Letters to "The Times" upon War and Neutrality (1881-1920) Part 2

To localise hostile pressure as far as possible, and to give to it such a character as shall restrict its incidence to the peccant State, is surely in the interest of the general good. That the steps taken are such as would probably, between States not unequally matched, cause an outbreak of war cannot render them inequitable in cases where so incalculable an evil is unlikely to follow upon their employment.

2. The justification of a resort either to reprisals or to war, in any given case, depends, of course, upon the nature of the acts complained of, and upon the validity of the excuses put forward either for the acts themselves, or for failure to give satisfaction for them. The British claims against Venezuela seem to fall into three cla.s.ses. It will hardly be disputed that acts of violence towards British subjects or vessels, committed under State authority, call for redress. Losses by British subjects in the course of civil wars would come next, and would need more careful scrutiny (on this point the debates and votes of the Inst.i.tut de Droit International, at its meeting at Neuchatel in 1900, may be consulted with advantage). Last of all would come the claims of unpaid bondholders, as to which Mr. Balfour would seem to endorse, in principle, the statement made in 1880 by Lord Salisbury who, while observing that "it would be an extreme a.s.sertion to say that this country ought never to interfere on the part of bondholders who have been wronged," went on to say that "it would be hardly fair if any body of capitalists should have it in their power to pledge the people of this country to exertions of such an extensive character.... They would be getting the benefit of an English guarantee without paying the price of it."

3. Reprisals may be exercised in many ways; from such a high-handed act as the occupation of the Princ.i.p.alities by Russia in 1853, to such a mere seizure of two or three merchant vessels as occurred in the course of our controversy with Brazil in 1861. In modern practice, these measures imply a temporary sequestration, as opposed to confiscation or destruction, of the property taken. In the belief that reprisals only were being resorted to against Venezuela one was therefore glad to hear that the sinking of gunboats by the Germans had been explained as rendered necessary by their unseaworthiness.

4. Pacific reprisals should also, according to the tendency of modern opinion and practice, be so applied as not to interfere with the interests of third Powers and their subjects. This point has been especially discussed with reference to that species of reprisal known as a "pacific blockade," of which some mention has been made in the present controversy. The legitimacy of this operation, though dating only from 1827, if properly applied, is open to no question. Its earlier applications were, no doubt, unduly harsh, not only towards the peccant State, but also towards third States, the ships of which were even confiscated for attempting to break a blockade of this nature. Two views on this subject are now entertained--viz. (1) that the ships of third Powers breaking a pacific blockade may be turned back with any needful exertion of force, and, if need be, temporarily detained; (2) that they may not be interfered with. The former view is apparently that of the German Government. It was certainly maintained by M. Perels, then as now the adviser to the German Admiralty, during the discussion of the subject by the Inst.i.tut de Droit International at Heidelberg in 1887.

The latter view is that which was adopted by the Inst.i.tut on that occasion. It was maintained by Great Britain, with reference to the French blockade of Formosa in 1884; was acted on by the allied Powers in the blockade of the coast of Greece, inst.i.tuted in 1886; and is apparently put forward by the United States at the present moment.

5. If, however, we are at war with Venezuela (as will, no doubt, be the case if we proclaim a belligerent blockade of the coast, and may at any moment occur, should Venezuela choose to treat our acts, even if intended only by way of reprisals, as acts of war), the situation is changed in two respects: (1) the hostilities which may be carried on by the allies are no longer localised, or otherwise limited, except by the dictates of humanity; (2) third States become _ipso facto_ "neutrals,"

and, as such, subject to obligations to which up to that moment they had not been liable. Whatever may have previously been the case, it is thenceforth certain that their merchant vessels must respect the (now belligerent) blockade, and are liable to visit, search, seizure, and confiscation if they attempt to break it.

6. If hostile pressure, whether by way of reprisals or of war, is exercised by the combined forces of allies, the terms on which this is to be done must obviously be arranged by previous agreement. More especially would this be requisite where, as in the case of Great Britain and Germany, different views are entertained with reference to the acts which are permissible under a "pacific blockade."

7. When, besides the Power, or Powers, putting pressure upon a given State, with a view to obtaining compensation for injuries received from it, other Powers, though taking no part in what is going on, give notice that they also have claims against the same offender; delicate questions may obviously arise between the creditors who have and those who have not taken active steps to make their claims effective. In the present instance, France is said to a.s.sert that she has acquired a sort of prior mortgage on the a.s.sets of Venezuela; and the United States, Spain, and Belgium declare themselves ent.i.tled to the benefit of the "most-favoured-nation clause" when those a.s.sets are made available for creditors. What principles are applicable to the solution of the novel questions suggested by these competing claims?

8. It is satisfactory to know, on the highest authority, that the "Monroe doctrine" is not intended to shield American States against the consequences of their wrongdoing; since the cordial approval of the doctrine which has just been expressed by our own Government can only be supposed to extend to it so far as it is reasonably defined and applied.

