No. 495.
Mr. Schuyler to Mr. Fish.

No. 88.]

Sir: Referring to my previous dispatches on the Brussels conference, I have the honor to inclose to you herewith two copies of the dispatch of Prince Gortschakoff to Count Schonvalof, in reply to the note of the English cabinet, and a translation thereof.

The refusal of Great Britain to participate in any further proceedings on this subject is naturally very annoying to the Emperor, and it is fully believed here that it has been productive of considerable coldness between Russia and England. This feeling I cannot help considering is greatly exaggerated, as officially there has been nothing to show that any such coldness exists.

The “Nord,” of Brussels, formerly an official organ of Russia, and now more or less inspired by the Russian foreign office, contained a few days ago a very bitter article against England, accusing her among other things of bad faith in having by the promise of joining the Brussels conference succeeded in getting the question of the usages of maritime war removed from consideration, and now, having accomplished that, in declining to have anything more to do with the matter.

The “Moscow Gazette” endeavors to place the refusal of England on other grounds, as, for instance, discontent with the position of affairs in Central Asia, and pique on finding the Montenegrin dispute and the question of the rights of the principalities to make commercial treaties independently of the consent of the Porte decided without her participation.

The “Russain World,” while praising the tone adopted by England, finds fault with the violent article in the “Nord,” and calls upon the “Journal de St. Petersbourg” as the official organ of the foreign office to disavow it. The journal, however, has not mentioned the subject since the receipt of the English dispatch.

There seems still to be a lingering hope that perhaps in the end England may consent to join the conference, and it is confidently expected that the small powers will not follow the lead of England. I have noticed, however, that some of the official defenders of the scheme are those who, have least confidence in its success, and my information leads me to believe that the assent of the minor powers, and indeed of some of the great ones, with the exception of Germany, is by no means gained, in fact it is now said that owing to the refusal of England, the Spanish government, which had assented to only those parts of the project that had been unanimously agreed upon, will reconsider its decision.

I have, &c.,

[Page 1048]
[Inclosure in No. 88.—Translation.]

The Chancellor of the Empire to Count Schonvalof.

The English ambassador, by order of his government, has communicated to me at dispatch from Lord Derby, dated the 20th of January, of which I send you herewith a copy for your information.

I have made it my duty to bring this document to the knowledge of His Majesty the Emperor.

Our August Master is sensible of the manner in which Lord Derby appreciates the thought of humanity which has inspired him in calling the European governments to a general understanding for the purpose of inquiring into the means of moderating as much as possible the rigors of war.

His Imperial Majesty regrets so much the more the resolution of Her Britannic Majesty’s government not to take part in this deliberation. It would have been desirable that the voice of a great nation, such as England, should be heard in an investigation of which the object appeared to meet with its sympathies.

The government of Her Britannic Majesty is alone judge of the motives which dictate to it this absence. It is not our part to enter into a discussion on this subject. However, as the dispatch of Lord Derby contains an opinion on the points of view and acts of the Brussels conference, I have thought it worth while to make some observations on the manner in which we consider them.

They are set forth in the accompanying communication, of which your excellency is authorized to give a copy to the principal secretary of state of Her Britannic Majesty at the same time as one of the present dispatch.

Receive, &c.

Observations by Prince Gortschakoff, on the dispatch of Lord Derby to Lord Augustus Loftus dated from the foreign office the 20th of January, 1875.

First. The project of the Russian government on the laws and customs of war is by no means directed to the introduction of new principles of international law.

There does not exist, properly speaking, any positive international law. There is a law of nations (droit desgens) more or less tacitly admitted, and of which some parts have acquired the force of law by formal treaties.

In the last century the laws of maritime neutrality did not exist legally until they were proclaimed and made the object of treaties, with other governments by the Empress Catharine II. England disputed them for a long time as derogatory to the existing laws and customs. To-day they are generaly admitted, but they have not the, force of obligatory law except by treaties which sanction them and for the governments who sign such treaties.

The law of nations has not been formed in any other way. Jurists have laid down on their own authority maxims based on experience, morality and public interest. They have gradually passed into habit and practice. Some of them, specified, defined, and rendered obligatory by treaties, have become positive laws.

The project of the Russian government has had no other aim than that of operating thus with regard to the existing laws and customs of war; that is to say, to inquire by common consent into that which could be specified, defined, completed, and receive an obligatory sanction by an exchange of declarations between the cabinets.

Second. The most part of the objections made by the English dispatch to the Brussels project bears in the same degree on the entire law of nations.

It is no doubt difficult to formulate clear and precise rules which should define the character and scope of acts of war similar to that of occupation, and to trace the duties and rights of the occupier and the occupied. These difficulties are inherent in the-very nature of things. The law of nations offers no remedy for them, and the English dispatch settles them none the more, in declaring the absolute incompatibility of the interests of the invader with those of the invaded. This dogma would be the absolute proclamation of the rights of strength without bounds. The law of nations admits the necessities of war, reason demonstrates them, and experience confirms them. Strength will always be able to take advantage of them.

