THE LAW OF REPRISALS AS AFFECTED BY THE LEAGUE TREATY. The Italian Occupation of Corfu. (Concluded.) BY THOS. H. BLACK, M.A., LL.B. Professor of Roman Law and Jurisprudence, and one of the Examiners in International Law in the University of Toronto. Those principles which lead to the conclusion that warlike reprisals constitute a "resort to war" within the meaning of the League Treaty, as they are more numerous than the maxims opposed to them, so they have found a more extensive place in jurisprudence. That they are decisive, and that therefore the reprisals are, when begun within the time prescribed for peaceful inquiry, an act of war upon all members of the League, can hardly be doubted. The first canon in the construction of an enacted law is that words must be given their customary meaning, the meaning that they carried at the time of the enactment. We have seen that, until the last century, a military reprisal of the sort we are considering was counted as plain war. We have seen that, in the commonest language of international law in the last century, violent reprisals are acts of war. The language of practice is the same as the language of the books. In three cases of blockade, statesmen speaking for the nations that executed the reprisals have avowed their measures as being measures of war. Guizot, in the case of the first blockade of the Plate, declared in 1841: Ce n'est pas la guerre complète, la guerre declarée.' Palmerston held it necessary to close the later River Plate operations by a formal convention of peace.2 In the matter of the reprisals against Venezuela in 1902, Mr. Balfour, being then Prime Minister, declared that 'Calvo, Droit International, vol. iii, § 1859. "evidently a blockade does involve a state of war."" But let us assume the widest difference that has been allowed, in any source of authority in international law, between war and reprisals. This difference has been set forth in our two fundamental rules of the former law. Firstly, reprisals are distinguished from war in general law. Secondly, the distinction vanishes in the case of reprisals executed by means of the public armament, if the defending nation elects to treat the reprisals as war. The outbreak of war, in such a case, dates from the resort to reprisals. Therefore, in the case stated for consideration-the case of a war resulting from reprisals resisted by a League member willing to abide by the League's decision of the dispute there is no difference between reprisals and open war. There is no question whatever-in any authority of any sort-of denying a nation's right to fight when its territory or commerce is assailed. It is the nation resorting to reprisals that has resorted to war. It is plain that the rule of the customary meaning of terms used in an enactment has in reason exactly the same application to international law as it has to the law of a state. This is not necessarily true for the principles now to be examined. But as the rules are identical in the Civil Law and in the Common Law, being founded in obvious reason, there is a presump tion in favour of their validity. 5 The great Third Title of the Digest, the Title De Legibus, covers our question by several of its rules. Celsus in the Digest, i. 3.24, quoted with approval for international law by Vattel, and Coke in the Lincoln College case, both lay down the principle that a whole statute must be inspected in interpreting any part of it. Now, the whole Covenant of the League is designed to secure a certain interval, during the solution of any dispute, for arriving at a decision unaffected by the 'Moore, Digest, vol. vii, p. 141; Cf. Hyde, International Law, vol. ii, p. 181, note 2. 'Droit des Gens, ii, § 285. 3 Coke Rep., 59 b. force of parties; and in particular, by Article 8, every member of the League recognizes that it is by common action that the enforcement of international obligations is to be effected. What it is intended to forbid, then, under the equivocal phrase "resort to war, is war as it is characterized by the early lawyersin the definition of Vattel, "that state of affairs in which a nation seeks its rights by force." Next, the English rule started in Heydon's case,' against subtle inventions and evasions for the continuance of that mischief which is to be ended by the enactment, is the same as the Roman rule against circumvention or frustration of a law, fraus legi facta." If military reprisals be allowed, a way of evasion is laid wide open to a nation in any case that may arise. Finally, there is the principle of the Civil Law, which stretches the application of statutes ad similia, beyond cases literally covered, or which supplies cetera quae tendunt ad eundem utilitatem. Julian and Ulpian are the Roman authorities; Voet,' though finding some slight dissent, establishes approval in modern Civil Law. This principle goes beyond the Common Law rules. Coke, it is true, and other authorities of his time, have a rule identical with that of the civilians. Coke gives the same scope to the rule as does Ulpian; and gives the same reason for it as does Julian: that "the law-makers could not possibly set down all cases in express terms. ''10 Modern Common Law, however, will not extend statutes beyond their "natural meaning"; and the probable reason is, that the modern law-maker attempts what Coke and Julian call impossible, and professes to "set down all cases in express terms." There is here perhaps too little unanimity for a confident reliance upon the principle for our present pur pose. But all this artillery is much heavier than is needed 6 3 Coke Rep., 7 b. 7 D. 1. 