INTERNATIONAL INCIDENTS

CAMBRIDGE UNIVERSITY PRESS
London: FETTER LANE, E.C.
C. F. CLAY, Manager

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Bombay and Calcutta: MACMILLAN AND Co., Ltd.

[All Rights reserved]

INTERNATIONAL INCIDENTS

FOR

DISCUSSION

IN CONVERSATION CLASSES

BY

L. OPPENHEIM, M.A., LL.D.

WHEWELL PROFESSOR OF INTERNATIONAL LAW
IN THE UNIVERSITY OF CAMBRIDGE
ASSOCIATE OF THE INSTITUTE OF INTERNATIONAL LAW

Cambridge:
at the University Press
1909

Cambridge:
PRINTED BY JOHN CLAY, M.A.
AT THE UNIVERSITY PRESS.

PREFACE

For many years I have pursued the practice of holding conversation classes following my lectures on international law. The chief characteristic of these classes is the discussion of international incidents as they occur in everyday life. I did not formerly possess any collection, but brought before the class such incidents as had occurred during the preceding week. Of late I have found it more useful to preserve a record of some of these incidents and to add to this nucleus a small number of typical cases from the past as well as some problem cases, which were invented for the purpose of drawing the attention of the class to certain salient points of international law.

As I was often asked by my students and others to bring out a collection of incidents suitable for discussion, and as the printing of such a little book frees me from the necessity of dictating the cases to my students, I have, although somewhat reluctantly, made up my mind to publish the present collection.

I need hardly emphasise the fact that this collection is not intended to compete either with Scott's Cases on International Law, selected from decisions of English and American Courts, or with Pitt Cobbett's Leading Cases and Opinions on International Law, both of which are collections of standard value, but intended for quite other purposes than my own.

I have spent much thought in the endeavour to class my incidents into a number of groups, but having found all such efforts at grouping futile, I therefore present them in twenty-five sections, each containing four cases of a different character. Experience has shewn me that in a class lasting two hours I am able to discuss the four cases contained in these sections.

I have taken special care not to have two similar cases within the same section, for although there are no two cases exactly alike in the collection, there are several possessing certain characteristics in common. It is one of the tasks of the teacher and the students themselves to group together such of my cases as they may think are related to each other by one or more of these traits.

It has been suggested that notes and hints should be appended to each case, but the purpose for which the collection is published is better served by giving the incidents devoid of any explanatory matter. Should this book induce other teachers of international law to adopt my method of seminar work, it must be left to them to stimulate their classes in such a way as to enable the students to discover on their own initiative the solution of the problems.

I gladly accepted the suggestion of the publishers that the cases should be printed on writing paper and on one side of the page only, so that notes may be taken and additional cases added.

I am greatly indebted to Mr Dudley Ward, of St John's College, Cambridge, my assistant, who has prepared the cases for the press and read the proofs. In deciding upon the final form of each case so many of his suggestions have been adopted that in many instances I do not know what is my own and what is his work.

L. O.

Whewell House,
    Cambridge,
        June 12th, 1909.

TABLE OF CONTENTS

SECTION I

1. A Councillor of Legation in difficulties.

In 1868 the French journalist Léonce Dupont, the owner of the Parisian newspaper La Nation, became bankrupt. It was discovered that this paper was really founded by the councillor of the Russian legation in Paris, Tchitchérine, who had supplied the funds necessary to start it, for the purpose of influencing public opinion in Russian interests. The creditors claimed that Tchitchérine was liable for the debts of Dupont, and brought an action against him.

2. Neutral Goods on Enemy Merchantman.

A belligerent man-of-war sinks his prize, an enemy merchantman, on account of the impossibility of sparing a prize crew. Part of the cargo belongs to neutral owners, who claim compensation for the loss of their goods.

3. American Coasting Trade.

In 1898, after having acquired the Philippines and the island of Puerto Rico from Spain by the peace treaty of Paris, and in 1899, after having acquired the Hawaiian Islands, the United States declared trade between any of her ports and these islands to be coasting trade, and reserved it exclusively for American vessels.

