XXIV mission to a previously constituted tribunal established by the CHAP. community of nations as body. In the case of the new Court of International Justice it likewise involves optional submission to a permanent court not controlled by the parties, but permits the obligatory submission of an enumerated group of disputes under special agreement between the members of the League taken severally. Finally, the procedure of the Covenant of the League of Nations involves as an alternative to arbitration a compulsory submission of the dispute to the Council or to Council and Assembly combined, accompanied by an obligation to submit to the report of the Council or of the Council and Assembly according to the unanimity or majority in these bodies. a. Legal b. Retorsion CHAPTER XXV FORCIBLE PROCEDURE BY METHODS FALLING SHORT OF WAR Failing a resort by the contending parties to one or other of the methods of settlement by mutual agreement enumerated above, international practice has given its sanction to a number of methods by which a state may bring physical pressure to bear upon the opposing party without actually resorting to war. These methods, less drastic than war, have been accepted by international law as legitimate measures of self-help. Beyond that, no rules have been developed in respect to their application between the parties themselves. In so far, however, as certain of them, such as pacific blockade, may encroach upon the rights of states not parties to the dispute, a few rules have been worked out governing the relations between the state taking such measures and third states. 3 Retorsion is a form of procedure by which the injured state retaliates in kind as a means of coercing the offending party to desist from certain specific acts. As a rule, it is resorted to where the acts complained of do not constitute a legal ground of offense, but are rather in the nature of unfriendly acts done primarily in pursuance of legitimate state interests, but indirectly hurtful to other states. The offense is therefore comparable to an act causing damnum sine injuria, a loss where no legal wrong has been done, in municipal law. While the older conception of retorsion is that of retaliation in kind,* certain writers include also within the term other forms of coercion, such as a display of force, or the actual use of force without a declaration of formal war.5 Resort to retorsion is chiefly had in connection with discriminatory tariffs, 1 That is to say, the international community has acquiesced in the results of such measures, and thus given a negative recognition to them. Query, whether the attempt to regulate them would not give a greater degree of international sanction to the use of coercion by strong states against weak states. In the case of war itself the need of regulation is imperative, whatever implied sanction of war the laws of war may involve. For example, the application of the Volstead Act to foreign vessels in port. Foreign governments might retaliate by requiring the presence of intoxicating liquors on American vessels when in their ports. See Vattel, Droit des Gens (Eng. trans.), II, § 340. For example, Westlake, International Law, 2nd ed., II, 6-11; more recently, Hyde, International Law, II, § 588. XXV domestic legislation against aliens, port restrictions, and other CHAP. national legislation not subject to international control. Vattel cites the action of the elector of Saxony in enforcing the law of escheat only against the subjects of those provinces who subjected the Saxons to it. The subject of retorsion belongs on the outskirts of international law, since there are no rules governing the resort to it, apart from the general principle that the acts complained of, not being illegal, do not constitute a just ground of war. earlier The modern procedure of reprisals is a relic of a primitive c. Reprisals: form of self-help between nations and between their respective forms citizens. The ancient Athenians were familiar with the practice of ȧvdpoλnyía, by which compensation for an offense committed upon the person of a citizen by a foreigner might be obtained by the seizure of the person of a fellow-countryman of the offender.2 During the Middle Ages merchants frequently resorted to the practice of obtaining, where necessary, redress for their losses by seizure of both the person and the property of foreigners whose national relationship to the offender made it equitable that they should make good his delinquencies. In time this practice came to be regulated by governments to the extent of issuing letters of marque and reprisal to the injured individual, who, armed with this official sanction, made capture of the property of citizens of the state which had wronged him or of fellow-countrymen of the individual wrong-doer. These reprisals were known as "special reprisals" and were, in effect, nothing more than private warfare legitimatized by the municipal law of the state.* practice The procedure of special reprisals is no longer resorted to, and The modern such reprisals as are now practised are put into effect by the state itself, acting either in its own interest or in that of its injured citizen. Moreover, the term has now come to be applied to any form of forcible redress by which a state, without resort to formal war, undertakes to bring the offending state to terms. Reprisals differ from retorsion in that they are generally resorted to in consequence of alleged illegal acts on the part of the offending 1 Op. cit., II, § 340. See Philippson, International Law and Custom of Ancient Greece and Rome, I, 361; Grotius, De Jure Belli et Pacis, Bk. III, Chap. II, § 7. 