Opening…

Preface

TO THE SECOND EDITION

The course of events since 1906, when the second volume of this work first made its appearance, and the results of further research have necessitated, as in the case of the first volume, the thorough revision of the text, the rewriting of many portions, and the discussion of a number of new topics. The additions to this volume are even more numerous than those to the first, with the consequence that, in spite of the typographical devices explained in the preface to the second edition of the first volume, the text of this volume has been increased by one hundred pages. The increase is, in some measure, due to the fact that the thirteen Conventions of the Second Hague Peace Conference, and, further, the Declaration of London, are fully discussed and expounded. But the increase is also due to the fact that a number of other new topics have been discussed; I will only mention the questions whether enemy subjects have persona standi in judicio (§ 100_a_), and whether trading with enemy subjects is permitted (§ 101).

The system of the work, with but occasional slight alterations in arrangement and the headings of the sections, remains the same. In those cases, however, in which a portion had to be entirely rewritten--as, for instance, that on Enemy Character, that on Commencement of War, and that on Unneutral Service--the arrangement of the topics differs from that in the first edition, and the headings of the sections also differ. Apart from many new sections, a whole chapter treating of the proposed International Prize Court has been added at the end of the volume.

Since some of the Conventions produced by the Second Peace Conference, and, further, the Declaration of London, have not yet been ratified, the task of the writer of a comprehensive treatise on International Law is very difficult: he must certainly not treat the rules in these unratified documents as law, but, on the other hand, he must not ignore them. For this reason the right method seemed to be to give everywhere the law hitherto prevailing, and to give also the changes in the law which are proposed by these unratified documents. I venture to hope that this method will enable the reader to form a judgment of his own with regard to the merits of the Declaration of London. I have not concealed my conviction that the ratification of this Declaration would mark great progress in the development of International Law, since it offers a common agreement upon a number of subjects concerning which there has been hitherto much discord both in theory and practice. But I have endeavoured to put the matter impartially before the reader, and I have taken special care to draw attention to very numerous points which have not been settled by the Declaration of London.

In revising and rewriting this volume I have remained true to the principle of impartiality, neither taking the part of any one nation, nor denouncing any other. The discredit which International Law concerning War and Neutrality suffers in the minds of certain sections of the public is largely due to the fact that many writers have not in the past approached the subject with that impartial and truly international spirit which is indispensable for its proper treatment.

Many friends of the book have asked that the second edition might, in the Appendix, offer an English translation of the French texts concerned. I was prepared to accede to their request, but had to abstain from doing so on account of the fact that the addition of a translation would have made the volume too bulky for convenience; the new Conventions of the Second Hague Peace Conference, the Declaration of London together with the Report of the Drafting Committee of the Naval Conference of London, the Naval Prize Bill of 1911, and the Geneva Convention Act of 1911, all of which necessarily had to be added, having increased the Appendix very considerably.

It has been the aim of my assistants and myself to make the quotations in this and the preceding volume as correct as possible. However, considering that there are many thousands of citations, it would be a miracle if there were not numerous mistakes and misprints in them, in spite of the great care which has been bestowed upon the matter. I shall be most grateful, therefore, if readers will kindly draw my attention to any inaccuracy they may notice.

My thanks are once more due to reviewers and readers who have drawn my attention to mistakes and misprints in the first edition; and I am again indebted to Miss B. M. Rutter and Mr. C. F. Pond for their valuable assistance in reading the proofs and in drawing up the Table of Cases and the alphabetical Index.

L. OPPENHEIM.

WHEWELL HOUSE, CAMBRIDGE, June 1, 1912.

ABBREVIATIONS

OF TITLES OF BOOKS, ETC., QUOTED IN THE TEXT

The books referred to in the bibliography and notes are, as a rule, quoted with their full titles and the date of their publication. But certain books, periodicals, and Conventions which are very often referred to throughout this work are quoted in an abbreviated form, as follows:--

A.J. = The American Journal of International Law. Annuaire = Annuaire de l'Institut de Droit International. Ariga = Ariga, La Guerre Russo-Japonaise (1908). Barboux = Barboux, Jurisprudence Du Conseil Des Prises Pendant La Guerre De 1870-71 (1871). Barclay, Problems = Barclay, Problems of International Practice and Diplomacy (1907). Bernsten = Bernsten, Das Seekriegsrecht (1911). Bluntschli = Bluntschli, Das moderne Völkerrecht der civilisirten Staaten als Rechtsbuch dargestellt, 3rd ed. (1878). Boeck = Boeck, De La Propriété Privée Ennemie Sous Pavillon Ennemi (1882). Boidin = Boidin, Les Lois De La Guerre et Les Deux Conférences De La Haye (1908). Bonfils = Bonfils, Manuel De Droit International Public, 6th ed. by Fauchille (1912). Bordwell = Bordwell, The Law of War between Belligerents (1908). Bulmerincq = Bulmerincq, Das Völkerrecht (1887). Calvo = Calvo, Le Droit International, etc., 5th ed., 6 vols. (1896). Convention I. = Hague Convention for the pacific settlement of international disputes. Convention II. = Hague Convention respecting the limitation of the employment of force for the recovery of contract debts. Convention III. = Hague Convention relative to the commencement of hostilities. Convention IV. = Hague Convention concerning the laws and customs of war on land. Convention V. = Hague Convention respecting the rights and duties of neutral Powers and persons in war on land. Convention VI. = Hague Convention relative to the status of enemy merchantmen at the outbreak of hostilities. Convention VII. = Hague Convention relative to the conversion of merchantmen into men-of-war. Convention VIII. = Hague Convention concerning the laying of automatic submarine contact mines. Convention IX. = Hague Convention respecting bombardment by naval forces in time of war. Convention X. = Hague Convention for the adaptation of the principles of the Geneva Convention to maritime war. Convention XI. = Hague Convention concerning certain restrictions on the exercise of the right of capture in maritime war. Convention XII. = Hague Convention concerning the establishment of an International Prize Court. Convention XIII. = Hague Convention respecting the rights and duties of neutral Powers in maritime war. Despagnet = Despagnet, Cours De Droit International Public, 4th ed. by de Boeck (1910). Deuxième Conférence, Actes = Deuxième Conférence Internationale De La Paix, Actes et Documents, 3 vols. (1908-1909). Dupuis = Dupuis, Le Droit De La Guerre Maritime D'après Les Doctrines Anglaises Contemporaines (1899). Dupuis, Guerre = Dupuis, Le Droit De La Guerre Maritime D'après Les Conférences de la Haye et de Londres (1911). Field = Field, Outlines of an International Code, 2 vols. (1872-1873). Fiore = Fiore, Nouveau Droit International Public, deuxième édition, traduite de l'Italien et annotée par Antoine, 3 vols. (1885). Fiore, Code = Fiore, Le Droit International Codifié, nouvelle édition, traduite de l'Italien par Antoine (1911). Gareis = Gareis, Institutionen des Völkerrechts, 2nd ed. (1901). Gessner = Gessner, Le Droit Des Neutres Sur Mer (1865). Grotius = Grotius, De Jure Belli ac Pacis (1625). Hague Regulations = Hague Regulations respecting the Laws and Customs of War on Land, adopted by the Hague Peace Conference of 1907. Hall = Hall, A Treatise on International Law, 4th ed. (1895). Halleck = Halleck, International Law, 3rd English ed. by Sir Sherston Baker, 2 vols. (1893). Hartmann = Hartmann, Institutionen des praktischen Völkerrechts in Friedenszeiten (1874). Hautefeuille = Hautefeuille, Des Droits Et Des Devoirs Des Nations Neutres En Temps De Guerre Maritime, 3 vols. 2nd ed. (1858). Heffter = Heffter, Das Europäische Völkerrecht der Gegenwart, 8th ed. by Geffcken (1888). Heilborn, Rechte = Heilborn, Rechte und Pflichten der Neutralen Staaten in Bezug auf die während des Krieges auf ihr Gebiet übertretenden Angehörigen einer Armee und das dorthin gebrachte Kriegsmaterial der Kriegführenden Parteien (1888). Heilborn, System = Heilborn, Das System des Völkerrechts entwickelt aus den völkerrechtlichen Begriffen (1896). Higgins = Higgins, The Hague Peace Conferences (1909). Holland, Prize Law = Holland, A Manual of Naval Prize Law (1888). Holland, Studies = Holland, Studies in International Law (1898). Holland, Jurisprudence = Holland, The Elements of Jurisprudence, 6th ed. (1893). Holland, War = Holland, The Laws of War on Land (1908). Holtzendorff = Holtzendorff, Handbuch des Völkerrechts, 4 vols. (1885-1889). Kleen = Kleen, Lois et Usages De La Neutralité, 2 vols. (1900). Klüber = Klüber, Europäisches Völkerrecht, 2nd ed. by Morstadt (1851). Kriegsbrauch = Kriegsbrauch im Landkriege (1902). (Heft 31 der kriegsgeschichtlichen Einzelschriften, herausgegeben vom Grossen Generalstabe, Kriegsgeschichtliche Abtheilung I.). Land Warfare = Edmonds and Oppenheim, Land Warfare. An Exposition of the Laws and Usages of War on Land for the Guidance of Officers of His Majesty's Army (1912). Lawrence = Lawrence, The Principles of International Law, 4th ed. (1910). Lawrence, Essays = Lawrence, Essays on some Disputed Questions of Modern International Law (1884). Lawrence, War = Lawrence, War and Neutrality in the Far East, 2nd ed. (1904). Lémonon = Lémonon, La Seconde Conférence De La Paix (1908). Liszt = Liszt, Das Völkerrecht, 6th ed. (1910). Longuet = Longuet, Le Droit Actuel De La Guerre Terrestre (1901). Lorimer = Lorimer, The Institutes of International Law, 2 vols. (1883-1884). Maine = Maine, International Law, 2nd ed. (1894). Manning = Manning, Commentaries on the Law of Nations, new ed. by Sheldon Amos (1875). Martens = Martens, Völkerrecht, German translation of the Russian original, 2 vols. (1883). Martens, G. F. = G. F. Martens, Précis Du Droit Des Gens Moderne De l'Europe, nouvelle éd. by Vergé, 2 vols. (1858). Martens, R. | Martens, N.R. | Martens, N.S. | Martens, N.R.G. | Martens, N.R.G. | 2nd Ser. | Martens. N.R.G. | 3rd Ser. | = These are the abbreviated quotations of the different parts of Martens, Recueil de Traités (see p. 102 of vol. i.), which are in common use. Martens, Causes = Martens, Causes Célèbres du Droit des Célèbres Gens, 5 vols., 2nd ed. (1858-1861). Mérignhac = Mérignhac, Les Lois Et Coutumes De La Guerre Sur Terre (1903). Meurer = Meurer, Die Haager Friedenskonferenz, 2 vols. (1905-1907). Moore = Moore, A Digest of International Law, 8 vols., Washington (1906). Moore, Arbitrations = Moore, History and Digest of the Arbitrations to which the United States have been a Party, 6 vols. (1898). Nippold = Nippold, Die Zweite Haager Friedenskonferenz, 2 vols. (1908-1911). Nys = Nys, Le Droit International, vol. i. (1904). Ortolan = Ortolan, Règles Internationales et Diplomatie de la Mer, 2 vols., 3rd ed. (1856). Perels = Perels, Das Internationale öffentliche Seerecht der Gegenwart, 2nd ed. (1903). Phillimore = Phillimore, Commentaries upon International Law, 4 vols., 3rd ed. (1879-1888). Piedelièvre = Piedelièvre, Précis De Droit International Public, 2 vols. (1894-1895). Pillet = Pillet, Les Lois Actuelles De La Guerre (1901). Pistoye et Duverdy = Pistoye et Duverdy, Traité Des Prises Maritimes, 2 vols. (1854-1859). Pradier-Fodéré = Pradier-Fodéré, Traité De Droit International Public, 8 vols. (1885-1906). Pufendorf = Pufendorf, De Jure Naturae et Gentium (1672). R.G. = Revue Générale De Droit International Public. R.I. = Revue De Droit International Et De Législation Comparée. Rivier = Rivier, Principes Du Droit Des Gens, 2 vols. (1896). Scott, Conferences = Scott, The Hague Peace Conferences of 1899 and 1907, vol. i. (1909). Spaight = Spaight, War Rights on Land (1911). Takahashi = Takahashi, International Law applied to the Russo-Japanese War (1908). Taylor = Taylor, A Treatise on International Public Law (1901). Testa = Testa, Le Droit Public International Maritime, traduction du Portugais par Boutiron (1886). Twiss = Twiss, The Law of Nations, 2 vols., 2nd ed. (1884, 1875). Ullmann = Ullmann, Völkerrecht, 2nd ed. (1908). U.S. Naval War Code = The Laws and Usages of War at Sea, published on June 27, 1900, by the Navy Department, Washington, for the use of the U. S. Navy and for the information of all concerned. Vattel = Vattel, Le Droit Des Gens, 4 books in 2 vols., nouvelle éd. (Neuchâtel, 1773). Walker = Walker, A Manual of Public International Law (1895). Walker, History = Walker, A History of the Law of Nations, vol. i. (1899). Walker, Science = Walker, The Science of International Law (1893). Wehberg, Kommentar = Wehberg, Kommentar zu dem Haager Abkommen betreffend die friedliche Erledigung internationaler Streitigkeiten (1911). Westlake = Westlake, International Law, 2 vols. (1904-1907). Westlake, Chapters = Westlake, Chapters on the Principles of International Law (1894). Wharton = Wharton, A Digest of the International Law of the United States, 3 vols. (1886). Wheaton = Wheaton, Elements of International Law, 8th American ed. by Dana (1866). Zorn = Zorn, Das Kriegsrecht zu Lande in seiner neuesten Gestaltung (1906). Z.V. = Zeitschrift für Völkerrecht und Bundesstaatsrecht.

CASES CITED

Acteon, the, § 194, p. 243 note 5; § 431, p. 547 note 2

Adonis, the, § 386, p. 472 note 7; § 390, p. 477 note 3

Africa, the, § 413, p. 531 note 1

Alabama, the, § 335, p. 406

Alaska Boundary Dispute (1903), § 14, p. 18

Alcinous v. Nygreu, § 101, p. 137 note 7

Alexander, the, § 390, p. 477 note 3

Alexis, the, § 34, p. 40

Andersen v. Marten, § 435, p. 555 note 1

André, Major, § 160, p. 198

Ann Green, the, § 92, p. 120 note 2

Anna, the, § 362, p. 443

Anthon v. Fisher, § 195, p. 246 note 1

Antoine v. Morshead, § 101, p. 137 note 3

Apollo, the, § 427, p. 545 note 1

Aryol, the. See Orel

Asgill, Captain, § 249, p. 307

Askold, the, § 347 (3), p. 422

Astrolabe, the, § 186, p. 233

Atalanta, the, § 409, p. 522; § 412, p. 527 note 2

Aurora, the, § 347 (4), p. 423

Awni-Illa, the, § 213, p. 269

Baltica, the, § 88, p. 110 note 2; § 90, p. 116 note 1; § 91, p. 118 note 2

Bellona, the, § 271, p. 332

Benito Estenger, the, § 91, p. 118 note 2

Bentzen v. Boyle, § 90, p. 116 note 4

Bermuda, the, § 385, p. 470; § 400, p. 499 note 1; § 400, p. 500 note 1

Betsey, the, § 385, p. 469 note 1

Bolivia-Peruvian Boundary Dispute (1910), § 16, p. 19

Boudeuse, La. See La Boudeuse

Boussmaker, ex parte, § 100_a_, p. 134 note 4; § 101, p. 137 note 7

Boussole, the, § 186, p. 233

Brandon v. Curling, § 101, p. 138 note 2

Bundesrath, the, § 400, p. 500; § 401, p. 501 note 1; § 402, p. 502; § 402, p. 503 note 2; § 433, p. 552

Calypso, the, § 384, p. 467 note 3

Camille, the, § 349, p. 426

Captain W. Menzel, the, § 311, p. 376 note [375 note 4]

