Слике страница
PDF
ePub

Compulsive

over, there are still many cases in which individual States are permitted by the Covenant to take measures of compulsion against each other; and if its machinery should disappoint the hopes of its founders, the occasion for such measures will arise more often. It is the purpose of this chapter to discuss them. All the means of constraint here mentioned, except the so-called 'economic boycott,' were in use before the organisation of the League of Nations, and in a book which was written before the World War are naturally discussed without reference to the League. But it will be apparent that some of them are as appropriate for use by the League itself as for use by the individual States.

Compulsive means of settlement of differences are measures containing a certain amount of compulsion taken by a State for the purpose of making another State consent to such settlement of a difference as is required by the former. There are four different kinds of such means in use namely, retorsion, reprisals (including embargo), pacific blockade, and intervention. But it must be mentioned that, whereas every amicable means of settling differences might find application in every kind of difference, not every compulsive means is applicable in every difference. For the application of retorsion is confined to political, and that of reprisals to legal, differences.

§ 27. War is very often enumerated among the comMeans in pulsive means of settling international differences. This contradis is in a sense correct, for a State might make war for no to War. other purpose than that of compelling another State

tinction

to settle a difference in the way required before war was declared. Nevertheless, the characteristics of compulsive means of settling international differences make it necessary to draw a sharp line between them and war. It is, in the first place, characteristic of com

pulsive means that, although they frequently consist
of harmful measures, they are not considered as acts
of war, either by the conflicting States or by other
States, and consequently all relations of peace, such as
diplomatic and commercial intercourse, the execution
of treaties, and the like, remain undisturbed. Com-
pulsive means are in theory and practice considered
peaceable, although not amicable, means of settling
international differences. It is, further, characteristic
of compulsive means that they are even at their worst
confined to the application of certain harmful measures
only, whereas belligerents in war may apply any amount
and any kind of force, with the exception only of those
methods forbidden by International Law. And, thirdly,
it is characteristic of compulsive means that a State
which has succeeded in compelling another to declare
that it is ready to settle the difference in the manner
desired must cease to apply them; whereas, war once
broken out, a belligerent is not obliged to lay down arms
if and when the other belligerent is ready to comply
with the request made before the war. As war is the
ultima ratio between States, the victorious belligerent
is not legally prevented from imposing upon the defeated
foe
any conditions he likes.

Means in

tinction to

matum

tions.

§ 28. Since these are the characteristics of compul- Compulsive means for the settlement of international differ- sive ences, it is necessary to distinguish between such means contradis and an ultimatum. The latter is the technical term for an Ultia written communication by one State to another which and Deends amicable negotiations respecting a difference, and monstraformulates, for the last time and categorically, the demands to be fulfilled if other measures are to be averted. An ultimatum is, theoretically at least, not compulsion, although it may have the same effect, and although compulsive means, or even war, may be threatened in the event of a refusal to comply with

the demands made.1 Similarly, withdrawal of diplomatic agents, military and naval demonstrations, and the like, which some publicists 2 enumerate among the compulsive means of settlement of international differences, although they may indirectly achieve the settlement of differences, are not in themselves measures of compulsion.

Conception and

sion.

II

RETORSION

Vattel, ii. § 341-Hall, § 120-Westlake, ii. p. 6-Phillimore, iii, § 7-Twiss
ii. § 10-Taylor, § 435-Wharton, iii. § 318-Moore, vii. § 1090-
Wheaton, § 290-Bluntschli, § 505-Heffter, § 110-Bulmerincq in
Holtzendorff, iv. pp. 59-71-Ullmann, § 159-Bonfils, Nos. 972-974-
Despagnet, Nos. 484-486-Mérignhac, iii". p. 46-Pradier-Fodéré, vi.
Nos. 2634-2636-Rivier, ii. § 60-Nys, ii. p. 582-Calvo, iii. § 1807—
Fiore, ii. Nos. 1226-1227, and Code, Nos. 1391-1395-Martens, ii. § 105
-Rapisardi-Mirabelli in R.I., 2nd Ser. xvi. (1914), pp. 223-244.

