International Law Part 22

Reprisals are acts of a state performed with a view to obtaining redress for injuries. The injuries leading to reprisals may be either to the state or to a citizen, and the acts of reprisal may fall upon the offending state or upon its citizens either in goods or person. The general range of acts of reprisal may be by (1) the seizure and confiscation of public property or private property, and (2) the restraint of intercourse, political, commercial, or general. In extreme cases, acts of violence upon persons belonging to one state, when in a foreign state, have led to similar acts upon the part of the state whose subjects are injured against the subjects of the foreign state. This practice is looked upon with disfavor, though it might be sanctioned by extremest necessity. Acts of retaliation for the sake of revenge are generally discountenanced.

-- 92. Embargo

Embargo consists in the detention of ships and goods which are within the ports of the state resorting to this means of reprisal. It may be (1) civil or pacific embargo, the detention of its own ships, as by the act of the United States Congress in 1807, to avoid risk on account of the Berlin Decree of Napoleon, 1806, and the British Orders in Council, 1807; or (2) hostile, the detention of the goods and ships of another state. It was formerly the custom to detain within the ports of a given state the ships of the state upon which it desired to make reprisals, and if the relations between the states led to war to confiscate such ships. Hostile embargo may now be said to be looked upon with disfavor, and a contrary policy is generally adopted, by which merchant vessels may be allowed a certain time in which to load and depart even after the outbreak of hostilities. The Naval War Code of the United States provides that "Merchant vessels of the enemy, in ports within the jurisdiction of the United States at the outbreak of war, shall be allowed thirty days after war has begun to load their cargoes and depart."[286] By the proclamation of the President of the United States declaring that war with Spain had existed since April 21, 1898, it was also declared that "Spanish merchant vessels, in any ports or places within the United States, shall be allowed till May 21, 1898, inclusive, for loading their cargoes and departing from such ports or places."[287]

Spain, by the royal decree of April 23, 1898, declared "A term of five days from the date of the publication of the present royal decree in the _Madrid Gazette_ is allowed to all United States ships anch.o.r.ed in Spanish ports, during which they are at liberty to depart."[288]

-- 93. Pacific Blockade

Pacific blockade is a form of reprisal or constraint which consists in the blockading by one or more states of certain ports of another state without declaring or making war upon that state. In the conduct of such blockades practice has varied greatly. In general, however, the vessels of states not parties to the blockade are not subject to seizure. Such vessels may be visited by a ship of the blockading squadron in order to obtain proof of ident.i.ty. Whether vessels under foreign flags are liable to other inconveniences or to any penalties is not defined by practice or opinion of text writers. "The Inst.i.tute of International Law," in 1887, provided that pacific blockade should be effective against the vessels of the blockaded party only. This position seemed to be one which could be generally accepted. From the nature of pacific blockade as a measure short of war, its consequences should be confined only to the parties concerned. The pacific blockade of Greece in 1886 extended only to vessels flying the Greek flag,[289] but the admirals of the Great Powers in the pacific blockade of Crete in 1897 endeavored to establish the right to control other than Greek vessels if they carried merchandise for the Greek troops or for the interior of the island. As no case arose to test the claim, this question cannot be regarded as settled.

The provisions of the pacific blockade of Crete in 1897 were as follows:--

"The blockade will be general for all ships under the Greek flag.

"Ships of the six powers or neutral may enter into the ports occupied by the powers and land their merchandise, but only if it is not for the Greek troops or the interior of the island. These ships may be visited by the ships of the international fleets.

"The limits of the blockade are comprised between 23 24' and 26 30'

longitude east of Greenwich, and 35 48' and 34 45' north lat.i.tude."[290]

The Secretary of State of the United States, in acknowledging the receipt of the notification of the action of the powers, said, "I confine myself to taking note of the communication, not conceding the right to make such a blockade as that referred to in your communication, and reserving the consideration of all international rights and of any question which may in any way affect the commerce or interests of the United States."[291] The weight of authority supports the position of the United States.

The first attempt to establish a blockade without resorting to war was in 1827, when Great Britain, France, and Russia blockaded the coasts of Greece with a view to putting pressure upon the Sultan, its nominal ruler. Since that time there have been pacific blockades varying in nature: blockade of Tagus by France, 1831; New Granada by England, 1836; Mexico by France, 1838; La Plata by France, 1838 to 1840; La Plata by France and England, 1845 to 1848; Greece by England, 1850; Formosa by France, 1884; Greece by Great Britain, Germany, Austria, Italy, and Russia, 1886; Zanzibar by Portugal, 1888; and Crete by Great Britain, Germany, Austria, France, Italy, and Russia, 1897. From these instances it may be deduced (1) that pacific blockade is a legitimate means of constraint short of war, (2) that those states parties to the blockade are bound by its consequences, (3) that as a matter of policy it may be advisable to resort to pacific blockade in order to avoid the more serious resort to war, and (4) that states not parties to the pacific blockade are in no way bound to observe it, though their ships cannot complain because they are required to establish their ident.i.ty in the ordinary manner.