Great Britain, for one, has no desire for an acre of new territory on the American continent. The United States, on the other hand, will doubtless readily recognise that, if international wrongs are to be redressed upon that continent, aggrieved European Powers may occasionally be obliged to resort to stronger measures than a mere embargo on shipping, or the blockade (whether "pacific" or "belligerent") of a line of coast.

I am, Sir, your obedient servant, T. E. HOLLAND.

Oxford, December 18 (1902).

THE VENEZUELA PROTOCOL

Sir,--The close (for the present, at any rate) of the Venezuelan incident will be received with general satisfaction. One of the articles of the so-called "protocol" of February 18 seems, however, to point a moral which one may hope will not be lost sight of in the future--viz.

the desirability of keeping unblurred the line of demarcation between such unfriendly pressure as const.i.tutes "reprisals" and actual war.

After all that has occurred--statements in Parliament, action of the Governor of Trinidad in bringing into operation the dormant powers of the Supreme Court of the island as a prize Court, &c.--one would have supposed that there could be no doubt, though no declaration had been issued, that we were at war with Venezuela.

Our Government has, therefore, been well advised in providing for the renewal of any treaty with that Power which may have been abrogated by the war; but it is curious to find that the article (7) of the protocol which effects this desirable result begins by a recital to the effect that "it may be contended that the establishment of a blockade of the Venezuelan ports by the British naval forces has _ipso facto_ created a state of war between Great Britain and Venezuela."

It is surely desirable that henceforth Great Britain should know, and that other nations should at least have the means of knowing, for certain, whether she is at war or at peace.

I am, Sir, your obedient servant, T. E. HOLLAND.

Oxford, February 17 (1903).

WAR AND REPRISALS

Sir,--Professor Westlake's interesting letter as to the measures recently taken by the Netherlands Government in Venezuelan waters opportunely recalls attention to a topic upon which I addressed you when, six years ago, our own Government was similarly engaged in putting pressure upon Venezuela--viz. the desirability of drawing a clear line between war and reprisals. Perhaps I may now be allowed to return, very briefly, to this topic, with special reference to Professor Westlake's remarks.

In any discussion of the questions involved, we ought, I think, clearly to realise that The Hague Convention, No. iii. of 1907, has no application to any measures not amounting to war. The "hostilities"

mentioned in Art. 1 of the Convention are, it will be observed, exclusively such as must not commence without either a "declaration of war," or "an ultimatum with a conditional declaration of war"; and Art.

2 requires that the "state of war" thus created shall be notified to "neutral Powers." There are, of course, no Powers answering to this description till war has actually broken out. Neutrality presupposes belligerency. Any other interpretation of the Convention would, indeed, render "pacific blockades" henceforth impossible.

In the next place, we must at once recognise that the application of the term "reprisals," whatever may have been its etymological history, must no longer be restricted to seizure of property. It has now come to cover, and it is the only term which does cover generically, an indeterminate list of unfriendly acts, such as embargo, pacific blockade, seizure of custom-houses, and even occupation of territory, to which resort is had in order to obtain redress from an offending State without going to war with it. The pressure thus exercised, unlike the unlimited _licentia laedendi_ resulting from a state of war, is localised and graduated. It abrogates no treaties, and terminates without a treaty of peace. It affects only indirectly, if at all, the rights of States which take no part in the quarrel.

The questions which remain for consideration would seem to be the following:--

1. Would it be feasible to draw up a definite list of the measures which may legitimately be taken with a view to exercising pressure short of war?--I think not. States differ so widely in offensive power and vulnerability that it would be hardly advisable thus to fetter the liberty of action of a State which considers itself to have been injured.

2. Ought it to be made obligatory that acts of reprisal should be preceded, or accompanied, by a notification to the State against which they are exercised that they are reprisals and not operations of war?--This would seem to be highly desirable; unless indeed it can be a.s.sumed that, in pursuance of The Hague Convention of 1907, no war will henceforth be commenced without declaration.

8. Ought a statement to the like effect to be made to nations not concerned in the quarrel?--This would, doubtless, be convenient, unless the non-receipt by them of any notification of a "state of war," in pursuance of the Convention, could be supposed to render such a statement superfluous.

On the ambiguous character sometimes attaching to reprisals as now practised, I may perhaps refer to an article in the _Law Quarterly Review_ for 1903, ent.i.tled "War Sub Modo."

I am, Sir, your obedient servant, T. E. HOLLAND.

Oxford, December 26 (1908).

The operations against Venezuela which were closed by the protocol of February 13, 1903, had given rise to the enunciation of the so-called "Drago doctrine," in a despatch, addressed on December 29 of the preceding year, by the Argentine Minister for Foreign Affairs to the Government of the United States, which a.s.serts that "public indebtedness cannot justify armed intervention by a European Power, much less material occupation by it of territory belonging to any American nation." The reply of the United States declined to carry the "Monroe doctrine" to this length, citing the pa.s.sage in President Roosevelt's message in which he says: "We do not guarantee any State against punishment, if it misconducts itself, provided such punishment does not take the form of the acquisition of territory by any non-American Power."

