Part 4

The second Hague Conference revised the Convention for the Pacific Settlement of International Disputes, drew up a plan for an International Prize Court, and attempted a codification of the rules of international law on a number of subjects relating to the conduct of war and the rights of neutrals. The American delegates, headed by Mr. Choate, not only took a prominent part in these proceedings, but, acting under instructions from Secretary Root, they proposed to the Conference the creation of a permanent international court of justice. The creation of an international court of justice whose decisions would have the force of law, as distinguished from an international court of arbitration whose decisions are usually arrived at by a compromise of conflicting legal or political points of view, had long been advocated by advanced thinkers, but the proposition had always been held by practical statesmen to be purely academic. The serious advocacy of the proposition at this time by a great nation like the United States and the able arguments advanced by Mr. Choate marked an important step forward and made a profound impression. There were two difficulties in the way of establishing such a court at the second Hague Conference. In the first place, the delegation of the United States was the only one which had instructions on this subject, and in the second place it was found to be impossible to agree upon a method of selecting the judges. The great world powers, with the exception of the United States, demanded permanent representation on the court. The smaller nations, relying on the doctrine of the equality of states, demanded likewise to be represented. If each nation could have been given the right to appoint a judge, the court could have been organized, but there would have been forty-four judges instead of fifteen, the number suggested in the American plan. The Draft Convention for the Establishment of the Court of Arbitral Justice, as it was agreed the new court should be designated, was submitted to the Conference and its adoption recommended to the signatory powers. This Draft contained thirty-five articles and covered everything except the method of appointing judges. This question was to be settled by diplomatic negotiation, and it was agreed that the court should be established as soon as a satisfactory agreement with regard to the choice of judges could be reached. After the adjournment of the Conference the United States continued its advocacy of the international court of justice through the ordinary diplomatic channels. The proposal was made that the method of selecting judges for the Prize Court be adopted for the court of justice, that is, that each power should appoint a judge, that the judges of the larger powers should always sit on the court while the judges of the other powers should sit by a system of rotation for limited periods. It was found, however, that many of the smaller states were unwilling to accept this suggestion, and as difficulties which we will mention presently prevented the establishment of the Prize Court, the whole question of the court of justice was postponed.

Most of the conventions adopted by the second Hague Conference were ratified by the United States without reservation. The fact, however, that certain of these conventions were not ratified by all the powers represented at the Conference, and that others were ratified with important reservations, left the status of most of the conventions in doubt, so that at the beginning of the World War there was great confusion as to what rules were binding and what were not binding. The Conference found it impossible to arrive at an agreement on many of the most vital questions of maritime law. Under these circumstances the powers were not willing to have the proposed International Prize Court established without the previous codification of the body of law which was to govern its decisions.

In order to supply this need the London Naval Conference was convened in December, 1908, and issued a few months later the Declaration of London. The London Naval Conference was attended by representatives of the principal maritime powers including the United States, and the Declaration which it issued was avowedly a codification of the existing rules of international law. This was not true, however, of all the provisions of the Declaration. On several of the most vital questions of maritime law, such as blockade, the doctrine of continuous voyage, the destruction of neutral prizes, and the inclusion of food stuffs in the list of conditional contraband, the Declaration was a compromise and therefore unsatisfactory. It encountered from the start the most violent opposition in England. In Parliament the Naval Prize Bill, which was to give the Declaration effect, was discussed at considerable length. It passed the House of Commons by a small vote, but was defeated in the House of Lords. It was denounced by the press, and a petition to the king, drawn up by the Imperial Maritime League protesting against it, was signed by a long list of commercial associations, mayors, members of the House of Lords, general officers, and other public officials. One hundred and thirty-eight naval officers of flag rank addressed to the prime minister a public protest against the Declaration. In the debate in the House of Lords the main objections to the Declaration were (1) that it made food stuffs conditional contraband instead of placing them on the free list, (2) that the clause permitting the seizure of conditional contraband bound for a fortified place or "other place serving as a base for the armed forces of the enemy" would render all English ports liable to be treated as bases by an enemy, and (3) that it permitted the destruction of neutral prizes.