§ 29. Retorsion is the technical term for retaliation Character for discourteous, or unkind, or unfair and inequitable, of Retor- acts by acts of the same, or a similar, kind. Retorsion has nothing to do with international delinquencies, as it is not a means of compulsion in the case of legal differences, but only in the case of certain political differences. The act which calls for retaliation is not an illegal act; on the contrary, it is an act that is within the competence of the doer. But a State can commit many legislative, administrative, or judicial acts which, although they are not internationally illegal, involve discourtesy or unfriendliness to another State, or are

1 See Pradier-Fodéré, vi. No. 2649, and below, § 95.

2 See Taylor, §§ 431, 433, 441; Moore, vii. §§ 1089, 1091, 1099; Pradier-Fodéré, vi. No. 2633.

3 For this reason-see Heilborn, System, p. 352, and Wagner, Zur Lehre von den Streiterledigungsmitteln

des Völkerrechts (1900), pp. 53-60-it is correctly maintained that retorsion, in contradistinction to reprisals, is not of legal, but only of political importance. Nevertheless, a system of the Law of Nations must not omit retorsion altogether, because it is in practice an important means of settling political differences.

unfair and inequitable. If the State against which such acts are directed considers itself wronged thereby, a political difference is created which might be settled by retorsion.

sion,

§ 30. The question when retorsion is, and when it Retoris not, justified is not one of law, and is difficult to when answer. The difficulty arises from the fact that the justified. conceptions of discourtesy, unfriendliness, and unfairness cannot be defined very precisely. It depends, therefore, largely upon the circumstances and conditions of each case whether a State will, or will not, consider itself justified in making use of retorsion. In practice, States have frequently employed retorsion in cases of unfair treatment of their citizens abroad through rigorous passport regulations, the exclusion of foreigners from certain professions, the levy of exorbitant protectionist or fiscal duties; or in cases when the courts of another State have refused the usual assistance to its courts, or another State has refused to admit foreign ships to its harbours, etc.

exercised.

§ 31. The essence of retorsion consists in retaliation Retorfor a noxious act by a noxious act. But a State, in sion, how making use of retorsion, is by no means confined to acts of the same kind as those complained of, acts of a similar kind being equally admissible, provided they are not internationally illegal. And, further, as retorsion is made use of only to compel a State to alter its discourteous, unfriendly, or unfair behaviour, all acts of retorsion ought at once to cease when it does so.

sion.

§ 32. The value of retorsion as a means of settling Value of certain international differences consists in its com- Retorpulsory force, which has great power in regulating the intercourse of States. It is a commonplace of human nature, and by experience constantly confirmed, that evil-doers are checked by retaliation, and that those who are inclined to commit a wrong against others are

often prevented by the fear of it. Through the high tide of chauvinism, protectionism, and unfriendly feelings against foreign nations, States are often tempted to legislative, administrative, and judicial acts against other States which, although not internationally illegal, nevertheless endanger friendly relations and intercourse within the Family of Nations. The certainty of retaliation may be the only force which can make States resist the temptation.

tion of

III

REPRISALS

Grotius, iii. c. 2-Vattel, ii. §§ 342-354-Bynkershoek, Quaestiones Juris publici, i. c. 24-Hall, § 120-Lawrence, §§ 136-137-Westlake, ii. pp. 6-11, and Papers, pp. 590-606-Twiss, ii. §§ 11-22-Moore, vii. S$ 1095, 1096, 1098-Taylor, §§ 436-437-Wharton, iii. §§ 318, 320Wheaton, §§ 291-293-Bluntschli, §§ 500-504-Heffter, §§ 111-112-Bulmerincq in Holtzendorff, iv. pp. 72-116-Ullmann, § 160-Bonfils, Nos. 975-985-Despagnet, Nos. 487-495-Pradier-Fodéré, vi. Nos. 2637-2647 -Mérignhac, iii. pp. 48-60—Rivier, ii. § 60—Nys, ii. pp. 582-589—Calvo, iii. §§ 1808-1831-Fiore, ii. Nos. 1228-1230, and Code, Nos. 1396-1404Martens, ii. § 105-Lafargue, Les Représailles en Temps de Paix (1899) --Ducrocq, Représailles en Temps de Paix (1901), pp. 5-57, 175-232.

Concep- § 33. Reprisals are such injurious and otherwise Reprisals internationally illegal acts of one State against another distinc- as are exceptionally permitted for the purpose of comtion to Re-pelling the latter to consent to a satisfactory settlement

in contra

torsion.

of a difference created by its own international delinquency. Whereas retorsion consists in retaliation for discourteous, unfriendly, unfair, and inequitable acts by acts of the same or a similar kind, and has nothing to do with international delinquencies, reprisals are acts, otherwise illegal, performed by a State for the purpose of obtaining justice for an international delinquency by taking the law into its own hands. It is, of course, possible for a State to retaliate for an illegal act com

« ПретходнаНастави »