War and Reprisals
Sir,—Professor Westlake’s interesting letter as to the measures recently taken by the Netherlands Government in Venezuelan waters opportunely recalls attention to a topic upon which I addressed you when, six years ago, our own Government was similarly engaged in putting pressure upon Venezuela—viz. the desirability of drawing a clear line between war and reprisals. Perhaps I may now be allowed to return, very briefly, to this topic, with special reference to Professor Westlake’s remarks.
In any discussion of the questions involved, we ought, I think, clearly to realise that The Hague Convention, No. iii. of 1907, has no application to any measures not amounting to war. The “hostilities” mentioned in Art. 1 of the Convention are, it will be observed, exclusively such as must not commence without either a “declaration of war,” or “an ultimatum with a conditional declaration of war”; and Art. 2 requires that the “state of war” thus created shall be notified to “neutral Powers.” There are, of course, no Powers answering to this description till war has actually broken out. Neutrality presupposes belligerency. Any other interpretation of the Convention would, indeed, render “pacific blockades” henceforth impossible.
In the next place, we must at once recognise that the application of the term “reprisals,” whatever may have been its etymological history, must no longer be restricted to seizure of property. It has now come to cover, and it is the only term which does cover generically, an indeterminate list of unfriendly acts, such as embargo, pacific blockade, seizure of custom-houses, and even occupation of territory, to which resort is had in order to obtain redress from an offending State without going to war with it. The pressure thus exercised, unlike the unlimited licentia laedendi resulting from a state of war, is localised and graduated. It abrogates no treaties, and terminates without a treaty of peace. It affects only indirectly, if at all, the rights of States which take no part in the quarrel.
The questions which remain for consideration would seem to be the following:—
1. Would it be feasible to draw up a definite list of the measures which may legitimately be taken with a view to exercising pressure short of war?—I think not. States differ so widely in offensive power and vulnerability that it would be hardly advisable thus to fetter the liberty of action of a State which considers itself to have been injured.
2. Ought it to be made obligatory that acts of reprisal should be preceded, or accompanied, by a notification to the State against which they are exercised that they are reprisals and not operations of war?—This would seem to be highly desirable; unless indeed it can be assumed that, in pursuance of The Hague Convention of 1907, no war will henceforth be commenced without declaration.
8. Ought a statement to the like effect to be made to nations not concerned in the quarrel?—This would, doubtless, be convenient, unless the non-receipt by them of any notification of a “state of war,” in pursuance of the Convention, could be supposed to render such a statement superfluous.
On the ambiguous character sometimes attaching to reprisals as now practised, I may perhaps refer to an article in the Law Quarterly Review for 1903, entitled “War Sub Modo.”
I am, Sir, your obedient servant,
T. E. HOLLAND
Oxford, December 26 (1908).
The operations against Venezuela which were closed by the protocol of February 13, 1903, had given rise to the enunciation of the so-called “Drago doctrine,” in a despatch, addressed on December 29 of the preceding year, by the Argentine Minister for Foreign Affairs to the Government of the United States, which asserts that “public indebtedness cannot justify armed intervention by a European Power, much less material occupation by it of territory belonging to any American nation.” The reply of the United States declined to carry the “Monroe doctrine” to this length, citing the passage in President Roosevelt’s message in which he says: “We do not guarantee any State against punishment, if it misconducts itself, provided such punishment does not take the form of the acquisition of territory by any non-American Power.”
It is, however, now provided by The Hague Convention, No. ii. of 1907, ratified by Great Britain on November 27, 1909, that “the contracting Powers have agreed not to have recourse to armed force for the recovery of contractual debts, claimed from the Government of a country by the Government of another country, as being due to its subjects. This stipulation shall have no application when the debtor State declines, or leaves unanswered, an offer of arbitration, or, having accepted it, renders impossible the conclusion of the terms of reference (compromis), or, after the arbitration, fails to comply with the arbitral decision.”