it, to the Assembly of the League; and either party to the difference may, under specified conditions, demand such a reference.1

The foregoing provisions for the use of the Council (or the Assembly) contemplate the obligatory adjustment, by amicable although essentially non-judicial processes, of differences which, regardless of their character, States have been generally indisposed to submit to an international tribunal. The Council, once possessed of jurisdiction, enjoys largest freedom in method and purpose. It is bound by no theory or principle in exercising its function. It is free to avail itself of any practicable means which are deemed expedient. It may consult the Permanent Court of International Justice for the establishment of which provision is made in the Covenant; it may follow or disregard the advice of that tribunal; it may resort to compromise or adhere to law.

1 Art. XV. It is here provided that in any case referred to the Assembly, all the provisions of Arts. XII and XV relating to the action and powers of the Council shall apply to the action and powers of the Assembly, "provided that a report made by the Assembly, if concurred in by the representatives of those Members of the League represented on the Council and of a majority of the other Members of the League, exclusive in each case of the representatives of the parties to the dispute, shall have the same force as a report by the Council concurred in by all the Members thereof other than the representatives of one or more of the parties to the dispute."

Concerning the membership and organization of the Assembly, see Art. III. 2 Art. XIV.

TITLE B

NON-AMICABLE MODES SHORT OF WAR

586. In General.

1

Enlightened States, on occasions when their grievances prove to be incapable of settlement by diplomacy, not infrequently have recourse to essentially non-amicable measures for the purpose of obtaining redress or of removing the cause of controversy. Such measures may or may not lead to war. It is the steps taken which are not necessarily designed to produce such a result, and which are not, at least for the time being, regarded by the State against which they are directed as amounting to acts of war, that are here observed.

Non-amicable measures may involve the use of force or of other forms of conduct. They may be employed for the purpose of checking the commission of legal as well as illegal acts on the part of a foreign State. They may indicate a preference for the exercise of sheer power over any other instrumentality however efficacious. Their very use may, under the existing circumstances, constitute a violation of international law.

The State which resorts to force in order to adjust, according to ways of its own devising, a difference commonly deemed susceptible of settlement by judicial means, such as arbitration, and which are suitably and reasonably proposed by the opposing State, asserts the right to be the sole judge of its own cause, and thereby places itself beyond the law. The absence, however, of general agreement concerning what differences should be referred to adjudication before an international tribunal renders it still possible for a State bent on obtaining redress by its own strong arm to excuse the use of force by pleading the non-arbitrable or nonjusticiable quality of its grievance. The validity of such an ex

1 The Hague Convention of Oct. 18, 1907, respecting the Limitation of the Employment of Force for the Recovery of Contract Debts, Malloy's Treaties, II, 2248, indicates an occasion when it is agreed that such an excuse is to be deemed inapplicable and insufficient.

cuse must, in view of existing practice, depend upon the circumstances of the particular case. Until, therefore, the principle indicating the true range of arbitrable differences is clearly perceived and generally accepted, and the means of obtaining justice in such disputes through judicial tribunals obviously assured and necessarily recognized, it is impossible to indicate with precision the conditions when recourse to non-amicable measures entailing the use of force is to be denounced as internationally illegal.

It should be observed that frequently it is not the initial denial of justice or violation of international law, but rather the refusal of an offending State to submit to any adjudication before an international tribunal that is responsible for the employment of non-amicable measures. The aggravation of its own misconduct by a delinquent State rather than the arbitrary designs of a formidable opponent has thus oftentimes been the cause of the procedure followed.

2

§ 587. Withdrawal of Diplomatic Relations.

In order to obtain redress for grievances for the satisfaction of which diplomatic negotiation has proved unavailing, a State may sever its diplomatic relations with the State charged with wrongdoing. Such action is not only expressive of national indignation, but also frequently serves to impress upon the latter the desirability of making amends.

On June 13, 1908, Secretary Root declared that in view of the persistent refusal of the existing Government of Venezuela (under President Castro) to give redress for governmental action by which substantially all American interests in that country had been destroyed or confiscated, or to submit the claims of American citizens for such redress to arbitration, the United States was forced to the conclusion that the further presence in Caracas of its diplomatic representatives subserved no useful purpose, and was determined to close its legation in that capital, and to place its interests, property and archives in Venezuela in the hands of representatives of Brazil. Through the medium of that State, a new Venezuelan administration under President Gomez made known to the United States in December, 1908, a desire to settle satisfactorily all international questions.2 In February, 1909, Mr. William I. Buchanan, 1 Telegram to Mr. Sleeper, American Chargé d'Affaires, For. Rel. 1908, 820. See, also, generally, id., 774-830.

2 Mr. Root, Secy. of State, to Mr. Buchanan, Special Commissioner, Dec. 21, 1908, For. Rel. 1909, 609.

as Special Commissioner of the United States, effected agreements with Venezuela providing either for direct settlement or the arbitration of all pending claims.1 The American Minister, Mr. Russell, was thereupon instructed to return to his post.2

It will be recalled that in 1909 the United States severed its diplomatic relations with Nicaragua while under the administration of President Zelaya, whose régime was denounced as "a blot upon the history" of that State, and whose direct order in causing the execution of two American citizens who had been officers in the revolutionary forces in that country was deemed to be at variance with the practice of civilized nations.3

The withdrawal of diplomatic relations never constitutes in itself internationally illegal conduct; for no legal duties rest upon an aggrieved State to maintain uninterrupted official intercourse with any other through the diplomatic channel, and still less with one whose conduct is, for any reason, deemed to be reprehensible.

