International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second EditionOppenheim, L. (Lassa)
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International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second Edition
Oppenheim, L. (Lassa)
International law
The rule that anything and everything belonging to the delinquent State
may be made the object of reprisals has, however, exceptions; for
instance, individuals enjoying the privilege of exterritoriality while
abroad, such as heads of States and diplomatic envoys, may not be made
the object of reprisals, although this has occasionally been done in
practice.[37] In regard to another exception--namely, public debts of
such State as intends performing reprisals--unanimity does not exist
either in theory or in practice. When Frederick II. of Prussia in 1752,
by way of negative reprisals for an alleged injustice of British Prize
Courts against Prussian subjects, refused the payment of the Silesian
loan due to English creditors, Great Britain, in addition to denying the
question that there was at all a just cause for reprisals, maintained
that public debts may not be made the object of reprisals. English
jurists and others, as, for instance, Vattel (II. § 344), consent to
this, but German writers dissent.[38]
[Footnote 37: See the case reported in Martens, _Causes Célèbres_, I. p.
35.]
[Footnote 38: See Phillimore, III. § 22, in contradistinction to
Heffter, § 111, note 5. The case is reported with all its details in
Martens, _Causes Célèbres_, II. pp. 97-168. The dispute was settled in
1756--see below, § 437--through Great Britain paying an indemnity of
£20,000.]
[Sidenote: Positive and Negative Reprisals.]
§ 38. Reprisals can be positive or negative. One speaks of positive
reprisals when such acts are performed as would under ordinary
circumstances involve an international delinquency. On the other hand,
negative reprisals consist of refusals to perform such acts as are under
ordinary circumstances obligatory; when, for instance, the fulfilment of
a treaty obligation or the payment of a debt is refused.
[Sidenote: Reprisals must be proportionate.]
§ 39. Reprisals, be they positive or negative, must be in proportion to
the wrong done and to the amount of compulsion necessary to get
reparation. For instance, a State would not be justified in arresting by
way of reprisal thousands of foreign subjects living on its territory
whose home State had injured it through a denial of justice to one of
its subjects living abroad. But it would in such case be justified in
ordering its own Courts to deny justice to all subjects of such foreign
State, or in ordering its fleet to seize several vessels sailing under
the latter State's flag, or in suspending its commercial treaty with
such State.
[Sidenote: Embargo.]
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