Carolina, the, § 408, p. 519

Caroline, the (1808), § 409, p. 522 note 1

Caroline, the (1904), § 311, p. 376 note 1

Carthage, the, § 403_a_, p. 506 note 1

Cesarewitch, the, § 347 (4), p. 423

Ceylon, the, § 185, p. 231 note 2

Charlotta, the (1810), § 386, p. 472 note 3

Charlotta, the (1814), § 101, p. 137 note 7

Circassian, the, § 380, p. 463 note 2

Columbia, the, § 382, p. 465 note 3; § 390, p. 477 note 3

Commercen, the, § 401, p. 501 note 2

Cornu v. Blackburne, § 195, p. 246 note 1

Cumberland, the, § 186, p. 233 note 2

Daifje, the, § 225, p. 283 note 4

Danous, the, § 88, p. 112 note 1; § 90, p. 115 note 1

De Fortuyn, the, § 181, p. 225 note 1

De Jager v. Attorney-General, § 100, p. 132 note 3

De Jarnett v. De Giversville, § 100_a_, p. 134 note 1

Dessaix, the, § 194, p. 244

De Wahl v. Browne, § 100_a_, p. 135 note 1

De Wütz v. Hendricks, § 352, p. 430 note 2

Diana, the (1799), § 189, p. 236

Diana, the (1904), § 347 (3), p. 422

Discovery, the, § 186, p. 232

Doelwijk, the, § 403, p. 505; § 436, p. 556

Dogger Bank, § 5, p. 7 note 2; § 11, p. 15 note 1

Dorsey v. Kyle, § 100_a_, p. 134 note 1

Driefontein Consolidated Gold Mines Co. v. Janson, § 100_a_, p. 134 note 3

Du Belloix v. Lord Waterpark, § 101, p. 137 note 9

Duclair, British coal vessels at, § 365, p. 448

El Arish, Capitulation of, § 229, pp. 287-9

Elba, the, § 348 (2), p. 424

Elisabeth, the, § 189, p. 236

Eliza and Katy, the, § 428, p. 545 note 3

Elizabeth, the, § 386, p. 472 note 8

Elsebe, the, § 425, p. 543 note 2

Emilia, § 88, p. 110 note 2

Espiègle, L'. See L'Espiègle

Esposito v. Bowden, § 101, p. 137 notes 1, 7, and 8; p. 138 note 1

Étoile, L'. See L'Étoile

Euridice, the, § 349, p. 426

Exchange, the, § 390, p. 477 note 3

Fanny, the, § 185, p. 232 note 2; § 424, p. 542 note 2

Felicity, the, § 194, p. 243 note 5; § 431, p. 547 note 2

Florida, the, § 362, p. 443

Försigtigheten, the, § 349, p. 426

Fortuna, the, § 386, p. 472 note 4

Fox and others, the, § 434, p. 554 note 1

Franciska, the, § 370, p. 452 note 2; § 380, p. 462 note 2; § 380, p. 464 note 1; § 381, p. 464 note 2; § 382, p. 465

Freden, the, § 360, p. 441 note 1

Frederick Moltke, the, § 387, p. 473 note 3

Freundschaft, the, § 90, p. 116 note 5

Friendship, the, § 408, p. 518; § 412, p. 527 note 2

Furtado v. Rodgers, § 101, p. 137 note 1; § 101, p. 138 note 2

Gamba v. Le Mesurier, § 101, p. 138 note 2

Gelderland, the, § 354, p. 433

General, the, § 402, p. 502

General Armstrong, the, § 361, p. 442

General Hamilton, the, § 91, p. 118 note 3; § 389, p. 476 note 1

Genoa, Capitulation of, § 226, p. 284 note 1

Georgina, the, § 185, p. 231 note 2

Gerasimo, the, § 371, p. 453 note 3

German contract for cutting trees in French forests, § 282, p. 342

Gist v. Mason, § 101, p. 136 note 3

Gloire, La. See La Gloire

Goodrich and De Forest v. Gordon, § 195, p. 246 note 1

Griswold v. Boddington, § 101, p. 137 note 8

Grossovoi, the, § 347 (3), p. 422

Haimun, the, § 210, p. 262 note 1; § 356, p. 437

Hale, Captain Nathan, § 161, p. 199

Hanger v. Abbot, § 100_a_, p. 135 note 1

Hardy, Le. See Le Hardy

Harmony, the, § 88, p. 110 note 2

Henkle v. London Exchange Assurance Co., § 101, p. 136 note 3

Henrik and Maria, the, § 375, p. 456 note 1

Herzog, the, § 402, p. 502; § 433, p. 552

Hipsang, the, § 431, p. 548

Hoare v. Allan, § 101, p. 137 note 10

Hobbs v. Henning, § 402, p. 503 note 4

Hoffnung, the, § 384, p. 467 note 3

Hoop, the, § 100_a_, p. 133 note 2; § 101, p. 137 note 1; § 195, p. 246 note 1

Hope, the, § 412, p. 527 note 3

Hunter, the, § 427, p. 544 note 1

Hurtige Hanne, the, § 386, p. 472 note 5

Hussar, the, § 211, p. 263

Icona, the, § 431, p. 548

Iltis, the, § 348 (1), p. 424

Imina, the, § 399, p. 498 note 1; § 402, p. 503

Indian Chief, the, § 90, p. 116 note 2

Industrie, the, § 410, p. 525 note 1

Inflexible, the, § 223, p. 282

Investigator, the, § 186, p. 233 note 2

Invincible, the, § 223, p. 282

Italy v. Peru (Canevaro claim), § 24, p. 31 note 1

Jager. See De Jager

Jakoga, Major, § 161, p. 199 note 1; § 255, p. 315

James Cook, the, § 385, p. 469 note 3

Jameson Raid, § 56, p. 62

Jan Frederick, the, § 91, p. 118 notes 4 and 6; § 92, p. 120 note 2

Jarnett. See De Jarnett

Jemchug, the, § 347 (4), p. 423

Jemmy, the, § 91, p. 118 note 5

Joan, Le. See Le Joan

Johanna Emilie, the, § 88, p. 110 note 2

Jonge Klassina, the, § 90, p. 116 note 5

Jonge Margaretha, the, § 394, p. 486 note 3

Jonge Pieter, the, § 101, p. 137 note 6

Juno, the, § 387, p. 473 note 4

Kellner v. Le Mesurier, § 101, p. 138 note 2

Knight Commander, the, § 431, p. 548

Korietz, the, § 320, p. 388; § 348 (2), p. 424; § 361, p. 442 note 3

Kow-shing, the, § 89, p. 114 note 1; § 348, p. 424

La Boudeuse, the, § 186, p. 232

La Gloire, the, § 225, p. 283 note 4

La Paix, the, § 90, p. 117 note 1

La Rosina, the, § 225, p. 283 note 3

La Santissima Trinidad, the, § 334, p. 405

Laura-Louise. See Le Laura-Louise

Lavabre v. Wilson, § 101, p. 136 note 3

Le Hardy contre La Voltigeante, § 88, p. 111; § 90, p. 117 note 1

Le Joan, the, § 90, p. 117 note 1

Le Laura-Louise, the, § 90, p. 117 note 1

Lena, the, § 347 (3), p. 422

Le Nicolaüs, the, § 90, p. 117 note 1

L'Espiègle, the, § 362, p. 443

Le Thalia, the, § 90, p. 117 note 1

L'Étoile, the, § 186, p. 232

Leucade, the, § 194, p. 243 note 5; § 431, p. 547 note 2

Lion, the, § 348, p. 424

Lisette, the, § 399, p. 498 note 1

Ludwig, the, § 194, p. 244

Luxor, the, § 404, p. 507; § 437, p. 558

Madison, the, § 409, p. 522 note 2

Madonna delle Gracie, § 101, p. 137 note 4

Malacca, the, § 84, p. 102

Manouba, the, § 413, p. 531 note 1

Margaret, the, § 404, p. 507 note 1

Maria, the (1799), § 422, p. 540 note 1; § 423, p. 541 note 1; § 425, p. 543 note 1; § 434, p. 554 note 1

Maria, the (1805), § 390, p. 477 note 4

Maria v. Hall, § 100_a_, p. 134 note 2; § 101, p. 137 note 5

Mashona, the, § 101, p. 137 note 1

Mayer v. Reed, § 101, p. 137 note 9

Melville v. De Wold, § 101, p. 137 note 7

Mentor, the, § 272, p. 333 note 1

Mercurius, the, § 390, p. 477 note 3

Meteor, the, § 334, p. 405

Minerva, the, § 362, p. 443

Modeste, the, § 360, p. 441 note 1

Montara, the, § 89, p. 114 note 2

Nancy, the (1800), § 404, p. 507 note 1

Nancy, the (1809), § 380, p. 463 note 2

Nancy Court of Appeal, § 172, p. 215

Naniwa, the, § 89, p. 114 note 1; § 348, p. 423

Neptunus, the (1799), § 384, p. 467 note 3

Neptunus, the (1800), § 384, p. 467 note 3

Nereide, the, § 185, p. 232 note 2; § 424, p. 542, note 2

Neutralitet, the, § 386, p. 472 note 9

New York Life Insurance Co. v. Buck, § 101, p. 138 note 3

New York Life Insurance Co. v. Davis, § 101, p. 138 note 3

New York Life Insurance Co. v. Stathem, § 101, p. 138 note 3

New York Life Insurance Co. v. Symes, § 101, p. 138 note 3

Niagara, the, § 382, p. 465

Nigretia, the, § 408, p. 519 note 2

North-Eastern Boundary Dispute between Great Britain and the United States (1831), § 16, p. 19

North German Confederation Volunteer Fleet scheme, § 84, p. 101

Novara, the, § 186, p. 233

Novik, the, § 347 (4), p. 423

Oki, Captain Teisuki, § 161, p. 199 note 1; § 255, p. 315

Oldhamia, the, § 206, p. 256 note 1; § 431, p. 548

Oleg, the, § 347 (4), p. 423

Olinde Rodrigues, the, § 380, p. 463 note 2

Orel (or Aryol), the, § 206, p. 256 note 1

Orinoco Steamship Co., § 16, p. 19

Orozembo, the, § 408, p. 518; § 408, p. 519

Pacifico, Don, § 35, p. 41; § 44, p. 49

Paix, La. See La Paix

Palme, the, § 186, p. 233

Panaghia Rhomba, the, § 390, p. 477 note 3

Paquette Habana, the, § 187, p. 234 note 1

Pascal, the, § 348 (2), p. 424

Peterburg, the, § 84, p. 102

Peterhoff, the, § 373, p. 454; § 385, p. 470; § 400, p. 500 note 1; § 401, p. 501

Phoenix, the, § 90, p. 116 note 4

Planche v. Fletcher, § 101, p. 136 note 3

Portland, the, § 90, p. 116 note 5

Postilion, the, § 88, p. 112 note 1; § 90, p. 115 note 1

Potts v. Bell, § 101, p. 137 note 1; § 101, p. 138 note 2

Princesse Marie, the, § 431, p. 548

Quang-nam, the, § 410, p. 525, note 1

Ramillies, § 211, p. 263

Rapid, the, § 409, p. 522

Ras-el-Tin Fort, § 223, p. 282

Recovery, the, § 434, p. 554 note 1

Reshitelni, the, § 320, p. 389; § 361, p. 442 note 3

Resolution, the, § 186, p. 232

Reuss, M. de, § 34, p. 40

Richmond, the, § 397, p. 494 note 1

Rolla, the, § 370, p. 452 note 2; § 375, p. 456 note 2

Rose in Bloom, the, § 387, p. 474 note 2

Rosina, La. See La Rosina

St. Kilda, the, § 431, p. 548

St. Nicholas, the, § 428, p. 545 note 4

Samuel, the, § 101, p. 137 note 6

Santissima Trinidad, La. See La Santissima Trinidad

Sarah, the, § 428, p. 545 note 2

Sechs Geschwistern, the, § 91, p. 118 note 5

Seymour v. London and Provincial Marine Insurance Co., § 402, p. 504 note [503 note 4]

Shepeler v. Durand, § 100_a_, p. 133 note 4

Shepherdess, the, § 386, p. 472 note 6

Sicilian Sulphur Monopoly, § 34, p. 39

Silesian Loan, § 37, p. 44; § 437, p. 557

Smolensk, the, § 84, p. 102

Society for the Propagation of the Gospel v. Town of Newhaven, § 99, p. 130 note 1

Spes and Irene, the, § 386, p. 472 note 10

Springbok, the, § 385, p. 470; § 390, p. 477; § 400, p. 500 note 1; § 401, p. 501

Stackelberg, Baron de, § 37, p. 43

Stephen Hart, the, § 385, p. 470; § 400, p. 499 note 1

Stert, the, § 388, p. 474 note 3

Sutton v. Sutton, § 99, p. 130 note 1

Swineherd, the, § 271, p. 332

Sybille, the, § 211, p. 263

Talbot, the, § 348 (2), p. 424

Temeraire, the, § 223, p. 282

Tetardos, the, § 431, p. 548

Teutonia, the, § 101, p. 138 note 1

Thalia, Le. See Le Thalia.

Thea, the, § 431, p. 548

Thirty Hogsheads of Sugar v. Boyle, § 90, p. 116 note 4

Trende Sostre, the, § 399, p. 498 note 1

Trent, the, § 408, p. 519 note 3; § 431, p. 530

Twee Gebroeders, the, § 362, p. 443

Variag, the, § 320, p. 388; § 348 (2), p. 424; § 361, p. 442 note 3

Vega, the, § 186, p. 233

Venezuelan Boundary Dispute (1900), § 14, p. 18

Venus, the (1803), § 225, p. 283 note 3

Venus, the (1814), § 88, p. 112 note 1; § 90, p. 116 note 3

Victor, the, § 349, p. 427

Vigilantia, the, § 91, p. 118 note 2

Vorwärts, the, § 194, p. 244

Vrouw Judith, the, § 376, p. 458 note 1; § 384, p. 467 note 3; § 387, p. 474 note 1

Vrow Houwina, the, § 401, p. 501

Vrow Margaretha, the, § 91, p. 118 note 4

Wachuset, the, § 362, p. 443

Wahl. See De Wahl

War Onskan, the, § 432, p. 551 note 3

Washburne, § 157, p. 194

Wells v. Williams, § 100_a_, p. 133 note 3

Welvaart van Pillaw, the, § 389 p. 476 note 1

William, the, § 400, p. 499 note 1

Willison v. Paterson, § 101, p. 137 note 2

Yangtsze Insurance Association v. Indemnity Mutual Marine Assurance Company, § 407, p. 516 note 1

Young Jacob and Joanna, the, § 187, p. 234 note 2

CONTENTS

OF

THE SECOND VOLUME

I. AMICABLE SETTLEMENT OF STATE DIFFERENCES

I. State Differences and their Amicable Settlement in General

SECT. PAGE

1. Legal and political International Differences 3 2. International Law not exclusively concerned with Legal Differences 4 3. Amicable in contradistinction to compulsive settlement of Differences 4

II. Negotiation

4. In what Negotiation consists 6 5. International Commissions of Inquiry 6 6. Effect of Negotiation 9

III. Good Offices and Mediation

7. Occasions for Good Offices and Mediation 10 8. Right and Duty of offering, requesting, and rendering Good Offices and Mediation 10 9. Good Offices in contradistinction to Mediation 11 10. Good Offices and Mediation according to the Hague Arbitration Convention 12 11. Value of Good Offices and Mediation 14

IV. Arbitration

12. Conception of Arbitration 16 13. Treaty of Arbitration 16 14. Who is to Arbitrate? 17 15. On what principles Arbitrators proceed and decide 18 16. Binding force of Arbitral Verdict 18 17. What differences can be decided by Arbitration 19 18. Value of Arbitration 22

V. Arbitration according to the Hague Convention

19. Arbitral Justice in general 23 20. Arbitration Treaty and appointment of Arbitrators 26 21. Procedure of and before the Arbitral Tribunal 27 22. Arbitral Award 30 23. Binding force of Awards 30 24. Award binding upon Parties only 31 25. Costs of Arbitration 32 25_a_. Arbitration by Summary Procedure 32

II. COMPULSIVE SETTLEMENT OF STATE DIFFERENCES

I. On Compulsive Means of Settlement of State Differences in General

26. Conception and kinds of Compulsive Means of Settlement 34 27. Compulsive Means in contradistinction to War 34 28. Compulsive Means in contradistinction to an Ultimatum and Demonstrations 35

II. Retorsion

29. Conception and Character of Retorsion 36 30. Retorsion, when justified 37 31. Retorsion, how exercised 37 32. Value of Retorsion 38

III. Reprisals

33. Conception of Reprisals in contradistinction to Retorsion 38 34. Reprisals admissible for all International Delinquencies 39 35. Reprisals admissible for International Delinquencies only 40 36. Reprisals, by whom performed 41 37. Objects of Reprisals 42 38. Positive and Negative Reprisals 44 39. Reprisals must be proportionate 44 40. Embargo 44 41. Reprisals to be preceded by Negotiations and to be stopped when Reparation is made 46 42. Reprisals during Peace in contradistinction to Reprisals during War 46 43. Value of Reprisals 46

IV. Pacific Blockade

44. Development of practice of Pacific Blockade 48 45. Admissibility of Pacific Blockade 50 46. Pacific Blockade and vessels of third States 51 47. Pacific Blockade and vessels of the blockaded State 52 48. Manner of Pacific Blockade 52 49. Value of Pacific Blockade 53

V. Intervention

50. Intervention in contradistinction to Participation in a difference 54 51. Mode of Intervention 55 52. Time of Intervention 55

I. ON WAR IN GENERAL

I. Characteristics of War

53. War no illegality 59 54. Conception of War 60 55. War a contention 61 56. War a contention between States 62 57. War a contention between States through armed forces 63 58. War a contention between States for the purpose of overpowering each other 67 59. Civil War 68 60. Guerilla War 70

II. Causes, Kinds, and Ends of War

61. Rules of Warfare independent of Causes of War 72 62. Causes of War 73 63. Just Causes of War 74 64. Causes in contradistinction to Pretexts for War 75 65. Different kinds of War 76 66. Ends of War 76

III. The Laws of War

67. Origin of the Laws of War 78 68. The latest Development of the Laws of War 79 69. Binding force of the Laws of War 83

IV. The Region of War

70. Region of War in contradistinction to Theatre of War 85 71. Particular Region of every War 86 72. Exclusion from Region of War through Neutralisation 88 73. Asserted exclusion of the Baltic Sea from the Region of War 90

V. The Belligerents

74. Qualification to become a Belligerent (facultas bellandi) 90 75. Possibility in contradistinction to qualification to become a Belligerent 91 76. Insurgents as a Belligerent Power 92 77. Principal and accessory Belligerent Parties 93

