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Revolutionary Activities by Private Persons against Foreign States1

Published online by Cambridge University Press:  04 May 2017

H. Lauterpacht
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Extract

Revolutionary acts and preparations are liable to punishment by the criminal law of the community against which they are directed, and belong as such to the domain of municipal law. They become a matter of direct importance to international law when the menaced state finds that the efficacy of its laws and the possibilities of peaceful internal development are being frustrated by revolutionary propaganda or by acts of rebellion coming from abroad. Such acts may, when brought to consummation within its territory, be punished with all the rigor of the law. But the probability of their suppression is diminished and the chances of their success are enhanced as a result of their being hatched out and prepared under cover of the territorial supremacy of another state. It happens thus that what one state believes to be its internationally recognized right of peaceful existence is put in danger in consequence of another state’s right to exclusive jurisdiction over its territory, a right, in turn, fully protected by international law.

Type
Research Article
Information
American Journal of International Law , Volume 22 , Issue 1 , January 1928 , pp. 105 - 130
Copyright
Copyright © American Society of International Law 1928

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Footnotes

1

The problem of state responsibility for revolutionary activities by private persons against foreign states has in the years following the World War become, once more, a matter of international importance. One of the consequences of the substitution, in a number of countries, of the democratic form of government for different types of dictatorship was the growth of revolutionary activities conducted from abroad against the regimes thus established and, as a result, a series of demands put before foreign states and calculated to safeguard the security of the menaced governments. As will be shown later, many European states and the United States of America have been in the last hundred years confronted with similar demands. However, the present situation is to a large extent complicated by the fact that, alongside revolutionary activities of private persons, another problem has come to the foreground, namely, that of revolutionary acts and propaganda originating directly from a government and aimed at a foreign state—a problem which lies outside the scope of the present article. There is a possibility that the severity of condemnation which naturally attaches to this latter kind of illegal interference with the independence and the constitution of foreign states might warp the judgment of the international lawyer when engaged in determining the extent of state responsibility for revolutionary acts of private persons. The danger of being misled by a superficial analogy is the greater as text-book writers either pass lightly over this subject or indulge in vague generalities. It is intended to present in this article the theoretical argument and to collect the relevant facts as a starting point for a future detailed enquiry into this rather neglected branch of the doctrine of state responsibility.It will also be observed that the question dealt with in this article covers only one aspect of the vaster subject usually referred to as delicts against foreign states and embracing such topics as violations of neutrality, libelling foreign sovereigns, acts of violence against heads of foreign states and foreign diplomatic envoys, insults to the flag of friendly states, and the like. These offences are here referred to only so far as they bear directly on the subject under discussion.

References

2 On the other hand, valuable references to the subject will be found in monographs and articles dealing with hostile acts against foreign states in general, or, within a more restricted scope, with the question of hostile expeditions. The more important may here be mentioned:Lewis, On Foreign Jurisdiction and Extradition of Criminals (1859), pp. 70 et seq.; Heinze, ,Archiv fur preussisches Strafrecht, XVII (1869), espec. pp. 743-750 Google Scholar; Lammasch, , Zeitschrifl fur die gesamte Strafrecktswissenschaft, III (1883), pp. 376-440 Google Scholar; Clunet, Offenses et actes hostiles commis par des particuliers contre un Etat etranger (1887), and in Journal de droit international privi, XIV (1887), pp. 5-21; Craies, ibid., XVI (1889), pp. 357-380; Gastfreundschaft und Hausrecht der Schweiz (1889); Wheeler, Foreign Enlistment Act, 1870,with Notes on the Leading Cases of this and the American Act (1896); Olivart, Revue générale de droit international public, V (1898), pp. 499-518; Perrinjaquet, ibid., XVIII(1911), pp. 666-675, and XIX (1912), pp. 344-349; Fenwick, The Neutrality Laws of the United States (1912), pp. 81-88, 124-125; Curtis, American Journal of International Law,VIII (1914), pp. 1-37, 224-252; Fick, Gerichtssaal, LXXXVII (1919), pp. 76-97; and, above all, Gerland, Feindliche Handlungen gegen befrmndete Staaten, in Vergleichende Darstellung des deutschen und ausldndischm Strafrechts (1906), Part I, pp. 113-255. For the literature dealing with the relevant parts of the criminal law in individual countries see the works referred to in the following section.

