« PreviousContinue »
will have the academic merits of simplicity and consistency, and the practical merits of promoting substantial justice between parties, and commanding the approval of the Courts and lawyers of other communities.
T. K. NUTTALL.
VI.–CURRENT NOTES ON INTERNATIONAL LAW.
The Pacific Blockade of Crete.
A good deal of misconception has arisen from the use of the term “Pacific Blockade.” A “Blockade” is an act of one of two belligerent States precluding neutral ships from having access to, or egress from, a particular enemy port or coast. It is essentially a belligerent privilege directed primarily against neutrals, and, like the right of visitation and search and the doctrine of Contraband, the right to Blockade is a concession by neutrals to belligerents, arising out of the fundamental principles of Neutrality. A “Pacific Blockade,” on the other hand, is essentially a belligerent or quasi-belligerent act of coercion directed not against neutrals, but against the State coerced. M. Perels, in his admirable article in the Revue de Droit International (Vol. 19, p. 244, et seq.), says: “Le Blocus pacifique n'est “autre chose que la fermeture des portes ou des districts “particuliers de la côte d’un pays en dehors du cas de “guerre déclarée et dans le but d'empêcher les relations “commerciales maritimes.” Professor T. E. Holland, in a recent letter to the Times,” in reply to an anonymous correspondentt, rightly says that it is “one of the various “methods generically described as Reprisals . . . . by “which, without resort to war, pressure, topographically or “otherwise limited in extent, may be put upon an offending “State.” Any such operation is not, of course, “Pacific,” except in a comparative sense. As Reis Effendi said, after Navarino, in his reply to the assurance that the Great Powers were still at peace with the Porte : “C'est “absolument comme si, cassant la tête d'un homme je “l'assurais en même temps de mon amitié.” The term “Pacific,” in short, is merely a diplomatic amenity. The anonymous writer of the letter to the Times, above referred to, points out what he regards as two observations applicable to all historical instances of Pacific Blockade, namely—(1) that the Blockade has always been instituted by a strong Power to coerce a weak one, and “there is no instance of one of the Great Powers of the world employing such measures against another of like strength”; and (2) that the “majority in number and the most weighty in authority” of International Jurists have regarded the practice as indefensible. With regard to the latter of these considerations, no doubt many writers have condemned Pacific Blockade as contrary to International Law, but the real ground of objection has almost always been against such a Blockade purporting to bind or affect neutral or quasi-neutral States or subjects. The objections of Hautefeuille, Pistoye and Duverdy, Woolsey, Gessner, Fauchille and De Martens, are entirely based on this aspect of the question. Geffcken, in his reply to M. Perels' paper, was also mainly influenced by the same considerations, though he seems to object also on general moral grounds. The views of all these jurists and the conflicting views of such authorities as Heffter, Calvo, Cauchy, Bluntschli, Wharton, Ferguson, and others, are excellently summarized in the above-mentioned paper of M. Perels, the reply of M. Geffcken (see the Revue, Vol. 19, p. 377, et seq.), and an article by M. Bulmerinq in the journal de Droit International Privé, for 1884 (p. 569). Hall also has a capital note upon the point, in his “International Law,” $121. (See p. 386 et seq of the 4th Edition.) The best evidence of the views held by the majority of jurists is, however, to be found in the series of Resolutions passed by the Institute of International Law, at the Heidelberg meeting of 1887.* The general effect of these is to admit what seems to be indisputable, namely, that Pacific Blockade as a form of Reprisals, is perfectly legitimate, provided it is not allowed to affect or prejudice neutrals or third parties. There have no doubt been instances of so called Pacific Blockade, in which a claim to affect neutrals has been raised, or even in a few instances exercised. This claim, however, was candidly admitted by Lord Palmerston, in the La Plata affair of 1846, to be untenable, and was strongly repudiated by Lord Granville in 1884, in connection with the Franco-Chinese “6tat de réprisailles.” It was not even asserted in the most famous modern precedent, the Blockade of the Greek Ports by the Great Powers, in 1886. A full consideration of these cases will be found in the article on “Some Recent Incidents in International Law,” in Vol. XIV. of this Review, pp. 127-137. In this paper we also anticipated the first proposition which was put forward in the anonymous letter to the Times, to which Professor Holland replied as above mentioned. We stated that two principles underlay all the recorded instances of Pacific Blockade, i.e., (1) that the Blockading State was always overwhelmingly more powerful than the Blockaded one, and (2) that “the object of the Blockade has always been “either to obtain satisfaction by means falling short of war, “for some damage caused by the other State” (as in 1831,
* Times, 7th March, 1897. + Times, 5th March, 1897.
