or, after the arbitration, fails to submit to the award. Article 2 made provision for the procedure (which is assimilated to that of the first Convention), and for the effect of the award.

By June 30, 1908, which was the final date fixed for signing the Convention, thirty-four out of the forty-four States represented had given their signatures, and some of them with reservations. Most of the leading States of Europe and America signed and also ratified this Convention, which may, therefore, be regarded as binding upon them.

Judicial

It will have been seen that the so-called Permanent Court of Proposed Arbitration established by the Hague Conferences is not, strictly Arbitration speaking, a Court; it is rather a panel or list of judges from which Court. courts may be constituted as required. Obviously, the constituting of each particular court for every case that arises means delay and expense, and involves a cumbrous, uncertain process; also, harmony and continuity between the successive arbitral courts could not be ensured. To make good this defect, an attempt was made at the second Hague Conference to set up "une Cour de Justice Arbitrale" (a court of arbitral justice). A draft convention was prepared, which prescribed its organization, jurisdiction, and procedure. Judges of known capacity and character were to be appointed by their respective countries for a period of twelve years, and were to receive an annual salary. They were to meet in session once a year at the Hague, and were to nominate annually a special delegation of three of their number (and three others as deputy delegates). This delegation was to perform the functions of a commission of inquiry, to settle the compromis if the contending parties agree, and in certain cases even at the request of one party, and was made competent to decide certain cases.

The plan failed, because the States could not agree on the constitution of the court. The principle of equality was invoked, whereby several of the smaller Powers claimed that each Statethe least equally with the greatest-should be entitled to nominate a judge. The applicability of this principle to conditions such as these was naturally scouted by some of the greater Powers (l).

(1) Bibliographical references to lists of Hershey, Essentials of Int. arbitration and relative subjects will Public Law (1912), pp. 340 seq. be found in the excellently compiled

PART FOURTH.

INTERNATIONAL RIGHTS OF STATES IN THEIR HOSTILE
RELATIONS.

Redress by forcible means between

nations.

Forcible

means short of actual

war.

CHAPTER I.

COMMENCEMENT OF WAR, AND ITS IMMEDIATE EFFECTS.

THE independent societies of men, called States, acknowledge no common arbiter or judge, except such as are constituted by special compact. The law by which they are governed, or profess to be governed, is deficient in those positive sanctions which are annexed to the municipal code of each distinct society. Every State has therefore a right to resort to force, as the only means of redress for injuries inflicted upon it by others, in the same manner as individuals would be entitled to that remedy were they not subject to the laws of civil society. Each State is also entitled to judge for itself what are the nature and extent of the injuries which will justify such a means of redress.

Among the various modes of terminating the differences between nations, by forcible means short of actual war, are the following:

1. By laying an embargo or sequestration on the ships and goods, or other property of the offending nation, found within the territory of the injured State. (This is sometimes described as 'hostile' embargo, in contradistinction to 'pacific' or 'civil' embargo, whereby a State compels, in certain circumstances, its own merchantmen to remain in port).

2. By taking forcible possession of the thing in controversy, by securing to yourself by force, and refusing to the other nation, the enjoyment of the right drawn in question.

3. By exercising the right of vindictive retaliation (retorsio facti'), or of amicable retaliation (rétorsion de droit'); by which last, the one nation applies, in its transactions with the other,

the same rule of conduct by which that other is governed under similar circumstances.

Thus, before the outbreak of the Russo-Japanese war in 1904, Russia made regulations excluding Japanese fishermen from the waters of Saghalien, which was then Russian territory. Accordingly Japan retorted by threatening to impose differential duties on Russian imports a proceeding which brought about the withdrawal of the obnoxious regulations (a).

4. By making reprisals upon the persons and things belonging to the offending nation, until a satisfactory reparation is made. for the alleged injury (b).

This last seems to extend to every species of forcible means Reprisals. for procuring redress, short of actual war, and, of course, to include all the others above enumerated. Reprisals are negative, when a State refuses to fulfil a perfect obligation which it has contracted, or to permit another nation to enjoy a right which it claims (c). They are positive, when they consist in seizing the persons and effects belonging to the other nation, in order to obtain satisfaction (d).

Reprisals are also either general or special. They are general, when a State which has received, or supposes it has received, an injury from another nation, delivers commissions to its officers and subjects to take the persons and property belonging to the other nation, wherever the same may be found. It is, according to present usage, the first step which is usually taken at the commencement of a public war, and may be considered as amounting to a declaration of hostilities, unless satisfaction is made by the offending State. Special reprisals are, where letters of marque were formerly granted, in time of peace, to particular individuals who had suffered an injury from the government or subjects of another nation (e).

Reprisals are to be granted only in case of a clear and open denial of justice. The right of granting them is vested in the sovereign or supreme power of the State, and, in former times, was regulated by treaties and by the municipal ordinances of different nations. Thus, in England, the statute of 4 Hen. V., cap. 7, declares, "That if any subjects of the realm are oppressed in time of peace by any foreigners, the king will grant marque

(a) For other examples of retaliation in kind, see Moore, Digest, vol. vii. § 1090.

