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live which is governed in any other way. Porfirio Diaz will live in history as one of the great generals of his country; he will live as a great executive, who realized the splendid possibilities of Mexico, who knew its weakness and sought to educate his people. But it is true that his policy aimed at the exploitation of the Mexican nation rather than its development on the broad lines that must underlie democratic institutions.
We cannot close this inadequate sketch of a useful and remarkable career without recording the fact that President Diaz was always a firm friend of the United States. During the long period of his supremacy, no diplomatic misunderstandings arose which were not peaceably adjusted in the spirit of true friendship. He shares with President Roosevelt the honor of submitting the first international controversy to the Hague tribunal for determination, by promptly accepting the offer of the United States to refer to the decision of that tribunal the controversy over what is known as "The Pious Fund of the Californias." In so doing the two American republics not only vivified The Permanent Court of Arbitration at The Hague, but set an example to all the world, which has since been followed in many instances for the settlement of international disputes. In his honor an American president went outside American territory for the first time when President Taft visited him at Ciudad Juarez in October, 1909.
THE WILLIAM P. FRYE CASE
In our last issue (page 497) a summary was given of the negotiations between the United States and Germany over the sinking of the American vessel William P. Frye by the German auxiliary cruiser Prim Eitel Friedrich. It appeared at that time that Germany had admitted liability under the treaties between the United States and Prussia of 1799 and 1828 for the damages sustained by American citizens, but held that the case should be submitted to the German prize court at Hamburg. It also appeared that the United States did not see any reason for submitting the case to the German prize court. Germany having admitted her liability under the treaties, the status of the claimants and the amount of the indemnity were the only questions remaining to be settled, which the United States suggested could be more properly dealt with through diplomatic channels.
From the correspondence exchanged since that time, however, it is apparent that the question is not one of such easy solution as the United States thought. It now transpires that Germany's admission of liability was not intended to include an admission that the treaties with Prussia had been violated by the sinking of the Frye. Germany asserts that the recognition by Article 13 of the treaty of 1799 of the right of a belligerent to stop contraband supplies on their way to an enemy implies the right in extreme cases to effect this purpose by the destruction of the ship, and that the treaty merely obligates the party at war to compensate the neutral for the damages sustained, whatever be the manner adopted for stopping the contraband supply. It is further asserted that, since the Prussian-American treaties contain no stipulations as to how the amount of this compensation is to be fixed, and since, according to the general principles of international law, the exercise of the right of control over trade in contraband is subject to the decision of the prize courts, the question of compensation must be submitted to the German prize court for determination.
The United States maintains that there is no justification in the treaty stipulations for the sinking of the Frye, but, on the contrary, that the belligerent right to deal with contraband, recognized in the treaty, is limited by the express stipulation of Article 13 of the treaty of 1799 that "in the case supposed of a vessel stopped for articles of contraband, if the master of the vessel stopped will deliver out the goods supposed to be of contraband nature, he shall be admitted to do it, and the vessel shall not in that case be carried into any port, nor further detained, but shall be allowed to proceed on her voyage." The character of the cargo, for which, incidentally, the United States makes no claim because it was not American property at the time of seizure, is, in the view of the United States, irrelevant as far as the justification of the sinking of the vessel is concerned. If the cargo of the Frye was non-contraband, the destruction of either the vessel or the cargo was not justified under the circumstances according to any rule of international law; if it was contraband, the Frye should have been allowed to proceed upon delivering it out in accordance with the provisions of Article 13, just quoted.
The United States also relies on Article 12 of the treaty of 1785 with Prussia, the material portion of which will be quoted for convenience of reference.
If one of the contracting parties should be engaged in war with any other Power, the free intercourse and commerce of the subjects or citizens of the party remaining neuter with the belligerent Powers shall not be interrupted. On the contrary, in that case, as in full peace, the vessels of the neutral party may navigate freely to and from the ports and on the coasts of the belligerent parties, free vessels making free goods, insomuch that all things shall be adjudged free which shall be on board any vessel belonging to the neutral party, although such things belong to an enemy of the other.
For the foregoing reasons, it was maintained that the claim presented by the American Government is for an indemnity for a violation of the treaty, in distinction from an indemnity in accordance with the treaty, which sort of claim is a matter for diplomatic adjustment and is in no way dependent upon the action of the German prize court.