* See the Annuaire de l'Institut, 1888, p. 301, and see article on “Some Recent Incidents in International Law,” in this Review, Vol. XIV., pp. 127137; and a recent article by Mr. T. Baty, on “The Institute of International Law and Pacific Blockade,” in our number for August, 1896.
1838, 1850, 1862, 1879, etc.), “or to influence the conduct of “such other State ”(as in the Greek Blockades of 1827 and 1886, and the present Blockade of Crete). The fact is, that the first of these two principles follows ex hypothesi from the very nature of Pacific Blockade. It is only a State immensely superior in power which can indulge in reprisals of any kind without provoking war. Reprisals of every form, including Pacific Blockade, are really a belligerent act, and necessarily constitute a casus belli, if the State against which they are directed could reasonably resist or retaliate. Hence the idea of a Pacific Blockade of the ports of one Great Power by another is absurd upon the face of it. Such a thing would inevitably be followed by immediate and complete hostilities on both sides. When, however, a Great Power or a combination of several Great Powers wish to coerce a comparatively insignificant State they can do so with the utmost impunity and knowing that there can be no material resistance. In such an event there is no need of a regular war. Such was the case in 1886 and in every other recorded instance of “Pacific Blockade.” The fact, however, cannot reasonably be adduced as an argument against the legitimacy of this particular form of Reprisals or Coercion. If a complete war can be avoided by Pacific Blockade or any other means of redress, it is difficult to see that either International Law or the broadest principles of humanitarianism are in any way infringed. The one material objection is avoided if it is assumed that no Reprisals of any kind can be recognised as directly binding third parties. Mr. Baty in his recent article in this Review" quotes numerous authorities to shew that Pacific Blockade is in fact not merely a casus belli, but actual Bellum, and he
* “The Institute of International Law on Pacific Blockade,” L.M. & R., August, 1896.
appears to treat this as an argument against the validity of such a Blockade. The distinction is one without much difference. It takes two parties to make a war, and if a particular coercive act is sufficient to effect the object of one party without provoking counter hostilities on the part of the other, it is difficult to see in what respect such an act is opposed to International Law. The argument of Mr. Baty seems, on the contrary, to entirely justify Pacific Blockade, except as regards its name. If the act is to be regarded as an actual operation of war, it necessarily follows that a Blockade in the proper sense of the term is legally justifiable, even as against neutrals. The political expediency or moral defensibility of the present Blockade of Crete need not be here discussed. The avowed object appears to have been much the same as in the case of the Greek affair of 1886, although in the present case the Powers have not succeeded in their object. In the Cretan affair, however, there are several novel points of interest. In the first place it is to be observed that the Powers are blockading territory nominally subject to Turkey as a means of coercing Greece. This aspect of the case has not, we believe, been previously discussed. Theoretically speaking, as the “Blockade" is undertaken with the consent of the Porte, the case is not strictly one of “Pacific Blockade" at all. Any State can, if it chooses, close its ports to external commerce, subject, of course, to the risk of commercial or other retaliation. So far, therefore, as the Blockade operations are conducted by the Powers within the territorial waters of Crete, and with the consent of Turkey, the curious result above referred to seems to follow. On the other hand, if the overthrow of the Ottoman authority in Crete by the troops of Colonel Vassos or by the insurgents can be regarded as a fait accompli, then perhaps the affair may be treated as an ordinary case of Pacific Blockade.