The refusal of England to ratify the Declaration of London sealed its fate. The United States Senate formally ratified it, but this ratification was, of course, conditional on the ratification of other powers. At the beginning of the Great War the United States made a formal proposal to the belligerent powers that they should agree to adopt the Declaration for the period of the war in order that there might be a definite body of law for all parties concerned. This proposal was accepted by Germany and Austria, but England, France, and Russia were not willing to accept the Declaration of London without modifications. The United States, therefore, promptly withdrew its proposal and stated that where its rights as a neutral were concerned it would expect the belligerent powers to observe the recognized rules of international law and existing treaties.

The Hague Conferences were concerned with questions of general international interest, and had no bearing upon the internal affairs of states. Such, however, was not the character of the conference which convened at Algeciras, Spain, in December, 1905, for the purpose of adjusting the very serious dispute that had arisen between France and Germany over the status of Morocco. France had been engaged for some years in the peaceful penetration of Morocco. By the terms of the Entente of 1904 England recognized Morocco as being within the French sphere of influence and France agreed to recognize England's position in Egypt. The German Kaiser had no idea of permitting any part of the world to be divided up without his consent. In March, 1905, while on a cruise in the Mediterranean, he disembarked at Tangier and paid a visit to the Sultan "in his character of independent sovereign." As the Russian armies had just suffered disastrous defeats at the hands of the Japanese, France could not count on aid from her ally and the Kaiser did not believe that the recently formed Entente was strong enough to enable her to count on English support. His object in landing at Tangier was, therefore, to check and humiliate France while she was isolated and to break up the Entente before it should develop into an alliance. Delcassé, the French foreign minister, wanted to stand firm, but Germany demanded his retirement and the prime minister accepted his resignation. In recognition of this triumph, the German chancellor Count von Bülow was given the title of Prince. Not satisfied with this achievement, the Kaiser demanded a general European conference on the Moroccan question, and, in order to avoid war, President Roosevelt persuaded France to submit the whole dispute to the powers interested. The Algeciras conference turned out to be a bitter disappointment to Germany. Not only did France receive the loyal support of England, but she was also backed by the United States and even by Italy--a warning to Germany that the Triple Alliance was in danger. As the conference was called nominally for the purpose of instituting certain administrative reforms in Morocco, President Roosevelt decided, in view of our rights under a commercial treaty of 1880, to take part in the proceedings. The American delegates were Henry White, at that time ambassador to Italy, and Samuel R. Gummeré, minister to Morocco. As the United States professed to have no political interests at stake, its delegates were instrumental in composing many of the difficulties that arose during the conference and their influence was exerted to preserve the European balance of power. The facts in regard to America's part in this conference were carefully concealed from the public. There was nothing in any published American document to indicate that the participation of our representatives was anything more than casual. André Tardieu, the well-known French publicist, who reported the conference and later published his impressions in book form, first indicated that President Roosevelt was a positive factor in the proceedings. But it was not until the publication of Bishop's "Theodore Roosevelt and His Time" that the full extent of Roosevelt's activities in this connection became known.

There can be no doubt that our participation in the Moroccan conference was the most radical departure ever made from our traditional policy of isolation. Roosevelt's influence was exerted for preserving the balance of power in Europe. As we look back upon the events of that year we feel, in view of what has since happened, that he was fully justified in the course he pursued. Had his motives for participating in the conference been known at the time, they would not have been upheld either by the Senate or by public opinion. There are many serious objections to secret diplomacy, but it cannot be entirely done away with even under a republican form of government until the people are educated to a fuller understanding of international politics. The German Kaiser was relentless in his attempt to score a diplomatic triumph while France was isolated. He was thwarted, however, by the moral support which England, Italy, and the United States gave to France.

During the proceedings of the conference the American delegates declared in open session that the United States had no political interest in Morocco and that they would sign the treaty only with the understanding that the United States would thereby assume no "obligation or responsibility for the enforcement thereof." This declaration did not satisfy the United States Senate, which no doubt suspected the part that was actually played by America in the conference. At any rate, when the treaty was finally ratified the Senate attached to its resolution of ratification the following declaration:

"Resolved further. That the Senate, as a part of this act of ratification, understands that the participation of the United States in the Algeciras conference and in the formation and adoption of the general act and protocol which resulted therefrom, was with the sole purpose of preserving and increasing its commerce in Morocco, the protection as to life, liberty, and property of its citizens residing or traveling therein, and of aiding by its friendly offices and efforts, in removing friction and controversy which seemed to menace the peace between powers signatory with the United States to the treaty of 1880, all of which are on terms of amity with this Government; and without purpose to depart from the traditional American foreign policy which forbids participation by the United States in the settlement of political questions which are entirely European in their scope."