VI. The Armed Forces of the Belligerents

78. Regular Armies and Navies 94 79. Non-combatant Members of Armed Forces 95 80. Irregular Forces 96 81. Levies en masse 97 82. Barbarous Forces 98 83. Privateers 99 84. Converted Merchantmen 100 85. The Crews of Merchantmen 104 86. Deserters and Traitors 106

VII. Enemy Character

87. On Enemy Character in general 106 88. Enemy Character of Individuals 108 89. Enemy Character of Vessels 112 90. Enemy Character of Goods 115 91. Transfer of Enemy Vessels 117 92. Transfer of Goods on Enemy Vessels 119

II. THE OUTBREAK OF WAR

I. Commencement of War

93. Commencement of War in General 121 94. Declaration of War 123 95. Ultimatum 125 96. Initiative hostile Acts of War 126

II. Effects of the Outbreak of War

97. General Effects of the Outbreak of War 128 98. Rupture of Diplomatic Intercourse and Consular Activity 129 99. Cancellation of Treaties 129 100. Precarious position of Belligerents' subjects on Enemy Territory 131 100_a_. Persona standi in judicio on Enemy Territory 133 101. Intercourse, especially Trading, between Subjects of Belligerents 135 102. Position of Belligerents' Property in the Enemy State 139 102_a_. Effect of the Outbreak of War on Merchantmen 140

III. WARFARE ON LAND

I. On Land Warfare in General

103. Aims and Means of Land Warfare 144 104. Lawful and Unlawful Practices of Land Warfare 144 105. Objects of the Means of Warfare 145 106. Land Warfare in contradistinction to Sea Warfare 145

II. Violence against Enemy Persons

107. On Violence in general against Enemy Persons 146 108. Killing and Wounding of Combatants 146 109. Refusal of Quarter 147 110. Lawful and Unlawful Means of killing and wounding Combatants 148 111. Explosive Bullets 149 112. Expanding (Dum-Dum) Bullets 149 113. Projectiles diffusing Asphyxiating or Deleterious Gases 150 114. Violence directed from Air-Vessels 150 115. Violence against non-combatant Members of Armed Forces 151 116. Violence against Private Enemy Persons 151 117. Violence against the Head of the Enemy State and against Officials in Important Positions 153

III. Treatment of Wounded, and Dead Bodies

118. Origin of Geneva Convention 154 119. The Wounded and the Sick 157 120. Medical Units and Establishments, and Material 158 121. Personnel 159 122. Convoys of Evacuation 160 123. Distinctive Emblem 161 124. Treatment of the Dead 162 124_a_. Application of the Geneva Convention, and Prevention of Abuses 163 124_b_. General provisions of the Geneva Convention 164

IV. Captivity

125. Development of International Law regarding Captivity 165 126. Treatment of Prisoners of War 167 127. Who may claim to be Prisoners of War 169 128. Discipline 169 129. Release on Parole 170 130. Bureau of Information 171 131. Relief Societies 171 132. End of Captivity 172

V. Appropriation and Utilisation of Public Enemy Property

133. Appropriation of all the Enemy Property no longer admissible 174 134. Immoveable Public Property 174 135. Immoveable Property of Municipalities, and of Religious, Charitable, and the like Institutions 175 136. Utilisation of Public Buildings 175 137. Moveable Public Property 176 138. Moveable Property of Municipalities, and of Religious, Charitable, and the like Institutions 177 139. Booty on the Battlefield 177

VI. Appropriation and Utilisation of Private Enemy Property

140. Immoveable Private Property 179 141. Private War Material and Means of Transport 180 142. Works of Art and Science, Historical Monuments 180 143. Other Private Personal Property 180 144. Booty on the Battlefield 181 145. Private Enemy Property brought into a Belligerent's Territory 182

VII. Requisitions and Contributions

146. War must support War 183 147. Requisitions in Kind, and Quartering 185 148. Contributions 186

VIII. Destruction of Enemy Property

149. Wanton destruction prohibited 187 150. Destruction for the purpose of Offence and Defence 188 151. Destruction in marching, reconnoitring, and conducting Transport 188 152. Destruction of Arms, Ammunition, and Provisions 189 153. Destruction of Historical Monuments, Works of Art, and the like 189 154. General Devastation 190

IX. Assault, Siege, and Bombardment

155. Assault, Siege, and Bombardment, when lawful 191 156. Assault, how carried out 193 157. Siege, how carried out 193 158. Bombardment, how carried out 194

X. Espionage and Treason

159. Twofold Character of Espionage and Treason 196 160. Espionage in contradistinction to Scouting and Despatch-bearing 197 161. Punishment of Espionage 198 162. Treason 199

XI. Ruses

163. Character of Ruses of War 200 164. Different kinds of Stratagems 201 165. Stratagems in contradistinction to Perfidy 202

XII. Occupation of Enemy Territory

166. Occupation as an Aim of Warfare 204 167. Occupation, when effected 206 168. Occupation, when ended 210 169. Rights and Duties in General of the Occupant 210 170. Rights of the Occupant regarding the Inhabitants 211 171. Position of Government Officials and Municipal Functionaries during Occupation 213 172. Position of Courts of Justice during Occupation 214

IV. WARFARE ON SEA

I. On Sea Warfare in General

173. Aims and Means of Sea Warfare 216 174. Lawful and Unlawful Practices of Sea Warfare 217 175. Objects of the Means of Sea Warfare 218 176. Development of International Law regarding Private Property on Sea 218 177. Declaration of Paris 220 178. The Principle of Appropriation of Private Enemy Vessels and Enemy Goods thereon 221 179. Impending Codification of Law of Sea Warfare 224

II. Attack and Seizure of Enemy Vessels

180. Importance of Attack and Seizure of Enemy Vessels 225 181. Attack, when legitimate 225 182. Attack, how effected 226 182_a_. Submarine Contact Mines 227 183. Duty of giving Quarter 231 184. Seizure 231 185. Effect of Seizure 231 186. Immunity of Vessels charged with Religious, Scientific, or Philanthropic Mission 232 187. Immunity of Fishing-boats and small boats employed in local Trade 234 188. Immunity of Merchantmen at the Outbreak of War on their Voyage to and from a Belligerent's Port 235 189. Vessels in Distress 236 190. Immunity of Hospital and Cartel Ships 236 191. Immunity of Mail-boats and Mail-bags 236

III. Appropriation, and Destruction of Enemy Merchantmen

192. Prize Courts 238 193. Conduct of Prize to Port of Prize Court 241 194. Destruction of Prize 242 195. Ransom of Prize 245 196. Loss of Prize, especially Recapture 246 197. Fate of Prize 247 198. Vessels belonging to Subjects of Neutral States, but sailing under Enemy Flag 248 199. Effect of Sale of Enemy Vessels during War 248 200. Goods sold by and to Enemy Subjects during War 249

IV. Violence against Enemy Persons

201. Violence against Combatants 249 202. Violence against Non-combatant Members of Naval Forces 250 203. Violence against Enemy Individuals not belonging to the Naval Forces 251

V. Treatment of Wounded and Shipwrecked

204. Adaptation of Geneva Convention to Sea Warfare 252 205. The Wounded, Sick, and Shipwrecked 253 205_a_. Treatment of the Dead 254 206. Hospital Ships 254 206_a_. Hospital Ships in Neutral Ports 256 206_b_. Sick-Bays 257 207. Distinctive Colour and Emblem of Hospital Ships 258 208. Neutral Vessels assisting the Wounded, Sick, or Shipwrecked 259 209. The Religious, Medical, and Hospital Staff 260 209_a_. Application of Convention X., and Prevention of Abuses 260 209_b_. General Provisions of Convention X. 261

VI. Espionage, Treason, Ruses

210. Espionage and Treason 262 211. Ruses 262

VII. Requisitions, Contributions, Bombardment

212. Requisitions and Contributions upon Coast Towns 264 213. Bombardment of the Enemy Coast 266

VIII. Interference with Submarine Telegraph Cables

214. Uncertainty of Rules concerning Interference with Submarine Telegraph Cables 271

V. NON-HOSTILE RELATIONS OF BELLIGERENTS

I. On non-hostile Relations in General between Belligerents

215. Fides etiam hosti servanda 273 216. Different kinds of Non-hostile Relations 274 217. Licences to Trade 275

II. Passports, Safe-conducts, Safeguards

218. Passports and Safe-conducts 276 219. Safeguards 277

III. Flags of Truce

220. Meaning of Flags of Truce 278 221. Treatment of Unadmitted Flag-bearers 279 222. Treatment of Admitted Flag-bearers 279 223. Abuse of Flag of Truce 281

IV. Cartels

224. Definition and Purpose of Cartels 282 225. Cartel Ships 283

V. Capitulations

226. Character and Purpose of Capitulations 284 227. Contents of Capitulations 285 228. Form of Capitulations 286 229. Competence to conclude Capitulations 287 230. Violation of Capitulations 289

VI. Armistices

231. Character and Kinds of Armistices 290 232. Suspensions of Arms 291 233. General Armistices 291 234. Partial Armistices 293 235. Competence to conclude Armistices 293 236. Form of Armistices 294 237. Contents of Armistices 294 238. Commencement of Armistices 296 239. Violation of Armistices 297 240. End of Armistices 299

VI. MEANS OF SECURING LEGITIMATE WARFARE

I. On Means in General of securing Legitimate Warfare

241. Legitimate and Illegitimate Warfare 300 242. How Legitimate Warfare is on the whole secured 301

II. Complaints, Good Offices and Mediation, Intervention

243. Complaints lodged with the Enemy 302 244. Complaints lodged with Neutrals 303 245. Good Offices and Mediation 303 246. Intervention on the part of Neutrals 304

III. Reprisals

247. Reprisals between Belligerents in contradistinction to Reprisals in time of Peace 305 248. Reprisals admissible for every Illegitimate Act of Warfare 305 249. Danger of Arbitrariness in Reprisals 306 250. Proposed Restriction of Reprisals 308

IV. Punishment of War Crimes

251. Conception of War Crimes 309 252. Different kinds of War Crimes 310 253. Violations of Rules regarding Warfare 310 254. Hostilities in Arms by Private Individuals 312 255. Espionage and War Treason 313 256. Marauding 316 257. Mode of Punishment of War Crimes 316

V. Taking of Hostages

258. Former Practice of taking Hostages 317 259. Modern Practice of taking Hostages 317

VI. Compensation

259_a_. How the Principle of Compensation for Violations of the Laws of War arose 319 259_b_. Compensation for Violations of the Hague Regulations 320

VII. END OF WAR, AND POSTLIMINIUM

I. On Termination of War in General

260. War a Temporary Condition 322 261. Three Modes of Termination of War 322

II. Simple Cessation of Hostilities

262. Exceptional Occurrence of simple Cessation of Hostilities 323 263. Effect of Termination of War through simple Cessation of Hostilities 324

III. Subjugation

264. Subjugation in contradistinction to Conquest 325 265. Subjugation a formal End of War 326

IV. Treaty of Peace

266. Treaty of Peace the most frequent End of War 327 267. Peace Negotiations 328 268. Preliminaries of Peace 329 269. Form and Parts of Peace Treaties 330 270. Competence to conclude Peace 330 271. Date of Peace 331

V. Effects of Treaty of Peace

272. Restoration of Condition of Peace 332 273. Principle of Uti Possidetis 334 274. Amnesty 334 275. Release of Prisoners of War 335 276. Revival of Treaties 336

VI. Performance of Treaty of Peace

277. Treaty of Peace, how to be carried out 337 278. Breach of Treaty of Peace 338

VII. Postliminium

279. Conception of Postliminium 339 280. Postliminium according to International Law, in contradistinction to Postliminium according to Municipal Law 340 281. Revival of the Former Condition of Things 341 282. Validity of Legitimate Acts 342 283. Invalidity of Illegitimate Acts 343 284. No Postliminium after Interregnum 343

I. ON NEUTRALITY IN GENERAL

I. Development of the Institution of Neutrality

285. Neutrality not practised in Ancient Times 347 286. Neutrality during the Middle Ages 348 287. Neutrality during the Seventeenth Century 349 288. Progress of Neutrality during the Eighteenth Century 350 289. First Armed Neutrality 352 290. The French Revolution and the Second Armed Neutrality 354 291. Neutrality during the Nineteenth Century 357 292. Neutrality in the Twentieth Century 359

II. Characteristics of Neutrality

293. Conception of Neutrality 361 294. Neutrality an Attitude of Impartiality 362 295. Neutrality an Attitude creating Rights and Duties 363 296. Neutrality an Attitude of States 363 297. No Cessation of Intercourse during Neutrality between Neutrals and Belligerents 365 298. Neutrality an Attitude during War (Neutrality in Civil War) 365 299. Neutrality to be recognised by the Belligerents 367

III. Different Kinds of Neutrality

300. Perpetual Neutrality 368 301. General and Partial Neutrality 369 302. Voluntary and Conventional Neutrality 369 303. Armed Neutrality 369 304. Benevolent Neutrality 370 305. Perfect and Qualified Neutrality 370 306. Some Historical Examples of Qualified Neutrality 371

IV. Commencement and End of Neutrality

307. Neutrality commences with Knowledge of the War 373 308. Commencement of Neutrality in Civil War 374 309. Establishment of Neutrality by Declarations 374 310. Municipal Neutrality Laws 375 311. British Foreign Enlistment Act 375 312. End of Neutrality 377

II. RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS

I. Rights and Duties deriving from Neutrality

313. Conduct in General of Neutrals and Belligerents 378 314. What Rights and Duties of Neutrals and of Belligerents there are 378 315. Rights and Duties of Neutrals contested 379 316. Contents of Duty of Impartiality 381 317. Duty of Impartiality continuously growing more intense 382 317_a_. Neutrality Conventions of the Second Peace Conference 383 318. Contents of Duty of Belligerents to treat Neutrals in accordance with their Impartiality 384 319. Contents of Duty not to suppress Intercourse between Neutrals and the Enemy 385

II. Neutrals and Military Operations

320. Hostilities by and against Neutrals 386 321. Furnishing Troops and Men-of-War to Belligerents 389 322. Subjects of Neutrals fighting among Belligerent Forces 390 323. Passage of Troops and War Material through Neutral Territory 391 324. Passage of Wounded through Neutral Territory 392 325. Passage of Men-of-War 393 326. Occupation of Neutral Territory by Belligerents 394 327. Prize Courts on Neutral Territory 395 328. Belligerent's Prizes in Neutral Ports 395

III. Neutrals and Military Preparations

329. Depôts and Factories on Neutral Territory 397 330. Levy of Troops, and the like 398 331. Passage of Bodies of Men intending to Enlist 399 332. Organisation of Hostile Expeditions 400 333. Use of Neutral Territory as Base of Naval Operations 400 334. Building and Fitting-out of Vessels intended for Naval Operations 405 335. The Alabama Case and the Three Rules of Washington 406

IV. Neutral Asylum to Land Forces and War Material

336. On Neutral Asylum in General 409 337. Neutral Territory and Prisoners of War 410 338. Fugitive Soldiers on Neutral Territory 413 339. Neutral Territory and Fugitive Troops 413 340. Neutral Territory and Non-combatant Members of Belligerent Forces 415 341. Neutral Territory and War Material of Belligerents 415

V. Neutral Asylum to Naval Forces

342. Asylum to Naval Forces in contradistinction to Asylum to Land Forces 417 343. Neutral Asylum to Naval Forces Optional 417 344. Asylum to Naval Forces in Distress 418 345. Exterritoriality of Men-of-War during Asylum 419 346. Facilities to Men-of-War during Asylum 420 347. Abuse of Asylum to be prohibited 420 348. Neutral Men-of-War as an Asylum 423 348_a_. Neutral Territory and Shipwrecked Soldiers 424

VI. Supplies and Loans to Belligerents

349. Supply on the part of Neutrals 426 350. Supply on the part of Subjects of Neutrals 427 351. Loans and Subsidies on the part of Neutrals 430 352. Loans and Subsidies on the part of Subjects of Neutrals 430

VII. Services to Belligerents

353. Pilotage 432 354. Transport on the part of Neutrals 433 355. Transport on the part of Neutral Merchantmen and by neutral rolling stock 434 356. Information regarding Military and Naval Operations 434

VIII. Violation of Neutrality

357. Violation of Neutrality in the narrower and in the wider sense of the Term 438 358. Violation in contradistinction to End of Neutrality 439 359. Consequences of Violations of Neutrality 439 360. Neutrals not to acquiesce in Violations of Neutrality committed by a Belligerent 440 361. Case of the General Armstrong 442 362. Mode of exacting Reparation from Belligerents for Violations of Neutrality 442 363. Negligence on the part of Neutrals 444 363_a_. Laying of Submarine Contact Mines by Neutrals 445

IX. Right of Angary

364. The Obsolete Right of Angary 446 365. The Modern Right of Angary 447 366. Right of Angary concerning Neutral Rolling Stock 448 367. Right of Angary not deriving from Neutrality 449

III. BLOCKADE

I. Conception of Blockade

368. Definition of Blockade 450 369. Blockade, Strategic and Commercial 452 370. Blockade to be Universal 452 371. Blockade, Outwards and Inwards 453 372. What Places can be Blockaded 453 373. Blockade of International Rivers 454 374. Justification of Blockade 455

