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Several powers, not including the United States, have united in proclaiming a pacific blockade of minor state K. A merchant vessel of the United States bound for a port of K approaches this port and is warned by a vessel representative of the blockading powers not to enter under penalty of violation of blockade. The captain of the merchant vessel appeals to the commander of a United States vessel of war to convoy him through, or in some other manner secure for his vessel entrance to the port.
What action should the commander take, and why?
The commander of the United States vessel of war should request of the commander of the forces maintaining the pacific blockade that the merchant vessel of the United States enter port K. If this is not permitted, he should inform the commander of the forces maintaining the pacific blockade that the United States does not acknowledge the right in time of peace to thus interrupt commerce of powers not concerned in the blockade, and he should give formal notice that the United States would hold the blockading states responsible.
NOTES ON SITUATION VII.
THE EFFECT OF PACIFIC BLOCKADE.
General opinions in regard to pacific blockade.-Theoretically, blockade of any kind is strictly a measure of war, but in spite of this theoretical position the practice of the last three-quarters of a century has seen the institution of no less than sixteen so-called blockades while there was formally a state of peace. These have been termed pacific blockades, and however objectionable such a term may be theoretically, the fact must be considered.
OBJECTION TO PACIFIC BLOCKADE.
These pacific blockades have not shown a uniform practice in the relations between the parties to the blockade and those not concerned who, for convenience, may be called neutrals, though not properly so, as "neutrals" imply "belligerents," and therefore war.
Before 1850 the blockades called pacific generally treated all flags alike. The French at Formosa in 1884 endeavored to extend the field of operations so as to cover neutrals; so again, when France blockaded Menam in 1883, and in the case of the blockade of Crete by the powers in 1897, the inclination was to extend the application beyond the powers concerned.
The blockade of Greece in 1886 was distinctly aimed against the Greek flag.
The review of recent blockades undertaken directly for the advantage of the state initiating them, and not on the grounds of public policy, shows that these blockades undertaken on the narrower grounds have not been sanctioned in acting against third parties.
"It is now generally admitted, however, that neutral commerce is not to be disturbed during pacific blockades."1
"Neutrals would not to-day submit to the restrictions placed upon their trade by measures of blockade unless instituted in the prosecution of open declared war.""
Lord Granville wrote to Mr. Waddington, November 11, 1884, at the time of the so-called pacific blockade of Formosa:
"The contention of the French Government that a 'pacific blockade' confers on the blockading power the right to capture and condemn the ships of third nations for a breach of such a blockade is in conflict with wellestablished principles of international law."
Thus the plan of France to use measures justifiable only in war was denied. If those blockading desire themselves to have the advantage of such rights as are conferred upon belligerents, they must become belligerents by instituting a state of war.
H. Taylor, Int. Pub. Law, 1901, p. 445.
3 Par. Papers, France, No. 1, 1885.
"It may be questioned whether, in its wider extension, pacific blockade must not justify itself rather as a mode of warfare limited in operation than as a means of redress falling short of war; for the operation of such a measure may extend either to subjects of the blockading and blockaded powers only, or to the vessels of all nations. If it be confined to subjects of the parties directly engaged, its legitimacy can hardly be matter for serious consideration. The less is justified in the greater, and the blockaded sovereign has it in his power either to free himself from the inconvenience by the grant of redress, or to resent it by the declaration of war.
"If, however, the trade of neutrals be affected by the blockade, those neutrals may well protest against interference with their traffic not fully and completely justifiable. For them such protest must be matter of policy. Pacific blockade may be, and doubtless is, the less of two evils; to refuse to recognize it may be to force the offended state to legalize its acts by instituting a regular blockade as a measure of war.'
Bonfils summarizes the situation of the majority (Fauchille's edition of his "Droit International Public ") when he says:
"Sec. 992. We think, with M. F. de Martens (t. III, p. 173), that the so-called pacific blockade can not be justified, either in the name of humanity or from the point of view of good sense. The catastrophe of Navarino shows that it may have a bloody ending. In time of peace, reprisals ought to injure only the state which provokes them. The pacific blockade can produce serious results only when neutral states are obliged to respect it. But there can be no question of neutrality, properly so called, in time of peace. No obligation, in the proper and juridical sense, can oblige third states to submit to the conditions of a pacific blockade. But under these limitations the blockade has neither meaning nor value. If it is maintained with regard to third states, it injures their rights and legitimate interests. *
1 Science of Int. Law, p. 157.
LIMITATION OF PACIFIC BLOCKADE.
"Sec. 993. For powers of the first rank, the pacific blockade constitutes a means, little burdensome, therefore more alluring, of making states of the second rank to submit to all kinds of vexations and annoyances. At bottom it is simply an act of war, a fact of hostility. In resorting to pacific blockade, the powers do not endeavor to escape war itself, but only the inconveniences and main obligations which war brings. It is considerations of interest, and not considerations of humanity, which urge maritime powers to resort to this means of constraint, which causes great losses to commerce in general."
Résumé. It would seem from the weight of authorities and from the majority of later cases, that pacific blockades should not bear upon third states except as they are affected by the constraint directly applied to the state blockaded, i. e., the vessels of a third state should be entirely free to go and come while such measures of constraint as may be decided upon may be applied to the blockaded state.
If the need for interruption of relations between the blockaded state and third states is sufficiently serious to require the seizure of neutral vessels, it would seem to warrant the institution of a regular blockade involving a state of war.
If only the mild constraint which is short of war, the blockade affecting merely the blockaded state's commerce, is necessary, then pacific blockade, though it works inconvenience, may be legitimate.
Snow's International Law,' Manual Naval War College, says, after citing instances:
"It can thus be seen that without admitting the pacific blockade to be an established legal means of restraint or reprisal short of war, still the general tendency of writers, and more particularly of the great maritime states, is to favor its exercise, and while it may be desirable that other powers than those concerned should not be involved, still a blockade not applying to all maritime powers would not, as a rule, be effective or secure the results for which it was instituted."
The blockade of Crete, 1897.-The official relations of the United States to the blockade of Crete in 1897 can be seen from the following communications. 1
[Mr. Carter to Mr. Sherman. Telegram.]
EMBASSY OF THE UNITED STATES,
London, March 21 (?), 1897.
Officially notified blockade of Crete by powers March 21.
[Mr. Carter to Mr. Sherman.]
EMBASSY OF THE UNITED STATES,
SIR: I have the honor to inclose herewith a copy of my telegram, sent from this embassy to-day, together with a copy of a note received from the foreign office under date of March 20, 1897, announcing the intended establishment on the 21st of March of a blockade of the island of Crete by the combined British, Austro-Hungarian, French, German, Italian, and Russian naval forces, and transmitting three copies of notifications inserted in a supplement to the London Gazette of the 19th instant, two of which I have also the honor to inclose herewith, in order that they may become known to the citizens of the United States.
I have duly acknowledged the reception of the note above mentioned, and have informed Lord Salisbury that a copy thereof had been forwarded to my Government. I have the honor, etc.,
JOHN RUDGELY CARTER.
(Inclosure in No. 887.)
[Mr. Villiers to Mr. Carter.]
FOREIGN OFFICE, March 20, 1897. SIR: I have the honor to transmit to you three copies of notifications inserted in a supplement to the London Gazette, of the 19th instant, announcing the intended establishment on the 21st March of a blockade of the island of Crete by the combined British, Austro-Hungarian, French, German, Italian, and Russian forces.
1 For. Rel. U. S., 1897, pp. 253-255.