3 See, for instance, Oppenheim, International Law, 3rd ed. (1920), I, 124 (duties resulting from territorial independence), 164 (state responsibility), 316 (right of asylum).

4 Volkerrecht, 12th ed. by Fleischmann (1925), p. 118. This view is shared by almost all German writers. Cf. especially Bluntschli, Das modeme Volkerrecht (1868), 396, 398;Hefiter, Das europaische Volkerrecht der Gegenwart, 8th ed. (1888), 63a; Triepel, Volkerrecht und Landesrecht (1899), p. 340. But see Schon, Die volkerrechUiche Haftung der Staaten aus unerlaubten Handlungen (1917), p. 69, 70.

5 Le droit international, 5th ed. (1896), III, 1298; also I, 108. See also Olivart, op. di.

6 Prindpes du droit des gens (1896), I, p. 266.

7 Tram (1885-1906), I, 238, 260.

8 Traiti, I, Part 1 (1922), No. 255; see also Nos. 245, 256, 295, 295(1), 441(24), 472.

9 Le droit international public positif (French translation, 1920), I, p. 244.

10 TQuoted by Fauchille, No. 295.

11 Histoire des grands prindpes du droit des gens (1923), p. 511. See also Hettlage,Zeitschrift fur Volkerrecht, XXXVII (1926), p. 25.

12 Commentaries upon International Law, 3rd ed. (1879-1889), I, 214-220. See also 369 which, however, should be read subject to the above interpretation of “ hostile attempts.”

13 International Law, 8th ed. by Higgins (1925), § 8. See also ibid., §§ 13 and 63.

14 Digest, II, | 221; see also his Treatise on Extradition (1891), p. 7, and Field, Code(1872), § 207.

15 Annuaire, XVIII (1900), p. 227; Resolutions of the Institute, ed. by J. B. Scott (1916),p. 157.

16 American Journal of International Law, II (1908), p. 838.

17 Martens, N.R.G., 3rd ser., V, pp. 325-358. The final conclusions of the judgment are printed in the American Journal of International Law, III (1909), pp. 434-436.

18 See also the award of the American and British Claims Commission under the Treaty of May, 1871 (Moore, Arbitrations, IV, pp. 4042-4054).

19 4 Dig- ad L. Jul. Maj. (48, 4).

20 Cf. Art. 14 of the treaty of July 8, 1670, between Great Britain and Spain (Hertslet,Treaties, etc., II, p. 198).

21 Cf. Holdsworth, A History of English Law (1924), VI, p. 308.

22 Cf. the judgments in R. v. Peltier, R. v. Vint, Reg. v. Jameson, R. v. Antonelli and Barberi—all referred to below; Sir G. Grey, Hansard, Pari. Deb., Vol. 115 (1851), p. 885;Lord Lyndurst, ibid., Vol. 124 (1853), p. 1046; Attorney-General, ibid., Vol. 148 (1858),p. 1823; Gladstone, ibid., Ser. III. Vol. 215 (1873), pp. 634, 891.

23 Article 101, § 8.

24 Quoted after Fick, op. tit., p. 82.

25 Cf., for instance, AUgemeines Preussisches LandrecM, Part II, 20, §§ 135, 136.

26 For a history of the British Neutrality and Foreign Enlistment Acts, see Phillimore,III, § 146, and Wheeler, op. tit., pp. 15-18, 22-26.

