The Venezuelan Arbitration;
The Monroe Doctrine Admitted As International Law
A.D. 1904
THEODORE ROOSEVELT PROF. EDWIN MAXEY
HON. HERBERT W. BOWEN
More and more the United States is coming to be looked upon as the "big brother" of the South-American nations. She has not always been a kindly and forbearing brother, she wrenched Panama rather rudely from the harsh grip of Colombia; and as a result the Spanish people do not feel particularly well disposed toward her. Yet most of them stand ready to admit that without the protection of her Monroe Doctrine they would have been long since devoured by the European Powers.
The state which has, most defiantly of all, flaunted her irregularities before the eyes of Europe is Venezuela. There rebellion has followed rebellion in almost monotonous succession; and each new government has sought to evade paying the debts of its predecessor. Europe has grown more and more discontented. In Cleveland’s time the United States protected Venezuela against England in a boundary dispute, and succeeded in getting the disagreement referred to a court of arbitration. But in 1903 a far more serious situation arose. The United States had to protect her ill-bred little brother from the resentment not of one country but of a dozen. Cipriano Castro, a wild, half-Indian rebel, had unexpectedly conquered Venezuela, and held rule in its capital of Caracas. Under the usual pretext of an appeal to liberty, he was slaying many people and plundering all. More serious than this in European eyes, he was refusing to pay any of the hundreds of claims which foreigners advanced against him and his followers. Hence all Europe threatened him by force of arms; and once more the United States intervened. The case was decided by an arbitration court in 1904.
This, as President Roosevelt here points out, was probably the chief triumph arbitration had yet achieved. Moreover it brought the Monroe Doctrine definitely before the world as a fairly accepted doctrine of International Law. So we give here President Roosevelt’s official statement of what was done. This is followed by an explanation of the part which the Monroe Doctrine played in the dispute, the account of this being by Prof. Edwin Maxey of the University of Nebraska, who ranks among our foremost authorities on International Law. Then comes a general review of the affair from Venezuela’s standpoint, which may also be considered official as it is from the pen of the United States Venezuelan Minister at the time, Hon. Herbert Bowen, who acted as Venezuela’s chief friend and representative throughout the trouble.
THEODORE ROOSEVELT
GREAT BRITAIN, Germany, and Italy formed an alliance for the purpose of blockading the ports of Venezuela and using such other means of pressure as would secure a settlement of claims due, as they alleged, to certain of their subjects. Their employment of force for the collection of those claims was terminated by an agreement brought about through the offices of the diplomatic representatives of the United States at Caracas and the Government at Washington, thereby ending a situation which was bound to cause increasing friction, and which jeoparded the peace of the continent. Under this agreement Venezuela agreed to set apart a certain percentage of the customs receipts of two of her ports to be applied to the payment of whatever obligations might be ascertained by mixed commissions appointed for that purpose to be due from her, not only to the three powers already mentioned, whose proceedings against her had resulted in a state of war, but also to the United States, France, Spain, Belgium, the Netherlands, Sweden and Norway, and Mexico, who had not employed force for the collection of the claims alleged to be due to certain of their citizens.
A demand was then made by the so-called blockading powers that the sums ascertained to be due to their citizens by such mixed commissions should be accorded payment in full before anything was paid upon the claims of any of the so-called peace powers. Venezuela, on the other hand, insisted that all her creditors should be paid upon a basis of exact equality. During the efforts to adjust this dispute it was suggested by the powers in interest that it should be referred to me for decision, but I was clearly of the opinion that a far wiser course would be to submit the question to the Permanent Court of Arbitration at The Hague. It seemed to me to offer an admirable opportuuity to advance the practise of the peaceful settlement of disputes between nations and to secure for The Hague Tribunal a memorable increase of its practical importance. The nations interested in the controversy were so numerous and in many instances so powerful as to make it evident’ that beneficent results would follow from their appearance at the same time before the bar of that august tribunal of peace.