4. A German Balloon in Antwerp.

The following telegram appeared in the Morning Post of April 7th, 1909, dated Brussels, April 6th:

"An incident which is regarded with some seriousness by Belgians has occurred at Antwerp. A balloon which for a time was observed to be more or less stationary over the forts finally came to earth in close proximity to them. It proved to be a German balloon, the Dusseldorf No. 3, controlled by two men, who, on being interrogated by the Commander of the fortifications, declared themselves to be merely a banker and a farmer interested in ballooning in an amateur fashion, who had been obliged to descend. The General commanding the Territorial Division adjoining Antwerp was informed of the incident. On an inquiry being opened it was found that the aeronauts were none other than two German officers, and that the balloon forms part of the German Army matériel. The Minister for War was immediately informed, and he has communicated the facts of the case to his colleagues. The inquiry is being continued. In the balloon was found a quantity of photographic apparatus."

SECTION II

5. The Use of the White Flag.

During war between states A and B, an outlying fort of a harbour of state A is being bombarded by the fleet of state B, and is in danger of capture. Suddenly the white flag is hoisted on the fort, and a boat flying a white flag and carrying an officer and some men leaves the fort and makes for the flagship of the bombarding fleet. Thereupon the fleet receives the order to cease firing. Shortly after this has been carried out, the boat flying the white flag, instead of continuing its course, returns to the fort. Under cover of this manœuvre the bombarded garrison succeeds in abandoning the fort and withdrawing in safety.

6. A South American "Pseudo-republic."

The following appeared in the Times of April 26th, 1904:

"The utility for the practical politician of the study of that branch of sociology to which M. Lebon has given the non-classical name of the psychology of crowds is amusingly demonstrated in the fact of the efforts of the still nebulous State of Counany to materialize and to attain a separate and independent existence among the South American Republics. What is taking place would seem to be a simple phenomenon of suggestion, induced by the example of Panama. The fate of the vague territory known as Counany had been settled, as every one supposed, by the arbitral sentence of the Swiss Tribunal by which this region, with which France and Brazil had played diplomatic battledore and shuttlecock for more than 175 years, was finally handed over to the latter Power.

"Brazil has never, it appears, taken effective possession of Counany, and the population, whose flag, if ethnographic differences were to be symbolized in it, ought to be a sort of Joseph's coat of many colours, are now apparently once more appealing to the civilized world to aid them to secure a separate existence. What recently occurred on the Isthmus of Panama, when a new State sprang full fledged into being, would seem to have been an object lesson acting automatically on the nerves of these Indians, whites, negroes, and half-castes, welding them into a compact whole and giving them a self-consciousness craving European sanction. Hypnotized by Panama, and, it may be, counting upon the eventual support of one of the Continental Powers which has already shown the world that Brazilian affairs are not beyond the range of its diplomatic vigilance, Counany steps once more to the fore.

"A Paris morning paper, the Journal, plays the rôle of introducer of the new Counany Ambassador. This Ambassador is a certain M. Brezet, who comes to France, in spite of the sentence of the arbitral tribunal, as President of a State which is described by all competent authorities as a pseudo-republic, summarily wiped off the map as an independent State. M. Brezet, moreover, is a Parisian who has served, it is said, in the French forces in Guiana. He is now for the second time enjoying the confidence of the Counanians, strong in the prestige won by his success in having repulsed the Brazilians who sought dutifully to carry out the terms of the clauses of the Berne Decree. 'After having prepared the military and administrative reorganization of Counany, he has come on a mission to Europe to defend the interests entrusted to him.' Such is the story reported by the Journal.

"Counany, now described as the vast territory between the Amazon and the two Guianas, is not merely a relatively accessible stretch of coast-line and Hinterland for a certain enterprising European colonial Power, which has already prospected in Brazil, Venezuela, and the unknown world between the Amazon and the Orinoco. Counany is likewise on the high road of sea communication between the south of South America and the eventual link between the Atlantic and the Pacific, known as the Panama Canal. The Counany coast-line is a covetable strip of the South American coast which at more favourable moments might even distract our attention from Morocco."

7. A Tavern Brawl.

In 1902, in an inn on the German side of the German-French frontier, an altercation arises between Franz Heller, an Austrian subject, and a Frenchman. They leave the inn together, still quarrelling. The Frenchman hits Heller with his stick and runs away across the frontier. Heller, however, draws a revolver and shoots the Frenchman dead. The French government demands his extradition for murder.

8. A Threatened Diplomatic Rupture.

The following appeared in the Times of Feb. 22nd, 1908, dated Sofia, Feb. 21st:

"A diplomatic rupture between Servia and Montenegro is threatened. The Servian Minister has been instructed to leave Cettigne should satisfaction not be accorded for certain injurious observations made by M. Tomanovich, the Montenegrin Premier, in the course of a recent speech. Relations between the two dynasties and countries have long been strained, and the quarrel has become acute since the refusal of the Servian Government to take the measures demanded by Montenegro against refugees and others accused of participation in the recent plot against the life of Prince Nicholas."