II. Establishment of Blockade

375. Competence to establish Blockade 456 376. Declaration and Notification of Blockade 456 377. Length of Time for Egress of Neutral Vessels 459 378. End of Blockade 460

III. Effectiveness of Blockade

379. Effective in contradistinction to Fictitious Blockade 461 380. Condition of Effectiveness of Blockade 461 381. Amount of Danger which creates Effectiveness 464 382. Cessation of Effectiveness 464

IV. Breach of Blockade

383. Definition of Breach of Blockade 466 384. No Breach without Notice of Blockade 466 385. The former practice as to what constitutes an Attempt to break Blockade 468 385_a_. What constitutes an Attempt to break Blockade according to the Declaration of London 470 386. When Ingress is not considered Breach of Blockade 472 387. When Egress is not considered Breach of Blockade 473 388. Passage through Unblockaded Canal no Breach of Blockade 474

V. Consequences of Breach of Blockade

389. Capture of Blockade-running Vessels 475 390. Penalty for Breach of Blockade 476

IV. CONTRABAND

I. Conception of Contraband

391. Definition of Contraband of War 480 392. Absolute and conditional Contraband, and free Articles 481 393. Articles absolutely Contraband 483 394. Articles conditionally Contraband 485 395. Hostile Destination essential to Contraband 490 396. Free Articles 492 396_a_. Articles destined for the use of the carrying Vessel, or to aid the Wounded 493 397. Contraband Vessels 494

II. Carriage of Contraband

398. Carriage of Contraband Penal by the Municipal Law of Belligerents 495 399. Direct Carriage of Contraband 497 400. Circuitous Carriage of Contraband 499 401. Indirect Carriage of Contraband (Doctrine of Continuous Transports) 500 402. The Case of the Bundesrath 502 403. Continental support to the Doctrine of Continuous Transports 504 403_a_. Partial Recognition by the Declaration of London of the Doctrine of Continuous Voyages 505

III. Consequences of Carriage of Contraband

404. Capture for Carriage of Contraband 506 405. Penalty for Carriage of Contraband according to the Practice hitherto prevailing 508 406. Penalty according to the Declaration of London for Carriage of Contraband 511 406_a_. Seizure of Contraband without Seizure of the Vessel 513

V. UNNEUTRAL SERVICE

I. The Different Kinds of Unneutral Service

407. Unneutral Service in general 515 408. Carriage of Persons for the Enemy 517 409. Transmission of Intelligence to the Enemy 521 410. Unneutral Service creating Enemy Character 524

II. Consequences of Unneutral Service

411. Capture for Unneutral Service 526 412. Penalty for Unneutral Service 527 413. Seizure of Enemy Persons and Despatches without Seizure of Vessel 530

VI. VISITATION, CAPTURE, AND TRIAL OF NEUTRAL VESSELS

I. Visitation

414. Conception of Right of Visitation 533 415. Right of Visitation, by whom, when, and where exercised 534 416. Only Private Vessels may be Visited 535 417. Vessels under Convoy 535 418. No Universal Rules regarding Mode of Visitation 537 419. Stopping of Vessels for the Purpose of Visitation 538 420. Visit 538 421. Search 539 422. Consequences of Resistance to Visitation 540 423. What constitutes Resistance 541 424. Sailing under Enemy Convoy equivalent to Resistance 542 425. Resistance by Neutral Convoy 543 426. Deficiency of Papers 543 427. Spoliation, Defacement, and Concealment of Papers 544 428. Double and False Papers 545

II. Capture

429. Grounds and Mode of Capture 546 430. Effect of Capture of Neutral Vessels, and their Conduct to Port 546 431. Destruction of Neutral Prizes 547 432. Ransom and Recapture of Neutral Prizes 551 433. Release after Capture 551

III. Trial of captured Neutral Vessels

434. Trial of Captured Vessels a Municipal Matter 553 435. Result of Trial 555 436. Trial after Conclusion of Peace 555 437. Protests and Claims of Neutrals after Trial 557

VII. THE INTERNATIONAL PRIZE COURT

I. Proposals for International Prize Courts

438. Early Projects 559 439. German Project of 1907 561 440. British Project of 1907 562 441. Convention XII. of the Second Peace Conference 563

II. Constitution and Competence of the International Prize Court

442. Personnel 565 443. Deciding Tribunal 566 444. Administrative Council and International Bureau 569 445. Agents, Counsel, Advocates, and Attorneys 569 446. Competence 569 447. What Law to be applied 571

III. Procedure in the International Prize Court

448. Entering of Appeal 572 449. Pleadings and Discussion 574 450. Judgment 575 451. Expenses and Costs 576

IV. Action in Damages instead of Appeal

452. Reason for Action in Damages instead of Appeal 577 453. Procedure if Action for Damages is brought 578

APPENDICES

I. Declaration of Paris of 1856 583

II. Declaration of St. Petersburg of 1868 584

III. Declaration concerning Expanding Bullets of 1899 585

IV. Declaration concerning the Diffusion of Asphyxiating Gases of 1899 586

V. Geneva Convention of 1906 587

VI. Final Act of the Second Hague Peace Conference of 1907 591

I. Convention for the Pacific Settlement of International Disputes 592 II. Convention respecting the Limitation of the Employment of Force for the Recovery of Contract Debts 601 III. Convention relative to the Opening of Hostilities 602 IV. Convention concerning the Laws and Customs of War on Land 603 V. Convention respecting the Rights and Duties of Neutral Powers and Persons in War on Land 609 VI. Convention relative to the Status of Merchantmen at the Outbreak of Hostilities 612 VII. Convention relative to the Conversion of Merchantmen into Men-of-War 613 VIII. Convention relative to the Laying of Automatic Submarine Contact Mines 614 IX. Convention respecting Bombardment by Naval Forces in Time of War 616 X. Convention for the Adaptation of the Principles of the Geneva Convention to Maritime Warfare 617 XI. Convention relative to certain Restrictions on the Exercise of the Right of Capture in Maritime War 621 XII. Convention concerning the Establishment of an International Prize Court 622 XIII. Convention concerning the Rights and Duties of Neutral Powers in Maritime War 629 XIV. Declaration concerning the Prohibition of the Discharge of Projectiles and Explosives from Balloons 632 XV. Draft Convention concerning the Creation of a Judicial Arbitration Court 632

VII. Declaration of London of 1909 (including the Report of the Drafting Committee) 637

VIII. Additional Protocol, of 1910, to the Hague Convention concerning the Establishment of an International Prize Court 665

IX. Foreign Enlistment Act, 1870 667

X. The Naval Prize Act, 1864 674

XI. The Prize Courts Act, 1894 682

XII. Naval Prize Bill of 1911 683

XIII. Geneva Convention Act, 1911 690

INDEX 691

I. AMICABLE SETTLEMENT OF STATE DIFFERENCES

I

STATE DIFFERENCES AND THEIR AMICABLE SETTLEMENT IN GENERAL

Twiss, II. §§ 1-3--Ullmann, §§ 148-150--Bulmerincq in Holtzendorff, IV. pp. 5-12--Heffter, §§ 105-107--Rivier, II. § 57--Bonfils, No. 930--Despagnet, No. 469--Pradier-Fodéré, IV. Nos. 2580-2583--Calvo, III. §§ 1670-1671--Martens, II. §§ 101-102--Fiore, II. Nos. 1192-1198, and Code, No. 1246--Wagner, Zur Lehre von den Streiterledigungsmitteln des Völkerrechts (1900.)

[Sidenote: Legal and political International Differences.]

§ 1. International differences can arise from a variety of grounds. Between the extremes of a simple and comparatively unimportant act of discourtesy committed by one State against another, on the one hand, and, on the other, so gross an insult as must necessarily lead to war, there are many other grounds varying in nature and importance. State differences are correctly divided into legal and political. Legal differences arise from acts for which States have to bear responsibility, be it acts of their own or of their Parliaments, judicial and administrative officials, armed forces, or individuals living on their territory.[1] Political differences are the result of a conflict of political interests. But although this distinction is certainly theoretically correct and of practical importance, frequently in practice a sharp line cannot be drawn. For in many cases States either hide their political interests behind a claim for an alleged injury, or make a positive, but comparatively insignificant, injury a pretext for the carrying out of political ends. Nations which have been for years facing each other armed to the teeth, waiting for a convenient moment to engage in hostilities, are only too ready to obliterate the boundary line between legal and political differences. Between such nations a condition of continuous friction prevails which makes it difficult, if not impossible, in every case which arises to distinguish the legal from the political character of the difference.

[Footnote 1: See above, vol. I. § 149.]

[Sidenote: International Law not exclusively concerned with Legal Differences.]

§ 2. It is often maintained that the Law of Nations is concerned with legal differences only, political differences being a matter not of law but of politics. Now it is certainly true that only legal differences can be settled by a juristic decision of the underlying juristic question, whatever may be the way in which such decision is arrived at. But although political differences cannot be the objects of juristic decision, they can be settled short of war by amicable or compulsive means. And legal differences, although within the scope of juristic decision, can be of such kinds as to prevent the parties from submitting them to such decision, without being of a nature that they cannot be settled peaceably at all. Moreover, although the distinction between legal and political differences is certainly correct in theory and of importance in practice, nevertheless, in practice, a sharp line frequently cannot be drawn, as has just been pointed out. Therefore the Law of Nations is not exclusively concerned with legal differences, for in fact all amicable means of settling legal differences are likewise means of settling political differences, and so are two of the compulsive means of settling differences--namely, pacific blockade and intervention.

[Sidenote: Amicable in contradistinction to compulsive settlement of Differences.]

§ 3. Political and legal differences can be settled either by amicable or by compulsive means. There are four kinds of amicable means--namely, negotiation between the parties, good offices of third parties, mediation, and arbitration.[2] And there are also four kinds of compulsive means--namely, retorsion, reprisals (including embargo), blockade, and intervention of third States. No State is allowed to make use of compulsive means before negotiation has been tried, but there is no necessity for the good offices or mediation of third States, and eventually arbitration,[3] to be tried beforehand also. Frequently, however, States nowadays make use of the so-called Compromise Clause[4] in their treaties, stipulating thereby that any differences arising between the contracting parties with regard to matters regulated by, or to the interpretation of, the respective treaties shall be settled through the amicable means of arbitration to the exclusion of all compulsive means. And there are even a few examples of States which have concluded treaties stipulating that all differences, without exception, that might arise between them should be amicably settled by arbitration.[5] These exceptions, however, only confirm the rule that no international legal duty exists for States to settle their differences amicably through arbitration, or even to try to settle them in this way, before they make use of compulsive means.

[Footnote 2: Some writers (see Hall, § 118, and Heilborn, System, p. 404) refuse to treat negotiation, good offices, and mediation as means of settling differences, because they cannot find that these means are of any legal value, it being in the choice of the parties whether or not they agree to make use of them. They forget, however, the enormous political value of these means, which alone well justifies their treatment; moreover, there are already some positive legal rules in existence concerning these means--see Hague Arbitration Treaty, articles 2-7 and 9-36--and others will in time, no doubt, be established.]

[Footnote 3: Except in the case of contract debts claimed from the Government of one country by the Government of another country as being due to its nationals. See Convention II.; above, vol. I. § 135, p. 192; and below, § 19.]

[Footnote 4: See above, vol. I. § 553.]

[Footnote 5: See below, § 17.]

II

NEGOTIATION

Twiss, II. § 4--Lawrence, § 220--Moore, VII. § 1064--Taylor, §§ 359-360--Heffter, § 107--Bulmerincq in Holtzendorff, IV. pp. 13-17--Ullmann, § 151--Bonfils, Nos. 931-932--Despagnet, Nos. 470 and 477--Pradier-Fodéré, VI. Nos. 2584-2587--Rivier, II. § 57--Calvo, III. §§ 1672-1680--Martens, II. § 103--Nys, III. pp. 56-58.

[Sidenote: In what Negotiation consists.]

§ 4. The simplest means of settling State differences, and that to which States always resort before they make use of other means, is negotiation. It consists in such acts of intercourse between the parties as are initiated and directed for the purpose of effecting an understanding and thereby amicably settling the difference that has arisen between them.[6] Negotiation as a rule begins by a State complaining of a certain act, or lodging a certain claim with another State. The next step is a statement from the latter making out its case, which is handed over to the former. It may be that the parties come at once to an understanding through this simple exchange of statements. If not, other acts may follow according to the requirements of the special case. Thus, for instance, other statements may be exchanged, or a conference of diplomatic envoys, or even of the heads of the States at variance, may be arranged for the purpose of discussing the differences and preparing the basis for an understanding.

[Footnote 6: See above, vol. I. §§ 477-482, where the international transaction of negotiation in general is discussed.]

[Sidenote: International Commissions of Inquiry.]

§ 5. The contracting Powers of the Hague Convention for the peaceful settlement of international differences deem it expedient and desirable that, if the ordinary diplomatic negotiation has failed to settle such differences as do not involve either honour or vital interests, the parties should, so far as circumstances allow, institute an International Commission of Inquiry[7] for the purpose of elucidating the facts underlying the difference by an impartial and conscientious investigation. The Convention of 1899 had only six articles (9-14) on the subject. The Second Conference of 1907, profiting by the experience gained by the Commission of Inquiry in the Dogger Bank[8] case, the first and as yet only occasion on which a Commission of Inquiry was instituted, remodelled the institution, and Convention I. treats of the subject in twenty-eight articles (9-36). The more important stipulations are the following:--

(1) The Commissions are to be constituted by a special treaty of the parties, which is to determine the facts to be examined, the manner and period within which the Commission is to be formed, the extent of the powers of the Commissioners, the place where the Commission is to meet and whether it may remove to another place, the languages to be used by the Commission and parties, and the like (articles 9-10). If the treaty does not determine the place where the Commission is to sit, it shall sit at the Hague; if the treaty does not specify the languages to be used, the question shall be decided by the Commission; and if the treaty does not stipulate the manner in which the Commission is to be formed, it shall be formed in the manner determined by articles 45 and 57 of Convention I. (articles 11-12). The parties may appoint Assessors, Agents, and Counsel (articles 10, 13, 14).

(2) The International Bureau of the Permanent Court of Arbitration acts as Registry for the Commissions which sit at the Hague; but if they sit elsewhere, a Secretary-General is to be appointed whose office serves as Registry (articles 15-16).

(3) The parties may agree upon the rules of procedure to be followed by the Commission, but if they do not provide such rules themselves, the rules of procedure, comprised in articles 19-32 are applicable (article 17), and, in any case, the Commission is to settle such details of the procedure as are either not covered by the treaty of the parties or by articles 19-32, and is to arrange all the formalities required for dealing with the evidence (article 18).

(4) The Report of the Commission is to be signed by all its members; but if a member refuses to sign, the fact is to be mentioned, and the validity of the Report is not thereby affected (article 33). The Report of the Commission is read in open Court, the Agents and Counsel of the parties being present or duly summoned to attend; a copy of the Report is furnished to each party (article 34). This Report is absolutely limited to a statement of the facts, it has in no way the character of an Arbitral Award, and it leaves to the parties entire freedom as to the effect to be given to the statement of the facts (article 35).

(5) Each party pays its own expenses and an equal share of the expenses of the Commission (article 36).

[Footnote 7: See Herr, _Die Untersuchungskommissionen der Haager Friedenskonferenzen_ (1911); Meurer, I. pp. 129-165; Higgins, pp. 167-170; Lémonon, pp. 77-91: Wehberg, Kommentar, pp. 21-46; Nippold, I. pp. 23-35; Scott, Conferences, pp. 265-273; Politis in R.G. XIX. (1912), pp. 149-188.]

[Footnote 8: On October 24, 1904, during the Russo-Japanese war, the Russian Baltic fleet, which was on its way to the Far East, fired into the Hull fishing fleet off the Dogger Bank, in the North Sea, whereby two fishermen were killed and considerable damage was done to several trawlers. Great Britain demanded from Russia not only an apology and ample damages, but also severe punishment of the officer responsible for the outrage. As Russia maintained that the firing was caused by the approach of some Japanese torpedo-boats, and that she could therefore not punish the officer in command, the parties agreed upon the establishment of an International Commission of Inquiry, which, however, was charged not only to ascertain the facts of the incident but also to pronounce an opinion concerning the responsibility for the incident and the degree of blame attaching to the responsible persons. The Commission consisted of five naval officers of high rank--namely, one British, one Russian, one American, one French, and one Austrian, who sat at Paris in February 1905. The report of the Commission states that no torpedo-boats had been present, that the opening of fire on the part of the Baltic fleet was not justifiable, that Admiral Rojdestvensky, the commander of the Baltic fleet, was responsible for the incident, but that these facts were "not of a nature to cast any discredit upon the military qualities or the humanity of Admiral Rojdestvensky or of the personnel of his squadron." In consequence of the last part of this report Great Britain could not insist upon any punishment to be meted out to the responsible Russian Admiral, but Russia paid a sum of £65,000 to indemnify the victims of the incident and the families of the two dead fishermen. See Martens, N.R.G. 2nd Ser. XXXIII. (1906), pp. 641-716, And Mandelstam in R.G. XII. (1905), pp. 161 and 351.]

[Sidenote: Effect of Negotiation.]