27 R. v. Sandoval, 3 T. L. R. 411, 436. See also, before the passing of this Act, Reg. v.Granatelli (1849), 7 State Trials, New Series, p. 1026.

28 Reg. v. Sandoval, quoted above.

29 Reg. v. Jameson, 12 T. L. R. 551.

30 Demetrius de Wiitz v. Hendricks (1824), 9 Moo. 586; Thompson v. Barclay (1831),Coop. Pr. C. 501; Thompson v. Powles, 25 Sim. 194; and the American case Kennett, et al. v.Chambers, 14 How. 38, and Scott, Cases (1922), p. 893. The limited scope of this article does not permit an examination of the legal bases of this rule, whose origin is obscure. The writer believes that the effect of the two first mentioned cases has been frequently overestimated,and that it owes its origin to an unduly extensive interpretation of the rule that an unrecognized foreign government cannot sue before an English court: City of Berne v.Bank of England (1804), 9 Ves. Jr. 347; Jones v. Garcia del Rio (1823), Turn and R. 296. Cf.here also Scott, Cases, p. 901, note; Pitt Cobbett, Cases, 4thed. by Bellot (1924), II, p. 498;Westlake, International Law, 2nd ed. (1913), p. 252. For a more correct statement of the law see the speech of Gladstone, as advised by the Law Officers (Hansard, Pari. Deb., Ser.I l l , Vol. 215 (1873), pp. 634, 897) in the matter of subscriptions in aid of Spanish Carlistrevolutionaries. Cf. also the LawOfficers' opinion in 1823 (printed in Phillimore, III, Appendix X).

31 R. v. Peltier (1803), 28 State Trials, p. 529; R. v. Vint (1799), 22 State Trials, p. 627.

32 R. v. Antonelli and Barberi (1905), 70 J. p. 4.

33 Reg. v. Most (1881), 7 Q. B. D. 244; R. v. Antonelli and Barberi (1905), 70 J. p. 4.

34 Reg. v. Sandoval, 3 T. L. R. 411.

35 Section 8 of the Act of June 15, 1917 (American Journal of International Law, XI(1917), Suppl., p. 186).

36 The law of the United States is exhaustively treated in the scholarly monographs of Fenwick and Curtis (referred to above), and it is therefore not necessary to discuss it here in detail.

37 U. S. v. O'Sullivan, Fed. Cas. 15975; U. S. v. Ybanez, 53 Fed. 536; U. S. v. Nunez, 82 Fed. 599; U. S. v. Trumbull, 48 Fed. 99,103; The Itata, 49 Fed. 646. See also H. Ex. Doc.74, 25th Cong., 2nd Sess., p, 7, and Cushing, Attorney-General in 8 Op. Att. Gen., 216.Neither does the Neutrality Act prohibit the shipping of arms or ammunition to a foreign country or forbid individuals from leaving the United States, singly or in unarmed associations,to join in any military operations: U. S. v. Pena (1895), 69 Fed. 983. The laws of the United States make it a penal offence secretly to transport any explosive from the United States to any foreign country (see Moore, Digest, II. § 221). See also the Joint Resolution of the Congress of March 14, 1912, empowering the President to declare unlawful the exportation of arms to any American country where “ conditions of domestic violence exist which are prompted by the use of arms and munitions of war procured from the United States.”

38 Some cases which came before the American courts in the course of the Cuban insurrection offer interesting instances of frustrated attempts at defeating by ingenious devices the ends of the neutrality law. See, e.g., the much cited case of The Horsa (Wiborg v. U. S.,163 U. S. 632, 655).

39 United States v. Lumsden, 1 Bond 5.

40 Wharton, A Digest of International Law (1886), I, §56, III, §389.

41 Moore, Digest, II, § 221.

42 Cf. Liszt, Lehrbuch des deutschen Strafrechts, 18th ed. (1911), § 170.

43 The writer is not aware of any movement in favor of altering this part of the code. It appears that the draft codes of 1919 published by the Federal Ministry of Justice follow closely the wording of Article 102. See Entwurfe zu einem deutschen Strafgesetzbuch (1920).