SECTION III

9. Death Sentence on Russian Terrorists.

The following appeared in the Times of Feb. 29th, 1908:

"St Petersburg, Feb. 27.

"A Court-martial sitting in the fortress of St Peter and St Paul to-day tried the Terrorists who were recently arrested. Seven, including two women and the Italian Calvino, were condemned to death.

"Rome, Feb. 28.

"A most painful impression has been created throughout Italy by the confirmation to-day of the report that a young Italian journalist, Mario Calvino, has been condemned to death by Court-martial in St Petersburg. All that is known is that Calvino was arrested on a charge of complicity in a plot for the assassination of the Grand Duke Nicholas, that he was condemned with a batch of six other prisoners after a very brief trial held within closed doors, and that he will be hanged next Saturday. Many friends and colleagues of Calvino in Italy, as well as in Russia, assert the impossibility of his complicity in a Nihilist plot, and there prevails a general belief that his condemnation has been due to a judicial error. In answer to representations made to Signor Tittoni from Milan, the Foreign Minister has stated that the Italian Ambassador at St Petersburg has received instructions to do his utmost on behalf of the condemned man. Up to the present moment it would appear that no result of his exertions has yet been reported."

10. The Case of De Jager.

De Jager, a burgher of the South African Republic, but a settled resident in Washbank in Natal when the war broke out, joined, in October, 1899, the Boer forces, which had occupied Washbank and held that town for about six months. He served with them in different capacities until March, 1900, when he went to the Transvaal, and took no further part in the war. In March, 1901, he was prosecuted for high treason, but endeavoured to exculpate himself by maintaining that, as the Boers had occupied Washbank when he joined their forces, he was not then living on English territory.

11. A Kidnapped Chinaman.

Sun Yat Sen, a political refugee from China, living in London, was induced, in 1896, to enter the house of the Chinese Legation in London. He was kept under arrest there in order to be conveyed as a prisoner to China, the Chinese envoy contending that, as the house of the Legation was Chinese territory, the English government had no right to interfere.

12. A Case of Bigamy.

In 1895 Alfred Ungar, a German by birth, who is naturalised in England without having ceased to be a German subject, goes over to Germany and there marries his niece, whom he brings back to London as his wife. In 1896 he deserts her, settles down in Bristol, and in that town goes through the form of marriage with another woman. In 1898 his German wife, being informed of his whereabouts and of his second marriage, has him arrested for bigamy.

SECTION IV

13. A Shot across the Frontier.

On Sept. 26th, 1887, a German soldier, on sentry duty at the frontier near Vexaincourt, fired a shot from the German side and killed an individual who was on French territory.

14. A Revolted Prize.

An enemy merchantman having been captured during war, a prize crew is put on board and she is navigated in the direction of a port of the state which made the capture. During the voyage the original crew succeed in overpowering the prize crew. The master again takes command, has the prize crew put in irons, and steers for a friendly port. Before the vessel gets there, however, she is again captured.

Can the crew be punished?

15. Investments Abroad.

Armand Brunetière, a French merchant in Paris, who has never been in England, instructs a broker on the London Stock Exchange to buy £1,000 worth of consols, and to keep the stock at his disposal. The order is carried out, and six months afterwards Brunetière dies. His heirs claim the stock, but the English brokers refuse to hand it over unless the English estate duty, which is claimed by the officials of the Inland Revenue, has first been paid.

16. Russian Coasting Trade.

Russia declared, by a ukase of 1897, operating from 1900, that trade between any of her ports and that of Vladivostok should be considered as coasting trade and therefore exclusively reserved for Russian vessels.

SECTION V

17. Exceeding the Speed Limit.

In 1904 Mr. Gurney, secretary of the British Legation at Washington, was brought before the police magistrate at Lee, Massachusetts, on the charge of having driven a motor car to the public danger. The charge being proved, he was fined.

18. A New-born Island.

An island rises in the sea on the boundary line of the territorial maritime belt of another island in the possession of state A. A portion of the new-born island stretches into the maritime belt surrounding the previously existing island, and the remainder into the open sea. A man-of-war of state B lands a non-commissioned officer and three men on the part of the island which stretches into the open sea, with the order to hoist the flag of state B and to take possession of it by occupation.