The determination of the United States not to interfere in the internal politics of European States has not prevented occasional protests in the name of humanity against the harsh treatment accorded the Jews in certain European countries. On July 17, 1902, Secretary Hay protested in a note to the Rumanian government against a policy which was forcing thousands of Jews to emigrate from that country. The United States, he claimed, had more than a philanthropic interest in this matter, for the enforced emigration of the Jews from Rumania in a condition of utter destitution was "the mere transplantation of an artificially produced diseased growth to a new place"; and, as the United States was practically their only place of refuge, we had a clearly established right of remonstrance. In the case of Russia information has repeatedly been sought through diplomatic channels as to the extent of destitution among the Jewish population, and permission has been requested for the distribution of relief funds raised in the United States. Such inquiries have been so framed as to amount to diplomatic protests. In his annual message of 1904 President Roosevelt went further and openly expressed the horror of the nation at the massacre of the Jews at Kishenef. These protests, however, were purely diplomatic in character. There was not the slightest hint at intervention. During the early stages of the Great War in Europe the Government of the United States endeavored to adhere strictly to its historic policy. The German invasion of Belgium with its attendant horrors made a deep impression upon the American people and aroused their fighting spirit even more perhaps than the German policy of submarine warfare, but it was on the latter issue, in which the interests and rights of the United States were directly involved, that we finally entered the war.

V

THE OPEN-DOOR POLICY

In the Orient American diplomacy has had a somewhat freer hand than in Europe. Commodore Perry's expedition to Japan in 1852-1854 was quite a radical departure from the general policy of attending strictly to our own business. It would hardly have been undertaken against a country lying within the European sphere of influence. There were, it is true, certain definite grievances to redress, but the main reason for the expedition was that Japan refused to recognize her obligations as a member of the family of nations and closed her ports to all intercourse with the outside world. American sailors who had been shipwrecked on the coast of Japan had failed to receive the treatment usually accorded by civilized nations. Finally the United States decided to send a naval force to Japan and to force that country to abandon her policy of exclusion and to open her ports to intercourse with other countries. Japan yielded only under the threat of superior force. The conduct of the expedition, as well as our subsequent diplomatic negotiations with Japan, was highly creditable to the United States, and the Japanese people later erected a monument to the memory of Perry on the spot where he first landed.

The acquisition of the Philippine Islands tended to bring us more fully into the current of world politics, but it did not necessarily disturb the balancing of European and American spheres as set up by President Monroe. Various explanations have been given of President McKinley's decision to retain the Philippine group, but the whole truth has in all probability not yet been fully revealed. The partition of China through the establishment of European spheres of influence was well under way when the Philippine Islands came within our grasp. American commerce with China was at this time second to that of England alone, and the concessions which were being wrung from China by the European powers in such rapid succession presented a bad outlook for us. The United States could not follow the example of the powers of Europe, for the seizure of a sphere of influence in China would not have been supported by the Senate or upheld by public opinion. It is probable that President McKinley thought that the Philippine Islands would not only provide a market for American goods, which owing to the Dingley tariff were beginning to face retaliatory legislation abroad, but that they would provide a naval base which would be of great assistance in upholding our interests in China.

Talcott Williams made public some years later another explanation of President McKinley's decision which is interesting and appears to be well vouched for. He was informed by a member of McKinley's cabinet that while the President's mind was not yet made up on the question, a personal communication was received from Lord Salisbury who warned the President that Germany was preparing to take over the Philippine Islands in case the United States should withdraw; that such a step would probably precipitate a world war and that in the interests of peace and harmony it would be best for the United States to retain the entire group.

The famous open-door policy was outlined by Secretary Hay in notes dated September 6, 1899, addressed to Great Britain, Germany, and Russia. Each of these powers was requested to give assurance and to make a declaration to the following effect: (1) that it would not interfere with any treaty port or vested interests in its so-called sphere of influence; (2) that it would permit the Chinese tariff to continue in force in such sphere and to be collected by Chinese officials; (3) that it would not discriminate against other foreigners in the matter of port dues or railroad rates. Similar notes were later addressed to France, Italy, and Japan. England alone expressed her willingness to sign such a declaration. The other powers, while professing thorough accord with the principles set forth by Mr. Hay, avoided committing themselves to a formal declaration and no such declaration was ever made. Mr. Hay made a skillful move, however, to clinch matters by informing each of the powers to whom the note had been addressed that in view of the favorable replies from the other powers, its acceptance of the proposals of the United States was considered "as final and definitive."