3. 29 and 30. D. i. 3. 12 and 13. 9 Comment. i. 3. 44. for our affirmative. The sole principle required is that a law shall not be construed so as to be worthless. It would not have been surprising if so obvious a principle had failed to find an explicit assertion. The rule is, however, plainly stated in authorities of both Civil and Common Law. Affirmed by Grotius, elaborated by Vattel, it has been explicit in international law at all periods. The civilian doctrine is found in Voet. There must be excluded any interpretation quae legem redderet inutilem, nullis casibus accommodatam, atque ita omni destitutam effectu." The rule of the Common Law is, "Judges are to make such exposition of laws and statutes as suffer them not to be elusory."" Grotius and Vattel, expounding the law of treaties, affirm the principle that any interpretation which leads to an absurdity must be rejected. Vattel1 elaborates the principle and establishes the following particular application: "The document must be construed in such a manner as to produce its effect and not prove meaningless and void." Now, the League rules against resort to war either prohibit warlike reprisals or they effectually prohibit nothing. Let reprisals be allowed; resistance also is lawful; resistance means war; and here is a resort to war which is held to be no resort to war. Here then is an interpretation which leads to an absurdity. But this is not all. Reprisals and pacific intervention have in practice included blockade, military occupation, bombardment, the sinking of a fleet; and one campaign of the very first moment, the campaign of Waterloo, failed to produce a state of war.15 Anything short of complete war is in principle permissible as reprisals. Jefferson indeed suggested, as a regular substitute for declaration of war, an edict of general reprisals.16 It is evident that, military reprisals being once held to be no resort to war, 11 Comment. i. 3. 20. 12 Moore v. Hussey, Hob. 97; Bacon's Abrid., Statute, I. 10 improves the grammar. 13 ii. 16. 6. 14 ii. §§ 282-3. 15 Westlake, International Law, vol. ii, p. 29. 16 Westlake, ii. p. 11; or Moore, vii. p. 123. the obligation to refrain from resorting to war is meaningless and void. Of the alternative meanings that can be borne by the words "resort to war," that one must be chosen which alone will save the prohibition from absurdity and nullity. Resort to war includes resort to warlike reprisals or intervention. The principles that support the opposite opinion furnish out a formidable argument. Firstly, it is a reasonable rule of interpretation that a perfectly notorious practice will, if it is to be forbidden at all, be forbidden in plain terms. A Scottish case shows the application of the principle in practice. A statute had struck at betting in a "house, office, room, or other place." Lord Young and the Lord Justice-Clerk reasoned as follows: "The members of the Legislature in 1853 knew enough of life, I suppose, to be aware that betting went on in race-courses," and had they intended to strike at the practice, "I have difficulty in conceiving how the language selected for that purpose should be 'house, office, room, or other place.'" The Legislature "would, I do not doubt, have used language that would have left its intention beyond question." To paraphrase: the covenanting nations in 1919 knew enough of affairs, it may be supposed, to be aware that reprisals went on in cases of international dispute. If they had intended to strike at the practice, it is difficult to conceive how the language selected for that purpose should be "resort to war." They would, it is not to be doubted, have used language that would have left their intention beyond question. The reasoning of the Judges is clearly of elementary soundness. It is equally cogent in any legal sphere. And the parallel between the two cases, in respect of the application of this principle, is evidently exact. But the essential difference between the two cases is equally evident: the line between houses and racecourses is quite distinct, and there was no chance that, under the cover of race-course betting, the whole law could have been defeated. "Henretty v. Hart (1885), 13 Rettie, J.C., pp. 14 and 17. |