Legal Aspects of the Boycott

“For the first time in Europ there has appeared on the field of international battle, a new weapon, whose us has disconcerted diplomats and defeate the chanceries of the world.”

With these words the brilliant Revue Des Deux Mondes, in its May, 1909, issue, hailed the succesful consummation of a boycott goods of Austria-Hungary.

In the previous year, the Dual Empire had annexed Bosnia-Herzegovina. Unable to offer mititary resistance, the people of Turkey, with the tacit consent of their government, eatablished a complete system of boycott committees for the purpose of shutting out all Austrian products. The boycott proved disastrous to Austrian trade in the Near East. Austria vehemently protestd to the Turkish government and demanded a suppression of the by cott. The Porte took refuge in a denial of complicity with the movement, and expressly disclaimed responsibility for it from the standpoint of international law an treaty rights. The protests proved unavailing, and in the end the Austrian government was forced to consider Turkish claims. The boycott ended with the conclusion of the Austrian-Turkish Treaty of February 27th, 1909.

This was the first application of the boycott to international affairs among European nations. Previous thereto the Chinese had enployed the boycott as a protest against the stringgent immigration laws adopted by the UnitedStates in 1905. The boycott was conducted by the Chiness Commerial Associations, and the Chinese goverment, although heartily sympathetic, disavowed any connection with the movement. However, American representatives in China soon unearthed some proof of a connection between the Chinese merchants and a Shanghai official of the Ministry of Commerce.

President Theodore Roosevelt quickly seized upon this evidence of complicity of the Chiness government an worte to Mr. Rockhill, United States Minster at Peking, to advise the Chinese government that it would be hald responsible for all damage suffered by Americans through the boycott. There upon Prince Ching issued several proclamations forbidding the boycott. The effect of these proclametions was exactly nil, and the boycott continued unabated until there were some modification in the American regulations on the subject of Chinese immigration.

Sine then boycotts have been the fashing in China, with varying success. Most of them have been directed against Japan, which has not hesitated to hold the Chinese authorities responsible without any proof of complicity. Still vivid in our memory is the truly Prussian-like bombing of Shang-hai as “punishment” for the boycott of Japanese goods. As a matter of international law, the Japanese attitude is of course indefensible.

GOVERMENT NOT RESPONSIBLE

As is apparent from the Chinese-American an Austrian-Turkish precedents cited international law does not recognize th liability of a government for a boycott movement sponsored by private groups among the population.

This principle is also recognized by eninent text writers on interational law To quote:

“The responsibility of the State will only be involved in the case of boycott in which its functionaries or agents take part directly or indirectly” (Fauchille I, Part 3, p. 698).

“To bocott the goods of a state which has seemed unfriendly is a procedure often adopted by private persons without Government instigation; such action cannot be ground for international claims, as no State can claim in law (apart from treaty) that another shall forbid its subjects to refuse to deal with its subject by way of trade” (Wheaton International Law, Sixth Edtion, p. 623).

It is clear that as a matter of international law the United States government cannot be embarrassed because of the prosecution within its borders of a boybott directed against the German Reich.

BOYCOTT NOT AFFECTED BY TREATY

Nor does the existence of a commercial treaty with Germany affect this situation.

The gegal effect ofany commercial treaty can be no greater than to grant a mutual license-a bare pernission-to nationals of the contracting parties to trade within each other’s territories. The treaties are of course predicated on the disire or inclination of the people of each country to trade. There is no express provision in any trade treaty that a government shall force its people to trade or even that it boligates itself to suppress any combinations among its people looking toward a refusal to trade. Such a covenant certainly connot be read into a commercial treaty by implication.

“In the light of the law, as it is today the outstanding factor is freedom of the people in the control of its own commercial relations and the resulting fredom of its govermant from any affirmative duty to restrain them in their decisions” (Hyde & Wehle, “The Boycott in Foreign Affairs,” 27 American Journal of International Law, p. 1).

“Treaties permitting commercial relations cannot be construed as guaranteeing that the relations will continue” (Brown, XI Canadian Bar Review 325).

STATE DEPARTMENT NEUTRAL

In a recent Washington dispatch reporting conversations dispatch reporting conversations between the President and the German ambassador on the subject of the defaulted German obligations, it was said that the State Department “took no cognizance” of the boycott movement sponsored by the American Federation of Labor and othere bodies. From a standpoint of international law this position,as we have seen, is unimpeachable. Whether this neutrality will in time assume a more antagonistic character for the sake of our bargaining position in the deal over German bonds, or whether it will become more benevolent as the forces of labor and liberalism press for recognition of America’s interest in the great moral issue involved in the boycott, only the future will tell.

In this series of articles an attempt has been made to evaluate the strength and weakness of the anti-Nazi boycott in the United States from teh point of view of municipal and international law. Owing to the exigencies of spaced, the subject has been discussed only in brief, and some of its interesting ranifications could not be considered. Such are for example, the N. R. A. boycott policies, the abrogation by the United States of the Russian Trade Treaty in 1911, and Article 16 of the League of Nations Convenant (provding for “sanctions,” including the boycott.)

Briefly as they have been touched upon, the principles and precedents considered are nevertheless sufficient to permit of a few inescapable conclusions concerning the legality of the the anti-Nazi boycott in the United States.

1. The actual precedents on this question are too few to carry considerable weight.

2. The courts will judge the legality of the boycott as a whole by labancing considerations of public poplicy, and in a contest before a social-minded tribunal, the odds will overwhelmingly favor legality.

3. The lengths to which the boycott organizations will be allowed to go in making the boycott effective, will depend largely on the degree to which the courts are sympathetic with the purposes of the movement. Local laws and precedents will in many instances be decisive on this point.

4. The boycott activities could be greatly extended and strengthened by a vigilant enforcement of the customs laws with respect to the labeling of imported merchandise, and by insistence on a revision of present Treasury regulations so as to prohibit the marking of goods with the names of now defunct German States.

5. No breach of international obligations is entailed in the American government’s neutrality taward the boycott, nor can it be claimed that the boycott may in any way embarrass the government in its relations with Germany.