44 Article 66.

45 § 135. It was a reproduction of § 260 of the Criminal Code of 1858.

46 See Ljublinski in ZeUschrifl fur Ostrecht, June 1927, Vol. I, p. 325. On the other hand,Article 21 of the Soviet Constitution of July 10,1918, and Article 12 of the Soviet Constitution of May 11,1925, open the doors of Soviet Russia to foreigners prosecuted for political and religious crimes.

47 Makowski, Kodeks homy, etc. (1921), II, p. 140. Belgium, yielding in part to foreign pressure, enacted in 1858 a law by which she adopted to a large extent the principles underlying the corresponding provisions of the codes in Germany, Austria and Russia.

48 For an account of several cases of abortive prosecution cf. Appendix 4 to the Report of the Neutrality Law Commissioners, Great Britain, Reports from Commissions, XXXII (1867-1868), p. 45; Garraud, quoted below, Nos. 837 and 839, and Clunet in Journal, quoted above, pp. 13, 14.

49 This appears to be the almost unanimous opinion of French writers. See, for instance,Garraud, Traite du droit pénal frangais (1899), III, § 841.

50 Garraud, op. cit., § 837; Clunet, op. cit., and Pradier-Fod6r6,1, § 238.

51 London Times, November 15, 1926.

52 C/. Manzini, Trattato di diritto penale italiano (1911), IV, Nos. 1014 et seg., where the matter is treated exhaustively and with great learning.

53 §§ 148, 153, 154.

54 Articles 85 and 41 respectively. As to the Swiss legislation and practice see Stooss,Die Grundzuge des schweizerischen Strafrechts (1893), II, §125, who criticizes the vagueness of Art. 41; Fleiner, Schweizerisches Bundesstaatsrecht (1923), p. 748, and Salis, Schweizerisch.es Bundesrecht, 2nd ed. (1903), IV, Nos. 2044-2066 (revolutionary propaganda against foreign states) and Nos. 2048, 2050, 2066, 2075, 2078 (approval of assassination).

55 Article II; Hertslet, Treaties, II, p. 310.

56 Article V of the treaty of February 13, 1660; ibid., I, p. 179.

57 Article I of the treaty of July 10, 1654; ibid., II, p. 9.

58 Article II of the treaty of May 13, 1667; ibid., II, p. 140.

59 Article I, Martens, R. 7, p. 386.

60 See the treaty between Peru and Ecuador of March 16,1853, and between Peru and Bolivia of April 19,1840 (both referred to by Pradier-Fod6r6,1, §238). More recent treaties are, however, less exacting. The duties of the contracting parties are here confined to prevention of hostile expeditions proper and recruitments. See, e.g., the treaty between Bolivia,Colombia, Ecuador, Peru and Venezuela of July 18, 1911, in Revue générale de droit international public, X IX (1912), p. 345. The considerations of mutual insurance which frequently underlie these treaties are well expressed in Article XVI of the General Treaty of Peace and Amity of December 20, 1907, concluded between the five Central American Republics (American Journal of International Law, II (1908), Suppl. p. 226).

61 The treaty is printed in Russlands Friedens- und Handehvertrge, ed. by Freund (1924),p. 49.

62 Article IV (2) of the treaty of August 11,1920, ibid., p. 99.

63 Article III of the treaty of November 5, 1921, ibid., p. 130.

64 Article IV of the treaty of February 25, 1921, ibid., p. 144.

65 Article VIII of the treatv of March 16, 1921, ibid., p. 190.

66 Article V of the treaty of January 20,1925, Martens, N. R. G., 3rd ser. XV, p. 324.

67 When, at the International Economic Conference at Genoa in 1922, Russia was asked to suppress the attempts to assist revolutionary movements in other countries, the Russian delegation replied that the Soviets are not willing to curb the activities of political parties and workers. Cf. 1922 (Cmd. 1667). Similar treaties concluded by Soviet Russia with other states,—e.g., the Preliminary Treaty of Peace between Poland and Russia of October, 1920 (League of Nations Treaty Series, IV, p. 35), or the unratified General Treaty between Great Britain and Russia signed at London, August 8, 1924 (1924) Cmd. 2260,—relate to subversive activities originating from the government itself, from its organs, or persons and organizations assisted and subsidized by it. They are outside the scope of the present article.