It is, however, now provided by The Hague Convention, No. ii.

of 1907, ratified by Great Britain on November 27, 1909, that "the contracting Powers have agreed not to have recourse to armed force for the recovery of contractual debts, claimed from the Government of a country by the Government of another country, as being due to its subjects. This stipulation shall have no application when the debtor State declines, or leaves unanswered, an offer of arbitration, or, having accepted it, renders impossible the conclusion of the terms of reference (_compromis_), or, after the arbitration, fails to comply with the arbitral decision."

CHAPTER II

STEPS TOWARDS A WRITTEN LAW OF WAR

A large body of written International Law, with reference to the conduct of warfare, has been, in the course of the last half-century, and, more especially, in quite recent years, called into existence by means of General Conventions, or Declarations, of which mention must frequently be made in the following pages. Such are:--

(i.) With reference to war, whether on land or at sea: the Declaration of St. Petersburg, of 1868, as to explosive bullets; the three Hague Declarations of 1899 (of which the first was repeated in 1907), as to projectiles from balloons, projectiles spreading dangerous gases, and expanding bullets; The Hague Convention, No. iii. of 1907 as to Declaration of War; all ratified by Great Britain, except the Declaration of St. Petersburg, which was thought to need no ratification.

(ii.) With reference only to war on land: the Geneva Convention of 1906 (superseding that of 1864) as to the sick and wounded, which was generally ratified, though by Great Britain only in 1911 (it was extended to maritime warfare by Conventions iii.

of 1899 and x. of 1907, both ratified by Great Britain, _cf.

infra_, Ch. VI. Section 10); the Hague Conventions of 1907, No.

iv. (superseding the Convention of 1899) as to the conduct of warfare, and No. v. as to neutrals, of which only the former has as yet been ratified by Great Britain.

(iii.) With reference only to war at sea: the Declaration of Paris, of 1856, supposed apparently to need no ratification (to which the United States is now the only important Power which has not become a party), as to privateering, combination of enemy and neutral property and blockades; The Hague Conventions of 1907, No. vi. as to enemy merchant vessels at outbreak, No.

vii. as to conversion of merchantmen into warships, No. viii.

as to mines, No. ix. as to naval bombardments, No. x. as to the sick and wounded, No. xi. as to captures, No. xii. as to an International Prize Court, supplemented by the Convention of 1910, No. xiii. as to neutrals. It must be observed that, of these Conventions, Great Britain has ratified only vi., vii., viii., ix., and x., the three last subject to reservations. The Declaration of London of 1909, purporting to codify the laws of naval warfare as to blockade, contraband, hostile a.s.sistance, destruction of prizes, change of flag, enemy character, convoy, resistance and compensation, and so to facilitate the working of the proposed International Prize Court, if, and when, this Court should come into existence, has failed to obtain ratification, as will be hereafter explained.

Concurrently with the efforts which have thus been made to ascertain the laws of war by general diplomatic agreement, the way for such agreement has been prepared by the labours of the Inst.i.tut de Droit International, and by the issue by several governments of instructions addressed to their respective armies and navies.

The _Manuel des Lois de la Guerre sur Terre_, published by the Inst.i.tut in 1880, is the subject of the two letters which immediately follow. Their insertion here, although the part in them of the present writer is but small, may be justified by the fact that they set out a correspondence which is at once interesting (especially from its bearing upon the war of 1914) and not readily elsewhere accessible.

The remaining letters in this chapter relate to the _Naval War Code_, issued by the Government of the United States in 1900, but withdrawn in 1904, though still expressing the views of that Government, for reasons specified in a note to the British _charge d'affaires_ at Washington and printed in _Parl. Papers, Miscell._ No. 5 (1909), p. 8. The United States, it will be remembered, were also the first Power to attempt a codification of the laws of war on land, in their _Instructions for the Government of Armies of the United States_, issued in 1863, and reissued in 1898. Some information as to this and similar bodies of national instructions may be found in the present writer's _Studies in International Law_, 1898, p. 85. _Cf._ his _Manual of Naval Prize Law_, issued by authority of the Admiralty in 1888, his _Handbook of the Laws and Customs of War on Land_, issued by authority to the British Army in 1904, and his _The Laws of War on Land (written and unwritten)_, 1908.

The Inst.i.tut de Droit International, which has been engaged for some years upon the Law of War at Sea, by devoting the whole of its session at Oxford, in 1913, to the discussion of the subject, produced a _Manuel des Lois de la Guerre sur Mer_, framed in accordance with the now-accepted view which sanctions the capture of enemy private property at sea. It is to be followed by a manual framed in accordance with the contrary view. _Cf._ the letters upon the _Declaration of London_, in Ch. VII. Section 10, _infra_.

COUNT VON MOLTKE ON THE LAWS OF WARFARE

Sir,--You may perhaps think that the accompanying letter, recently addressed by Count von Moltke to Professor Bluntschli, is of sufficient general interest to be inserted in _The Times_. It was written with reference to the Manual of the Laws of War which was adopted by the Inst.i.tut de Droit International at its recent session at Oxford. The German text of the letter will appear in a few days at Berlin. My translation is made from the proof-sheets of the February number of the _Revue de Droit International_, which will contain also Professor Bluntschli's reply.