International Law. A Treatise Volume Ii Part 5

-- 44. Before the nineteenth century blockade was only known as a measure between belligerents in time of war. It was not until the second quarter of the nineteenth century that the first case occurred of a so-called pacific blockade--that is, a blockade during time of peace--as a compulsive means of settling international differences; and all such cases are either cases of intervention or of reprisals.[46] The first case, one of intervention, happened in 1827, when, during the Greek insurrection, Great Britain, France, and Russia intervened in the interest of the independence of Greece and blockaded those parts of the Greek coast which were occupied by Turkish troops. Although this blockade led to the battle of Navarino, in which the Turkish fleet was destroyed, the Powers maintained, nevertheless, that they were not at war with Turkey. In 1831, France blockaded the Tagus as an act of reprisal for the purpose of exacting redress from Portugal for injuries sustained by French subjects. Great Britain and France, exercising intervention for the purpose of making Holland consent to the independence of revolting Belgium, blockaded in 1833 the coast of Holland. In 1838, France blockaded the ports of Mexico as an act of reprisal, but Mexico declared war against France in answer to this pacific blockade. Likewise as an act of reprisal, and in the same year, France blockaded the ports of Argentina; and in 1845, conjointly with Great Britain, France blockaded the ports of Argentina a second time. In 1850, in the course of her differences with Greece on account of the case of Don Pacifico,[47] Great Britain blockaded the Greek ports, but for Greek vessels only. Another case of intervention was the pacific blockade inst.i.tuted in 1860 by Sardinia, in aid of an insurrection against the then Sicilian ports of Messina and Gaeta, but the following year saw the conversion of the pacific blockade into a war blockade. In 1862 Great Britain by way of reprisal for the plundering of a wrecked British merchantman, blockaded the Brazilian port of Rio de Janeiro. The blockade of the island of Formosa by France during her differences with China in 1884 and that of the port of Menam by France during her differences with Siam in 1893 are likewise cases of reprisals. On the other hand, cases of intervention are the blockade of the Greek coast in 1886 by Great Britain, Austria-Hungary, Germany, Italy, and Russia, for the purpose of preventing Greece from making war against Turkey; and further, the blockade of the island of Crete in 1897 by the united Powers. The last case occurred in 1902, when Great Britain, Germany, and Italy blockaded, by way of reprisal, the coast of Venezuela.[48]

[Footnote 46: A blockade inst.i.tuted by a State against such portions of its own territory as are in revolt is not a blockade for the purpose of settling international differences. It has, therefore, in itself nothing to do with the Law of Nations, but is a matter of internal police. I cannot, therefore, agree with Holland, who, in his _Studies in International Law_, p. 138, treats it as a pacific blockade _sensu generali_. Of course, necessity of self-preservation only can justify a State that has blockaded one of its own ports in preventing the egress and ingress of _foreign_ vessels. And the question might arise whether compensation ought not to be paid for losses sustained by foreign vessels so detained.]

[Footnote 47: See above, -- 35.]

[Footnote 48: This blockade, although ostensibly a war blockade for the purpose of preventing the ingress of foreign vessels, was nevertheless essentially a pacific blockade. See Holland, in _The Law Quarterly Review_, XIX. (1903), p. 133; Parliamentary Papers, Venezuela, No. 1 (Venezuela), Correspondence respecting the Affairs of Venezuela.]

[Sidenote: Admissibility of Pacific Blockade.]

-- 45. No unanimity exists among international lawyers with regard to the question whether or not pacific blockades are admissible according to the principles of the Law of Nations. There is no doubt that the theory of the Law of Nations forbids the seizure and sequestration of vessels other than those of the blockaded State caught in an attempt to break a pacific blockade. For even those writers who maintain the admissibility of pacific blockade a.s.sert that vessels of third States cannot be seized. What is controverted is the question whether according to International Law the coast of a State may be blockaded at all in time of peace. From the first recorded instance to the last, several writers[49] of authority have negatived the question. On the other hand, many writers have answered the question in the affirmative, differing among themselves regarding the one point only whether or not vessels sailing under the flag of third States could be prevented from entering or leaving pacifically blockaded ports. The Inst.i.tute of International Law in 1887 carefully studied, and at its meeting in Heidelberg discussed, the question, and finally voted a declaration[50] in favour of the admissibility of pacific blockades. Thus the most influential body of theorists has approved what had been established before by practice. There ought to be no doubt that the numerous cases of pacific blockade which have occurred during the nineteenth century have, through tacit consent of the members of the Family of Nations, established the admissibility of pacific blockades for the settlement of political as well as of legal international differences.