Our hopes in that regard have been realized. Russia and Austria are represented in the persons of the learned and distinguished jurists who compose the Tribunal, while Great Britain, Germany, France, Spain, Italy, Belgium, the Netherlands, Sweden and Norway, Mexico, the United States, and Venezuela are represented by their respective agents and counsel. Such an imposing concourse of nations presenting their arguments to and invoking the decision of that high court of international justice and international peace can hardly fail to secure a like submission of many future controversies. The nations now appearing there will find it far easier to appear there a second time, while no nation can imagine its just pride will be lessened by following the example now presented. This triumph of the principle of international arbitration is a subject of warm congratulation and offers a happy augury for the peace of the world.
PROF. EDWIN MAXEY
The reason for the different standards applied to private and to international actions in these cases is to be found in the practical difficulties in the way of applying the same standard. If treaties of peace were held to be voidable upon the ground of duress, how many treaties of peace would be considered binding? So also unscrupulous Governments would indulge in wholesale oppression of foreign residents and the confiscation of their property if the rights of these residents could in no case be enforced by the country to which they owe allegiance. So far as I can find, Calvo is the only great international law writer who contends that the foreign residents of a country should have no recourse except to the courts of that country. According to this view of what should be international law, if the courts, along with the other branches of the government, become venal, the foreign resident is left without protection. This would inevitably result in large tracts of territory, nay, even some of the continents, being left undeveloped for centuries to come-because thrift, industry, and enterprise are wanting in their own citizens, and foreigners possessing these characteristics would not enter such countries if the protection of their own flag did not follow them. On the other hand, it is difficult to approve a provision of international law that violates the principle of the equality of all sovereign States in that it gives to the more powerful State a right that, as a matter of fact, can not be exercised by the weaker ones.
As between sanctioning a rule that would encourage irresponsibility on the part of one class of States and one that tends toward tyranny on the part of another class, it seems to us that there is middle ground-arbitration. This would at least be an equitable as well as a practical method of determining upon the validity and the amount of the claims; and, as for the enforcing of the award, the objection that the arbitration tribunal could not compel payment seems to us to have more theoretical than practical force, inasmuch as solvent States would not, except in very rare cases, refuse to carry out the terms of an award-and as against insolvent States even force is impotent.
But the present controversy has raised not only the question of the rights of debtor and creditor, i.e., of the parties to the quarrel, but also the rights of neutrals. This latter question grows out of the character of the blockade. If, as first announced, the blockade was to be wholly a pacific one, then the commerce of neutrals could not be interfered with. The operation would be confined exclusively to the ships of Venezuela and those of the allies. To us it seems that a pacific blockade is as much a contradiction in terms as would be friendly hostilities. A blockade is manifestly a war measure, regardless of any formal declaration of war. It is an appeal to force-an interference with the intercourse of a State not compatible with the coexistence of friendly relations. The frank statement of Premier Balfour that "war exists" between Venezuela and the allies not only cleared the atmosphere in the present controversy, but will no doubt go a long way toward putting an end to the use of the term "pacific blockade" as descriptive of any situation known to international law. During the continuance of the blockade not only Venezuela but neutrals will suffer because of the interruption of their commerce; and in this respect the United States is especially concerned, as her trade with Venezuela is greater than that of all other neutrals combined, and is equal to that of England, Germany, and France, our closest three competitors.
But there is involved not merely the question of debtor and creditor and the commerce of neutrals: the proceedings involve the more delicate question of the character and application of the Monroe Doctrine. Up to the present time the Monroe Doctrine has not been a part of international law-it has been simply a political policy of the United States; and, no matter how often this policy were reiterated by the United States, such reiteration would not make it a part of international law. It is not within the province of any one State to make international law: the consent of other nations is a necessary element in order to convert a national policy into a principle of international law. Yet has not the recognition of the Monroe Doctrine by England, Germany, and Italy, and their pledges not to violate it by the seizure and occupation of territory in Venezuela, changed said Doctrine from merely a national policy to a recognized principle of international law?
If not, why not? That the recognition was made reluctantly does not alter the effect. Neither does it matter that it was not made in a conference or congress of the nations: a great many of the now well-recognized principles of international law have originated outside of any conference or congress, and have never been formally sanctioned by them. In reply to the objection that it has not been unanimously recognized, and hence is not entitled to be considered as a principle of international law, we would say that very few principles of international law ever have received unanimous recognition. Even the principles enunciated at the Paris conference in 1856 have never been recognized as binding by the United States, Mexico, and Spain; yet few would contend that they are not part of international law. It may be asked what difference it makes whether the Monroe Doctrine is a principle of international law or a national policy, since it must in the ultimate analysis be maintained, if maintained at all, by force. There is this difference, which seems to us a substantial one: if it is a principle of international law the nation failing or refusing to respect it is a violator of law, and no reputable nation is anxious to acquire a reputation as a lawbreaker; while if it is simply a national policy there is no such obligation to respect it.
As to the application of the Monroe Doctrine, the present controversy has thrown considerable light, in that it has defined it, negatively at least, as not being a shield for the purpose of enabling any nation to escape paying its just debts. It is unfortunate that there should ever have been any hope entertained that it would be so used.
It is now probable that the strife between England, Germany, and Italy and Venezuela-three whales and a wild-cat-will be ended by a submission of the whole matter to arbitration. This will be doubly fortunate, as it will not only put an end to a disagreeable situation, but will also constitute a very strong and valuable precedent for the settlement of similar controversies in the future. The part played by the United States has been a very diplomatic and creditable one; it has rendered valuable service to all parties concerned. Especial credit is due to Minister Bowen for the energy, wisdom, and statesmanship he has shown in the performance of the delicate tasks entrusted to him by all parties. To him has been given an exceptional opportunity for rendering valuable service, and he has shown himself equal to the emergency.
RON. RERBERT W. BOWEN1
Cipriano Castro, upon coming into power in Venezuela, found himself in the singular position of a ruler whose country was in revolution against him, and who was defendant in a suit brought by a majority of the nations of the world for a settlement of the wrongs Venezuela had inflicted on their respective citizens and subjects. The situation would have been absolutely appalling "to a brain unencompassed with nerves of steel"; but Castro never lost his self-confidence or courage. He set to work immediately to plan his campaign against the revolution, and at the decisive moment he took command in person of his handful of troops, and defeated his enemies so completely that those whom he did not capture fled to foreign shores. On his return to his capital he announced, with grim humor, that he had "pacified" the country, meaning, of course, that he had exorcised the spirit of the revolution and had crushed its body.
He was now free to give his attention to the claimant nations. Some of them he hardly knew by name, as his education had been barely rudimentary, and as he had never traveled beyond the enchanted isles of the Caribbean Sea. He "posted" himself, however, quickly and accurately, and then devised the simple but sagadous plan of separating his foreign enemies into two parties-one peaceable and the other aggressive. As he had learned that the United States would never join European nations in undertaking coercive measures against a sister American republic, he headed the list of his peaceable enemies with the United States, and then added France, as he had been assured that the French Cable Company could restrain the French Government from taking any steps that would make France unpopular in Venezuela. Spain, Mexico, and Belgium he now put down on the same list, as they were without navies, and he concluded it with Holland and Sweden and Norway, which he judged had had too little experience in the matter of aggression to undertake it, at short notice, even in alliance with their powerful neighbors. To the diplomatic notes of those on the peaceable list he sent answers that were at once deferential and dilatory. To the three nations on the aggressive list-Germany, Great Britain, and Italy-the notes he addressed were distinctly defiant and plainly provocative. They forthwith replied with warships, which seized his navy and blockaded his ports. A word to his press-agents, and they informed the world that his navy consisted of only a few antiquated gunboats and pleasure-yachts used for police purposes; that the blockade was simply causing the fishermen along the Venezuelan coast to suffer the tortures of starvation; and that a great alliance of mighty European nations against him was wholly unnecessary, as he was willing to pay all just claims, but could not meet grossly exaggerated demands. The world read and sympathized with him, and the blockaders found their position ridiculous.
Having no practical plan of their own for settling the controversy, the allies accepted Castro’s proposal that plenipotentiaries of the parties in interest should meet in Washington. The result was that an equitable arrangement was duly made by virtue of which all claims of all nations were to be scrutinized carefully by competent mixed commissions, and the awards made by them should be paid by Venezuela in reasonable annual instalments. Castro’s war-ships were now returned to him and the blockade was raised. His foreign enemies were now "pacified" also, although not in the same sense as the revolution had been.
