invasions of Mexican territory in pursuit of marauding Indians; the occupation of Amelia island by United States forces in 1817 to suppress a nest of pirates; the landing of troops in Vera Cruz, Mexico, 1914, and Peking, China, 1899; and the bombardment of Greytown, Nicaragua in 1854 to protect American citizens were justified by the political department of the United States government on this basis. Great Britain in the same manner attempted to justify the seizure in American waters and destruction of the Caroline, in 1837, against the vigorous protest of the United States.22
The determination of circumstances warranting intervention in self defense is in any case a political question and forms an exception to the general rule of international law that the state must abstain from the use of force on foreign territory. This general rule of abstention is recognized and enforced by United States law. In the Navy Regulations, the use of force in territorial waters and landing of armed troops, without express permission of the local authorties, is forbidden. Military law also requires strict respect for foreign territory.23. Instructions of the
20As in the Mexican war.
22 For discussion of these and other cases relating to self defense as a justification for the violation of foreign territory, see Moore's Digest, 2;400-425.
23Navy Regulations, 1913, Sec. 1645-1648. Army Regulations, 1913, Sec. 89, ch. 3, Dig. op. judge Ad. Gen. 1912, P. 90. Moore's Digest, 2;364. For similar duties in time of war toward neutrals, see infra. p. 212 et seq. Department of State further aid in the performance of this duty. In 1887 instructions to a Chargé d'affaire in Peru said, "It is always expected that the agents of the department abroad will exercise extreme caution in summoning war vessels to their aid at critical junctures, especially if there be no practical purpose to be subserved by their presence.''24 The courts have affirmed this view in dicta. Where a seizure under the non-intercourse act was made in foreign territorial waters the court said, “it is certainly an offense against the power which must be adjudicated between the two governments, 9:25 and where a naval officer entered foreign territory to recover piratically seized property of American citizens it held that he acted beyond his right, but in both of these cases the foreign government's claim was held to be subject to diplomatic settlement only. Municipal law could offer no relief. Where special permission to pursue marauders on foreign territory or to preserve order is given by treaty, as is the case in several Mexican agreements and treaties with Cuba and Panama, no duty of abstention is involved.27
In the present state of the law the enforcement of the duty to abstain from intervention and the use of force on foreign territory belongs primarily to the executive through its control of military and naval forces and diplomatic officers, as well as of the general conduct of foreign relations. Judicial authorities may add their sanction by the enforcement of the usual principles of administrative and military law. Violations of the international obligation, specifically authorized by the political departments of government, are, however, beyond the power of municipal law to control.
(2) Reprisals may be divided into four classes: public and private general reprisals, public and private special reprisals. General reprisal is the right to seize any property of a foreign
24Mr. Bayard, Secretary of State, to Mr. Neal, Chargé, Nov. 16, 1887; see Voore's Digest 7;109. See also Consular Regulations, 1896, Sec. 113.
25 Ship Richmond vs. U. S., 9 Cranch 102, 104, (1815) See also the Itata 1892, Moore, Int. Arb. pp. 3067-3071.
26 Davisson vs. Sealskins, 2 Paine 324. See also Nelson, Att. Gen., 4 op, 285 (1843); Black, Att. Gen. 9 op. 286, (1859); Moore's Digest, 1;362-365.
27 Protocols with Mexico, 1882, 1883, 1884, 1885, 1890, 1892, 1896, Malloy pp. 1144-1177. Most of them were to be in force one year, but that of 1896 specified that it should last until Kid's band of Indians be exterminated or pacified. See also treaty with Cuba, 1903, p. 362; Panama, 1903, art. 23, p. 1356; Nicaragua, 1867, art. 15-17, p. 1285.
state or its citizens on the sea, and is equivalent to a state of war, although in the trouble with France in 1798-1799 general reprisals were authorized by congressas without an express declaration of war. The courts, however, held that war actually existed.29 By the abolition of privateering, private general reprisals are no longer permitted. Public general reprisals are still resorted to but are considered in the chapters devoted to obligations in time of war.