[Footnote 49: The leader of these writers is Hautefeuille, _Des Droits et des Devoirs des Nations Neutres_ (2nd ed. 1858, pp. 272-288).]

[Footnote 50: See _Annuaire_, IX. (1887), pp. 275-301.]

[Sidenote: Pacific Blockade and vessels of third States.]

-- 46. It has already been stated that those writers who admit the legality of pacific blockades are unanimous regarding the fact that no right exists for the blockading State to seize and sequestrate such ships of third States as try to break a pacific blockade. Apart from this, no unanimity exists with regard to the question of the relation between a pacific blockade and ships of third States. Some German writers[51] maintain that such ships have to respect the blockade, and that the blockading State has a right to stop such ships of third States as try to break a pacific blockade. The vast majority of writers, however, deny such right. There is, in fact, no rule of International Law which could establish such a right, as pacific in contradistinction to belligerent blockade is a mere matter between the conflicting parties. The declaration of the Inst.i.tute of International Law in favour of pacific blockade contains, therefore, the condition: "Les navires de pavillons neutres peuvent entrer librement malgre le blocus."

[Footnote 51: See Heffter, -- 112; Perels, -- 30.]

The practice of pacific blockade has varied with regard to ships of third States. Before 1850 ships of third States were expected to respect a pacific blockade, and such ships of these States as tried to break it were seized, but were restored at the termination of the blockade, yet without any compensation. When in 1850 Great Britain, and likewise when in 1886 Great Britain, Austria, Germany, Italy, and Russia blockaded the Greek ports, these ports were only closed for Greek ships, and others were allowed to pa.s.s through. And the same was the case during the blockade of Crete in 1897. On the other hand, in 1894, France, during a conflict with China, blockaded the island of Formosa and tried to enforce the blockade against ships of third States. But Great Britain declared that a pacific blockade could not be enforced against ships of third States, whereupon France had to drop her intended establishment of a pacific blockade and had to consider herself at war with China. And when in 1902 Great Britain, Germany, and Italy inst.i.tuted a blockade against Venezuela, they declared it a war blockade[52] because they intended to enforce it against vessels of third States.

[Footnote 52: That this blockade was essentially a pacific blockade I have already stated above, p. 50, note 1.]

[Sidenote: Pacific Blockade and vessels of the blockaded State.]

-- 47. Theory and practice seem nowadays to agree upon the rule that the ships of a pacifically blockaded State trying to break the blockade may be seized and sequestrated. But they may not be condemned and confiscated, as they have to be restored at the termination of the blockade. Thus, although the Powers which had inst.i.tuted a blockade against Venezuela in 1902 declared it a war blockade, all Venezuelan public and private ships seized were restored after the blockade was raised.

[Sidenote: Manner of Pacific Blockade.]

-- 48. Pacific blockade is a measure of such enormous consequences that it can be justified only after the failure of preceding negotiations for the purpose of settling the questions in dispute. And further, as blockade, being a violation of the territorial supremacy of the blockaded State, is _prima facie_ of a hostile character, it is necessary for such State as intends in time of peace to blockade another State to notify its intention to the latter and to fix the day and hour for the establishment of the blockade. And, thirdly, although the Declaration of Paris of 1856 enacting that a blockade to be binding must be effective concerns blockades in time of war only, there can be no doubt that pacific blockades ought to be likewise effective. The declaration of the Inst.i.tute of International Law in favour of pacific blockade contains, therefore, the condition: "Le blocus pacifique doit etre declare et notifie officiellement, et maintenu par une force suffisante."

[Sidenote: Value of Pacific Blockade.]

-- 49. As the establishment of a pacific blockade has in various instances not prevented the outbreak of hostilities, the value of a pacific blockade as a means of non-hostile settlement of international differences is doubted and considered uncertain by many writers. But others agree, and I think they are right, that the inst.i.tution of pacific blockade is of great value, be it as an act of reprisal or of intervention. Every measure which is suitable and calculated to prevent the outbreak of war must be welcomed, and experience shows that pacific blockade is, although not universally successful, a measure of this kind. That it can give, and has in the past given, occasion for abuse in case of a difference between a strong and a weak Power is no argument against it, as the same is valid with regard to reprisals and intervention in general, and even to war. And although it is naturally a measure which will scarcely be made use of in case of a difference between two powerful naval States, it might nevertheless find application with success against a powerful naval State if exercised by the united navies of several Powers.[53]

[Footnote 53: The following is the full text of the declaration of the Inst.i.tute of International Law referred to above, -- 45:

"L'etabliss.e.m.e.nt d'un blocus en dehors de l'etat de guerre ne doit etre considere comme permis par le droit de gens que sous les conditions suivantes:

"1. Les navires de pavillon etranger peuvent entrer librement malgre le blocus.

