be exhibited 44°. The Consul shall remind the masters to ship's name to have the names of their vessels and the place outside ship. where they are registered exhibited in the usual manner at the outside of their vessels, in compliance with the respective shipping laws. Jurisdiction. under Consular 45°. The attributes of the Consular officer in Concurrent connection with concurrent jurisdiction and pro- Foreigners tection in behalf of vessels of his nationality in protection. foreign territorial waters, and the Consular jurisdiction with regard to foreign members of crews of such vessels and other foreigners under his Consular protection, have been noted above in paragraphs 110 & 111. and members cannot be dis Consular author strict conformity The impartiality magistratic rigidly main 46°. The discipline on board merchant vessels Masters, officers in foreign territorial waters is maintained by the of the crew master of the vessel. It is necessary that he charged under should be supported in so doing by his Consular ity except in officer as well as that this officer should take under with the law. his official protection the rights and interests of of the Consular the crew as regards the master. Consular officers decisions to be have therefore no power to dismiss masters of tained. merchant vessels, irrespective of the legal causes as laid down by the respective shipping laws, even at the request of the owners or managers of such vessels. Nor are Consular officers authorized to order the discharge of any member of the crew outside the provisions of said laws. When owners of vessels or their agents think fit to discharge a master, or any officer or member of the crew of their ships, they do this on their own responsibility, subject to the law, and therefore cannot shield themselves behind the authority of the Consular officer, whose magistratic functions, with regard to the proper execution of the laws of his country, must ever be maintained free from any tincture of partiality. The Right of CHAPTER XXIII. BALANCE OF POWER AND INTERVENTION. § 153. Political considerations, sometimes called reasons of State, are generally based on onesided arguments prompted by selfishness and rapacity, and put forth in support of political claims which have nothing to do with Law (Jus, droit, Recht) and can therefore only appeal to the so-called right of convenience (droit de convenance). It is on this right that powerful States sometimes insisted in matters regarding their socalled natural or military frontiers, basing thereon their claims for the rectification of these frontiers. These proceedings caused continual uncertainty with regard to the peace of the Continent, which includes different States of unequal power with contiguous frontiers. To counterbalance and, to a certain extent, to neutralize this droit de convenance, in the absence of more cogent causes of war, the spirit of modern civilization, prompted by innate abhorrence of war, created an argument of restraint in the theory called the balance of power (équilibre politique) which also sustains a right, viz., that of intervention (droit d'intervention). But there is neither for this system of balance of power, nor for the right of intervention which it implies, any foundation in the Law of Nations, unless expressly stipulated by international treaties. * * See KLUBER. Droit des Gens Mod. de l'Europe. Edit. Ott. 1861. § 42, VON OMPTEDA. Literatur des Völker-rechts. II. 484. HEEREN. Handbuch der Geschichte des Europ. Staaten Systems. Ed. 1811. p. 13. WHEATON. Hist. de Progrès du Droit des Gens, 2nd Edit. Vol. I, p. 110. . XXIII Power versus Justice. This doctrine of a balance of power or poli- Balance of tical equilibrium essentially differs from that Balance of equilibrium of justice (équilibre de droit) which forms the ground work of International Law. The former is merely the offspring of a false principle of utility; based on ideas of might and preponderance, it offers, whether it be viewed politically or judicially, but a vague, ill-defined, and uncertain calculation of material interests. An equal distribution of countries or Nations in proportion to their political importance (lex agraria gentium), says Kluber, will never be accomplished. Nevertheless, on this principle of utility, which constitutes the droit de convenance, many arbitrary systems of a pretended balance of power have been built up or imagined among the leading Powers of Europe. This system was at one time applied to the politics of Europe in general as well as to the navigation of the ocean and of certain seas, with special reference to commerce. At another time the system was limited in its application to a certain portion of the Continent, viz., to Northern, Eastern and Western Europe, Germany and Italy. This was done moreover, with the understanding, that the smallest deviation from these arbitrary rules of equilibrium was to be regarded as a just cause of war. But, at the bottom of this pretentious system of utility, there were feelings of jealousy and mutual distrust which in all cases formed the main spring of action. On the other hand, the équilibre de droit, as above stated, which is strict justice combined with genuine solicitude for the welfare of peoples, has established not merely the indisputable right but the sacred duty, to maintain a balance of justice instead of a mere balance of power, by vigourous opposition to all unjust tendencies on Principles of the part of any Power to acquire dominion and aggrandizement or any undue preponderance at the expense of weaker neighbours. In this sense was the treaty of alliance between Austria, Great Britain, Prussia, Russia and Naples, concluded at Toeplitz, on the 9th September, 1813, with the view to assure to Europe son repos futur par le rétablissement d'un juste équilibre des puissances. On this principle the genuine right of intervention must be based. § 154. Intervention in the internal or domestic affairs of an independent State, is but usurpation if attempted by any foreign Government without the clear force of the logic of events. Imperative necessity may compel one State to interfere in the affairs of another, when the internal tranquillity of the latter State forms an allimportant link binding up its condition with the interests of the interfering State. It may happen in the case of any State, that it becomes a matter of the highest importance affecting even the question of its existence, how affairs are conducted in another State. In such a case it becomes impossible for a State to allow another country, intimately connected with its interests, to fall a pray to anarchy or to the domination of other Powers. Thus by a series of steps, caused in the first instance by a condition of unrestrained anarchy in the case of one State, another State may at last be compelled by the obligations of self-preservation, to assume complete authority over the disturbed State as the logical result of the policy pursued by the latter. Such a measure may be the best solution after all, provided that all available agencies, by which order could be established, have previously been exhausted. In settling the affairs of such a country, the guiding principle *KLUBER. p. 63. must be based on facts as they are and not on the assumption of facts as they ought to be. What form of administration could be established with the best chance of permanence and with the least interference with conditions which must perforce be taken into consideration, this is the first question to be solved by the interfering State, which nolens volens is compelled to take the lead and to try to enter upon such a line of action as can be pursued with safety and honour. With regard to the doctrine of intervention we take the following quotations from Sir Robert Phillimore. Phillimore's regard to the Intervention. "In all systems of private jurisprudence, pro- Sir Robert vision is made for placing upon the abstract right statement with of individual property such restrictions as the doctrine of general safety may require. The maxim expedit enim reipublicæ, ne quis sua re male utatur, belongs to the law of all countries. The prætorian interdict of the Roman, the injunction of the English Law, give effect to this principle by preventing the mischief from being done, instead of endeavouring to remedy it when done. Some analogous right or power must exist in the system of international jurisprudence. Neither,' says Lord Bacon, 'is the opinion of some of the schoolmen to be received, that a war cannot justly be made but upon a precedence of injury or provocation; for there is no question but a just fear of an imminent danger, though there be no blow given, is a lawful cause of a war.' The right of self-defence, incident to every State, may, in certain circumstances, carry with it the necessity of intervening in the relations, and, to a certain * INST. Lib. I. VIII. 22. Chaque droit a ses limites: il est limité par les droits analogues de tous membres d'une société. AHRENS. Cours de Droit Naturel ou de Philosophie du Droit. p. 296. Brux. 1844, Essay on Empire. |