By private special reprisals, persons wronged by a foreign state were formerly permitted by commission of their sovereign to indemnify themselves by seizing property belonging to any subject of that state on the high seas in time of peace. This practice would amount to an aggravated form of privateering and would now be regarded as little short of piracy. The legitimacy of the practice seems to be admitted by the constitutional provision giving congress power to grant letters of marque and reprisal, though it was denied by Attorney General Randolph in an opinion in 1793. At present the practice is undoubtedly obsolete.30 The only question therefore which concerns us here is that of public special reprisals. Under this right the seizure of vessels on the high seas or in the jurisdiction of their own state through such institutions as pacific blockade is generally considered legitimate by writers on international law. As the United States has not resorted to reprisals in time of peace, except in the case of France in 1799 which the courts regarded as war, the courts have had no opportunity to pass upon the legitimacy of seizures by way of reprisal, but they would undoubtedly be bound by any act of the political department of the government in this respect. The power to make war would probably be held to include a power to resort to lesser acts of violence.
(3) The duty to abstain from the use of force outside of the territory of the United States against foreign vessels guilty of infractions of local law, has not been universally maintained by the law of the United States. An act of 179731 still in force authorizes revenue officers to board foreign vessels four leagues from the coast; and in Church vs. Hubbart32 Chief Justice Mar
28 May 28, 1798, i stat. 361; July 9, 1798, I stat. 578; Mch. 3, 1799, I stat. 743.
29Bas. vs. Tingey, 4 Dall. 37, (1800); Talbot vs. Seaman, 1 Cranch 1, 282, (1801); Moore's Digest, 7;155-153.
30 Randolph, Att. Gen. I op. 30, see Moore's Digest, 7;119. 31 Act. Mch. 2, 1797, Sec. 27, rev. stat. 2760; Moore's Digest, 1;725. 32 Church vs. Hubbart, 2 Cranch 187; Scott, 343.
shall upheld the right to make seizures on the high sea for breaches of municipal regulations in a case involving such a seizure by Brazil; but, a few years later, in Rose vs. Himely, 33 changed his mind, and denied the validity of such seizures. The embargo and non-intercourse acts of the early nineteenth century did not permit the seizure of foreign vessels outside of territorial jurisdiction. The rule laid down by Lord Stowell in Le Louis, 34 that visit, search and seizure of foreign vessels beyond territorial jurisdiction is not permitted in time of peace, was followed by Chief Justice Marshall in The Antelope, 35 and appears to be the usual law of the United States. Exceptions to this statement are found in the provisions of treaties authorizing the seizure in restricted zones of slave traders flying foreign flags, and the universally acknowledged right of seizing pirate vessels. These subjects will be discussed in considering the exercise of jurisdiction over the high seas. Cases have affirmed that unequivocal acts of the sovereign authorizing seizures beyond the three mile limit would be obligatory, though such acts should if possible be interpreted to accord with international law.36 Nevertheless, in the Alaskan seal fishery dispute of 1886 British sealing vessels were seized sixty miles from shore and their seizure justified by courts under a statute which by no means unequivocally authorized such acts.37 The attitude taken by the courts, however, was that the territorial jurisdiction of the United States extended one hundred Italian miles from the shore; the question will therefore be adverted to in considering the extent of jurisdiction.
While the duty to abstain from the use of force against foreign vessels on the high seas in time of peace is primarily to be controlled by executive authority, yet by the rule requiring legal
33 Rose vs. Himely, 4 Cranch 241, (1808), see also Hudson vs. Guiestier, 6 Cranch 281, (1810); The Appollon, 9 Wheat. 362, (1824). In the Itata, 1892, Moore's Int. Arb., p. 3067-3071, the U. S. was held liable in damages for a seizure in Chilean waters, see Scott, cases note p. 344. Similar view was held by the U. S. supreme court in the Ship Richmond vs. U. S. 9 Cranch 102, 104 (1815). Moore's Digest, 2;364.
34 Le Louis, 2 Dods. 210, (1817). 35TheAntelope, 10 Wheat. 66, (1825).
36 Murray vs. The Charming Betsy, 2 Cranch 64, (1804), which held that the non-intercourse act should not be interpreted as authorizing the seizure of foreign vessels on the high seas or prohibiting the sale of national vessels to foreign countries.
37 See Moore's Digest, 1,895.