In support of her interpretation of the treaties, Germany disposes of Article 12 of the treaty of 1785, by alleging that it merely formulates general rules for the freedom of maritime intercourse, and leaves untouched the question of contraband, which is specifically dealt with in the following article, now in force as Article 13 of the treaty of 1799. The pertinent parts of this article will also be quoted for convenience of reference:
And in the same case of one of the contracting parties being engaged in war with any other Power, to prevent all the difficulties and misunderstandings that usually arise respecting merchandise of contraband, such as arms, ammunition, and militarystores of every kind, no such articles carried in the vessels, or by the subjects or citizens of either party, to the enemies of the other, shall be deemed contraband, so as to induce confiscation or condemnation and a loss of property to individuals. Nevertheless, it shall be lawful to stop such vessels and articles, and to detain them for such length of time as the captors may think necessary to prevent the inconvenience or damage that might ensue from their proceeding, paying, however, a reasonable compensation for the loss such arrest shall occasion to the proprietors; and it shall further be allowed to use in the service of the captors the whole or any part of the military stores so detained, paying the owners the full value of the same, to be ascertained by the current price at the place of its destination. But in the case supposed of a vessel stopped for articles of contraband, if the master of the vessel stopped will deliver out the goods supposed to be of contraband nature, he shall be admitted to do it, and the vessel shall not in that case be carried into any port, nor further detained, but shall be allowed to proceed on her voyage.
In order to prevent neutral vessels from carrying war supplies to her adversary, Germany claims that she has the right under this article to detain the ship and cargo for such length of time as she may think necessary, or to take over the war supplies for her own use upon paying full value for them. It is pointed out that the right of sinking is not mentioned in the treaty and is therefore neither expressly permitted nor expressly prohibited, so that on this point the treaty must be supplemented by the general rules of international law. The sinking of the Frye is justified by her according to what she claims to be the general rules of international law, as follows:
The cargo consisted of conditional contraband, the destination of which for the hostile armed forces was to be presumed under the circumstances; no proof to overcome this presumption has been furnished. More than half the cargo of the vessel was contraband, so that the vessel was liable to confiscation. The attempt to bring the American vessel into a German port would have greatly imperilled the German vessel in the given situation of the war, and at any rate practically defeated the success of her further operations. Thus the authority for sinking the vessel was given according to general principles of international law.
The sinking of the vessel being not prohibited by the treaty but justified under international law, Germany proceeds to argue that the clause in the treaty which provides that the vessel stopped shall be allowed to proceed on delivering out the contraband goods cannot be considered when the ensuing loss of time imperils either the warship herself or the success of her other operations.
The question whether the German commander acted legally according to the general principles of international law was, according to the German view, primarily a subject for the consideration of the German prize court. Germany claims that she is not obligated under international law to grant compensation for a vessel lawfully sunk, and if the prize court should determine that the German commander's act was legal, Germany's only obligation would be to pay the compensation for her lawful act specially provided by the treaty of 1799.
Pending the diplomatic discussion, Germany submitted the case to the prize court at Hamburg, which justified the sinking of the vessel under the principles of international law in the manner above outlined. The prize court was, however, unable to fix the amount of the indemnity due under the Prussian-American treaty because the interested parties failed to submit the necessary data. It is necessary therefore to settle the amount of the indemnity in a different way, and Germany suggests that each government designate an expert, who will jointly fix the amount of the indemnity for the vessel and any American property which may have been sunk with her. Germany makes the reservation, however, that such a payment will not constitute satisfaction for the violation of American treaty rights "but a duty or policy of this government founded on the existing treaty stipulations." Should this manner of settlement be unacceptable to the United States, Germany agrees to submit the dispute as a question of the interpretation of the treaties to the tribunal at The Hague, pursuant to Article 38 of the Hague convention for the pacific settlement of international disputes.
The United States on August 10, 1915, agreed to the appointment of experts to determine the amount of the indemnity, and accepted the condition upon which it would be paid, provided that "the acceptance of such payment should be understood to be without prejudice to the contention of the Government of the United States that the sinking of the Frye was without legal justification, and provided also that an arrangement can be agreed upon for the immediate settlement by arbitration of the question of legal justification in so far as it involves the interpretation of existing treaty stipulations."
It will thus be seen that the real issue between the two governments is not as to the payment or the amount of the indemnity for the sinking of the Frye, but as to Germany's right to sink American vessels in the face of the provisions of the treaties with Prussia invoked by the United States. The United States is willing to accept an indemnity, to be determined, as to its amount, by properly qualified persons appointed by the two governments, but it is not willing to accept it with any reservations as to the legality of Germany's act, unless at the same time provision be made for finally determining the legal questions involved. If arbitration be agreed upon, the United States proposes that a modus vivendi be reached as to the conduct of Germany's naval operations in this respect, pending the award. The situation of the belligerents upon the sea at the present time leaves no fear of a repetition in the near future of incidents such as the sinking of the Frye, but it is believed that the demand of the United States is a wise and proper safeguard against the recurrence of acts which, if committed at an inopportune time, might lead to unfortunate results.
THE NEUTRALITY OF BELGIUM
In the issue of the Journal for October, 1914, there were two editorial comments, entitled, respectively, "The War in Europe" (pages 853-857) and "Germany and the Neutrality of Belgium" (pages 877-881). The comments aimed to be impartial, and they appear to have impressed as such a well-informed and distinguished German publicist, Dr. Karl Neumeyer, Professor of International Administrative Law at the University of Munich, who on January 26, 1915, wrote in regard to them the following letter: