Will Ukraine Wind Up Making Territorial Concessions to Russia?
Foreign Affairs Asks the Experts
I USED to think that I realized the function which the Council on Foreign Relations was playing in the formation of American opinion on international affairs. But I never realized its full importance until I got at the other end of the stage and learned from painful experience the importance of such a public opinion and the difficulty, in its absence, of carrying on the business of the foreign relations of the United States. So I have all the more strongly a feeling of gratitude for the work of this association, and of satisfaction and joy in coming back and making to you my interlocutory report, so to speak, of the affairs of the State Department.
During the past two years widespread economic depression and consequent unemployment have brought instability and unrest to many of the countries of the Western Hemisphere. Since March 1929, there have been Revolutions in no less than seven Latin American republics, resulting in the forcible overthrow in six of them of the existing governments. These changes, and the armed contests by which some of them have been accompanied, have presented to the State Department of this country a rapid succession of critical problems for decision. It was inevitable in such a situation that criticism of our decisions should be excited, and it has been.
Therefore, this evening, I shall place before you from the standpoint of the State Department a brief statement of the facts as well as of the underlying principles and reasons upon which some of these recent decisions have been based. In particular, I shall discuss the principles by which we have been guided in the recognition of the new governments which have arisen and also the principles which have underlain our action in the regulation of the sale and transportation of arms and munitions to the countries which have been involved in strife.
As a background for this discussion a brief review of the general policy of the United States towards the other republics of their hemisphere during the past century is pertinent. That policy, in its general conception, has been a noble one. From the beginning we have made the preservation of individual independence of these nations correspond with our own interest. This was announced in the Monroe Doctrine and has been maintained ever since. That doctrine, far from being an assertion of suzerainty over our sister republics, was an assertion of their individual rights as independent nations. It declared to the world that their independence was so vital to our own safety that we would be willing to fight for it against an aggressive Europe. The Monroe Doctrine was a declaration of the United States versus Europe -- not of the United States versus Latin America.
In taking this position in the Western Hemisphere, our policy has coincided with the basic conception of international law, namely, the equal rights of each nation in the family of nations. The law justly regards this conception as the chief protection of weak nations against oppression. Our people led in the recognition of the independence of those countries with an instinctive readiness which was based upon their sympathy with the doctrine upon which that independence rested. In the language of John Quincy Adams, Secretary of State at the time:
the principles upon which the right of independence has been maintained by the South American patriots have been proved not only as identical with those upon which our own independence was asserted and achieved, but as involving the whole theory of government on the emphatically American foundation of the sovereignty of the people and the unalienable rights of men. To a cause reposing upon this basis the people of this country never could be indifferent, and their sympathies have accordingly been, with great unanimity and constancy, enlisted in its favor.[i]
I am not forgetful of the fact that the foreign policy of every nation is devoted primarily to its own interest. It also rises and falls with the character and wisdom of the individuals or groups who from time to time are in power. I do not close my eyes to the occasional dark spots which have been charged to that record, particularly seventy-five or eighty years ago. But the actions which were the foundation for the most serious of these charges were directly attributable to the influence of slavery in this country, then at the height of its political power, and that influence has long since been wiped out in the blood of a great Civil War. They no more reflected the democratic idealism which has generally characterized our foreign policy at its best than the Fugitive Slave Act fairly reflected our domestic social policy.
In spite of these and all other aberrations, it is a very conservative statement to say that the general foreign policy of the United States during the past century toward the republics of Latin America has been characterized by a regard for their rights as independent nations which, when compared with current international morality in the other hemisphere, has been as unusual as it has been praiseworthy.
People are sometimes prone to forget our long and honorable fulfilment of this policy towards our younger sister nations. It was our action which obtained the withdrawal of French imperialism from Mexico. It was our influence which provided for the return from Great Britain of the Bay Islands to Honduras, and the Mosquito Coast, including Greytown, to Nicaragua. It was our pressure which secured the arbitration of the boundary dispute between Great Britain and Venezuela and which later secured by arbitration the solution of serious disputes between Venezuela, Germany, and Italy. Between the republics themselves, our influence has constantly been exerted for a friendly solution of controversies which might otherwise mar their independent and peaceful intercourse. To speak only of recent matters, I may refer to the long-standing Tacna-Arica dispute between Chile and Peru, and the open clash between Bolivia and Paraguay. During the past seven years our good offices have resulted in the settlement of eight boundary disputes between eleven countries of this hemisphere.
In our successive Pan American conferences, as well as in the Pan American Union, the fundamental rule of equality, which is the mainstay of independence, has been unbroken. Action is taken only by unanimous consent. No majority of states can conclude a minority, even of the smallest and weakest. This is in sharp contrast to the practice which prevailed in the former Concert of Europe, where only the great powers were admitted on a basis of equality. It was also at variance with the original organization of the Covenant of the League of Nations, where it was proposed that a majority of the seats in the Council should be permanently occupied by the Great Powers.
While such recognition of their equal rights and national independence has always been the basic foundation upon which our policy toward these republics has rested, there is another side of the picture which must be borne in mind. This basic principle of equality in international law is an ideal resting upon postulates which are not always and consistently accurate. For independence imposes duties as well as rights. It presupposes ability in the independent nation to fulfil the obligations towards other nations and their nationals which are prescribed and expected to exist in the family of nations. The hundred years which have ensued since the announcement of our policy towards these republics have contained recurring evidence of how slow is the progress of mankind along that difficult highway which leads to national maturity and how difficult is the art of popular self-government. Years and decades of alternations between arbitrary power at one time and outbreaks of violence at another have pointed out again and again how different a matter it is in human affairs to have the vision and to achieve the reality.
Furthermore, the difficulties which have beset the foreign policy of the United States in carrying out these principles cannot be understood without the comprehension of a geographical fact. The very locality where the progress of these republics has been most slow; where the difficulties of race and climate have been greatest; where the recurrence of domestic violence has most frequently resulted in the failure of duty on the part of the republics themselves and the violation of the rights of life and property accorded by international law to foreigners within their territory, has been in Central America, the narrow isthmus which joins the two Americas, and among the islands which intersperse the Caribbean Sea adjacent to that isthmus. That locality has been the one spot external to our shores which nature has decreed to be most vital to our national safety, not to mention our prosperity. It commands the line of the great trade route which joins our eastern and western coasts. Even before human hands had pierced the isthmus with a seagoing canal, that route was vital to our national interest. Since the Panama Canal has become an accomplished fact, it has been not only the vital artery of our coastwise commerce but, as well, the link in our national defense which protects the defensive power of our fleet. One cannot fairly appraise American policy toward Latin America or fully appreciate the standard which it has maintained without taking into consideration all of the elements of which it is the resultant.
Like the rocks which mark the surface of a steady river current, the facts and circumstances which I have outlined have produced ripples in the current of our steady policy towards the Latin American republics. Some of them have resulted in temporary intrusions into the domestic affairs of some of those countries, which our hostile critics have not hesitated to characterize as the manifestation of a selfish American imperialism. I am clear that a calm historical perspective will refute that criticism and will demonstrate that the international practice of this Government in the Western Hemisphere has been asserted with a much readier recognition of the legal rights of all the countries with which we have been in contact than has been the prevalent practice in any other part of the world. The discussion of the particular topics which I am bringing before you this evening will, I hope, help to develop the character, trend, and uniformity of this policy.
The recognition of a new state has been described by writers on international law as the assurance given to it that it will be permitted to hold its place and rank in the character of an independent political organism in the society of nations. The recognition of a new government within a state arises in practice only when a government has been changed or established by revolution or by a coup d'état. No question of recognition normally arises, for example, when a king dies and his heir succeeds to the throne, or where as the result of an election in a republic a new chief executive constitutionally assumes office. The practice of this country as to the recognition of new governments has been substantially uniform from the days of the administration of Secretary of State Jefferson in 1792 to the days of Secretary of State Bryan in 1913. There were certain slight departures from this policy during the Civil War, but they were manifestly due to the exigencies of warfare and were abandoned immediately afterwards. This general policy, as thus observed, was to base the act of recognition not upon the question of the constitutional legitimacy of the new government but upon its de facto capacity to fulfil its obligations as a member of the family of nations. This country recognized the right of other nations to regulate their own internal affairs of government and disclaimed any attempt to base its recognition upon the correctness of their constitutional action.
Said Mr. Jefferson in 1792:
We certainly cannot deny to other nations that principle whereon our own Government is founded, that every nation has a right to govern itself internally under what forms it pleases, and to change these forms at its own will; and externally to transact business with other nations through whatever organ it chooses, whether that be a king, convention, assembly, committee, president, or whatever it be.[ii]
In these essentials our practice corresponded with the practice of the other nations of the world.
The particular considerations upon which our action was regularly based were well stated by Mr. Adee, long the trusted Assistant Secretary of State of this Government, as follows:
Ever since the American Revolution entrance upon diplomatic intercourse with foreign states has been de facto, dependent upon the existence of three conditions of fact: the control of the administrative machinery of the state; the general acquiescence of its people; and the ability and willingness of their government to discharge international and conventional obligations. The form of government has not been a conditional factor in such recognition; in other words, the de jure element of legitimacy of title has been left aside.[iii]
With the advent of President Wilson's administration this policy of over a century was radically departed from in respect to the Republic of Mexico, and, by a public declaration on March 11, 1913, it was announced that
Coöperation [with our sister republics of Central and South America] is possible only when supported at every turn by the orderly processes of just government based upon law, not upon arbitrary or irregular force. We hold, as I am sure that all thoughtful leaders of republican government everywhere hold, that just government rests always upon the consent of the governed, and that there can be no freedom without order based upon law and upon the public conscience and approval. We shall look to make these principles the basis of mutual intercourse, respect, and helpfulness between our sister republics and ourselves.[iv]
Mr. Wilson's government sought to put this new policy into effect in respect to the recognition of the then Government of Mexico held by President Victoriano Huerta. Although Huerta's government was in de facto possession, Mr. Wilson refused to recognize it, and he sought through the influence and pressure of his great office to force it from power. Armed conflict followed with the forces of Mexico, and disturbed relations between us and that republic lasted until a comparatively few years ago.
In his sympathy for the development of free constitutional institutions among the people of our Latin American neighbors, Mr. Wilson did not differ from the feelings of the great mass of his countrymen in the United States, including Mr. Jefferson and Mr. Adams, whose statements I have quoted; but he differed from the practice of his predecessors in seeking actively to propagate these institutions in a foreign country by the direct influence of this Government and to do this against the desire of the authorities and people of Mexico.
The present administration has declined to follow the policy of Mr. Wilson and has followed consistently the former practice of this Government since the days of Jefferson. As soon as it was reported to us, through our diplomatic representatives, that the new governments in Bolivia, Peru, Argentina, Brazil, and Panama were in control of the administrative machinery of the state, with the apparent general acquiescence of their people, and that they were willing and apparently able to discharge their international and conventional obligations, they were recognized by our Government. And, in view of the economic depression, with the consequent need for prompt measures of financial stabilization, we did this with as little delay as possible in order to give those sorely pressed countries the quickest possible opportunities for recovering their economic poise.
Such has been our policy in all cases where international practice was not affected or controlled by preëxisting treaty. In the five republics of Central America, Guatemala, Honduras, Salvador, Nicaragua, and Costa Rica, however, an entirely different situation exists from that normally presented under international law and practice. As I have already pointed out, those countries geographically have for a century been the focus of the greatest difficulties and the most frequent disturbances in their earnest course towards competent maturity in the discharge of their international obligations. Until some two decades ago, war within and without was their frequent portion. No administration of their government was long safe from revolutionary attack instigated either by factions of its own citizens or by the machinations of another one of the five republics. Free elections, the cornerstone upon which our own democracy rests, had been practically unknown during the entire period. In 1907 a period of strife, involving four of the five republics, had lasted almost without interruption for several years. In that year, on the joint suggestion and mediation of the Governments of the United States and Mexico, the five republics met for the purpose of considering methods intended to mitigate and, if possible, terminate the intolerable situation. By one of the conventions which they then adopted, the five republics agreed with one another as follows:
The Governments of the high contracting parties shall not recognize any other government which may come into power in any of the five republics as a consequence of a coup d'état, or of a revolution against the recognized government, so long as the freely elected representatives of the people thereof have not constitutionally reorganized the country.
Sixteen years later, in 1923, the same five republics, evidently satisfied with the principle they had thus adopted and desiring to reinforce it and prevent any future evasions of that principle, met again, reënacted the same covenant, and further promised each other that even after a revolutionary government had been constitutionally reorganized by the representatives of the people, they would not recognize it if its president should have been a leader in the preceding revolution or related to such a leader by blood or marriage, or if he should have been a cabinet officer or held some high military command during the accomplishment of the revolution. Some four months thereafter, our own Government, on the invitation of these republics, who had conducted their meeting in Washington, announced, through Secretary Hughes, that the United States would in its future dealings with those republics follow out the same principle which they had thus established in their treaty. Since that time we have consistently adhered to this policy in respect to those five republics.
We followed that policy in Guatemala in the case of a recent revolution in which some fifty-seven people were killed. General Orellano, the leader of the revolt, set himself up as the provisional president of that republic on December 16, 1930. On December 22, 1930, we notified him that in accordance with the policy established by the 1923 treaty he would not be recognized by us. No recognition was granted him by any of the other four republics. Following this, he tendered his resignation and retired from office; and on January 2, 1931, through the constitutional forms provided in the Guatemalan Constitution, Señor Reina Andrade was chosen provisional president by the Guatemalan Congress and immediately called a new election for a permanent president. Thereupon this country and the other four republics recognized the government of Señor Reina Andrade.
Since the adoption by Secretary Hughes, in 1923, of the policy of recognition agreed upon by the five republics in their convention, not one single revolutionary government has been able to maintain itself in any of those five republics. Twice, once in Nicaragua and once in the case of Guatemala, just described, a revolutionary leader has succeeded in grasping the reins of government for a brief period. But in each case the failure to obtain recognition has resulted in his prompt resignation, on account of his inability to borrow money in the international markets. Several times within the same period a contemplated revolution has been abandoned by its conspirators on the simple reminder by a minister from this country or one of the other republics that, even if they were successful, their government would not be recognized; and undoubtedly in many more cases has the knowledge of the existence of the policy prevented even the preparation for a revolution or coup d'état. In every one of these cases the other four republics have made common cause in the efforts of the United States to carry out their policy and maintain stability. When one compares this record with the bloodstained history of Central America before the adoption of the treaty of 1923, I think that no impartial student can avoid the conclusion that the treaty and the policy which it has established in that locality has been productive of very great good.
Of course it is a departure from the regular international practice of our Government, and it undoubtedly contains possible difficulties and dangers of application which we in the State Department are the last to minimize and in case of which, should they arise, this Government must reserve its freedom of action. But the distinction between this departure, which was suggested by the five republics themselves and in which we have acted at their earnest desire and in coöperation with them, and the departure taken by President Wilson in an attempt to force upon Mexico a policy which she resented must be apparent to the most thoughtless student. A few weeks ago Judge John Bassett Moore, who as Counselor of the State Department was a member of Mr. Wilson's administration, criticized Mr. Wilson's departure from the former practice of this country, and he included within his criticism the departure initiated by the treaty of 1923. He did not, however, point out the foregoing radical difference of principle between the two policies, nor the entirely different results which have followed each, and which thus far seem quite to justify the policy of 1923.
Furthermore, it may be noted that one of the dangers which might be apprehended from this policy of recognition adopted by the five Central American republics under the treaty of 1923 has not materialized. One of the most serious evils in Central America has been the fact that throughout the history of those republics, until recently, it has been the habitual practice of the president who held the machinery of government to influence and control the election of his successor. This has tended to stimulate revolution as the only means by which a change of government could be accomplished. The danger was therefore manifest that this treaty of 1923 might result in perpetuating the autocratic power of the governments which were for the time in possession. As a matter of fact this has not happened. On the contrary, significant improvement has taken place in election practice. The Government of Nicaragua of its own motion has sought and obtained the assistance of the United States in securing free and uncontrolled elections in 1928 and 1930. The Government of Honduras, in 1928, without any such assistance, conducted an election which was so free that the party in power was dispossessed by the opposition party; and a similar free election has apparently occurred in 1930. For nearly one hundred years before 1923 free elections have been so rare in Central America as to be almost unique. Of course, it is too early to make safe generalizations, but it would seem that the stability created by the treaty of 1923 apparently has not tended to perpetuate existing autocracies but, on the contrary, to stimulate a greater sense of responsibility in elections.
I will now pass to the subject of the policy of this Government in respect to the export of arms and munitions to countries which are engaged in civil strife. Twice during the present Administration we have had to make important decisions and take important action in respect to this subject. The first of these occasions was in March, 1929, when a military insurrection broke out in the Republic of Mexico. This insurrection was of serious nature and extent. It involved disturbances in many of the Mexican provinces and much fighting and bloodshed. Acting under a joint resolution of our Congress, adopted in 1922, this Government maintained an embargo upon the exportation of all arms and munitions which might reach the rebels. At the same time, it permitted the sale and itself sold arms and ammunition to the established government of Mexico, with which we were then and had been for a number of years in diplomatic relations. In about three months the insurrection was suppressed, and I think it can be fairly said that it is due in no slight degree to our action in this matter that the feelings of hostility on the part of Mexico to the United States which had existed ever since the intervention of President Wilson against Huerta in 1913 were finally ended and the relations of the two countries became friendly and cordial.
The second occasion was in October, 1930, when armed insurrection had broken out against the Government of Brazil. In the same way in which we had acted towards Mexico, we permitted that government to purchase arms both from our Government and from our nationals in this country; and, when the Ambassador of Brazil brought to our attention the fact that arms were being purchased in this country for export to the rebel forces fighting against the recognized government, we placed an embargo against the exportation of such arms. Two days later the Government of Brazil suddenly fell, the immediate cause being the revolt of its own garrison in Rio de Janeiro.
In placing the embargo upon the exportation of arms to the Brazilian rebel forces, our Government acted under the same joint resolution of our Congress of 1922 and with the same purpose and upon the same policy as had guided our action in the case of Mexico and in other cases where action has been taken under that resolution. That purpose was "to prevent arms and munitions procured from the United States being used to promote conditions of domestic violence" in countries whose governments we had recognized and with which we were in friendly intercourse. This was the purpose and policy as stated by our Congress in the language of the resolution itself.
In the case of Brazil there also was in effect a treaty between the United States and Brazil which made it compulsory for us to act as we did in placing this embargo. With Mexico that treaty had not yet gone into effect. This treaty was the convention executed at Habana on February 20, 1928, between the United States and the twenty Latin American republics, providing for the rights and duties of states in the event of civil strife. Between its signatories it rendered compulsory the policy of protecting our Latin American sister republics against the traffic in arms and war material carried on by our nationals, a duty which previously the joint resolution of 1922 had left within the discretion of the Executive. The language of the treaty of 1928 is as follows:
The contracting states bind themselves to observe the following rules with regard to civil strife in another one of them: . . .
3. To forbid the traffic in arms and war material, except when intended for the government, while the belligerency of the rebels has not been recognized, in which latter case the rules of neutrality shall be applied.
Our action in regard to Brazil has been criticized by gentlemen who have confused the legal situation which existed in Brazil with an entirely different situation. We have been criticized for "taking sides in that civil strife," as if we had been under the duty to maintain neutrality between the Brazilian Government and the rebels who were seeking to overthrow it.