'Walker, History, 121, 167, 187. For the origin of the term "reprisal" see Hyde, International Law, II, 173, n. 2. The Constitution of the United States recognizes the existence of the custom by enumerating among the powers of Congress that of issuing letters of marque and reprisal. (Art. I, Sec. 8, par. 11.) There appears to be "no example in the history of the United States of authority for special reprisals.'' Moore, Digest, VII, 122. CHAP d. Embargo state, and in that they are not limited to retaliation in kind, but may take any form of coercion which the state believes to be effective to secure redress.1 In principle reprisals of the more drastic character are not to be distinguished from acts of war. Their practical justification, however, lies in the fact that they afford to the injured state a measure of immediate redress, and at the same time they avoid the necessity of creating a state of hostilities which might result in consequences more serious than the offense in question would justify. As in the case of retorsion, there are no rules of international law governing the resort to reprisals, other than the obvious rule that if redress be granted the property seized must be restored. It would appear that in many cases the grounds for reprisals would be regarded by public opinion as adequate grounds for a declaration of war, should the injured party choose that form of redress. In so far, however, as reprisals might have the effect of restricting the rights of third states, international law has stepped in to forbid any such extension of their scope beyond their immediate purpose.3 With the disappearance of special reprisals by the beginning of the nineteenth century, a form of general reprisals frequently resorted to by states was that of laying an embargo upon all vessels of the offending state that happened at the time to be in the ports of the state seeking redress. Such procedure must be distinguished from the embargo formerly placed upon ships of the enemy in port at the outbreak of hostilities, which was, in law as in fact, an act of war. Embargo by way of reprisal did not contemplate confiscation, except in the event that redress for the injuries suffered should be finally refused. Until recent times, if redress were granted, the vessels seized by way of security were thereupon released; if redress were refused and war broke out between the two states it was the custom to confiscate the property as prize of war. In the case of the Boedes Lust, decided in 1803, it was stated by the court that a seizure of Dutch property under the embargo of 1803 was "at first equivocal; and if the matter in dispute had terminated in reconciliation, the seizure would have been converted into a mere civil embargo, and so terminated. . . . On the contrary, if the transaction ended in hostility, the retroactive effect For the past practice of the United States, see Moore, Digest, VII, § 1096; Hyde, International Law, §§ 590-591. 1 'Query, however, whether reprisals themselves have not frequently been the precursor of war. See Moore, op. cit., VII, 126, quoting Senator Clay. See Westlake, Collected Papers, 590, "Reprisals and War." 5 C. Rob., 233 (1804). Scott, Cases, 497; Evans, 374. XXV is exactly the other way." It is not clear to what extent this cus- CHAP. tomary rule has been modified by the provisions of the Convention Relative to the Status of Enemy Merchant Ships at the Outbreak of Hostilities, adopted at the Hague Conference of 1907.1 The convention makes no special reference to the case of vessels seized as security before the time when the declaration of war was decided upon. In general, reprisals by means of embargo have been less frequently resorted to during the past fifty years, since the invention of more direct means of communication between states has made it possible to obtain more prompt redress or a more definite statement of policy from the offending state. The practice of laying an embargo upon vessels of the offending state has at times been accompanied by the seizure of such vessels on the high seas as were encountered by the armed ships of the state demanding redress. In the case of the reprisals of Great Britain against the Two Sicilies in 1839, undertaken on account of the alleged violation of treaty rights, an embargo was laid upon ships flying the flag of the offending state, and at the same time orders were given to the British navy to seize all Neapolitan and Sicilian ships which might be met with in their national waters. Upon grant by the Two Sicilies of redress, the vessels under detention were restored to their owners.2 As late as 1908 Holland put into effect reprisals against Venezuela for the seizure of certain Dutch vessels, and for the dismissal of the Dutch minister, by the capture of two public vessels of the latter country. The vessels were released when a new president of Venezuela made redress.3 Seizure of vessels on the high seas of treaties In addition to the seizure of property of the offending state, Suspension reprisals have taken the form of a suspension of the operation of treaties granting privileges to the offending party. In 1780 Holland's repudiation of its treaty obligation to assist Great Britain when attacked was followed by the latter's suspension of the stipulations providing for freedom of navigation and commerce between the two countries. In 1798 the United States Congress, by way of reprisal for the illegal capture of American vessels, passed an act suspending commercial intercourse with France." Again For the text of the convention, see Hague Conventions, 141. See below, 'Hall, International Law, § 126. p. 506. 4 'See U. S. Foreign Relations, 1909, 630 ff., where the response of the United States to the inquiry of Holland as to the attitude of the former toward coercive measures is given. 4 Hall, International Law, § 120. Act of June 13, 1798. 1 Stat. at Large, 565. |