§ 6. The effect of negotiation can be to make it apparent that the parties cannot come to an amicable understanding at all. But frequently the effect is that one of the parties acknowledges the claim of the other party. Again, sometimes negotiation results in a party, although it does not acknowledge the opponent's alleged rights, waiving its own rights for the sake of peace and for the purpose of making friends with the opponent. And, lastly, the effect of negotiation can be a compromise between the parties. Frequently the parties, after having come to an understanding, conclude a treaty in which they embody the terms of the understanding arrived at through negotiation. The practice of everyday life shows clearly the great importance of negotiation as a means of settling international differences. The modern development of international traffic and transport, the fact that individuals are constantly travelling on foreign territories, the keen interest taken by all powerful States in colonial enterprise, and many other factors, make the daily rise of differences between States unavoidable. Yet the greater number of such differences are settled through negotiation of some kind or other.

III

GOOD OFFICES AND MEDIATION

Maine, pp. 207-228--Phillimore, III. §§ 3-5--Twiss, II. § 7--Lawrence, § 220--Moore, VII. §§ 1065-1068--Taylor, §§ 359-360--Wheaton, § 73--Bluntschli, §§ 483-487--Heffter, §§ 107-108--Bulmerincq in Holtzendorff, IV. pp. 17-30--Ullmann, §§ 152-153--Bonfils, Nos. 932'1-943'1--Despagnet, Nos. 471-476--Pradier-Fodéré, VI. Nos. 2588-2593--Mérignhac, I. pp. 429-447--Rivier, II. § 58--Nys, III. pp. 59-61--Calvo, III. §§ 1682-1705--Fiore, III. Nos. 1199-1201, and Code, Nos. 1248-1293--Martens, II. § 103--Holls, The Peace Conference at the Hague (1900), pp. 176-203--Zamfiresco, De la médiation (1911)--Politis in R.G. XVII. (1910), pp. 136-163.

[Sidenote: Occasions for Good Offices and Mediation.]

§ 7. When parties are not inclined to settle their differences by negotiation, or when they have negotiated without effecting an understanding, a third State can procure a settlement through its good offices or its mediation, whether only one or both parties have asked for the help of the third State or the latter has spontaneously offered it. There is also possible a collective mediation, several States acting at the same time as mediators. It is further possible for a mediatorial Conference or Congress to meet for the purpose of discussing the terms of an understanding between the conflicting parties. And it must be especially mentioned that good offices and mediation are not confined to the time before the differing parties have appealed to arms; they can also be offered and sought during hostilities for the purpose of bringing the war to an end. It is during war in particular that good offices and mediation are of great value, neither of the belligerents as a rule being inclined to open peace negotiations on his own account.

[Sidenote: Right and duty of offering, requesting, and rendering Good Offices and Mediation.]

§ 8. As a rule, no duty exists for a third State to offer its good offices or mediation, or to respond to a request of the conflicting States for such, nor is it, as a rule, the duty of the conflicting parties themselves to ask or to accept a third State's good offices and mediation. But by special treaty such duty can be stipulated. Thus, for instance, by article 8 of the Peace Treaty of Paris of March 30, 1856, between Austria, France, Great Britain, Prussia, Russia, Sardinia, and Turkey, it was stipulated that, in case in the future such difference as threatened peace should arise between Turkey and one or more of the signatory Powers, the parties should be obliged,[9] before resorting to arms, to ask for the mediation of the other signatory Powers. Thus, further, article 12 of the General Act of the Berlin Congo Conference of 1885 stipulates that, in case a serious difference should arise between some of the signatory Powers as regards the Congo territories, the parties should, before resorting to arms, be obliged to ask the other signatory Powers for their mediation. And lately the Hague Conventions for the peaceful settlement of international differences have laid down some stipulations respecting the right and duty of good offices and mediation, which will be found below in § 10.

[Footnote 9: But Italy did not comply with this stipulation before she declared war against Turkey in September 1911.]

[Sidenote: Good Offices in contradistinction to Mediation.]

§ 9. Diplomatic practice frequently does not distinguish between good offices and mediation. But although good offices can easily develop into mediation, they must not be confounded with it. The difference between them is that, whereas good offices consist in various kinds of action tending to call negotiations between the conflicting States into existence, mediation consists in a direct conduct of negotiations between the differing parties on the basis of proposals made by the mediator. Good offices seek to induce the conflicting parties, who are either not at all inclined to negotiate with each other or who have negotiated without effecting an understanding, to enter or to re-enter into such negotiations. Good offices can also consist in advice, in submitting a proposal of one of the parties to the other, and the like, but they never take part in the negotiations themselves. On the other hand, the mediator is the middleman who does take part in the negotiations. He makes certain propositions on the basis of which the States at variance may come to an understanding. He even conducts the negotiations himself, always anxious to reconcile the opposing claims and to appease the feeling of resentment between the parties. All the efforts of the mediator may often, of course, be useless, the differing parties being unable or unwilling to consent to an agreement. But if an understanding is arrived at, the position of the mediator as a party to the negotiation, although not a participator in the difference, frequently becomes clearly apparent either by the drafting of a special act of mediation which is signed by the States at variance and the mediator, or by the fact that in the convention between the conflicting States, which stipulates the terms of their understanding, the mediator is mentioned.

[Sidenote: Good Offices and Mediation according to the Hague Arbitration Convention.]

§ 10. The Hague Convention for the peaceful settlement of international differences[10] undertakes in articles 2-8 the task of making the signatory Powers have recourse more frequently than hitherto to good offices and mediation; it likewise recommends a new and particular form of mediation. Its rules are the following:--

[Footnote 10: See Meurer, I. pp. 104-128; Higgins, p. 167; Barclay, Problems, pp. 191-197; Lémonon, pp. 69-73; Wehberg, Kommentar, pp. 10-21; Nippold, I. pp. 21-22; Scott, Conferences, pp. 256-265.]

(1) The contracting Powers agree to have recourse, before they appeal to arms, as far as circumstances allow, to good offices or mediation (article 2). And independently of this recourse, they consider it expedient and desirable that contracting Powers who are strangers to the dispute should, on their own initiative, offer their good offices or mediation (article 3). A real legal duty to offer good offices or mediation is not thereby created; only the expediency and desirability of such offer are recognised. In regard to the legal duty of conflicting States to ask for good offices or mediation, it is obvious that, although literally such duty is agreed upon, the condition "as far as circumstances allow" makes it more or less illusory, as it is in the discretion of the parties to judge for themselves whether or not the circumstances of the special case allow their having recourse to good offices and mediation.

(2) The contracting Powers agree that (article 3) a right to offer good offices or mediation exists for those of them who are strangers to a dispute, and that this right exists also after the conflicting parties have appealed to arms. Consequently, every contracting Power, when at variance with another, be it before or after the outbreak of hostilities, is in duty bound to receive an offer made for good offices or mediation, although it need not accept such offer. And it is especially stipulated that the exercise of the right to offer good offices or mediation may never be regarded by the conflicting States as an unfriendly act (article 3). It is, further, stipulated that the contracting Powers consider it their duty in a serious conflict to remind the parties of the Permanent Court of Arbitration, and that the advice to have recourse to this Court may only be considered as an exercise of good offices (article 48, paragraphs 1 and 2). And, finally, in case of dispute between two Powers, one of them may always address to the International Bureau of the Permanent Court of Arbitration a note containing a declaration that it would be ready to submit the dispute to arbitration, whereupon the Bureau must at once inform the other Power of this declaration (article 48, paragraphs 3 and 4).

(3) Mediation is defined (article 4) as reconciliation of the opposing claims and appeasement of the feelings of resentment between the conflicting States, and it is specially emphasised that good offices and mediation have exclusively the character of advice.

(4) The acceptance of mediation--and, of course, of good offices, which is not mentioned--does not (article 7) have the effect of interrupting, delaying, or hindering mobilisation or other preparatory measures for war, or of interrupting military operations when war has broken out before the acceptance of mediation, unless there should be an agreement to the contrary.

(5) The functions of the mediator are at an end (article 5) when once it is stated, either by one of the conflicting parties or by the mediator himself, that the means of reconciliation proposed by him are not accepted.

(6) A new and particular form of mediation is recommended by article 8. Before appealing to arms the conflicting States choose respectively a State as umpire, to whom each intrusts the mission of entering into direct communication with the umpire chosen by the other side for the purpose of preventing the rupture of pacific relations. The period of the mandate extends, unless otherwise stipulated, to thirty days, and during such period the conflicting States cease from all direct communication on the matter in dispute, which is regarded as referred exclusively to the mediating umpires, who must use their best efforts to settle the difference. Should such mediation not succeed in bringing the conflicting States to an understanding, and should, consequently, a definite rupture of pacific relations take place, the chosen umpires are jointly charged with the task of taking advantage of any opportunity to restore peace.

[Sidenote: Value of Good Offices and Mediation.]

§ 11. The value of good offices and mediation for the amicable settlement of international conflicts, be it before or after the parties have appealed to arms, cannot be over-estimated. Hostilities have been frequently prevented through the authority and the skill of mediators, and furiously raging wars have been brought to an end through good offices and mediation of third States.[11] Nowadays the importance of these means of settlement of international differences is even greater than in the past. The outbreak of war is under the circumstances and conditions of our times no longer a matter of indifference to all except the belligerent States, and no State which goes to war knows exactly how far such war may affect its very existence. If good offices and mediation are interposed at the right moment, they will in many cases not fail to effect a settlement of the conflict. The stipulations of the Hague Convention for the peaceful adjustment of differences have greatly enhanced the value of good offices and mediation by giving a legal right to Powers, strangers to the dispute, to offer their good offices and mediation before and during hostilities.

[Footnote 11: See the important cases of mediation discussed by Calvo, III. §§ 1684-1700, and Bonfils, Nos. 936-942. From our own days the case of the Dogger Bank incident of 1904 may be quoted as an example, for it was through the mediation of France that Great Britain and Russia agreed upon the establishment of an International Commission of Inquiry. (See p. 7, note 2.) And the good offices of the President of the United States of America were the means of inducing Russia and Japan, in August 1905, to open the negotiations which actually led to the conclusion of the Peace of Portsmouth on September 5, 1905.]

IV

ARBITRATION

Grotius, II. c. 23, § 8--Vattel, II. § 329--Hall, § 119--Westlake, I. pp. 332-356--Lawrence, § 221--Phillimore, III. §§ 3-5--Twiss, II. § 5--Taylor, §§ 357-358--Wharton, III. § 316--Moore, VII. §§ 1069-1080--Bluntschli, §§ 488-498--Heffter, § 109--Bulmerincq in Holtzendorff, IV. pp. 30-58--Ullmann, §§ 154-156--Bonfils, Nos. 944-969--Despagnet, Nos. 722-741--Pradier-Fodéré, VI. Nos. 2602-2630--Mérignhac, I. pp. 448-485--Rivier, II. § 59--Calvo, III. §§ 1706-1806--Fiore, II. Nos. 1202-1215, and Code, Nos. 1294-1380--Nys, III. pp. 65-80--Martens, II. § 104--Rouard de Card, L'arbitrage international (1876)--Mérignhac, Traité théorique et pratique de l'arbitrage (1895)--Moore, History and Digest of the Arbitrations to which the United States has been a Party, 6 vols. (1898)--Darby, International Arbitration, 4th ed. (1904)--Dumas, Les sanctions de l'arbitrage international (1905), and in A.J. V. (1911), pp. 934-957--Nippold, Die Fortbildung des Verfahrens in völkerrechtlichen Streitigkeiten (1907)--Reinsch in A.J. V. (1911), pp. 604-614--Scott, Conferences, pp. 188-253--Lapradelle et Politis, Recueil des arbitrages internationaux, I. (1798-1855), (1905)--Fried, Handbuch der Friedensbewegung, 2nd ed. (1911), pp. 135-184--Morris, International Arbitration and Procedure (1911)--Balch, International Courts of Arbitration (4th ed., with an introduction and additional notes by Thomas Willing Balch, 1912).

[Sidenote: Conception of Arbitration.]

§ 12. Arbitration is the name for the determination of differences between States through the verdict of one or more umpires chosen by the parties. As there is no central political authority above the Sovereign States, and no such International Court as could exercise jurisdiction over them, State differences, unlike differences between private individuals, cannot as a rule be obligatorily settled in courts of justice. The only way in which a settlement of State differences through a verdict may be arrived at is by the conflicting States voluntarily consenting to submit themselves to a verdict of one or more umpires chosen by themselves for that purpose.

[Sidenote: Treaty of Arbitration.]

§ 13. It is, therefore, necessary for such conflicting States as intend to have the conflict determined by arbitration to conclude a treaty by which they agree to this course. Such treaty of arbitration involves the obligation of both parties to submit in good faith to the decision of the arbitrators. Frequently a treaty of arbitration will be concluded after the outbreak of a difference, but it also frequently happens that States concluding treaties stipulate therein by the so-called Compromise Clause,[12] that any difference arising between the parties respecting matters regulated by such treaty shall be determined by arbitration. Two or more States can also conclude a so-called general treaty of arbitration, or treaty of permanent arbitration, stipulating that all or certain kinds of differences in future arising between them shall be settled by this method. Thus article 7 of the Commercial Treaty between Holland and Portugal[13] of July 5, 1894, contains such a general treaty of arbitration, as it stipulates arbitration not only for differences respecting matters of commerce, but for all kinds of differences arising in the future between the parties, provided these differences do not concern their independence or autonomy. Until the Hague Peace Conference of 1899, however, general treaties of arbitration were not numerous. But public opinion everywhere was aroused in favour of general arbitration treaties through the success of this conference, with the result that from 1900 to the present day many general arbitration treaties have been concluded.[14]

[Footnote 12: See above, § 3.]

[Footnote 13: See Martens, N.R.G. 2nd Ser. XXII. p. 590.]

[Footnote 14: See below, § 17.]

[Sidenote: Who is to arbitrate?]

§ 14. States which conclude an arbitration treaty have to agree upon the arbitrators. If they choose a third State as arbitrator, they have to conclude a treaty (receptum arbitri) with such State, by which they appoint the chosen State and by which such State accepts the appointment. The appointed State chooses on its own behalf those umpires who actually serve as arbitrators. It can happen that the conflicting States choose a head of a third State as arbitrator. But such head never himself investigates the matter; he chooses one or more individuals, who make a report and propose a verdict, which he pronounces. And, further, the conflicting States may agree to entrust the arbitration to any other individual or to a body of individuals, a so-called Arbitration Committee or Commission. Thus the arbitration of 1900 in regard to the Venezuelan Boundary Dispute between Great Britain, Venezuela, and the United States was conducted by a Commission, sitting at Paris, consisting of American and English members and the Russian Professor von Martens as President. And the Alaska Boundary Dispute between Great Britain and the United States was settled in 1903, through the award of a Commission, sitting at London, consisting of American and Canadian members, with Lord Alverstone, Lord Chief Justice of England, as President.

[Sidenote: On what principles Arbitrators proceed and decide.]

§ 15. The treaty of arbitration must stipulate the principles according to which the arbitrators have to give their verdict. These principles may be the general rules of International Law, but they may also be the rules of any Municipal Law chosen by the conflicting States, or rules of natural equity, or rules specially stipulated in the treaty of arbitration for the special case.[15] And it can also happen that the treaty of arbitration stipulates that the arbitrators shall compromise the conflicting claims of the parties without resorting to special rules of law. The treaty of arbitration, further, as a rule, stipulates the procedure to be followed by the arbitrators who are investigating and determining the difference. If a treaty of arbitration does not lay down rules of procedure, the arbitrators themselves have to work out such rules and to communicate them to the parties.

[Footnote 15: See below, § 335, concerning the "Three rules of Washington."]

[Sidenote: Binding force of Arbitral Verdict.]

§ 16. An arbitral verdict is final if the arbitration treaty does not stipulate the contrary, and the verdict given by the arbitrators is binding upon the parties. As, however, no such central authority exists above the States as could execute the verdict against a State refusing to submit, it is in such a case the right of the other party to enforce the arbitral decision by compulsion. Yet it is obvious that an arbitral verdict is binding only under the condition[16] that the arbitrators have in every way fulfilled their duty as umpires and have been able to find their verdict in perfect independence. Should they have been bribed or not followed their instructions, should their verdict have been given under the influence of coercion of any kind, or should one of the parties have intentionally and maliciously led the arbitrators into an essential material error, the arbitral verdict would have no binding force whatever. Thus the award given in 1831 by the King of Holland in the North-Eastern Boundary Dispute between Great Britain and the United States of America was not considered binding by the parties because the arbitrator had transgressed his powers.[17] For the same reason, Bolivia refused in 1910 to submit to the award of the President of Argentina in her boundary dispute with Peru.[18] And in October 1910, the Permanent Court of Arbitration at the Hague, deciding the case of the United States of America against the United States of Venezuela concerning the claims of the Orinoco Steamship Company, annulled,[19] with regard to certain points, a previous arbitration award given by Mr. Barge.

[Footnote 16: See Donker Curtius and Nys in R.I. 2nd Ser. XII. (1910), pp. 5-34 and 595-641.]

[Footnote 17: See Moore, VII. § 1082, and Moore, Arbitrations, I. pp. 81-161.]

[Footnote 18: See Fiore in R.G. XVII. (1910), pp. 225-256.]

[Footnote 19: See Martens, N.R.G. 3rd Ser. IV. (1911), p. 79.]

[Sidenote: What differences can be decided by Arbitration.]