Under the law of nations the duty of neutrality does not arise until the insurgents have assumed the status of a belligerent power between whom and the mother country other governments must maintain impartiality. This occurs when a condition of belligerency is recognized either by the parent state itself or by the governments of other nations. Such a situation arose in our Civil War when the Confederate States, having occupied exclusively a portion of the territory of the United States and having set up their own capital at Richmond, were recognized as belligerents by the nations of Europe. It has not arisen in any of the recent revolutions of Latin America, whether successful or unsuccessful. The revolutionists in Brazil had not been recognized as belligerents either by the Brazilian Government, by the United States, or by any other nation. Until that happens, under the law and practice of nations, no duty of impartiality arises either on the part of our Government or our citizens. Until that time there is only one side towards which, under international law, other nations owe any duty. This is so well established as to be elementary. It was recognized in the clause of the treaty of 1928 which I have just quoted. It is recognized in the standard legal treatises, including that of Mr. John Bassett Moore, who cites among other precedents an opinion of one of our Attorney Generals and says that
It (the United States Neutrality Act of 1818) would extend to the fitting out and arming of vessels for a revolted colony, whose belligerency had not been recognized, but it should not be applied to the fitting out, etc., of vessels for the parent state for use against a revolted colony whose independence has not in any manner been recognized by our Government.[v]
Until belligerency is recognized and the duty of neutrality arises, all the humane predispositions towards stability of government, the preservation of international amity, and the protection of established intercourse between nations are in favor of the existing government. This is particularly the case in countries where civil strife has been as frequent, as personal, and as disastrous as it has been in some sections of Central and South America during the past century. The law of nations is not static. It grows and develops with the experience of mankind, and its development follows that same line of human predispositions and experiences to which I have referred.
The domestic legislation of the United States prescribing the duties of its citizens towards nations suffering from civil strife is following the line of these predispositions and is blazing the way for the subsequent growth of the law of nations. I am not one who regards this development of American domestic legislation, exemplified by the joint resolution of 1922, as a departure from the principles of international law or as a reactionary or backward step. The reverse is true. Although I have had little occasion to deal with the subject of international law from an academic viewpoint, it has happened that at different times during my life I have occupied public offices where I came in official contact with international conditions before they were remedied by the beneficent effect of the joint resolution of 1922 and its predecessor, the joint resolution of 1912.
Twenty-five years ago, as United States Attorney in the Southern District of New York, much of my time and energy was devoted to the enforcement of the so-called neutrality acts of the United States. Our laws were then insufficient to control the shipment of arms from this country, even when the purpose of stirring up strife, sedition, and revolutions in the republics to the south of us was manifest. I can remember the time when a single concern in the State of New York used to make it known that they were fully prepared to outfit on short notice, for war service, expeditions of any size up to several thousand men. I personally witnessed the activities by which some of our munitions manufacturers for sordid gain became a veritable curse to the stability of our neighboring republics. Later, as Secretary of War, I became a witness to the fact that our own citizens were sometimes the innocent victims of domestic strife in adjacent countries stirred up by this disgraceful traffic. When an insurrection broke out in Mexico the first effort of the rebels was usually to try to seize a customhouse on one of the important railroad crossings between our two countries, in order that they might freely receive arms and ammunition from this country. And I myself have seen the bullet marks on the houses in El Paso, Texas, caused by a conflict of this kind in Juarez, across the river, in which over a score of innocent citizens of El Paso, going about their accustomed duties on American soil, were killed or injured.
With these personal experiences in mind, I had little difficulty in reaching the conclusion that those who argued for the liberty of our munitions manufacturers to continue for profit a traffic which was staining with blood the soil of the Central American republics were not the progressives in international law or practice. I am glad that I had a share in the drafting of the joint resolution of 1912, and I have studied closely the progress of its remedial effect upon the conditions which it was designed to cure. I am glad to find that that effect has been beneficial. By our own Government it has been found so beneficent that in 1922 its scope was extended from civil strife in America to civil strife in certain other portions of the world. By 1928 its beneficent influence was so generally recognized that at the great Pan American Conference held in Habana in that year, all of the nations of this hemisphere embodied in the treaty of 1928 as a definite and compulsory legal obligation the same policy which we had been able in 1912 to initiate as a discretionary power of the American President. I believe that this marks the line which the law of nations will eventually follow throughout the world. When it does so, I believe that international law and practice will have achieved another step forward towards the ultimate peace of mankind. It is my hope that the decisions of the State Department during the past two years will be found to have assisted in this beneficent progress.
[i] J. Q. Adams, May 27, 1823, "American State Papers," Foreign Relations, Vol. V, p. 888.
[ii] Jefferson to Pinckney, "Works," Vol. III, p. 500.
[iii] "Foreign Relations of the United States," 1913, p. 100.
[iv] "Foreign Relations of the United States," 1913, p. 7.
[v] Hoar, Attorney General, 1869, 13 Op. 177. Cited in Judge Moore's "Digest of International Law," Vol. VII, p. 1079.