Is this occupation valid?

19. An Irate Queen.

Queen Christina of Sweden abdicated her throne in 1654, and, after having spent some time first in Brussels and later in Rome, where she embraced the Roman Catholic faith, in 1656 took up her residence in France. Here she discovered that her grand equerry and favourite, Monaldeschi, was betraying her personal secrets. She therefore on the 10th November sentenced him to death, and caused the execution to be carried out on the spot by soldiers of her bodyguard, under the command of Count Lentinelli, the captain of the guard.

20. An Incident in the Black Sea.

The following appeared in the papers dated St Petersburg, August 11th, 1907:

"A telegram from Sochi, in the Caucasus, states that last night the steamer Tchernomor, while on a trip from Tchubgia to Tuapse on the Black Sea, was plundered on the high seas by robbers, who forced the passengers to deliver up their money and valuables. One passenger was wounded by a revolver shot. The robbers, who numbered 15, took possession of the ship's safe and forced the captain to stop the ship and to land them. They further ordered him not to stop at Tuapse, but to proceed direct to Sochi, threatening him with murder if he disobeyed.

"A later telegram from Sochi states that the passengers were robbed of 10,000 roubles (£1,000), and that 1,700 roubles (£170) were stolen from the ship's safe."

SECTION VI

21. The Case of the Trent.

On Nov. 8th, 1861, during the American Civil War, the Federal cruiser San Jacinto stopped the British mail steam Trent on her voyage from Havana to the British port of Nassau in the Bahamas, forcibly took off Messrs. Mason and Slidell, political agents sent by the Confederate States to Great Britain and France, together with their secretaries, and then allowed the vessel to continue her voyage.

22. A Double Murderer.

In 1885 James Smith, an English subject, commits a murder in London, but succeeds in escaping. In 1886 he appears in Rome under the name of Edward Fox, and commits a murder there also. He is tried in Rome and condemned to penal servitude for life. In 1906, after having served 20 years and exhibited exemplary conduct, his sentence is remitted by the King of Italy. His real identity having been established during the trial, on his release the question of the possibility of his extradition for the previous murder is discussed in the English press.

23. A Masterful Customs Official.

On Dec. 24th, 1907, the following appeared in the morning papers, dated Winnipeg, Dec. 23rd:

"An American Customs official, suspecting two Canadian farmers of smuggling barley, surprised them near the boundary, and, threatening them with a revolver, compelled them to cross into American territory. The official had no warrant, and the farmers returned into Canada. The matter has been laid before the British Ambassador in Washington and the Canadian Government. Ten thousand dollars damages are claimed."

24. Russian Refugees and Foreign Asylum.

The following appeared in the Times of March 6th, 1908, dated Paris, March 5th:

"Signatures are being collected in Paris for an address 'to the Swiss people,' which already bears the names of MM. Anatole France, Octave Mirbeau, Painlevé, Jaurès, Seignobos, and others, urging them to refuse the extradition of the Russian Socialist Revolutionary Bromar Vassilieff, who killed the Prefect of Police of Penza in January, 1906. The address declares the deed of Bromar Vassilieff to have been purely political. France, it contends, refused to surrender Hartmann, who had taken part in the attempt against Alexander II. Italy refused to extradite Michel Gotz, a member of the organization that assassinated M. Sipiagin and M. Plehve. Sweden refused to give up Tcherniak, accused of having participated in the attempt against M. Stolypin. Only a few days ago, says this address, an Austrian jury acquitted Wanda Kraguelska, who boasted of having thrown a bomb at the Governor-General of Poland. The Swiss Republic, it adds, will not do what monarchies and Empires have not done. It was deceived when it handed over to the Russian authorities Belentsoff, who before his trial died from flogging in prison. Free Switzerland having always done itself honour by defending the political refugees of all nations against the largest Powers, the signatories to the address feel certain that she will not be false to this noble tradition by allowing Bromar Vassilieff to be extradited."

SECTION VII

25. A Conversion at Sea.

On July 4th and 6th, 1904, during the Russo-Japanese war, the Peterburg and the Smolensk, vessels belonging to the Russian volunteer fleet in the Black Sea, passed the Turkish Straits, flying the Russian commercial flag. They likewise passed the Suez Canal under their commercial flag, but after leaving Suez they converted themselves into men-of-war by hoisting the Russian war flag, and began to exercise the right of visit and search over neutral merchantmen. On July 19th the Peterburg captured the British P. and O. steamer Malacca, for alleged carriage of contraband, and put a prize crew on board for the purpose of navigating her to Libau.