PART IV

INTERNATIONAL LAW OF WAR

CHAPTER XVI

WAR

94. +Definition.+

95. +Commencement.+

96. +Declaration.+

97. +Object.+

98. +General Effects.+

-- 94. Definition

Gentilis, one of the earliest writers on the laws of war, defined war in 1588 as "a properly conducted contest of armed public forces."[292] The nature of such contests varied with circ.u.mstances, and wars were, accordingly, cla.s.sified by early writers as public, private, mixed, etc., distinctions that now have little more than historical value.[293]

Wars are now sometimes cla.s.sified as international and civil.

-- 95. Commencement

It is now a.s.sumed that peace is the normal relation of states. When these relations become strained it is customary for one or both of the states to indicate this condition by discontinuing some of the means of peaceful intercommunication, or by some act short of war. The withdrawal of a diplomatic representative, an embargo, or any similar action does not mark the commencement of war. War commences with the first act of hostilities, unless a declaration fixes an earlier date, and in case of a declaration subsequent to the first act of hostilities, war dates from the first act. A proclamation of the blockade of Cuban ports preceded the declaration of war between Spain and the United States in 1898.[294]

Similarly, hostilities were begun before the declaration of war between China and j.a.pan in 1894.[295] Indeed, few of the wars of the last two centuries have been declared before the outbreak of hostilities, and many have not been declared formally at all. Declaration at the present time is usually but a formal acknowledgment of a well-known fact. In the case of the war in South Africa, early in October, 1899, the government of the Transvaal requested the government of Great Britain to give "an immediate and affirmative answer" not later than 5 P.M. on October 11th to certain questions in the accompanying ultimatum as to settling differences by arbitration, the withdrawal of British troops, etc., stating that if the answer was not satisfactory, it would be regarded as "a formal declaration of war." The government of Great Britain replied that the conditions demanded were such that the government deemed it impossible to discuss them. Hostilities immediately followed.

Civil war naturally is not preceded by a declaration, but exists from the time of the recognition of the belligerency by an outside state, or from the date when the parent state engaged in some act of war against the insurgent party.[296] In the case of the Civil War in the United States, the proclamation of blockade of the Southern ports by President Lincoln was held to be sufficient acknowledgment of a state of war.[297]

-- 96. Declaration

In ancient times wars between states were entered upon with great formality. A herald whose person was inviolate brought the challenge, or formal declaration, which received reply with due formality. At the beginning of the eighteenth century this practice had become unusual, and in the days of Vattel (1714-1767) the theory of the necessity of a formal declaration was set aside. It was, however, maintained that a proclamation or manifesto should be issued for the information of the subjects of the states parties to the war, and for the information of neutrals. The practice is now generally followed, and may be regarded as obligatory.[298] Such action is reasonable in view of the changes which a state of war brings about in the relations of the parties concerned, and of neutrals. The proclamations usually specify the date from which the war begins, and hence have weight in determining the nature of acts prior to the proclamation, as the legal effects of war date from the first act of hostilities if the proclamation does not fix an earlier date. The const.i.tution of a state, written or unwritten, determines in what hands the right to declare war shall rest, _e.g._ in the United States in Congress.

By act of the United States Congress of April 25, 1898,[299] it was declared:--

"First, That war be, and the same is hereby, declared to exist, and that war has existed since the twenty-first day of April, _Anno Domini_ eighteen hundred and ninety eight, including said day, between the United States of America and the Kingdom of Spain.

"Second, That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry this Act into effect."[300]

-- 97. Object

The object of war may be considered from two points of view, the political and the military. International law cannot determine the limits of just objects for which a state may engage in war. Politically the objects have covered a wide range, though there is a growing tendency to limit the number of objects for which a state may go to war.

It is generally held that self-preservation is a proper object, but as each state must decide for itself what threatens its existence and well-being, even this object may be very broadly interpreted. History shows that it has not been difficult from the political point of view to find an object of war when the inclination was present in the state.

The nominal are often not the real objects, and the changing conditions during the progress of the war may make the final objects quite different from the initial objects. The simple cost of carrying on hostilities sometimes changes the conditions upon which peace can be made. The cla.s.sification of causes and objects formerly made have little weight in determining whether a state will enter upon war. The questions of policy and conformity to current standards are the main ones at the present time.

The object of war in the military sense "is a renewed state of peace,"[301] or as stated in the English manual, "to procure the complete submission of the enemy at the earliest possible period with the least possible expenditure of men and money." The "Inst.i.tute of International Law," Oxford session of 1880, gave as a general principle that the only legitimate end that a state may have in war is to weaken the military strength of the enemy.[302]

-- 98. General Effects

The general and immediate effects of war are:--

(_a_) To suspend all non-hostile intercourse between the states parties to the war.

(_b_) To suspend the ordinary non-hostile intercourse between the citizens of the states parties to the war.

(_c_) To introduce new principles in the intercourse of the states parties to the war with third states. These impose new duties upon neutrals and allies.

(_d_) To abrogate or suspend certain treaties:--

(1) To abrogate those treaties which can have force only in time of peace, _e.g._ of amity, commerce, navigation, etc.