Part 22 (1/2)

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 s.h.i.+ps 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 s.h.i.+ps, 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 s.h.i.+ps of another state. It was formerly the custom to detain within the ports of a given state the s.h.i.+ps of the state upon which it desired to make reprisals, and if the relations between the states led to war to confiscate such s.h.i.+ps. 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 s.h.i.+ps 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 s.h.i.+p 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 s.h.i.+ps under the Greek flag.

”s.h.i.+ps 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 s.h.i.+ps may be visited by the s.h.i.+ps 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 s.h.i.+ps 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]