International Law. A Treatise Volume Ii Part 4

[Sidenote: Reprisals admissible for all International Delinquencies.]

-- 34. Reprisals are admissible not only, as some writers[32] maintain, in case of denial or delay of justice, or of any other internationally interdicted ill-treatment of foreign citizens, but in every case of an international delinquency for which the injured State cannot get reparation through negotiation,[33] be it ill-treatment of its subjects abroad through denial or delay of justice or otherwise, or be it non-compliance with treaty obligations, violation of the dignity of a foreign State, violation of foreign territorial supremacy, or any other internationally illegal act.

[Footnote 32: See, for instance, Twiss, II. -- 19.]

[Footnote 33: As regards reprisals for the non-payment of contract-debts, see below, -- 41.]

Thus, to give an example, Great Britain, in the case of the Sicilian Sulphur Monopoly, performed acts of reprisal against the Two Sicilies in 1840 for a violation of a treaty. By the treaty of commerce of 1816 between the Two Sicilies and Great Britain certain commercial advantages were secured to Great Britain. When, in 1838, the Neapolitan Government granted a Sulphur Monopoly to a company of French and other foreign merchants, Great Britain protested against this violation of her treaty rights, demanded the revocation of the monopoly, and, after the Neapolitan Government had declined to comply with this demand, laid an _embargo_ on Sicilian s.h.i.+ps in the harbour of Malta and ordered her fleet in the Mediterranean to seize Sicilian s.h.i.+ps by way of reprisal. A number of vessels were captured, but were restored after the Sicilies had, through the mediation of France, agreed to withdraw the grant of the Sulphur Monopoly.

Again, when in 1908 de Castro, the President of Venezuela, dismissed M.

de Reuss, the Dutch Minister Resident at Caracas, Holland considered this step a violation of her dignity and sent cruisers into Venezuelan waters with the intention of resorting to reprisals. These cruisers captured the Venezuelan coast-guard s.h.i.+p _Alexis_ outside Puerto Cabello, and another Venezuelan public vessel, both of which, however, were restored in 1909, when de Castro was deposed, and the new President opened negotiations with Holland and settled the conflict.

[Sidenote: Reprisals admissible for International Delinquencies only.]

-- 35. Reprisals are admissible in the case of international delinquencies only and exclusively. As internationally injurious acts on the part of administrative and judicial officials, armed forces, and private individuals are not _ipso facto_ international delinquencies, no reprisals are admissible in the case of such acts if the responsible State complies with the requirements of its vicarious responsibility.[34] Should, however, a State refuse to comply with these requirements, its vicarious responsibility would turn into original responsibility, and thereby an international delinquency would be created for which reprisals are indeed admissible.

[Footnote 34: See above, vol. I. ---- 149 and 150.]

The reprisals ordered by Great Britain in the case of Don Pacifico are an ill.u.s.trative example of unjustified reprisals, because no international delinquency was committed. In 1847 a riotous mob, aided by Greek soldiers and gendarmes, broke into and plundered the house of Don Pacifico, a native of Gibraltar and an English subject living at Athens.

Great Britain claimed damages from Greece without previous recourse by Don Pacifico to the Greek Courts. Greece refused to comply with the British claim, maintaining correctly that Don Pacifico ought to inst.i.tute an action for damages against the rioters before the Greek Courts. Great Britain continued to press her claim, and finally in 1850 blockaded the Greek coast and ordered, by way of reprisal, the capture of Greek vessels. The conflict was eventually settled by Greece paying 150 to Don Pacifico. It is generally recognised that England had no right to act as she did in this case. She could have claimed damages directly from the Greek Government only after the Greek Courts had denied satisfaction to Don Pacifico.[35]

[Footnote 35: See above, vol. I. -- 167. The case is reported with all its details in Martens, _Causes Celebres_, V. pp. 395-531.]

[Sidenote: Reprisals, by whom performed.]