(b) Vattel, liv. ii. ch. 18. Klüber, Droit des Gens Moderne de l'Europe, § 234.

(c) Cf. the case of the Silesian loan, infra, p. 418.

(d) Klüber, § 234, note (c).

(e) Bynkershoek, Quæst. Jur. Pub. lib. i. (Duponceau's Transl. p. 182, note).

Effect of reprisals.

Embargo

hostilities.

in due form to all that feel themselves grieved;" which form is specially pointed out, and directed to be observed in the statute. So also, in France, the celebrated marine ordinance of Louis XIV. of 1681, prescribed the forms to be observed for obtaining special letters of marque by French subjects against those of other nations. But these special reprisals in time of peace have entirely fallen into disuse (f).

Any of these acts of reprisal, or resort to forcible means of redress between nations, may assume the character of war in case adequate satisfaction is refused by the offending State. "Reprisals," says Vattel, "are used between nation and nation, in order to do themselves justice when they cannot otherwise obtain it. If a nation has taken possession of what belongs to another, if it refuses to pay a debt, to repair an injury, or give adequate satisfaction for it, the latter may seize something belonging to the former, and apply it to its own advantage, till it obtains payment of what is due, together with interest and damages; or keep it as a pledge till the offending nation has refused ample satisfaction. The effects thus seized are preserved, while there is any hope of obtaining satisfaction or justice. As soon as that hope disappears they are confiscated, and then reprisals are accomplished. If the two nations, upon this ground of quarrel, come to an open rupture, satisfaction is considered as refused from the moment that war is declared, or hostilities commenced; and then, also, the effects seized may be confiscated" (g).

Thus, where an embargo was laid on Dutch property in the previous to declaration of ports of Great Britain, on the rupture of the peace of Amiens, in 1803, under such circumstances as were considered by the British Government as constituting a hostile aggression on the part of Holland, Sir W. Scott (Lord Stowell), in delivering his judgment in this case, said, that "the seizure was at first equivocal; and if the matter in dispute had terminated in reconciliation, the seizure would have been converted into a mere civil embargo, so terminated. Such would have been the retroactive effect of that course of circumstances. On the contrary, if the transaction end in hostility, the retroactive effect is exactly the other way. It impresses the direct hostile character upon the original seizure; it is declared to be no embargo; it is no longer an equivocal act, subject to two interpretations; there is a declaration of the animus

(f) Vattel, Droit des Gens, liv. ii. ch. 18, §§ 342-346. Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 24. Martens, Précis, liv. viii. ch. 2, § 260.

Martens, Essai concernant les Armateurs, § 4.

(g) Vattel, Droit des Gens, liv. ii. ch. 18, § 342.

by which it is done; that it was done hostili animo, and it is to be considered as a hostile measure, ab initio, against persons guilty of injuries which they refuse to redeem, by any amicable alteration of their measures. This is the necessary course, if no particular compact intervenes for the restoration of such property, taken before a formal declaration of hostilities" (h).

Pacifico.

The recourse to reprisals by Great Britain in the Don Pacifico Case of Don affair was not a very dignified proceeding, and ended in something like a farce. Don Pacifico, a native of Gibraltar, and consequently a British subject, went to reside at Athens, and while there, in 1849, a mob, aided, it was said, by Greek soldiers, broke into and plundered his house. Pacifico did not apply to the Greek tribunals for redress, but invoked the aid of England. On the refusal of Greece to grant compensation, the British fleet was ordered to lay an embargo on all Greek vessels in Greek ports. France offered her mediation, but Greece was practically compelled to accept the terms imposed by England. Three commissioners were appointed to examine Pacifico's claims. These had now swollen to £21,295 1s. 4d., and the commissioners, after duly examining them, awarded him £150! (i). The English Foreign Secretary defended these proceedings by alleging that to have recourse to the Greek tribunals was at that time ridiculous. and that no justice could be expected from them. Sir R. Phillimore, however, thinks that the evidence of this was "not of that overwhelming character which alone could warrant an exception from the well-known and valuable rule of international law upon questions of this description" (k), viz., the rule that application must first be made to the local courts.

In 1884 France, in her operations against Tonquin, felt aggrieved against China, because she permitted Chinese bands to take part with the enemy. The French Government, not desiring to adopt the extreme measure of war, ordered the bombardment of Foo-chow, and took possession of certain localities on the Chinese island of Formosa. In 1895, Great Britain seized the port of Corinto, in Nicaragua, and levied the customs duties there, until reparation was made for injuries inflicted on British subjects. In 1901, France seized the custom-house at Mitylene, in order to induce Turkey to satisfy certain contractual claims on the part of

(h) The Bodes Lust (1804), 5 C. Rob. 246. Cf. The Gertruyda, 2 C. Rob. 219; The Theresa Bonita, 4 C. Rob. 236. With regard to the status of enemy merchantmen at the outbreak of hostilities, the Hague Convention

(1907) now applies; see infra, p. 423.

(i) Correspondence respecting M. Pacifico's claims. Parl. Papers, 1851; Annual Register (1850), p. 281.

(k) Phillimore, vol. iii. p. 41 (2nd ed.).

Other cases of reprisal.