26. A Frontier Affray.

On May 12th, 1908, the Petite République published a telegram from Lisbon announcing that a collision between Portuguese and Spanish troops had occurred at Porto Allegro. It appeared that several Spanish smugglers were surprised while attempting to smuggle quantities of tobacco and silk across the frontier into Portugal, and resisted the Portuguese guards. A detachment of Spanish troops arrived on the scene during the fight and crossed over on to Portuguese territory. Here they were fired upon by the Portuguese, who, in the darkness, mistook them for a second band of smugglers. The Spaniards together with the smugglers now opened fire and a terrible fight ensued in which even women took part. Before long, however, the Spaniards, who were evidently under the impression that they, too, had to deal with smugglers, discovered their error, and ceased fire, and the smugglers immediately fled to the mountains leaving several dead, including two women. Several of the soldiers on both sides were either killed or wounded.

27. General Vukotitch.

On Oct. 19th, 1908, during the state of tension in the Balkan peninsula resulting from the declaration by Austria-Hungary of her sovereignty over the provinces of Bosnia-Herzegovina, General Vukotitch, a Montenegrin envoy, was charged with a special mission for Belgrade by Prince Nicholas. He travelled to his destination by way of Fiume, but, on arriving at Agram, he was ordered from the train by gendarmes and conducted to the Prefecture of Police. There he was searched, and his purse and everything else he had in his possession were taken from him. At the same time his baggage was completely ransacked. He told the Gendarmerie officers his name, explained his status, and showed them the passport and the permit delivered to him by the Austro-Hungarian Legation at Cettigne, but all without any effect. He was, however, allowed to send a telegram to Baron von Aehrenthal, complaining of the treatment he had received as a violation of international usage, and, after some time, an order came from Vienna for his release.

28. An Anglo-French Burglar.

François Lebrun, having committed a burglary in Paris, is sentenced to ten years' hard labour, but after one year's imprisonment succeeds in escaping to England. On the request of the French police he is arrested in London and brought before the magistrate in order that he may be extradited. His counsel however objects to his extradition on the ground that Lebrun was born in London and was therefore, although his parents were French, an English subject.

SECTION VIII

29. Signals of Distress.

Vattel (iii. § 178) relates the following case: In 1755, during war between Great Britain and France, a British man-of-war appeared off Calais, made signals of distress for the purpose of soliciting French vessels to approach to her succour, and then seized a sloop and some sailors who came out to bring her help.

30. A Change of Parts.

Aaron Nietitsch, a native of one of the Balkan states, while residing in London for two years for the purpose of learning English, contracted heavy debts which he did not pay on leaving the country. Shortly afterwards he came again to England as he was appointed secretary to the diplomatic envoy of his home state in this country. His creditors, who knew quite well that they could not sue a member of a foreign legation for debts contracted during the time of his mission, thought that they could proceed against Aaron Nietitsch, because he had contracted his debts while staying in this country as a private individual.

How would the case have to be decided if Aaron Nietitsch had contracted debts while in England as an attaché, had left the country at the end of his mission, and had afterwards returned as a private individual?

31. Violation of a Foreign Flag.

A political criminal, imprisoned in Port-au-Prince, in Hayti, escapes from the prison and makes for the harbour, with the intention of taking refuge on board a foreign man-of-war lying there. On his way he meets the diplomatic envoy of the state to which the man-of-war belongs, and as the Haytian police are on his heels he asks for the envoy's protection and safe conduct to the vessel. The latter calls a passing fly and enters it with the fugitive, but is overtaken by the police. Thereupon he takes the flag of his home state out of his pocket and throws the folds of it over the fugitive for the purpose of protecting him. The police nevertheless arrest the man. The envoy sends a report of the affair to his government, which requests from Hayti not only severe punishment of the police for the violation of the envoy's privileges and the insult to its flag, but also the release of the rearrested political criminal and his safe conduct to its man-of-war lying in the harbour of Port-au-Prince.

32. A Pickpocket at Sea.

An Italian passenger on board the French mail-boat Le Nord, plying between Calais and Dover, picks the pocket of an Englishman while the boat is two miles out on her way from Dover to Calais. The thief is arrested in Calais. Can England claim his extradition?