-- 36. Acts of reprisal may nowadays be performed only by State organs such as armed forces, or men-of-war, or administrative officials, in compliance with a special order of their State. But in former times private individuals used to perform acts of reprisal. Such private acts of reprisal seem to have been in vogue in antiquity, for there existed a law in Athens according to which the relatives of an Athenian murdered abroad had, in case the foreign State refused punishment or extradition of the murderer, the right to seize and to bring before the Athenian Courts three citizens of such foreign State (so-called ??d??????a).

During the Middle Ages, and even in modern times to the end of the eighteenth century, States used to grant so-called "Letters of Marque" to such of their subjects as had been injured abroad either by a foreign State itself or its citizens without being able to get redress. These Letters of Marque authorised the bearer to acts of self-help against the State concerned, its citizens and their property, for the purpose of obtaining satisfaction for the wrong sustained. In later times, however, States themselves also performed acts of reprisal.

Thereby acts of reprisal on the part of private individuals fell more and more into disuse, and finally disappeared totally with the end of the eighteenth century. The distinction between general and special reprisals, which used formerly to be drawn, is based on the fact that in former times a State could either authorise a single private individual to perform an act of reprisal (_special_ reprisals), or command its armed forces to perform all kinds of such acts (_general_ reprisals).

The term "General Reprisals" is by Great Britain nowadays used for the authorisation of the British fleet to seize in time of war all enemy s.h.i.+ps and goods. Phillimore (III. -- 10) cites the following Order in Council of March 27, 1854: "Her Majesty having determined to afford active a.s.sistance to her ally, His Highness the Sultan of the Ottoman Empire, for the protection of his dominions against the encroachments and unprovoked aggression of His Imperial Majesty the Emperor of All the Russias, Her Majesty is therefore pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, that general reprisals be granted against the s.h.i.+ps, vessels, and goods of the Emperor of All the Russias, and of his subjects, or others inhabiting within any of his countries, territories or dominions, so that Her Majesty's fleets may lawfully seize all s.h.i.+ps, vessels, and goods," &c.

[Sidenote: Objects of Reprisals.]

-- 37. An act of reprisal may be performed against anything and everything that belongs or is due to the delinquent State or its citizens. s.h.i.+ps sailing under its flag may be seized, treaties concluded with it may be suspended, a part of its territory may be militarily occupied, goods belonging to it or to its citizens may be seized, and the like. Thus in 1895 Great Britain ordered a fleet to land forces at Corinto and to occupy the custom-house and other Government buildings as an act of reprisal against Nicaragua; again, in 1901 France ordered a fleet to seize the island of Mitylene as an act of reprisal against Turkey; and in 1908 Holland ordered a squadron to seize two public Venezuelan vessels as an act of reprisal against Venezuela.[36] The persons of the officials and even of the private citizens of the delinquent State are not excluded from the possible objects of reprisals. Thus, when in 1740 the Empress Anne of Russia arrested without just cause the Baron de Stackelberg, a natural-born Russian subject, who had, however, become naturalised in Prussia by entering the latter's service, Frederick II. of Prussia seized by way of reprisal two Russian subjects and detained them until Stackelberg was liberated. But it must be emphasised that the only act of reprisal admissible with regard to foreign officials or citizens is arrest; they must not be treated like criminals, but like hostages, and under no condition or circ.u.mstance may they be executed or subjected to punishment of any kind.

[Footnote 36: See above, -- 34.]

The rule that anything and everything belonging to the delinquent State may be made the object of reprisals has, however, exceptions; for instance, individuals enjoying the privilege of exterritoriality while abroad, such as heads of States and diplomatic envoys, may not be made the object of reprisals, although this has occasionally been done in practice.[37] In regard to another exception--namely, public debts of such State as intends performing reprisals--unanimity does not exist either in theory or in practice. When Frederick II. of Prussia in 1752, by way of negative reprisals for an alleged injustice of British Prize Courts against Prussian subjects, refused the payment of the Silesian loan due to English creditors, Great Britain, in addition to denying the question that there was at all a just cause for reprisals, maintained that public debts may not be made the object of reprisals. English jurists and others, as, for instance, Vattel (II. -- 344), consent to this, but German writers dissent.[38]

[Footnote 37: See the case reported in Martens, _Causes Celebres_, I. p.