Americans generally are under the impression that John Hay originated the open-door policy and that it was successfully upheld by the United States. Neither of these impressions is correct. A few months before John Hay formulated his famous note Lord Charles Beresford came through America on his return from China and addressed the leading chambers of commerce from San Francisco to New York, telling Americans what was actually taking place in China and urging this country to unite with England and Japan in an effort to maintain the open door. Like the Monroe Doctrine, the open-door policy was thus Anglo-American in origin. There is little doubt that England and Japan were willing to form an alliance with the United States for the purpose of maintaining the open door in China, but our traditional policy of isolation prevented our committing ourselves to the employment of force. President McKinley, following the example of President Monroe, preferred announcing our policy independently and requesting the other powers to consent to it. Had John Hay been able to carry out the plan which he favored of an alliance with England and Japan, the mere announcement of the fact would have been sufficient to check the aggressions of the powers in China. Instead of such an alliance, however, we let it be known that while we favored the open door we would not fight for it under any conditions.

The utter worthlessness of the replies that were made in response to Hay's note of September 6, 1899, became fully apparent in the discussions that soon arose as to the status of consuls in the various spheres of influence. Japan claimed that sovereignty did not pass with a lease and that even if China should surrender jurisdiction over her own people, the lessee governments could not acquire jurisdiction over foreigners in leased territory. This position was undoubtedly correct if the territorial integrity of China was really to be preserved, but after negotiations with Russia and the other powers concerned Mr. Hay wrote to Minister Conger on February 3, 1900, that "The United States consuls in districts adjacent to the foreign leased territories are to be instructed that they have no authority to exercise extra-territorial consular jurisdiction or to perform ordinary non-judicial consular acts within the leased territory under their present Chinese exequaturs." Application was then made to the European powers for the admission of American consuls in the leased territories for the performance of the ordinary consular functions, but in no case were they to exercise extra-territorial jurisdiction within a leased territory.

The exploitation of China which continued at a rapid rate naturally aroused an intense anti-foreign sentiment and led to the Boxer uprising. Events moved with startling rapidity and United States troops took a prominent part with those of England, France, Russia, and Japan in the march to Peking for the relief of the legations. In a note to the powers July 3, 1900, Secretary Hay, in defining the attitude of the United States on the Chinese question, said: "The policy of the government of the United States is to seek a solution which may bring about permanent safety and peace to China, preserve Chinese territorial and administrative entity, protect all rights guaranteed to friendly powers by treaty and international law, and safeguard for the world the principle of equal and impartial trade with all parts of the Chinese empire." Mr. Hay's notes were skillfully worded and had some influence in helping to formulate public opinion on the Chinese question both in this country and abroad, but we know now from his private letters which have recently been made public that he realized only too fully the utter futility of his efforts to stay the course of events. During the exciting days of June, 1900, when the foreign legations at Peking were in a state of siege, Mr. Hay wrote to John W. Foster as follows:

"What can be done in the present diseased state of the public mind? There is such a mad-dog hatred of England prevalent among newspapers and politicians that anything we should now do in China to take care of our imperiled interests would be set down to 'subservience to Great Britain'. . . . Every Senator I see says, 'For God's sake, don't let it appear we have any understanding with England.' How can I make bricks without straw? That we should be compelled to refuse the assistance of the greatest power in the world, in carrying out our own policy, because all Irishmen are Democrats and some Germans are fools--is enough to drive a man mad. Yet we shall do what we can."

A little later (September 20, 1900) in confidential letters to Henry Adams, he exclaimed:

"About China, it is the devil's own mess. We cannot possibly publish all the facts without breaking off relations with several Powers. We shall have to do the best we can, and take the consequences, which will be pretty serious, I do not doubt. 'Give and take'--the axiom of diplomacy to the rest of the world--is positively forbidden to us, by both the Senate and public opinion. We must take what we can and give nothing--which greatly narrows our possibilities.