68 Cf. the official Moniteur of August 9,1802.

69 Dispatch of Mr. Merry to Lord Hawkesbury, June 4, 1802, Annual Register (1803),p. 656, and note of M. Otto to Lord Hawkesbury, June 25, 1802, ibid., p. 660.

70 Lord Hawkesbury to Mr. Merry, June 17, 1802, ibid., p. 658; the same to M. Otto,August 17, 1802, ibid., p. 661, and on August 28, 1802, ibid., p. 664.

71 Correspondence between Great Britain, France etc., respecting Foreign Refugees in London (1851, 1852), British and Foreign State Papers, XLII, pp. 401-405, 430 et seq.

72 The Earl of Malmesbury to Count Buol, ibid., p. 439.

73 In the House of Commons on March 1, 1853 (Hansard, Parliamentary Debates, 3rd ser., Vol. 124, p. 815). The opinion may be ventured that the statement of the law on the subject as laid down a few days later by Lord Lyndhurst, supported by Lord Brougham and Lord Truro, and defining in very wide terms the duty of private persons to refrain from revolutionary attempts against foreign States (ibid., p. 1046) was made with the view to influencing the political refugees and strengthening the hands of the government, and that its contents and spirit find no confirmation either in the judicial or political practice of Great Britain.

74 See Lord Palmerston's note of September 30,1848 (Ex. Doc. No. 19. House of Repr.,30th Cong., 2nd sess., Vol. 4, p. 21). As to the activities in London after 1848 of the sundry revolutionary bodies, like the Committee of Central European Democracy, the Central Democratic European Committee, the Central National Italian Committee, and the Central Committee of Italian Refugees, see memorandum to the note of Count Walewski, of October,1851, House of Commons, Bills and Papers (1852) LIV, pp. 40 et seq. There should also be noted the attempted expeditions in 1846 and 1847 against Ecuador and Portugal respectively (see Report of the Neutrality Law Commissioners, Appendix No. 3, p. 38,Reports from Commissions (1867-1868), XXXII, p. 24); the frustrated expeditions against Spain from England and Gibraltar in 1830 (British and Foreign State Papers, XXIV, pp.812 et seq.)', the much quoted Terceira affair in 1827 (the entire correspondence is reprinted in the Annual Register (1829), 435-471); the Carlist activities in 1874 (see Hansard, Pari.Deb., ser. III , Vol. 215, p. 634; and the preparations of the Portuguese royalists in 1911(Fauchille, I, Part 1, No. 295).