35.]

[Footnote 38: See Phillimore, III. -- 22, in contradistinction to Heffter, -- 111, note 5. The case is reported with all its details in Martens, _Causes Celebres_, II. pp. 97-168. The dispute was settled in 1756--see below, -- 437--through Great Britain paying an indemnity of 20,000.]

[Sidenote: Positive and Negative Reprisals.]

-- 38. Reprisals can be positive or negative. One speaks of positive reprisals when such acts are performed as would under ordinary circ.u.mstances involve an international delinquency. On the other hand, negative reprisals consist of refusals to perform such acts as are under ordinary circ.u.mstances obligatory; when, for instance, the fulfilment of a treaty obligation or the payment of a debt is refused.

[Sidenote: Reprisals must be proportionate.]

-- 39. Reprisals, be they positive or negative, must be in proportion to the wrong done and to the amount of compulsion necessary to get reparation. For instance, a State would not be justified in arresting by way of reprisal thousands of foreign subjects living on its territory whose home State had injured it through a denial of justice to one of its subjects living abroad. But it would in such case be justified in ordering its own Courts to deny justice to all subjects of such foreign State, or in ordering its fleet to seize several vessels sailing under the latter State's flag, or in suspending its commercial treaty with such State.

[Sidenote: Embargo.]

-- 40. A kind of reprisal, which is called _Embargo_, must be specially mentioned. This term of Spanish origin means detention, but in International Law it has the technical meaning of detention of s.h.i.+ps in port. Now, as by way of reprisal all acts, otherwise illegal, may be performed, there is no doubt that s.h.i.+ps of the delinquent State may be prevented from leaving the ports of the injured State for the purpose of compelling the delinquent State to make reparation for the wrong done.[39]

[Footnote 39: Thus in 1840--see above, -- 34--Great Britain laid an embargo on Sicilian s.h.i.+ps.]

The matter would not need special mention were it not for the fact that _embargo_ by way of reprisal is to be distinguished from detention of s.h.i.+ps for other reasons. According to a now obsolete[40] rule of International Law, conflicting States could, when war was breaking out or impending, lay an _embargo_ on, and appropriate each other's merchantmen. Another kind of _embargo_ is the so-called _arret de prince_[41]--that is, a detention of foreign s.h.i.+ps for the purpose of preventing them from spreading news of political importance. And there is, thirdly, an _embargo_ arising out of the so-called _jus angariae_--that is, the right of a belligerent State to seize and make use of neutral property in case of necessity, under the obligation to compensate the neutral owner of such property. States have in the past[42] made use of this kind of _embargo_ when they had not enough s.h.i.+ps for the necessary transport of troops, ammunition, and the like.

[Footnote 40: See, however, below, -- 102_a_ and article 1 of Convention VI., which only stipulates that it is _desirable_ that enemy vessels in the port of a belligerent at the outbreak of war should be allowed to depart freely; see also article 2 of Convention VI.]

[Footnote 41: See Steck, _Versuch uber Handels-und Schiffahrts-Vertrage_ (1782), p. 355; Caumont, _Dictionnaire universel de droit maritime_ (1867), pp. 247-265; Calvo, III. -- 1277; Pradier-Fodere, V. p. 719; Holtzendorff, IV. pp. 98-104.]

[Footnote 42: See below, -- 364.]

These kinds of international _embargo_ must not be confounded with the so-called _civil embargo_ of English Munic.i.p.al Law[43]--namely, the order of the Sovereign to English s.h.i.+ps not to leave English ports.

[Footnote 43: See Phillimore, III. -- 26.]

[Sidenote: Reprisals to be preceded by Negotiations and to be stopped when Reparation is made.]

