SECTION 2. _pacific Reprisals_

Pacific Reprisals

The four letters next following were suggested by the ambiguous character of the blockades instituted by France against Siam in 1893, by the Great Powers against Crete in 1897, and by Great Britain, Germany, and Italy, against Venezuela in 1902. The object, in each case, was to explain the true nature of the species of reprisals known as "Pacific Blockade," and to point out the difference between the consequences of such a measure and those which result from a "Belligerent Blockade." A fifth letter, written with reference to the action of the Netherlands against Venezuela in 1908, emphasises the desirability of more clearly distinguishing between war and reprisals. On the various applications of a blockade in time of peace, see the author's Studies in International Law, pp. 130-150.

THE BLOCKADE OF THE MENAM

Sir,--Upon many questions of fact and of policy involved in the quarrel between France and Siam it may be premature as yet to expect explicit information from the French Government; but there should not be a moment's doubt as to the meaning of the blockade which has probably by this time been established.

Is France at war with Siam? This may well be the case, according to modern practice, without any formal declaration of war; and it is, for international purposes, immaterial whether the French Cabinet, if it has commenced a war without the sanction of the Chambers, has or has not thereby violated the French Constitution. If there is a war, and if the blockade, being effective, has been duly notified to the neutral Powers, the vessels of those Powers are, of course, liable to be visited, and, if found to be engaged in breach of the blockade, to be dealt with by the French Prize Courts.

Or is France still at peace with Siam, and merely putting upon her that form of pressure which is known as "pacific blockade"?

In this case, since there is no belligerency there is no neutrality, and the ships of States other than that to which the pressure is being applied are not liable to be interfered with. The particular mode of applying pressure without going to war known as "pacific blockade" dates, as is well known, only from 1827. It has indeed been enforced, by England as well as by France, upon several occasions, against the vessels of third Powers; but this practice has always been protested against, especially by French jurists, as an unwarrantable interference with the rights of such Powers, and was acknowledged by Lord Palmerston to be illegal. The British Government distinctly warned the French in 1884 that their blockade of Formosa could be recognised as affecting British vessels only if it constituted an act of war against China; and when the Great Powers in 1886 proclaimed a pacific blockade of the coasts of Greece they carefully limited its operation to ships under the Greek flag.

The Subject has been exhaustively considered by the Institut de Droit International, which, at its meeting at Heidelberg in 1887, arrived at certain conclusions which may be taken to express the view of learned Europe. They are as follows:--

"L'établissement d'un blocus en dehors de l'état de guerre ne doit être considere comme permis par le droit des gens que sous les conditions suivantes:--

"1. Les navires de pavillon étranger peuvent entrer librement malgré le blocus.

"2. Le blocus pacifique doit être déclaré et notifié officiellement, et maintenu par une force suffisante.

"Les navires de la puissance bloquée qui ne respectent pas un pareil blocus peuvent être séquestrés. Le blocus ayant cessé, ils doivent être restitués avec leur cargaisons à leurs propriétaires, mais sans dédommagement à aucun titre."

If the French wish to reap the full advantages of a blockade of the Siamese coast they must be prepared, by becoming belligerent, to face the disadvantages which may result from the performance by this country of her duties as a neutral.

I am, Sir, your obedient servant, T. E. HOLLAND. Athenæum Club, July 26 (1893).

PACIFIC BLOCKADE

Sir,--The letter signed "M." in your issue of this morning contains, I think, some statements which ought not to pass uncorrected. A "blockade" is, of course, the denial by a naval squadron of access for vessels to a defined portion of the coasts of a given nation. A "pacific blockade" is one of the various methods--generically described as "reprisals," such as "embargo," or seizure of ships on the high seas--by which, without resort to war, pressure, topographically or otherwise limited in extent, may be put upon an offending State. The need for pressure of any kind is, of course, regrettable, the only question being whether such limited pressure be not more humane to the nation which experiences it, and less distasteful to the nation which exercises it, than is the letting loose of the limitless calamities of war.