By leaving things in this indefinite state, the relations between the occupier and the occupied, between the military power and private persons, would not be better for it; it would not give rise to less acts of violence and of reprisal, to less complaints, recriminations, reciprocal appeals to international law”, and contradictory interpretations of its vague principles.

However, those are very grievous aggravations of the rigors of war. The more difficult [Page 1049] this is to remedy, the more incumbent is this necessity on governments and peoples in proportion as the progress of civilization increases the means of war and multiplies its calamities.

If the competent delegates of all the governments, deliberating in a spirit of reciprocal benevolence, have not arrived at an agreement as to the practical manner in which these questions ought to be considered, how much more difficult will be the respective position of armies and populations in the midst of the passions of the struggle, in the face of an uncertainty which opens the door to every excess and suffering.

It is precisely because the law of nations is wanting in exactitude and clearness, that the Brussels project attempts to make up, as far as possible, for these uncertainties, these gaps and contradictions.

It is because it is in need of sanction, that the conference has desired to give to it the only sanction possible in practice—that resulting from reciprocal declarations exchanged between the governments, and made the basis of the instruction of their armies.

However imperfect may still be the proposed rules, the governments who have discussed them and will have accepted them, will have so acted in a spirit of humanity. There is therefore reason to think that they would interpret them in the same spirit. The advance of civilization and the bond of interest cannot but augment this feeling of inter-dependency, (solidarite,) which would tend to bring about some mitigation of the sufferings arising from the scourge of war.

The Russian government has thought, and still thinks, that in proportion as this result is reached, a real service will have been rendered to humanity.

Third. The English dispatch supports exclusively the points of view enunciated for the benefit of weak states.

However, war may not always take place between a great and a small state. It may be made between powers presumably of equal strength. These are also the most terrible, and it is impossible not to take this contingency into consideration.

Among the states open to the carrying on of war, there are some who, by their position, have only to look out for aggressive wars, and others have in view only defensive ones. The first would like to place no limit to the use of strength; the second would wish to recognize in it no right.

But there are others who are liable to run the same risks, according to the fortune of battles. These are the best judges of the question, and a certain solidarity has been manifested among them. They know, in fact, that the conqueror of to-day may become the conquered of to-morrow. They are therefore interested in considering with impartiality the rights and duties of the weaker as well as those of the stronger; and if the principles which they believe to be able to admit have for their object to render war less cruel by regulating its operations, it seems beyond doubt that the weaker states will profit by it in an equal degree.

The theory according to which, while admitting that the stronger may, in certain cases, be obliged to use rigor, and that the weaker may be obliged to submit thereto, it would still be preferred to yield to strength rather than to acknowledge it, would finally end in establishing the absolute rights of strength, which would be the only measure of rigor to be used, and of obligatory submission. One cannot but be struck at seeing this assertion made by those who give themselves out as defenders of the weak.

It is evident that in order to sketch out the limits which strength ought not to pass, it is necessary to specify those within which it is permitted to operate.

In claiming for itself unrestricted rights, the weakest state would authorize the strongest to accept no other limits to its rights than those necessitated by its own convenience or its own security. This would be to return to savage warfare, and it is-not perceived that the weak states in particular would gain anything by it.

Fourth. The Russian project has by no means in view the development of the military power of the great states and the procurement of advantages for those who possess great armies and compulsory military service.

These powers exist. The advantages which they derive from their military organization also exist. It is not the conference which has created them.

This state of things may be regretted; but from the moment of its existence the only means which have appeared able to remedy it are: 1st, to prevent conflicts between these great military masses; and, 2d, when the conflicts break out, to restrain the effects of their destructive power.

The first of these means depends upon the political action of governments, upon their wisdom and moderation, supported on the solidarity of general interests, which, in our time, are attached to the maintenance of peace.

The second has been the object of the Brussels meeting.

The question put forward by the Russian government has been to know if, instead of leaving these great military forces without rule or restraint to the passions of struggles which would assume a character of extermination, it would not be in the general interest to agree, by mutual consent, on certain rules derived from existing [Page 1050] laws and customs, and designed to diminish, as far as possible, the extent and consequences of such struggles; to prevent the stronger as well as the weaker from carrying to an extreme the exercise of the rights of war; to restrain the violence which leads to reprisals, and to reconcile the necessities of war with the interests of humanity. However difficult may be this problem, the Russian government has thought, and still thinks, that it belongs to the duty and interest of all states to seek in common its solution.

Fifth. It is to be remarked that the project of the Brussels conference is sometimes reproached for developing “militarism” and sometimes for paralyzing national defense.

It is, however, evident that a state which developes its military organization creates elements for defense as well as for attack.

Most of the European states have for a long time occupied themselves with the means of preparing defensive forces by the side of their active armies. Some have already provided for this by legislative measures, which have brought their national defense to the highest degree of effective power. The Brussels conference has, therefore, gone no further than to prove and regulate a fact which is in the pressure of circumstances and the necessities of the period. Far from restraining national defense, it tends, on the contrary, to strengthen it; on the one hand, in rendering it more effectual; on the other, in removing it from the consequences of the abuse of strength, and in assuring for it a regular treatment on the part of the enemy. The proposed conditions of this end have been reduced to their simplest expression.