-- 41. Like all other compulsive means of settling international differences, reprisals are admissible only after negotiations have been conducted in vain for the purpose of obtaining reparation from the delinquent State. In former times, when States used to authorise private individuals to perform special reprisals, treaties of commerce and peace frequently stipulated for a certain period of time, for instance three or four months, to elapse after an application for redress before the grant of Letters of Marque by the injured State.[44] Although with the disappearance of special reprisals this is now antiquated, a reasonable time for the performance of a reparation must even nowadays be given. On the other hand, reprisals must at once cease when the delinquent State makes the necessary reparation. Individuals arrested must be set free, goods and s.h.i.+ps seized must be handed back, occupied territory must be evacuated, suspended treaties must again be put into force, and the like.

[Footnote 44: See Phillimore, III. -- 14.]

It must be specially mentioned that in the case of recovery of contract debts claimed from the Government of one country by the Government of another country as being due to its nationals, reprisals by means of armed forces can, according to article 1 of Convention II., only be resorted to in case the debtor State refuses to go to arbitration.

[Sidenote: Reprisals during Peace in contradistinction to Reprisals during War.]

-- 42. Reprisals in time of peace must not be confounded with reprisals between belligerents. Whereas the former are resorted to for the purpose of settling a conflict without going to war, the latter[45] are retaliations to force an enemy guilty of a certain act of illegitimate warfare to comply with the laws of war.

[Footnote 45: See below, -- 247.]

[Sidenote: Value of Reprisals.]

-- 43. The value of reprisals as a means of settling international differences is a.n.a.logous to the value of retorsion. States will have recourse to reprisals for such international delinquencies as they think insufficiently important for a declaration of war, but too important to be entirely overlooked. That reprisals are rather a rough means for the settlement of differences, and that the inst.i.tution of reprisals can give and has in the past given occasion to abuse in case of a difference between a powerful and a weak State, cannot be denied. On the other hand, as there is no Court and no central authority above the Sovereign States which could compel a delinquent State to give reparation, the inst.i.tution of reprisals can scarcely be abolished. The influence in the future of the existence of a Permanent Court of Arbitration remains to be seen. If all the States would become parties to the Hague Convention for the peaceful adjustment of international differences, and if they would have recourse to the Permanent Court of Arbitration at the Hague in all cases of an alleged international delinquency which affects neither their national honour nor their vital interests and independence, acts of reprisal would almost disappear.

IV

PACIFIC BLOCKADE

Hall, -- 121--Lawrence, -- 138--Westlake, II. pp. 11-18--Taylor, -- 444--Moore, VII. -- 1097--Bluntschli, ---- 506-507--Heffter, -- 112--Bulmerincq in Holtzendorff, IV. pp. 116-127--Ullmann, -- 162--Bonfils, Nos. 986-994--Despagnet, Nos.

496-498--Pradier-Fodere, V. Nos. 2483-2489, VI. No. 2648--Rivier, II. -- 60--Nys, III. pp. 91-94--Calvo, III. ---- 1832-1859--Fiore, II. No. 1231, and Code, Nos. 1404-1414--Martens, II. 105--Holland, _Studies_, pp. 151-167--Deane, _The Law of Blockade_ (1870), pp.

45-48--Fauchille, _Du blocus maritime_ (1882), pp. 37-67--Falcke, _Die Hauptperioden der sogenannten Friedensblockade_ (1891), and in the _Zeitschrift fur Internationales Recht_, XIX. (1909), pp.

63-175--Bares, _Le blocus pacifique_ (1898)--Ducrocq, _Represailles en temps de paix_ (1901), pp. 58-174--Hogan, _Pacific Blockade_ (1908)--Soderquist, _Le Blocus Maritime_ (1908)--Staudacher, _Die Friedensblockade_ (1909)--Westlake in _The Law Quarterly Review_, XXV. (1909), pp. 13-23.

[Sidenote: Development of practice of Pacific Blockade.]