First World War Centennial

CHAPTER XXVI

EMBARGO

THE turmoil in Europe which appears to be increasing rather than lessening as these pages go to press, has seriously affected neutrals and is ominous in its threatenings of further complications. Already Belgium, Italy, Bulgaria, Turkey, and Portugal are involved as partisans in the forceful solution of issues which prior to the initial acts of the war, did not seem to concern them, and other countries are finding it difficult to preserve their neutrality.

What nation will be the next? While events indicate Powers which are nearest to the war maelstrom, juxtaposition is by no means the only condition which may hasten the answer. Across the Atlantic great trad­ing neutral states have been suffering an interference with cardinal rights that is not only humiliating but expensive. It is not probable that any of them will act from sordid motives, however costly their experi­ences, but it is quite possible and desirable for them to use that sort of firmness in press­ing representations and protests which alone makes neutrality respectable. Inasmuch as hostilities may easily succeed the most diplomatic of ministerial demands, it follows that commercial states which are most dis­tant from the seat of war may become partisan quite as early as those whose terri­tories and political concerns are particularly affected by the issues of the hour.

It is this fact that makes it equally desir­able for all neutral states which are reluctant to throw down or accept the gauge of battle, to study means and measures which fall short of war but can be used to vindicate the dignity of a sovereignty. Of these Embargo is the most important, although given a subsidiary place by most interna­tional lawyers.

Hostile Embargo is defined by Hall as a form of reprisal which consists in the seizure of ships of the offending state at sea or of any property within the state, whether public or private, which is not intrusted to the public faith. Hall further says that Embargo is sequestration, and that vessels subjected to it are not condemned so long as abnormal conditions exist that caused its imposition. If peace is confirmed—they are released—if war breaks out they become liable to confiscation.

For the purpose of bringing the matter to the reader's attention, it is proper to note that this author is apparently in accord with Wheaton and others who suggest that if hostilities follow the original seizure, the act is to be considered as one of war from the beginning—hostili animo ab initio. While the latter quote Sir Walter Scott (see the Boedus Lust, Rob. Adm. Rep., v., 246), their conclusions are seriously questioned, and with good reason, by Oppenheim. No suffi­cient argument is introduced to show why an act which was not intended to be war, auto­matically becomes so by some future event, and it is very evident that the acceptance of any such theory which affects property in­terests in a vital manner might lead nations to declare war when they would far prefer to first try out coercive measures that were moderate in comparison. It would also dis­courage neutrals from acting when their interests required them so to do.

With this passing reference to a subsidiary matter which, wrongly understood, may read­ily deprive the doctrine of hostile embargo of its value, we are in a position to discuss the worth of the latter to neutrals, bearing in mind a great author's assertion that by reprisal "all acts otherwise illegal are made legal"—a statement which becomes partic­ularly true when applied to embargo when used as a protest by non-combatants who only seek to recoup themselves for injuries suffered at the hands of belligerents.

If hostile embargo is useful to nations at war, it must be doubly so to those at peace:

1. Because in the former case it is only one of many means to an end—in the latter it presents to the neutral the most effective instrument, if not the sole one that can be used to accomplish its purpose;

2. Because the belligerent, although it may hesitate to acknowledge it, is more dependent upon the neutral than the neutral is upon the belligerent.

The very fact that a nation is engaged in war causes the people of states not thus involved to withdraw from other intercourse with the combatant than such as has to do with the sort of trade that tempts their cupidity. Obliged to adapt themselves to conditions, they become more or less self-reliant and independent. Should an embargo be laid upon their neutral vessels or posses­sions by the belligerent, it is doubtful if other property will be secured than that of venture­some neutral citizens. The neutral nation will be affected, but not seriously so.

Consider the status of a belligerent under like circumstances. Such of its possessions as were in neutral hands at the beginning of the war have remained there—others have been added to avoid the danger of having them seized in case of enemy conquest. It needs the use of neutral harbors to provision and refit its ships, and such commodities and supplies as the neutral is free to furnish. The proclamation of an embargo not only embarrasses its relations with the neutral, but may cause it to lose strategic points of value in its relations to the enemy.

While the above facts should not only lead a belligerent to carefully refrain from the sort of embargo that is initiated on the plea of necessity, an excuse which Hautefeuille rightly rejects with impatience, and should also have the effect of causing it to avoid trying neutral patience, they ought to strengthen the hands of the neutral Power that is not too weak to resist invasion. There is belligerent money in its banks, belligerent supplies on its docks, or moving thereto, interned ships, war vessels in its ports, and mayhap merchantmen moving in the waters that it dominates. These all are nothing more than hostages for belligerent good behavior and reasonable conduct.

A self-respecting state, provided it is prepared to defend itself in case of military operations against it (and no neutral that really wishes to maintain peaceful relations can afford to be otherwise), is thus in a position not only to insist upon comity and good faith on the part of the belligerent, but to perform its duties toward its own people, toward the enemy of the offending belligerent, and toward the community of civilized states. Such is the weapon of hostile embargo with which circumstances not infrequently arm neutrals. If non-combatants are to have more consideration in the future than in the past, it will be used with telling effect.

Should it happen however that the neutral state is not prepared to go to this length, there is another form of embargo, viz., Civil Embargo, that is not unfamiliar to the American people who used it in 1807. This is defined by Richard Henry Dana in his notes to Wheaton as the "Act of a govern­ment detaining the ships of its own people in port." As Mr. Dana has pointed out, a civil embargo amounts in practice to a nation's interdiction of commerce—"for it would usually be accompanied with a closing of its ports to foreign vessels"; and the dis­tinguished commentator adds that "if the motive for this interdiction is simply munici­pal, and not in the way of reprisals or hostil­ity to foreign Powers, it has claims to be acquiesced in by them."

While a civil embargo that is purely negative in its attitude toward foreign governments, and therefore less objection­able, to them, might become serviceable to a neutral state that lacked a grievance, it is not the sort that we now have in mind in dis­cussing the usable measures which a neutral Power can use to vindicate its sovereignty. This should be clearly by way of reprisal, being distinguished from hostile embargo by avoiding the seizure of foreign possessions and making itself felt through the embarrass­ment caused the belligerent at whom it is aimed.

The fact that it has a retroactive effect upon the people of the government by whom it is adopted and also may readily bring about unforeseen complications unless wisely planned, should by no means render it as impracticable as it was made to appear by Jefferson's unfortunate experiment during the first decade of the last century. "My principle," said that President, "is that the conveniences of our citizens shall yield reasonably" "to the importance of giving the present experiment so fair a trial that on future occasions our legislators may know with certainty how far they may count on it as an engine for national purposes."

While the words are fair and the disposi­tion of the Executive was good, it is unfor­tunately true that the act was so wholesale in its character and unhappy in its results as not only to lead to the early substitution of the non-intercourse act of 1809, but to destroy its value as a precedent unless it is to serve as a warning against careless legislation. It is for this purpose that it has been given attention.

No advocate of forceful measures for the maintenance of a self-respecting and respected neutrality is prepared to recommend the adoption by neutrals of plans and policies which will in any way unfavorably affect their own population. Meantime it must be recognized that, short of war, there are but few expedients that they can use to advantage to command the attention of a polite but unscrupulous belligerent. It behooves them, therefore, in time of stress to make close study of the various features which charac­terize the civil embargo. Modified and shaped to meet existing conditions, it may on occasion put a neutral state in a far more favorable position in its relation with bel­ligerents than it could otherwise hope to secure.