§ 17. It is often maintained that every possible difference between States could not be determined by arbitration, and, consequently, efforts are made to distinguish those groups of State differences which are determinable by arbitration from others. Now although all States may never consent to have all possible differences decided by arbitration, theoretically there is no reason for a distinction between differences decidable and undecidable through arbitration. For there can be no doubt that, the consent of the parties once given, every possible difference might be settled through arbitration, either by the verdict being based on rules of International Law, or rules of natural equity, or by opposing claims being compromised. But, differing from the theoretical question as to what differences are and are not determinable by arbitration, is the question as to what kind of State differences ought always to be settled in this manner. The latter question has been answered by article 38 (formerly 16) of the Hague Convention for the peaceful adjustment of international differences, the contracting Powers therein recognising arbitration as the most efficacious, and at the same time the most equitable, means of determining differences of a judicial character in general, and in especial differences regarding the interpretation or application of international treaties. But future experience must decide whether the signatory Powers will in practice always act according to this distinction.

However this may be, when, in 1903, Great Britain and France, following the suggestion of this article 38 (formerly 16), concluded a treaty in which they agreed to settle by arbitration all such differences of a legal nature as do not affect their vital interests, their independence, or their honour, many other States followed the lead. Great Britain, in the same and the following years, entered into such arbitration treaties with Spain, Italy, Germany, Sweden, Norway, Portugal, Switzerland, Austria-Hungary, Holland, Denmark, the United States of America, Colombia, and Brazil. All these agreements were concluded for five years only, but those which have since expired have all been renewed for another period of five years.

Yet there is a flaw in all these treaties, because the decision as to whether a difference is of a legal nature or not, is left to the discretion of the parties. Cases have happened in which one of the parties has claimed to have a difference settled by arbitration on account of its legal nature, whereas the other party has denied the legal nature of the difference and, therefore, refused to go to arbitration. For this reason the arbitration treaties signed on August 3, 1911, between the United States of America and Great Britain and between the United States of America and France are epoch making, since article 3 provides that, in cases where the parties disagree as to whether or not a difference is subject to arbitration under the treaty concerned, the question shall be submitted to a joint High Commission of Inquiry; and that, if all, or all but one, of the members of such Commission decide the question in the affirmative, the case shall be settled by arbitration. Article 3 has, however, been struck out by the American Senate, with the consequence that these treaties have lost their intrinsic value, even should they be ratified.

It should be mentioned that, whereas most arbitration treaties limit arbitration in one or more ways, exempting cases which concern the independence, the honour, or the vital interests of the parties, Argentina[20] and Chili in 1902, Denmark and Holland in 1903, Denmark and Holland in 1905, Denmark and Portugal in 1907, Argentina and Italy in 1907, the Central American Republics of Costa Rica, Guatemala, Honduras, Nicaragua, and San Salvador in 1907, Italy and Holland in 1907 entered into general arbitration treaties according to which all differences without any exception shall be settled by arbitration.[21]

[Footnote 20: Earlier than this, on July 23, 1898--see Martens, N.R.G. 2nd Ser. XXIX. p. 137--Argentina and Italy, and on November 9, 1899--see Martens, N.R.G. 2nd Ser. XXXII. (1905), p. 404--Argentina and Paraguay had concluded treaties according to which all differences without exception shall be settled by arbitration. See also above, § 3, concerning the Compromise Clause.]

[Footnote 21: A list of all the arbitration treaties which have been entered into by the several States since the First Hague Peace Conference of 1899, is to be found in Fried, op. cit. p. 185.]

[Sidenote: Value of Arbitration.]

§ 18. There can be no doubt that arbitration is, and every day becomes more and more, of great importance. History proves that in antiquity and during the Middle Ages arbitration was occasionally[22] made use of as a peaceable means of settling international differences. But, although an International Law made its appearance in modern times, during the sixteenth, seventeenth, and eighteenth centuries very few cases of arbitration occurred. It was not until the end of the eighteenth century that arbitration was frequently made use of. There are 177 cases from 1794 to the end of 1900.[23] This number shows that the inclination of States to agree to arbitration has increased, and there can be no doubt that arbitration has a great future. States and the public opinion of the whole world become more and more convinced that there are a good many international differences which may well be determined by arbitration without any danger whatever to the national existence, independence, dignity, and prosperity of the States concerned. A net of so-called Peace Societies has spread over the whole world, and their members unceasingly work for the promotion of arbitration. The Parliaments of several countries have repeatedly given their vote in favour of arbitration; and the Hague Peace Conference of 1899 created a Permanent Court of Arbitration, a step by which a new epoch of the development of International Law was inaugurated. It is certain that arbitration will gradually increase its range, although the time is by no means in sight when all international differences will find their settlement by arbitration.

[Footnote 22: See examples in Calvo, III. §§ 1707-1712, and in Nys, Les origines du droit international (1894), pp. 52-61.]

[Footnote 23: See La Fontaine's Histoire sommaire et chronologique des arbitrages internationaux in R.I. 2nd Ser. IV. pp. 349, 558, 623. See also Scott, Conferences, pp. 188-252.]

The novel institution of the Permanent Court of Arbitration at the Hague stands at present in the cross-fire of impatient pacifists and cynical pessimists. Because a number of wars have been fought since the establishment of the Permanent Court, impatient pacifists are in despair and consider the institution of the Court of Arbitration a failure, whereas cynical pessimists triumphantly point to the fact that the millennium would seem to be as far distant as ever. The calm observer of the facts who possesses insight in the process of historical development, has no cause to despair, for, compared with some generations ago, arbitration is an established force which daily gains more power and influence. And when once a real International Court[24] of justice is established side by side with the Permanent Court of Arbitration, the chances of arbitration will be greatly increased.

[Footnote 24: See above, vol. I. § 476_b_.]

V

ARBITRATION ACCORDING TO THE HAGUE CONVENTION

Ullmann, §§ 155-156--Bonfils, Nos. 953'1-955'1--Despagnet, Nos. 742-746_bis_--Mérignhac, I. pp. 486-539--Holls, The Peace Conference at the Hague (1900)--Martens, La conférence de la paix à la Haye (1900)--Mérignhac, La conférence internationale de la paix (1900)--Fried, Die zweite Haager Konferenz (1908)--Meurer, I. pp. 299-372--Scott, Conferences, pp. 286-385--Higgins, pp. 164-179--Lémonon, pp. 188-219--Nippold, I. pp. 36-231--Wehberg, Kommentar, pp. 46-164.

[Sidenote: Arbitral Justice in general.]

§ 19. Of the 97 articles of the Hague Convention for the peaceful adjustment of international differences, no fewer than 44--namely, articles 37-90--deal with arbitration in three chapters, headed "On Arbitral Justice," "On the Permanent Court of Arbitration," and "On Arbitral Procedure." The first chapter, articles 37-40, contains rules on arbitral justice in general, which, however, with one exception, are not of a legal but of a merely doctrinal character. Thus the definition in article 37, first paragraph, "International arbitration has for its object the determination of controversies between States by judges of their own choice and upon the basis of respect for law," is as doctrinal as the assertion of article 38: "In questions of a judicial character, and especially in questions regarding the interpretation or application of International Treaties or Conventions, arbitration is recognised by the contracting Powers as the most efficacious and at the same time the most equitable method of deciding controversies which have not been settled by diplomatic methods. Consequently it would be desirable that, in disputes regarding the above-mentioned questions, the contracting Powers should, if the case arise, have recourse to arbitration, in so far as circumstances permit." And the provision of article 39, that an agreement of arbitration may be made respecting disputes already in existence or arising in the future and may relate to every kind of controversy or solely to controversies of a particular character, is as doctrinal as the reservation of article 40, which runs: "Independently of existing general or special treaties imposing the obligation to have recourse to arbitration on the part of any of the contracting Powers, these Powers reserve to themselves the right to conclude, either before the ratification of the present Convention or afterwards, new general or special agreements with a view to extending obligatory arbitration to all cases which they consider possible to submit to it." The only rule of legal character is that of article 37 (second paragraph), enacting the already existing customary rule of International Law, that "the agreement of arbitration implies the obligation to submit in good faith to the arbitral sentence."

On the signatory Powers no obligation whatever to submit any difference to arbitration is imposed. Even differences of a judicial character, and especially those regarding the interpretation or application of treaties, for the settlement of which the signatory Powers, in article 38, acknowledge arbitration as the most efficacious and at the same time the most equitable method, need not necessarily be submitted to arbitration.

Yet the principle of compulsory arbitration for a limited number of international differences was by no means negatived by the Hague Peace Conferences, especially not by the Second Conference.

The principle found, firstly, indirect recognition by the Convention respecting the Limitation of the Employment of Force for the Recovery of Contract Debts.[25] Since article I of this Convention stipulates that recourse to the employment of force for the recovery of contract debts claimed from the Government of one country by the Government of another country as being due to its nationals is not allowed unless the debtor State refuses arbitration, compulsory arbitration has in this instance been victorious.

[Footnote 25: See above, vol. I. § 135, p. 192, where the so-called Drago doctrine is likewise discussed.]

Secondly, although it was not possible to agree upon some stipulation embodying compulsory arbitration for a number of differences in Convention I., the principle itself was fully recognised, and the Final Act of the Second Peace Conference includes, therefore, the Declaration that the Conference "is unanimous (1) in admitting the principle of compulsory arbitration; (2) in declaring that certain disputes, in particular those relating to the interpretation and application of international agreements, may be submitted to compulsory arbitration without any restriction."

The above shows reasonable grounds for the hope and expectation that one of the future Peace Conferences will find a way out of the difficulty and come to an agreement stipulating compulsory arbitration for a limited number of international differences.[26]

[Footnote 26: See Scott, Conferences, pp. 319-385, where the proceedings of both the First and Second Peace Conferences concerning compulsory arbitration are sketched in a masterly and very lucid style.]

[Sidenote: Arbitration Treaty and appointment of Arbitrators.]

§ 20. According to article 52 the conflicting States which resort to arbitration shall sign a special Act, the Compromis, in which is clearly defined: the subject of the dispute; the time allowed for appointing the arbitrators; the form, order, and time in which the communications referred to in article 63 of Convention I. must be made; the amount of the sum which each party must deposit in advance to defray the expenses; the manner of appointing arbitrators (if there be occasion); any special powers which may eventually belong to the Tribunal, where it shall meet, the languages to be used, and any special conditions upon which the parties may agree. Should, however, the conflicting States prefer it, the Permanent Court at the Hague is competent to draw up and settle the Compromis, and the Court is likewise in some other cases competent to settle the Compromis (articles 53-54). The parties may agree to have recourse to the Permanent Court of Arbitration which was instituted by the Hague Convention and regarding which details have been given above, Vol. I., §§ 472-476, but they may also assign the arbitration to one or several arbitrators chosen by them either from the members of the Permanent Court of Arbitration or elsewhere (article 55). If they choose a head of a State as arbitrator, the whole of the arbitral procedure is to be determined by him (article 56). If they choose several arbitrators, an umpire is to preside, but in case they have not chosen an umpire, the arbitrators are to elect one of their own number as president (article 57). If the Compromis is settled by a Commission, as contemplated by article 54 of Convention I., and in default of an agreement to the contrary, the Commission itself shall form the Arbitration Tribunal (article 58). In case of death, resignation, or disability of one of the arbitrators from any cause, his place is to be filled in accordance with the method of his appointment (article 59). The place of session of the arbitrators is to be determined by the parties; but if they fail to do it, the place of session is to be the Hague, and the place of session may not be changed by the arbitrators without the consent of the parties; the Tribunal may only sit in the territory of a third State with the latter's consent (article 60). The International Bureau of the Court at the Hague is authorised to put its offices and its staff at the disposal of the contracting Powers in case the parties have preferred to bring their dispute before arbitrators other than the Permanent Court of Arbitration (article 47).

[Sidenote: Procedure of and before the Arbitral Tribunal.]

§ 21. The parties may agree upon such rules of arbitral procedure as they like. If they fail to stipulate special rules of procedure, the following rules are valid, whether the parties have brought their case before the Permanent Court of Arbitration or have chosen other arbitrators (article 51):--

(1) The parties may appoint counsel or advocates for the defence of their rights before the tribunal. They may also appoint delegates or special agents to attend the tribunal for the purpose of serving as intermediaries between them and the tribunal. The members of the Permanent Court, however, may not act as agents, counsel, or advocates except on behalf of the Power which has appointed them members of the Court (article 62).

(2) The tribunal selects the languages for its own use and for use before it, unless the Compromis has specified the languages to be employed (article 61).

(3) As a rule the arbitral procedure is divided into the two distinct phases of written pleadings and oral discussions. The written pleadings consist of the communication by the respective agents to the members of the tribunal and to the opposite party of cases, counter-cases, and, if necessary, replies; the parties must annex thereto all papers and documents relied on in the case. This communication is to be made either directly or through the intermediary of the International Bureau, in the order and within the time fixed by the Compromis (article 63). A duly certified copy of every document produced by one party must be communicated to the other party (article 64). Unless special circumstances arise, the tribunal does not meet until the pleadings are closed (article 65).

(4) Upon the written pleadings follows the oral discussion in Court; it consists of the oral development of the pleas of the parties (article 63, last paragraph). The discussions are under the direction of the president of the tribunal, and are public only if it be so decided by the tribunal with the consent of the parties. Minutes with regard to the discussion are to be drawn up by secretaries appointed by the president, and only these official minutes, which are signed by the president and one of the secretaries, are authentic (article 66). During the discussion in Court the agents and counsel of the parties are authorised to present to the tribunal orally all the arguments they may think expedient in support of their case. They are likewise authorised to raise objections and to make incidental motions, but the decisions of the tribunal on these objections and motions are final and cannot form the subject of any further discussion (articles 70, 71). Every member of the tribunal may put questions to the agents and counsel of the parties and demand explanations from them on doubtful points, but neither such questions nor other remarks made by members of the tribunal may be regarded as expressions of opinion by the tribunal in general or the respective member in particular (article 72). The tribunal may always require from the agents of the parties all necessary explanations and the production of all acts, and in case of refusal the tribunal takes note of it in the minutes (articles 69).

When the competence of the tribunal is doubted on one or more points, the tribunal itself is authorised to decide whether it is or is not competent, by means of interpretation of the Compromis as well as the other papers and documents which may be adduced in the matter, and by means of the application of the principles of law (article 73).

During the discussion in Court--article 67 says, "After the close of the pleadings"--the tribunal is competent to refuse admittance to all such fresh acts and documents as one party may desire to submit to the tribunal without the consent of the other party (article 67). Consequently, the tribunal must admit fresh acts and documents when both parties agree to their submission. On the other hand, the tribunal is always competent to take into consideration fresh papers and documents to which its attention is drawn by the agents or counsel of the parties, and in such cases the tribunal may require production of the papers and documents, but it is at the same time obliged to make them known to the other party (article 68).

The parties must supply the tribunal, within the widest limits they may think practicable, with all the information required for deciding the dispute (article 75). For the service of all notices by the tribunal in the territory of a third contracting Power, the tribunal applies direct to the Government of such Power. The same rule is valid in the case of steps being necessary in order to procure evidence on the spot. The requests for this purpose are to be executed by the Power concerned with the means at its disposal according to its Municipal Law; they may not be rejected unless the Power concerned considers them of such a nature as to impair its own sovereign rights or its safety. Instead, however, of making a direct application to a third Power, the tribunal is always entitled to have recourse to the intermediary of the Power on whose territory it sits (article 76).

As soon as the agents and counsel of the parties have submitted all explanations and evidence in support of their case, the president declares the discussion closed (article 77).

[Sidenote: Arbitral Award.]

§ 22. The arbitral award is given after a deliberation which has taken place behind closed doors, and the proceedings remain secret (article 78). The members of the tribunal vote, and the majority of the votes makes the decision of the tribunal. The decision, accompanied by a statement of the considerations upon which it is based, is to be drawn up in writing, to recite the names of the arbitrators, and to be signed by the president and the registrar or the secretary acting as the registrar (article 79). The verdict is read out at a public meeting of the tribunal, the agents and counsel of the parties being present or having been duly summoned to attend (article 80).

[Sidenote: Binding force of Awards.]

§ 23. The award, when duly pronounced and notified to the agents of the parties, decides the dispute finally and without appeal (article 81). Any dispute arising between the parties as to the interpretation or execution of the award must, in default of an agreement to the contrary, be submitted to the tribunal which pronounced it (article 82). The parties may, however, beforehand stipulate in the Compromis the possibility of an appeal. In such case, and the Compromis failing to stipulate the contrary, the demand for a rehearing of the case must be addressed to the tribunal which pronounced the award. The demand for a rehearing of the case may only be made on the ground of the discovery of some new fact such as may exercise a decisive influence on the award, and which at the time when the discussion was closed was unknown to the tribunal as well as to the appealing party. Proceedings for a rehearing may only be opened after a decision of the tribunal expressly stating the existence of a new fact of the character described, and declaring the demand admissible on this ground. The treaty of arbitration must stipulate the period of time within which the demand for a rehearing must be made (article 83).--

The Hague Convention contains no stipulation whatever with regard to the question whether the award is binding under all circumstances and conditions, or whether it is only binding when the tribunal has in every way fulfilled its duty and has been able to find its verdict in perfect independence. But it is obvious that the award has no binding force whatever if the tribunal has been bribed or has not followed the parties' instructions given by the treaty of agreement; if the award was given under the influence of undue coercion; or, lastly, if one of the parties has intentionally and maliciously led the tribunal into an essential material error. (See above, § 16).

[Sidenote: Award binding upon Parties only.]