Their application is easy and not very burdensome. Their aim is especially to distinguish the citizen who defends his country from the marauder, the robber, and the assassin to assure to the first the respect to which he has a right, and to spare him the severity which the laws and customs of war justify with respect to the second.

These conditions by no means involve compulsory military service. National defense can perfectly well remain optional, while at the same time it receives some organization. It has even been freed from this condition of organization in the case of a spontaneous rising “en masse” on the approach of an enemy.

The liberty of rising against its risks and perils always re mains reserved to an energetic population, and these risks and perils are no others than those admitted by the present laws and customs. What the Brussels project adds thereto is the obligation of the invader of treating regularly the national defense when it is furnished with a sufficient organization to guarantee that it will conform to the laws and customs of war.

Sixth. As to the mode adopted in the labors of the conference, the Russian delegates proposed to draw up only the points of agreement, in order to facilitate an understanding. When the differences of opinion were expressed on the more essential questions, they proposed to set out all the opinions in the protocols, in order that where there was no agreement there should be the knowledge which ought to precede every serious understanding.

They were the first to point to the in convenience of compromises as to pure form in grave questions where only real compromises were those which would relate to the subject-matter.

However, as there were no other means of recording the result of the contradictory debates, it was agreed that, while resolving upon the compromises in the project, the separate opinions contained in the protocols would serve as commentaries to it.

This is the mode employed in all legislation, where, by the side of the code which lays down general rules, there is the interpretation of laws applied to particular cases.

Even though the conference should have no other conclusion for the moment, its labors will remain as a solemn investigation which states how war, its necessities and consequences, are actually considered by all civilized states. Its protocols will be consulted in case of war as testimony of great moral worth.

It is permitted to have the assurance that this work will not be unfruitful, and that, developed and sanctioned by experience, it will contribute to determine the laws of war in a sense profitable to civilization and to humanity. This is why it is to be regretted that the voice of England should not be heard in the conference.

Seventh. The special articles of the project which have terminated in an agreement by means of compromise, far from being confined to the sanction of practices generally admitted, gave rise to divergent opinions and to laborious discussions.

The very fact that the agreement could only be arrived at by means of compromise is sufficient proof of it. Nothing, on the contrary, demonstrates better how obscure is the law of nations, even in questions apparently the most simple and the least open to dispute.

Eighth. As to the chapter on reprisals, it was not the only one which was able to give rise to burning discussions. There is hardly a single question discussed which was not able to provoke irritating applications to the last wars. The Russian government had confidence in the knowledge and feelings of the governments to whom they had appealed, and this confidence has been perfectly justified by their delegates. [Page 1051] Much more is it to be presumed that the same would be the case in the event of a second meeting.

This chapter was not suppressed by this motive, but in consequence of the feeling which prompted in general several delegates to prefer the toleration of an unlimited evil rather than to restrict and lessen it by declaring it in detail for the purpose of regulation.

Reprisals will therefore remain in effect as one of the hardest necessities of war.

The law of nations recognizes them and experience confirms them. But they will he made without rules or limits. It remains to be shown what the conquerors as well as the conquered of the future will gain in this respect.

The English dispatch declares that, in suppressing this chapter, the conference has eluded one of the principal difficulties, that of defining how the observance of established rules is to be enforced.

It acknowledges that the only means is to make use of reprisals in case of violation.

That argument applies, for the same reasons, to the whole law of nations in its present state.

It is the best proof of its imperfection; and it is remarkable that, while, on the one hand, recognition is refused in the name of the law of nations to the principle of reprisals, on the other this principle is admitted as the only sanction of the rules of war.

This state of things is what the Brussels project has directly in view to remedy, in giving to the laws and customs of war the moral sanction resulting from reciprocal engagements.

If, in conformity with this project, the principles of the law of nations elucidated and completed, as far as possible, were placed under the guarantee of public declarations exchanged between the governments and brought in a binding way to the knowledge of their armies, it is permitted to believe that they would have restricted the number of cases where they are obliged to ask for single reprisals, the sanction which they have wanted until now.

Ninth. If, nevertheless, the English government declares in conclusion that they will hold by the principles of international law on which they have up till now regulated their acts, and that they will impose the same obligation on their allies, it would be desirable that they should complete the thought by declaring what are those principles. How do they and their allies interpret the doubtful points and fill up the gaps of international law principally with regard to the questions which have formed the object of the discussions at Brussels? How do they understand, according to international law, the reciprocal rights and duties of the invader and invaded; of the occupier and the occupied; of aggression and national defense, and the relations of the enemy’s military power to private persons and property? What are, in short, the past acts of war by which one might judge how they intend to practice in the future?

The uncertainty which the law of nations fails to remove on all these capital questions, and which the English government refuses to help to explain, even by a simple common deliberation, has not prevented, and will probably not diminish, aggressive wars. It seems doubtful that it protects more efficaciously than the past the patriotic defense of invaded peoples against the rigors or the abuse of strength.