The opinion of statesmen and jurists upon this point has undergone a change, and this because the practice known as "pacific blockade" has itself changed. The practice, which is comparatively modern, dating only from 1827, was at first directed against ships under all flags, and ships arrested for breach of a pacific blockade were at one time confiscated, as they would have been in time of war. It has been purged of these defects as the result of discussions, diplomatic and scientific. As now understood, the blockade is enforced only against vessels belonging to the "quasi-enemy," and even such vessels, when arrested, are not confiscated, but merely detained till the blockade is raised. International law does not stand still; and having some acquaintance with Continental opinion on the topic under consideration, I read with amazement "M.'s" assertion that "the majority in number," "the most weighty in authority" of the writers on international law "have never failed to protest against such practices as indefensible in principle." The fact is that the objections made by, e.g. Lord Palmerston in 1846, and by several writers of textbooks, to pacific blockade, had reference to the abuses connected with the earlier stages of its development. As directed only against the ships of the "quasi-enemy," it has received the substantially unanimous approbation of the Institut de Droit International at Heidelberg in 1887, after a very interesting debate, in which the advocates of the practice were led by M. Perels, of the Prussian Admiralty, and its detractors by Professor Geffken. It is true that in an early edition of his work upon international law my lamented friend, Mr. Hall, did use the words attributed to him by "M.": "It is difficult to see how a pacific blockade is justifiable." But many things, notably Lord Granville's correspondence with France in 1884 and the blockade of the Greek coast in 1886, have occurred since those words were written. If "M." will turn to a later edition of the work in question he will see that Mr. Hall had completely altered his opinion on the subject, or rather that, having disapproved of the practice as unreformed, he blesses it altogether in its later development. With reference to the utility of the practice, I should like to call the attention of "M." to a passage in the latest edition of Hall's book which is perhaps not irrelevant to current politics:--

"The circumstances of the Greek blockade of 1886 show that occasions may occur in which pacific blockade has an efficacy which no other measure would possess. The irresponsible recklessness of Greece was endangering the peace of the world; advice and threats had been proved to be useless; it was not till the material evidence of the blockade was afforded that the Greek imagination could be impressed with the belief that the majority of the Great Powers of Europe were in earnest in their determination that war should be avoided."

I am, Sir, your obedient servant, T. E. HOLLAND. Oxford, March 5 (1897).

THE VENEZUELAN CONTROVERSY

Sir,--Apart from the practical difficulty, so ably described by Sir Robert Giffen in your issue of this morning, of obtaining compensation in money from a State which seems to be at once bankrupt and in the throes of revolution, not a few questions of law and policy, as to which misunderstanding is more than probable, are raised from day to day by the action of the joint squadrons in Venezuelan waters. It may therefore be worth while to attempt to disentangle the more important of these questions from the rest, and to indicate in each case the principles involved.

1. Are we at war with Venezuela? Till reading the reports of what passed last night in the House of Commons, I should have replied to this question unhesitatingly in the negative. Most people whose attention has been directed to such matters must have supposed that we were engaged in the execution of "reprisals," the nature and legitimacy of which have long been recognised by international law. They consist, of course, in the exertion of pressure, short of war; over which they possess the following advantages: They are strictly limited in scope; they cease, when their object has been attained, without the formalities of a treaty of peace; and, no condition of "belligerency" existing between the Powers immediately concerned, third Powers are not called upon to undertake the onerous obligations of "neutrality." The objection sometimes made to reprisals, that they are applicable only to the weaker Powers, since a strong Power would at once treat them as acts of war, is indeed the strongest recommendation of this mode of obtaining redress. 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 classes. 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 Institut de Droit International, at its meeting at Neuchâtel 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 assertion 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 Principalities 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 Institut de Droit International at Heidelberg in 1887. The latter view is that which was adopted by the Institut 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, instituted 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 assert that she has acquired a sort of prior mortgage on the assets of Venezuela; and the United States, Spain, and Belgium declare themselves entitled to the benefit of the "most-favoured-nation clause" when those assets 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 constitutes "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 assumed 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, entitled "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 asserts 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 passage 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."