§ 24. The award[27] is binding only upon the parties to the proceedings. But when there is a question of interpreting a convention to which other States than the States at variance are parties, the conflicting States have to inform all the contracting Powers of such convention in good time. Each of these States has a right to intervene in the case before the tribunal, and, if one or more avail themselves of this right, the interpretation contained in the award is as binding upon them as upon the conflicting parties (article 84).

[Footnote 27: The awards hitherto given are enumerated above, vol. I. § 476, p. 521, but the case of Italy v. Peru (Canevaro claim, May 3, 1912) must now be added.]

[Sidenote: Costs of Arbitration.]

§ 25. Each party pays its own expenses and an equal share of those of the tribunal[28] (article 85).

[Footnote 28: See details in Wehberg, Kommentar, pp. 155-158.]

[Sidenote: Arbitration by Summary Procedure.]

§ 25_a_. With a view to facilitating the working of arbitration in disputes of minor importance admitting an abbreviated procedure, the contracting Powers propose the following rules for a summary procedure exclusively in writing:--

Each of the conflicting parties appoints an arbitrator, and these arbitrators need not necessarily be members of the Permanent Court of Arbitration. The two arbitrators thus appointed choose a third as umpire, who need not be a member of the Permanent Court either. But if they cannot agree upon an umpire, each of them proposes two candidates taken from the general list of the Permanent Court of Arbitration exclusive of such members as are either appointed by the conflicting States or are their nationals, and it is to be determined by lot which of the candidates shall be the umpire. This umpire presides over the tribunal which gives its decisions by a majority of votes (article 87). In the absence of an agreement concerning the matter, the tribunal settles the time within which the two parties must submit their respective cases to it (article 88). Each party is represented by an agent who serves as intermediary between the tribunal and his party (article 89). The proceedings are conducted exclusively in writing. Each party, however, is entitled to ask that witnesses and experts should be called, and the tribunal has the right to demand oral explanations from the agents as well as from the experts and witnesses whose appearance in Court it may consider useful (article 90). Articles 52 to 85 of Convention I. apply so far as they are not inconsistent with the rules laid down in articles 87 to 90 (article 80).

II. COMPULSIVE SETTLEMENT OF STATE DIFFERENCES

I

ON COMPULSIVE MEANS OF SETTLEMENT OF STATE DIFFERENCES IN GENERAL

Lawrence, § 136--Westlake, II. p. 6--Phillimore, III. § 7--Pradier-Fodéré, VI. No. 2632--Despagnet, No. 483--Fiore, II. No. 1225, and Code, Nos. 1381-1385--Taylor, § 431--Nys, III. pp. 83-94.

[Sidenote: Conception and kinds of Compulsive Means of Settlement.]

§ 26. 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.

[Sidenote: Compulsive Means in contradistinction to War.]

§ 27. War is very often enumerated among the compulsive means of settling international differences. This is in a sense correct, for a State might make war for no other purpose than that of compelling another State to settle a difference in the way required before war was declared. Nevertheless, the characteristics of compulsive means of settling international differences make it a necessity to draw a sharp line between these means and war. It is, firstly, characteristic of compulsive means that, although they frequently consist of harmful measures, they are neither by the conflicting nor by other States considered as acts of war, and consequently all relations of peace, such as diplomatic and commercial intercourse, the execution of treaties, and the like, remain undisturbed. Compulsive 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 kinds of force, with the exception only of those methods forbidden by International Law. And, thirdly, it is characteristic of compulsive means that their application must cease as soon as their purpose is realised by the compelled State declaring its readiness to settle the difference in the way requested by the compelling State; 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 any conditions he likes.

[Sidenote: Compulsive Means in contradistinction to an Ultimatum and Demonstrations.]

§ 28. The above-described characteristics of compulsive means for the settlement of international differences make it necessary to mention the distinction between such means and an ultimatum. The latter is the technical term for a written communication by one State to another which ends amicable negotiations respecting a difference, and formulates, 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 a compulsion, although it can practically exercise the function of a compulsion, and although compulsive means, or even war, can be threatened through the same communication in the event of a refusal to comply with the demand made.[29] And the same is valid with regard to withdrawal of diplomatic agents, to military and naval demonstrations, and the like, which some publicists[30] enumerate among the compulsive means of settlement of international differences. Although these steps may contrive, indirectly, the settlement of differences, yet they do not contain in themselves any compulsion.

[Footnote 29: See Pradier-Fodéré, VI. No. 2649, and below, § 95.]

[Footnote 30: See Taylor, §§ 431, 433, 441; Moore, VII. §§ 1089, 1091, 1099; Pradier-Fodéré, VI. No. 2633.]

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--Pradier-Fodéré, VI. Nos. 2634-2636--Rivier, II. § 60--Calvo, III. § 1807--Fiore, II. Nos. 1226-1227, and Code, Nos. 1386-1390--Martens, II § 105.

[Sidenote: Conception and Character of Retorsion.]

§ 29. Retorsion is the technical term for the retaliation of discourteous or unkind or unfair and inequitable 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.[31] But a State can commit many legislative, administrative, or judicial acts which, although they are not internationally illegal, contain a discourtesy or unfriendliness to another State or are 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.

[Footnote 31: 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 the matter of retorsion altogether, because retorsion is in practice an important means of settling political differences.]

[Sidenote: Retorsion, when justified.]

§ 30. The question when retorsion is and when it is not justified is not one of law, and is difficult to answer. The difficulty arises from the fact that retorsion is a means of settling such differences as are created, not by internationally illegal, but by discourteous or unfriendly or unfair and inequitable acts of one State against another, and that naturally the conceptions of discourtesy, unfriendliness, and unfairness cannot be defined very precisely. It depends, therefore, largely upon the circumstances and conditions of the special cases whether a State will or will not consider itself justified in making use of retorsion. In practice States have frequently made use of retorsion in cases of unfair treatment of their citizens abroad through rigorous passport regulations, exclusion of foreigners from certain professions, the levy of exorbitant protectionist or fiscal duties; further, in cases of refusal of the usual mutual judicial assistance, refusal of admittance of foreign ships to harbours, and in similar cases.

[Sidenote: Retorsion, how exercised.]

§ 31. The essence of retorsion consists in retaliation for a noxious act by an act of the same kind. But a State in 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. However, acts of retorsion are confined to acts which are not internationally illegal. And, further, as retorsion is made use of only for the purpose of compelling a State to alter its discourteous, unfriendly, or unfair behaviour, all acts of retorsion ought at once to cease when such State changes its behaviour.

[Sidenote: Value of Retorsion.]

§ 32. The value of retorsion as a means of settling certain international differences consists in its compulsory 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 is the only force which can make States resist the temptation.

III

REPRISALS

Grotius, III. c. 2--Vattel, II. §§ 342-354--Bynkershoek, Quaestiones jur. publ. I. c. 24--Hall, § 120--Lawrence, §§ 136-137--Westlake, II. pp. 7-11--Twiss, II. §§ 11-22--Moore, VII. §§ 1095, 1096-1098--Taylor, §§ 436-437--Wharton, III. §§ 318-320--Wheaton, §§ 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--Rivier, II. § 60--Nys, III. pp. 84-91--Calvo, III. §§ 1808-1831--Fiore, II. Nos. 1228-1230, and Code, Nos. 1391-1399--Martens, II. § 105--Lafargue, Les représailles en temps de paix (1899)--Ducrocq, Représailles en temps de paix (1901), pp. 5-57, 175-232--Westlake in The Law Quarterly Review, XXV. (1909), pp. 127-137.

[Sidenote: Conception of Reprisals in contradistinction to Retorsion.]

§ 33. Reprisals is the term applied to such injurious and otherwise internationally illegal acts of one State against another as are exceptionally permitted for the purpose of compelling the latter to consent to a satisfactory settlement of a difference created by its own international delinquency. Whereas retorsion consists in retaliation of 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 that a State retaliates in consequence of an illegal act committed against itself by the performance of an act of a similar kind. Such retaliation would be a retorsion in the ordinary sense of the term, but it would not be retorsion in the technical meaning of the term as used by those writers on International Law who correctly distinguish between retorsion and reprisals.

[Sidenote: Reprisals admissible for all International Delinquencies.]

§ 34. Reprisals are admissible not only, as some writers[32] maintain, in case of denial or delay of justice, or of any other internationally interdicted ill-treatment of foreign citizens, but in every case of an international delinquency for which the injured State cannot get reparation through negotiation,[33] be it ill-treatment of its subjects abroad through denial or delay of justice or otherwise, or be it non-compliance with treaty obligations, violation of the dignity of a foreign State, violation of foreign territorial supremacy, or any other internationally illegal act.

[Footnote 32: See, for instance, Twiss, II. § 19.]

[Footnote 33: As regards reprisals for the non-payment of contract-debts, see below, § 41.]

Thus, to give an example, Great Britain, in the case of the Sicilian Sulphur Monopoly, performed acts of reprisal against the Two Sicilies in 1840 for a violation of a treaty. By the treaty of commerce of 1816 between the Two Sicilies and Great Britain certain commercial advantages were secured to Great Britain. When, in 1838, the Neapolitan Government granted a Sulphur Monopoly to a company of French and other foreign merchants, Great Britain protested against this violation of her treaty rights, demanded the revocation of the monopoly, and, after the Neapolitan Government had declined to comply with this demand, laid an embargo on Sicilian ships in the harbour of Malta and ordered her fleet in the Mediterranean to seize Sicilian ships by way of reprisal. A number of vessels were captured, but were restored after the Sicilies had, through the mediation of France, agreed to withdraw the grant of the Sulphur Monopoly.

Again, when in 1908 de Castro, the President of Venezuela, dismissed M. de Reuss, the Dutch Minister Resident at Caracas, Holland considered this step a violation of her dignity and sent cruisers into Venezuelan waters with the intention of resorting to reprisals. These cruisers captured the Venezuelan coast-guard ship Alexis outside Puerto Cabello, and another Venezuelan public vessel, both of which, however, were restored in 1909, when de Castro was deposed, and the new President opened negotiations with Holland and settled the conflict.

[Sidenote: Reprisals admissible for International Delinquencies only.]

§ 35. Reprisals are admissible in the case of international delinquencies only and exclusively. As internationally injurious acts on the part of administrative and judicial officials, armed forces, and private individuals are not ipso facto international delinquencies, no reprisals are admissible in the case of such acts if the responsible State complies with the requirements of its vicarious responsibility.[34] Should, however, a State refuse to comply with these requirements, its vicarious responsibility would turn into original responsibility, and thereby an international delinquency would be created for which reprisals are indeed admissible.

[Footnote 34: See above, vol. I. §§ 149 and 150.]

The reprisals ordered by Great Britain in the case of Don Pacifico are an illustrative example of unjustified reprisals, because no international delinquency was committed. In 1847 a riotous mob, aided by Greek soldiers and gendarmes, broke into and plundered the house of Don Pacifico, a native of Gibraltar and an English subject living at Athens. Great Britain claimed damages from Greece without previous recourse by Don Pacifico to the Greek Courts. Greece refused to comply with the British claim, maintaining correctly that Don Pacifico ought to institute an action for damages against the rioters before the Greek Courts. Great Britain continued to press her claim, and finally in 1850 blockaded the Greek coast and ordered, by way of reprisal, the capture of Greek vessels. The conflict was eventually settled by Greece paying £150 to Don Pacifico. It is generally recognised that England had no right to act as she did in this case. She could have claimed damages directly from the Greek Government only after the Greek Courts had denied satisfaction to Don Pacifico.[35]

[Footnote 35: See above, vol. I. § 167. The case is reported with all its details in Martens, Causes Célèbres, V. pp. 395-531.]

[Sidenote: Reprisals, by whom performed.]

§ 36. Acts of reprisal may nowadays be performed only by State organs such as armed forces, or men-of-war, or administrative officials, in compliance with a special order of their State. But in former times private individuals used to perform acts of reprisal. Such private acts of reprisal seem to have been in vogue in antiquity, for there existed a law in Athens according to which the relatives of an Athenian murdered abroad had, in case the foreign State refused punishment or extradition of the murderer, the right to seize and to bring before the Athenian Courts three citizens of such foreign State (so-called ἀνδροληψία). During the Middle Ages, and even in modern times to the end of the eighteenth century, States used to grant so-called "Letters of Marque" to such of their subjects as had been injured abroad either by a foreign State itself or its citizens without being able to get redress. These Letters of Marque authorised the bearer to acts of self-help against the State concerned, its citizens and their property, for the purpose of obtaining satisfaction for the wrong sustained. In later times, however, States themselves also performed acts of reprisal. Thereby acts of reprisal on the part of private individuals fell more and more into disuse, and finally disappeared totally with the end of the eighteenth century. The distinction between general and special reprisals, which used formerly to be drawn, is based on the fact that in former times a State could either authorise a single private individual to perform an act of reprisal (special reprisals), or command its armed forces to perform all kinds of such acts (general reprisals). The term "General Reprisals" is by Great Britain nowadays used for the authorisation of the British fleet to seize in time of war all enemy ships and goods. Phillimore (III. § 10) cites the following Order in Council of March 27, 1854: "Her Majesty having determined to afford active assistance to her ally, His Highness the Sultan of the Ottoman Empire, for the protection of his dominions against the encroachments and unprovoked aggression of His Imperial Majesty the Emperor of All the Russias, Her Majesty is therefore pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, that general reprisals be granted against the ships, vessels, and goods of the Emperor of All the Russias, and of his subjects, or others inhabiting within any of his countries, territories or dominions, so that Her Majesty's fleets may lawfully seize all ships, vessels, and goods," &c.

[Sidenote: Objects of Reprisals.]

§ 37. An act of reprisal may be performed against anything and everything that belongs or is due to the delinquent State or its citizens. Ships sailing under its flag may be seized, treaties concluded with it may be suspended, a part of its territory may be militarily occupied, goods belonging to it or to its citizens may be seized, and the like. Thus in 1895 Great Britain ordered a fleet to land forces at Corinto and to occupy the custom-house and other Government buildings as an act of reprisal against Nicaragua; again, in 1901 France ordered a fleet to seize the island of Mitylene as an act of reprisal against Turkey; and in 1908 Holland ordered a squadron to seize two public Venezuelan vessels as an act of reprisal against Venezuela.[36] The persons of the officials and even of the private citizens of the delinquent State are not excluded from the possible objects of reprisals. Thus, when in 1740 the Empress Anne of Russia arrested without just cause the Baron de Stackelberg, a natural-born Russian subject, who had, however, become naturalised in Prussia by entering the latter's service, Frederick II. of Prussia seized by way of reprisal two Russian subjects and detained them until Stackelberg was liberated. But it must be emphasised that the only act of reprisal admissible with regard to foreign officials or citizens is arrest; they must not be treated like criminals, but like hostages, and under no condition or circumstance may they be executed or subjected to punishment of any kind.

[Footnote 36: See above, § 34.]

The rule that anything and everything belonging to the delinquent State may be made the object of reprisals has, however, exceptions; for instance, individuals enjoying the privilege of exterritoriality while abroad, such as heads of States and diplomatic envoys, may not be made the object of reprisals, although this has occasionally been done in practice.[37] In regard to another exception--namely, public debts of such State as intends performing reprisals--unanimity does not exist either in theory or in practice. When Frederick II. of Prussia in 1752, by way of negative reprisals for an alleged injustice of British Prize Courts against Prussian subjects, refused the payment of the Silesian loan due to English creditors, Great Britain, in addition to denying the question that there was at all a just cause for reprisals, maintained that public debts may not be made the object of reprisals. English jurists and others, as, for instance, Vattel (II. § 344), consent to this, but German writers dissent.[38]

[Footnote 37: See the case reported in Martens, Causes Célèbres, I. p. 35.]

[Footnote 38: See Phillimore, III. § 22, in contradistinction to Heffter, § 111, note 5. The case is reported with all its details in Martens, Causes Célèbres, II. pp. 97-168. The dispute was settled in 1756--see below, § 437--through Great Britain paying an indemnity of £20,000.]

[Sidenote: Positive and Negative Reprisals.]

§ 38. Reprisals can be positive or negative. One speaks of positive reprisals when such acts are performed as would under ordinary circumstances involve an international delinquency. On the other hand, negative reprisals consist of refusals to perform such acts as are under ordinary circumstances obligatory; when, for instance, the fulfilment of a treaty obligation or the payment of a debt is refused.

[Sidenote: Reprisals must be proportionate.]

§ 39. Reprisals, be they positive or negative, must be in proportion to the wrong done and to the amount of compulsion necessary to get reparation. For instance, a State would not be justified in arresting by way of reprisal thousands of foreign subjects living on its territory whose home State had injured it through a denial of justice to one of its subjects living abroad. But it would in such case be justified in ordering its own Courts to deny justice to all subjects of such foreign State, or in ordering its fleet to seize several vessels sailing under the latter State's flag, or in suspending its commercial treaty with such State.

[Sidenote: Embargo.]

§ 40. A kind of reprisal, which is called Embargo, must be specially mentioned. This term of Spanish origin means detention, but in International Law it has the technical meaning of detention of ships in port. Now, as by way of reprisal all acts, otherwise illegal, may be performed, there is no doubt that ships of the delinquent State may be prevented from leaving the ports of the injured State for the purpose of compelling the delinquent State to make reparation for the wrong done.[39]

[Footnote 39: Thus in 1840--see above, § 34--Great Britain laid an embargo on Sicilian ships.]