"2. Le blocus pacifique doit etre declare et notifie officiellement et maintenu par une force suffisante.

"3. Les navires de la puissance bloquee qui ne respectent pas un pareil blocus, peuvent etre sequestres. Le blocus ayant cesse, ils doivent etre rest.i.tues avec leurs cargaisons a leurs proprietaires, mais sans dedommagement a aucun t.i.tre."]

V

INTERVENTION

See the literature quoted above in vol. I. at the commencement of -- 134.

[Sidenote: Intervention in contradistinction to Partic.i.p.ation in a difference.]

-- 50. Intervention as a means of settling international differences is only a special kind of intervention in general, which has already been discussed.[54] It consists in the dictatorial interference of a third State in a difference between two States for the purpose of settling the difference in the way demanded by the intervening State. This dictatorial interference takes place for the purpose of exercising a compulsion upon one or both of the parties in conflict, and must be distinguished from such att.i.tude of a State as makes it a party to the very conflict. If two States are in conflict and a third State joins one of them out of friendship or from any other motive, such third State does not exercise an intervention as a means of settling international differences, but becomes a party to the conflict. If, for instance, an alliance exists between one of two States in conflict and a third, and if eventually, as war has broken out in consequence of the conflict, such third State comes to the help of its ally, no intervention in the technical sense of the term takes place. A State intervening in a dispute between two other States does not become a party to their dispute, but is the author of a new imbroglio, because such third State dictatorially requests those other States to settle their difference in a way to which both, or at any rate one of them, objects. An intervention, for instance, takes place when, although two States in conflict have made up their minds to fight it out in war, a third State dictatorially requests them to settle their dispute through arbitration.

[Footnote 54: See above, vol. I. ---- 134-138.]

Intervention, in the form of dictatorial interference, must, further, be distinguished from such efforts of a State as are directed to induce the States in conflict to settle their difference amicably by proffering its good offices or mediation, or by giving friendly advice. It is, therefore, incorrect when some jurists[55] speak of good offices and the like as an "amicable" in contradistinction to a "hostile" intervention.

[Footnote 55: Thus, for instance, Rivier, II. -- 58. See also above, vol.

I. -- 134.]

[Sidenote: Mode of Intervention.]

-- 51. Intervention in a difference between two States is exercised through a communication of the intervening State to one or both of the conflicting States with a dictatorial request for the settlement of the conflict in a certain way, for instance by arbitration or by the acceptance of certain terms. An intervention can take place either on the part of one State alone or of several States collectively. If the parties comply with the request of the intervening State or States, the intervention is terminated. If, however, one or both of the parties fail to comply with the request, the intervening State will either withdraw its intervention or proceed to the performance of acts more stringent than a mere request, such as pacific blockade, military occupation, and the like. Even war can be declared for the purpose of an intervention.

Of special importance are the collective interventions exercised by several great Powers in the interest of the balance of power and of humanity.[56]

[Footnote 56: See above, vol. I. ---- 136 and 137.]

[Sidenote: Time of Intervention.]

-- 52. An intervention in a difference between two States can take place at any time from the moment a conflict arises till the moment it is settled, and even immediately after the settlement. In many cases interventions have taken place before the outbreak of war between two States for the purpose of preventing war; in other cases third States have intervened during a war which had broken out in consequence of a conflict. Interventions have, further, taken place immediately after the peaceable settlement of a difference, or after the termination of war by a treaty of peace or by conquest, on the grounds that the conditions of the settlement or the treaty of peace were against the interests of the intervening State, or because the latter would not consent to the annexation of the conquered State by the victor.[57]

[Footnote 57: With regard to the question of the right of intervention, the admissibility of intervention in default of a right, and to all other details concerning intervention, the reader must be referred above, vol. I. ---- 135-138.]

PART II

WAR

CHAPTER I

ON WAR IN GENERAL

I

CHARACTERISTICS OF WAR

Grotius, I. c. 1, -- 2--Vattel, III. ---- 1-4, 69-72--Hall, ---- 15-18--Westlake, II. pp. 1-6--Lawrence, -- 135--Lorimer, II. pp.