Up to this point in his career his diplomacy was perfectly intelligible, as well as very remarkable, both in conception and execution. He kept himself substantially all the time in the right and his enemies in the wrong. The claims were mercilessly cut down by the mixed commissions, and an enormous sum of money was consequently saved to him and his country.
All that now remained for him to do before settling down to routine work was to find the means of preventing wealthy foreign corporations holding valuable property and rights in Venezuela from promoting, aiding, or abetting conspiracies against him in the future as they had done during the recent revolution. His first step was to secure proof of complicity. Rumor soon reported that his efforts had been successful even beyond his anticipation, and that he actually had in his possession documents that would, if published, convict the two principal foreign corporations-the American Asphalt Company and the French Cable Company of having been hand-in-glove with the very leaders of the revolution. At all events, he suddenly deprived those two companies of their immensely valuable property and rights in Venezuela. In doing so he took absolute personal control of his courts, and dictated to them what decisions they should render. The whole procedure was irregular and illegal, and caused the wires of telegraphic communication to vibrate to all parts of Europe and America.
As it is the peculiar province and duty of every nation to defend the property and rights of its citizens from all practical assaults, and not to tolerate illegal procedure even against a criminal, no one was surprised when Mr. Hay sent his so-called ultimatum, in which he stated (see United States Foreign Relations, 1903), "The attitude of the Venezuelan Government toward the Government of the United States, and toward the interests of its citizens, who have suffered so grave and frequent wrongs arbitrarily committed by the Government of Venezuela, require that justice should now be fully done, once for all."
Castro replied without delay, in his most defiant tone and manner, and then seemingly dismissed the subject from his mind. To his anxious friends, who expected to see American war-ships land troops within a fortnight at La Guayra, he showed without comment a cablegram he had received from his special agent in Washington stating substantially that his attitude would be ignored, or that conciliatory assurances would be sent in reply. The diplomatic world was astounded, and remains astounded to this day. All know that Mr. Hay was not the kind of man to send an ultimatum unless it was absolutely necessary as a matter of national honor, and that having done so he would not have met a defiant reply with assurances of his high esteem and excuses of absence of mind. The special agent’s cablegram, nevertheless, was truthful and accurate, but he did not state from whom he had received the pledge that Mr. Hay’s ultimatum should be considered nugatory. Castro evidently knew who the personage was, and had evidently counted on him to act in hid interests at the decisive moment. Mr. Hay, sensitive as but few public men are, now broke down completely in health, and no further steps were taken by the United States to secure justice for the Asphalt Company until his successor, Mr. Root, had made a careful study of the Venezuelan subject. Then Venezuela was informed (see Foreign Relations, 1903) that the United States wished to settle the questions between the United States and Venezuela not in either of the ways (arbitration or force) suggested by Mr. Hay’s ultimatum, but through the confidential channels of diplomacy. Castro, however, preferred to keep possession of the asphalt property, and not even to discuss the matter.
The French cable case was conducted by Castro substantially in the same manner as the asphalt case was. The property was seized, the French Government protested and threatened to use force, and when Castro answered defiantly, lost no time in changing its policy to one of conciliatory inactivity. In this case also, Castro allowed the rumor to spread that he had secrets in his possession that assured his success.
Granting, as we very properly may, in the absence of direct proof, that the secret influence he claimed to have in Washington and Paris was wholly imaginary, the fact remains that it would be difficult to find in all the history of diplomacy two stranger cases than the asphalt and the cable cases are, and hardly anything more mysterious than the masterful manner in which they were managed by Castro.
The world has seen many diplomats of great ability, but would have difficulty in naming even one who could have been so uniformly successful as Castro was in his conflicts, domestic and foreign, with the odds always greatly against him at the start. The main objection to his diplomacy is that it never uplifted either him or his people morally, and was never consciously employed to promote the welfare of the human race. His diplomacy, therefore, while exceptionally able, was painfully lacking in greatness and nobility.
1Reprinted by permission from Harper’s Weekly.