The matter would not need special mention were it not for the fact that embargo by way of reprisal is to be distinguished from detention of ships for other reasons. According to a now obsolete[40] rule of International Law, conflicting States could, when war was breaking out or impending, lay an embargo on, and appropriate each other's merchantmen. Another kind of embargo is the so-called arrêt de prince[41]--that is, a detention of foreign ships for the purpose of preventing them from spreading news of political importance. And there is, thirdly, an embargo arising out of the so-called jus angariæ--that is, the right of a belligerent State to seize and make use of neutral property in case of necessity, under the obligation to compensate the neutral owner of such property. States have in the past[42] made use of this kind of embargo when they had not enough ships for the necessary transport of troops, ammunition, and the like.

[Footnote 40: See, however, below, § 102_a_ and article 1 of Convention VI., which only stipulates that it is desirable that enemy vessels in the port of a belligerent at the outbreak of war should be allowed to depart freely; see also article 2 of Convention VI.]

[Footnote 41: See Steck, Versuch über Handels-und Schiffahrts-Verträge (1782), p. 355; Caumont, Dictionnaire universel de droit maritime (1867), pp. 247-265; Calvo, III. § 1277; Pradier-Fodéré, V. p. 719; Holtzendorff, IV. pp. 98-104.]

[Footnote 42: See below, § 364.]

These kinds of international embargo must not be confounded with the so-called civil embargo of English Municipal Law[43]--namely, the order of the Sovereign to English ships not to leave English ports.

[Footnote 43: See Phillimore, III. § 26.]

[Sidenote: Reprisals to be preceded by Negotiations and to be stopped when Reparation is made.]

§ 41. Like all other compulsive means of settling international differences, reprisals are admissible only after negotiations have been conducted in vain for the purpose of obtaining reparation from the delinquent State. In former times, when States used to authorise private individuals to perform special reprisals, treaties of commerce and peace frequently stipulated for a certain period of time, for instance three or four months, to elapse after an application for redress before the grant of Letters of Marque by the injured State.[44] Although with the disappearance of special reprisals this is now antiquated, a reasonable time for the performance of a reparation must even nowadays be given. On the other hand, reprisals must at once cease when the delinquent State makes the necessary reparation. Individuals arrested must be set free, goods and ships seized must be handed back, occupied territory must be evacuated, suspended treaties must again be put into force, and the like.

[Footnote 44: See Phillimore, III. § 14.]

It must be specially mentioned that in the case of recovery of contract debts claimed from the Government of one country by the Government of another country as being due to its nationals, reprisals by means of armed forces can, according to article 1 of Convention II., only be resorted to in case the debtor State refuses to go to arbitration.

[Sidenote: Reprisals during Peace in contradistinction to Reprisals during War.]

§ 42. Reprisals in time of peace must not be confounded with reprisals between belligerents. Whereas the former are resorted to for the purpose of settling a conflict without going to war, the latter[45] are retaliations to force an enemy guilty of a certain act of illegitimate warfare to comply with the laws of war.

[Footnote 45: See below, § 247.]

[Sidenote: Value of Reprisals.]

§ 43. The value of reprisals as a means of settling international differences is analogous to the value of retorsion. States will have recourse to reprisals for such international delinquencies as they think insufficiently important for a declaration of war, but too important to be entirely overlooked. That reprisals are rather a rough means for the settlement of differences, and that the institution of reprisals can give and has in the past given occasion to abuse in case of a difference between a powerful and a weak State, cannot be denied. On the other hand, as there is no Court and no central authority above the Sovereign States which could compel a delinquent State to give reparation, the institution of reprisals can scarcely be abolished. The influence in the future of the existence of a Permanent Court of Arbitration remains to be seen. If all the States would become parties to the Hague Convention for the peaceful adjustment of international differences, and if they would have recourse to the Permanent Court of Arbitration at the Hague in all cases of an alleged international delinquency which affects neither their national honour nor their vital interests and independence, acts of reprisal would almost disappear.

IV

PACIFIC BLOCKADE

Hall, § 121--Lawrence, § 138--Westlake, II. pp. 11-18--Taylor, § 444--Moore, VII. § 1097--Bluntschli, §§ 506-507--Heffter, § 112--Bulmerincq in Holtzendorff, IV. pp. 116-127--Ullmann, § 162--Bonfils, Nos. 986-994--Despagnet, Nos. 496-498--Pradier-Fodéré, V. Nos. 2483-2489, VI. No. 2648--Rivier, II. § 60--Nys, III. pp. 91-94--Calvo, III. §§ 1832-1859--Fiore, II. No. 1231, and Code, Nos. 1404-1414--Martens, II. 105--Holland, Studies, pp. 151-167--Deane, The Law of Blockade (1870), pp. 45-48--Fauchille, Du blocus maritime (1882), pp. 37-67--Falcke, Die Hauptperioden der sogenannten Friedensblockade (1891), and in the Zeitschrift für Internationales Recht, XIX. (1909), pp. 63-175--Barès, Le blocus pacifique (1898)--Ducrocq, Représailles en temps de paix (1901), pp. 58-174--Hogan, Pacific Blockade (1908)--Söderquist, Le Blocus Maritime (1908)--Staudacher, Die Friedensblockade (1909)--Westlake in The Law Quarterly Review, XXV. (1909), pp. 13-23.

[Sidenote: Development of practice of Pacific Blockade.]

§ 44. Before the nineteenth century blockade was only known as a measure between belligerents in time of war. It was not until the second quarter of the nineteenth century that the first case occurred of a so-called pacific blockade--that is, a blockade during time of peace--as a compulsive means of settling international differences; and all such cases are either cases of intervention or of reprisals.[46] The first case, one of intervention, happened in 1827, when, during the Greek insurrection, Great Britain, France, and Russia intervened in the interest of the independence of Greece and blockaded those parts of the Greek coast which were occupied by Turkish troops. Although this blockade led to the battle of Navarino, in which the Turkish fleet was destroyed, the Powers maintained, nevertheless, that they were not at war with Turkey. In 1831, France blockaded the Tagus as an act of reprisal for the purpose of exacting redress from Portugal for injuries sustained by French subjects. Great Britain and France, exercising intervention for the purpose of making Holland consent to the independence of revolting Belgium, blockaded in 1833 the coast of Holland. In 1838, France blockaded the ports of Mexico as an act of reprisal, but Mexico declared war against France in answer to this pacific blockade. Likewise as an act of reprisal, and in the same year, France blockaded the ports of Argentina; and in 1845, conjointly with Great Britain, France blockaded the ports of Argentina a second time. In 1850, in the course of her differences with Greece on account of the case of Don Pacifico,[47] Great Britain blockaded the Greek ports, but for Greek vessels only. Another case of intervention was the pacific blockade instituted in 1860 by Sardinia, in aid of an insurrection against the then Sicilian ports of Messina and Gaeta, but the following year saw the conversion of the pacific blockade into a war blockade. In 1862 Great Britain by way of reprisal for the plundering of a wrecked British merchantman, blockaded the Brazilian port of Rio de Janeiro. The blockade of the island of Formosa by France during her differences with China in 1884 and that of the port of Menam by France during her differences with Siam in 1893 are likewise cases of reprisals. On the other hand, cases of intervention are the blockade of the Greek coast in 1886 by Great Britain, Austria-Hungary, Germany, Italy, and Russia, for the purpose of preventing Greece from making war against Turkey; and further, the blockade of the island of Crete in 1897 by the united Powers. The last case occurred in 1902, when Great Britain, Germany, and Italy blockaded, by way of reprisal, the coast of Venezuela.[48]

[Footnote 46: A blockade instituted by a State against such portions of its own territory as are in revolt is not a blockade for the purpose of settling international differences. It has, therefore, in itself nothing to do with the Law of Nations, but is a matter of internal police. I cannot, therefore, agree with Holland, who, in his Studies in International Law, p. 138, treats it as a pacific blockade sensu generali. Of course, necessity of self-preservation only can justify a State that has blockaded one of its own ports in preventing the egress and ingress of foreign vessels. And the question might arise whether compensation ought not to be paid for losses sustained by foreign vessels so detained.]

[Footnote 47: See above, § 35.]

[Footnote 48: This blockade, although ostensibly a war blockade for the purpose of preventing the ingress of foreign vessels, was nevertheless essentially a pacific blockade. See Holland, in The Law Quarterly Review, XIX. (1903), p. 133; Parliamentary Papers, Venezuela, No. 1 (Venezuela), Correspondence respecting the Affairs of Venezuela.]

[Sidenote: Admissibility of Pacific Blockade.]

§ 45. No unanimity exists among international lawyers with regard to the question whether or not pacific blockades are admissible according to the principles of the Law of Nations. There is no doubt that the theory of the Law of Nations forbids the seizure and sequestration of vessels other than those of the blockaded State caught in an attempt to break a pacific blockade. For even those writers who maintain the admissibility of pacific blockade assert that vessels of third States cannot be seized. What is controverted is the question whether according to International Law the coast of a State may be blockaded at all in time of peace. From the first recorded instance to the last, several writers[49] of authority have negatived the question. On the other hand, many writers have answered the question in the affirmative, differing among themselves regarding the one point only whether or not vessels sailing under the flag of third States could be prevented from entering or leaving pacifically blockaded ports. The Institute of International Law in 1887 carefully studied, and at its meeting in Heidelberg discussed, the question, and finally voted a declaration[50] in favour of the admissibility of pacific blockades. Thus the most influential body of theorists has approved what had been established before by practice. There ought to be no doubt that the numerous cases of pacific blockade which have occurred during the nineteenth century have, through tacit consent of the members of the Family of Nations, established the admissibility of pacific blockades for the settlement of political as well as of legal international differences.

[Footnote 49: The leader of these writers is Hautefeuille, Des Droits et des Devoirs des Nations Neutres (2nd ed. 1858, pp. 272-288).]

[Footnote 50: See Annuaire, IX. (1887), pp. 275-301.]

[Sidenote: Pacific Blockade and vessels of third States.]

§ 46. It has already been stated that those writers who admit the legality of pacific blockades are unanimous regarding the fact that no right exists for the blockading State to seize and sequestrate such ships of third States as try to break a pacific blockade. Apart from this, no unanimity exists with regard to the question of the relation between a pacific blockade and ships of third States. Some German writers[51] maintain that such ships have to respect the blockade, and that the blockading State has a right to stop such ships of third States as try to break a pacific blockade. The vast majority of writers, however, deny such right. There is, in fact, no rule of International Law which could establish such a right, as pacific in contradistinction to belligerent blockade is a mere matter between the conflicting parties. The declaration of the Institute of International Law in favour of pacific blockade contains, therefore, the condition: "Les navires de pavillons neutres peuvent entrer librement malgré le blocus."

[Footnote 51: See Heffter, § 112; Perels, § 30.]

The practice of pacific blockade has varied with regard to ships of third States. Before 1850 ships of third States were expected to respect a pacific blockade, and such ships of these States as tried to break it were seized, but were restored at the termination of the blockade, yet without any compensation. When in 1850 Great Britain, and likewise when in 1886 Great Britain, Austria, Germany, Italy, and Russia blockaded the Greek ports, these ports were only closed for Greek ships, and others were allowed to pass through. And the same was the case during the blockade of Crete in 1897. On the other hand, in 1894, France, during a conflict with China, blockaded the island of Formosa and tried to enforce the blockade against ships of third States. But Great Britain declared that a pacific blockade could not be enforced against ships of third States, whereupon France had to drop her intended establishment of a pacific blockade and had to consider herself at war with China. And when in 1902 Great Britain, Germany, and Italy instituted a blockade against Venezuela, they declared it a war blockade[52] because they intended to enforce it against vessels of third States.

[Footnote 52: That this blockade was essentially a pacific blockade I have already stated above, p. 50, note 1.]

[Sidenote: Pacific Blockade and vessels of the blockaded State.]

§ 47. Theory and practice seem nowadays to agree upon the rule that the ships of a pacifically blockaded State trying to break the blockade may be seized and sequestrated. But they may not be condemned and confiscated, as they have to be restored at the termination of the blockade. Thus, although the Powers which had instituted a blockade against Venezuela in 1902 declared it a war blockade, all Venezuelan public and private ships seized were restored after the blockade was raised.

[Sidenote: Manner of Pacific Blockade.]

§ 48. Pacific blockade is a measure of such enormous consequences that it can be justified only after the failure of preceding negotiations for the purpose of settling the questions in dispute. And further, as blockade, being a violation of the territorial supremacy of the blockaded State, is prima facie of a hostile character, it is necessary for such State as intends in time of peace to blockade another State to notify its intention to the latter and to fix the day and hour for the establishment of the blockade. And, thirdly, although the Declaration of Paris of 1856 enacting that a blockade to be binding must be effective concerns blockades in time of war only, there can be no doubt that pacific blockades ought to be likewise effective. The declaration of the Institute of International Law in favour of pacific blockade contains, therefore, the condition: "Le blocus pacifique doit être déclaré et notifié officiellement, et maintenu par une force suffisante."

[Sidenote: Value of Pacific Blockade.]

§ 49. As the establishment of a pacific blockade has in various instances not prevented the outbreak of hostilities, the value of a pacific blockade as a means of non-hostile settlement of international differences is doubted and considered uncertain by many writers. But others agree, and I think they are right, that the institution of pacific blockade is of great value, be it as an act of reprisal or of intervention. Every measure which is suitable and calculated to prevent the outbreak of war must be welcomed, and experience shows that pacific blockade is, although not universally successful, a measure of this kind. That it can give, and has in the past given, occasion for abuse in case of a difference between a strong and a weak Power is no argument against it, as the same is valid with regard to reprisals and intervention in general, and even to war. And although it is naturally a measure which will scarcely be made use of in case of a difference between two powerful naval States, it might nevertheless find application with success against a powerful naval State if exercised by the united navies of several Powers.[53]

[Footnote 53: The following is the full text of the declaration of the Institute of International Law referred to above, § 45:

"L'établissement d'un blocus en dehors de l'état de guerre ne doit être considéré comme permis par le droit de 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.

"3. 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 leurs cargaisons à leurs propriétaires, mais sans dédommagement à aucun titre."]

V

INTERVENTION

See the literature quoted above in vol. I. at the commencement of § 134.

[Sidenote: Intervention in contradistinction to Participation in a difference.]

§ 50. Intervention as a means of settling international differences is only a special kind of intervention in general, which has already been discussed.[54] It consists in the dictatorial interference of a third State in a difference between two States for the purpose of settling the difference in the way demanded by the intervening State. This dictatorial interference takes place for the purpose of exercising a compulsion upon one or both of the parties in conflict, and must be distinguished from such attitude of a State as makes it a party to the very conflict. If two States are in conflict and a third State joins one of them out of friendship or from any other motive, such third State does not exercise an intervention as a means of settling international differences, but becomes a party to the conflict. If, for instance, an alliance exists between one of two States in conflict and a third, and if eventually, as war has broken out in consequence of the conflict, such third State comes to the help of its ally, no intervention in the technical sense of the term takes place. A State intervening in a dispute between two other States does not become a party to their dispute, but is the author of a new imbroglio, because such third State dictatorially requests those other States to settle their difference in a way to which both, or at any rate one of them, objects. An intervention, for instance, takes place when, although two States in conflict have made up their minds to fight it out in war, a third State dictatorially requests them to settle their dispute through arbitration.

[Footnote 54: See above, vol. I. §§ 134-138.]

Intervention, in the form of dictatorial interference, must, further, be distinguished from such efforts of a State as are directed to induce the States in conflict to settle their difference amicably by proffering its good offices or mediation, or by giving friendly advice. It is, therefore, incorrect when some jurists[55] speak of good offices and the like as an "amicable" in contradistinction to a "hostile" intervention.

[Footnote 55: Thus, for instance, Rivier, II. § 58. See also above, vol. I. § 134.]

[Sidenote: Mode of Intervention.]

§ 51. Intervention in a difference between two States is exercised through a communication of the intervening State to one or both of the conflicting States with a dictatorial request for the settlement of the conflict in a certain way, for instance by arbitration or by the acceptance of certain terms. An intervention can take place either on the part of one State alone or of several States collectively. If the parties comply with the request of the intervening State or States, the intervention is terminated. If, however, one or both of the parties fail to comply with the request, the intervening State will either withdraw its intervention or proceed to the performance of acts more stringent than a mere request, such as pacific blockade, military occupation, and the like. Even war can be declared for the purpose of an intervention. Of special importance are the collective interventions exercised by several great Powers in the interest of the balance of power and of humanity.[56]

[Footnote 56: See above, vol. I. §§ 136 and 137.]

[Sidenote: Time of Intervention.]

§ 52. An intervention in a difference between two States can take place at any time from the moment a conflict arises till the moment it is settled, and even immediately after the settlement. In many cases interventions have taken place before the outbreak of war between two States for the purpose of preventing war; in other cases third States have intervened during a war which had broken out in consequence of a conflict. Interventions have, further, taken place immediately after the peaceable settlement of a difference, or after the termination of war by a treaty of peace or by conquest, on the grounds that the conditions of the settlement or the treaty of peace were against the interests of the intervening State, or because the latter would not consent to the annexation of the conquered State by the victor.[57]

[Footnote 57: With regard to the question of the right of intervention, the admissibility of intervention in default of a right, and to all other details concerning intervention, the reader must be referred above, vol. I. §§ 135-138.]