75 Secretary Bayard to the British representative, April 2, 1885, Moore, Digest, Vol. II,§221.

76 Secretary Bayard to Mr. Valera, July 31, 1885; For. Rel., 1885, p. 776. See also President Cleveland's fourth Annual Message to the Congress referring to the Spanish demands arising out of the revolutionary activities of the supporters of the Cuban insurrection: Many Cubans reside in this country and indirectly promote the insurrection through the press,by public meetings, by the purchase and shipment of arms, by the raising of funds, and by other means which the spirit of our institutions and the tenor of our laws do not permit to be made the subject of criminal prosecution” (Richardson, Messages, IX, p. 718).Valuable references, especially with regard to cases which came before the courts of the United States, will be found in the monographs of Fenwick and Curtis referred to above.Apart from this, the following references to some of the incidents which gave rise to diplomatic correspondence may be found useful: Thus the United States were involved in 1835 in diplomatic correspondence with Mexico in consequence of the support given by American citizens to revolutionaries in Texas (H. Ex. Doc. 74, 25th Cong., 2nd Sess.); with Great Britain in connection with the Canadian rebellion in 1837 and the activities of Fenian societies and Irish insurgents: Curtis, op. cit., pp. 25, 242; For. Rel., 1865-6, I, 572; ibid.,II, pp. 96,103; ibid., 1866-7,1, pp. 25, 69-97; Moore, Digest, II, §221; with Spain in consequence of the hostile expeditions to Cuba from 1849 to 1851, in 1868, in 1873 and from 1884 up to the Spanish-American War: Fenwick, op. cit., p. 45; H. Ex. Doc. No. 160, 41st Cong., 2nd Sess., p. 133; For. Rel., 1871, pp. 778-791; ibid., 1874, pp. 117, et scq.; ibid., 1875,pp. 1158-1256; ibid., 1884, pp. 493-521; ibid., 1885, pp. 767-773; ibid., 1887, pp. 1026,1029,1471-1473; Olivart, op. ait.; with Nicaragua in 1885: Moore, Digest, VII, §1300; with Honduras and Nicaragua in 1866: For. Rel., 1868, II, pp. 536-545; again with Mexico in 1868,1872, 1877, 1878, 1893 and 1912: For. Rel., 1868-9, II, pp. 534, 574, 633-639; ibid., 1877,p. 405; ibid., 1878, pp. 674-684; ibid., 1893, pp. 425-435, 440-448; as to the insurrection in 1912, see Fenwick, op. cit., pp. 56-58 and, in particular, For. Rel., 1912, pp. 240-242; with Colombia in 1885: For. Rel., 1885, pp. 23;—275; with Haiti in 1888 and 1889: ibid., 1888,pp. 988-990; with Chile in 1891: ibid., 1891, pp. 314-317; with Venezuela in 1892: ibid.,1892, pp. 624-634, 645-648; and with Honduras in 1885 and 1889: ibid., 1885, pp. 138-143 and 1899, pp. 364-370.

77 The Gehlsen case, Salis, op. cit., IV, No. 2049.

78 Ibid., No. 2064.

79 For numerous cases from 1874 upwards, see Salis, op. cit., Nos. 2035-2088. For details as to diplomatic incidents-arising out of revolutionary activities against France at the end of the eighteenth and at the beginning of the nineteenth century, see Danliker, Geschichte der Schweiz, III, pp, 517-519, 585-587; for later instances up to 1870 see Gastfreundschaft und Hausrecht der Schweiz (1881), pp. 25, 26, 44-47, 57, 58. As to the activities, after the proCongress at Vienna, of the democratic societies of “ Young Europe,” “ Young Germany,”“ Young Austria,” and the like, see Die geheimen deutschen Verbindungen in der Schweiz seit 1828, Basle (1823).

80 See Gastfreundschaft, etc., passim; Fleiner, op. tit., p. 49; Salis, op. tit., No. 2040.

81 The entire correspondence in this matter between Switzerland and the Continental Powers is printed in British and Foreign State Papers, XXIV (1835-1836), pp. 979-1063,where instructive references will be found on what the Powers believed to be the rule of international law on the subject. “ Le Directoire Fédéral doit sentir que le premier des devoirs d'un Etat envers ses voisins est de ne pas devenir pour eux un objet d'inquiStude,”—thus wrote Count Metternich in 1834.

82 Gastfreundschaft, etc., pp. 57-65.

83 The Federal Assembly expressed its disapproval of the action of the Federal Council at whose instance this measure was taken. See Hilty in Politisches Jahrbuch, XII (1898),pp. 346 et seq.; Kebedgy in Revue generale de droii international public, V (1898), pp. 480-492;Salis, op. cit., No. 2082.