1 Mr. Root, Secy. of State, to Mr. Buchanan, Special Commissioner, Dec. 21, 1908, For. Rel. 1909, 609-624. According to a protocol of Feb. 13, 1909. id., 617, it was agreed that the claim in behalf of the Orinoco Steamship Company, that in behalf of the Orinoco Corporation and of its predecessors in interest, and that in behalf of the United States and Venezuela Company should be referred to an arbitral tribunal composed of three arbitrators chosen from the Permanent Court at the Hague. The Orinoco Steamship Company's claim was duly submitted to arbitration; the other two claims were settled by direct negotiation. Id., 624–629.

2 Mr. Buchanan was commissioned "to represent the President with full power to confer with the Government of Venezuela in all matters relating to the reëstablishment of diplomatic relations between the United States and Venezuela." He was instructed that upon the incorporation in a protocol of the terms of adjustment desired "the minister of the United States to Venezuela will be directed to return to his post and the United States will be ready to receive a diplomatic representative of Venezuela." Mr. Root, Secy. of State, to Mr. Buchanan, Special Commissioner, Dec. 21, 1908, For. Rel. 1909, 609.

See, also, documents in Moore, Dig., VII, 103–105.

In response to a request of Mr. Monroe, American Minister at Paris, Dec. 6, 1796, for the appointment of a time when he might present his successor, Mr. Pinckney, as well as his own letters of recall, Mr. De La Croix, the French Minister of Foreign Affairs, replied: "The directory has charged me to notify to you 'that it will no longer recognize nor receive a minister plenipotentiary from the United States, until after a reparation of the grievances demanded of the American Government, and which the French Republic has a right to expect. Am. State Pap., For. Rel. I, 746. "The Directory refused to give Pinckney a permit to sojourn in Paris as a private foreigner, and afterwards sent him a notice to quit the territories of the Republic. He then retired to Amsterdam to await developments." Moore, Dig., V, 598, citing Am. State Pap., For. Rel. II, 10.

3 Mr. Knox, Secy. of State, to the Nicaraguan Chargé d'Affaires, Dec. 1, 1909, For. Rel. 1909, 455.

In April, 1914, after Rear-Admiral Fletcher had seized the customhouse at Vera Cruz, General Huerta, as head of the Provisional Mexican Government, gave Mr. O'Shaughnessy, the American Chargé d'Affaires ad interim at Mexico City, his passports, with a view to severing diplomatic relations with the United States. Am. J., VIII, 582-583.

The unwisdom, however, of recourse to such action, save for ample cause, must always be apparent.

The term retorsion is said to refer broadly to "the action taken by a State in order to compensate it for some damage suffered through the action of another State, or in order to deter the action' complained of." Retorsion frequently takes the form of retaliation, when, for example, the act of the complaining State is of the same kind as that of its opponent. This fact has led to the intimation that retorsion is a species of retaliation.3 Retorsion is seen, however, in acts which are not retaliatory because neither identical with, nor closely analogous to, those of which complaint is made. Thus in 1870, President Grant, anticipating a repetition by Canadian authorities of "their unneighborly acts" towards American fishermen, recommended that the Executive be empowered to suspend, by proclamation, the operation of the laws authorizing the transit of goods, wares and merchandise in bond across the territory of the United States to Canada; and further, if need be, to suspend the operation of any laws permitting the entrance of Canadian vessels into American waters. Such a response on the part of the United States would have furnished an instance of this form of non-amicable action.

Retorsion is frequently the retaliatory answer given to the unfriendly yet not illegal acts of another State. This is true, when, for example, the ports of a country are closed against vessels be

1 Westlake, 2 ed., II, 6.

See Marshall, C. J., in The Nereide, 9 Cranch, 388, 422, Moore, Dig., VII, 106, respecting the duty of the courts not to interfere with the political department in asserting the right to commit acts of retorsion.

2 Thus Hall declares that retorsion "consists in treating the subjects of the state giving provocation in an identical or closely analogous manner with that in which the subjects of the state using retorsion are treated. Thus if the productions of a particular state are discouraged or kept out of a country by differential import duties, or if its subjects are put at a disadvantage as compared with other foreigners, the state affected may retaliate upon its neighbors by like laws and tariffs." Higgins' 7 ed., § 120, p. 379, citing De Martens, Précis, § 254; Phillimore, iii, § vii; Bluntschli, § 505.

Thus there has come into being the tautological phrase that retorsion is "retaliation in kind." Wharton, Com. Am. Law, $206, Moore, Dig., VII, 105-106. The derivation of the word retaliation from the Latin verb retaliare, signifying to return like for like, in contrast to that of retorsion from retorquere, signifying to twist or turn back, ought to suffice as a warning against such a statement. It would not be inaccurate to describe retaliation as retorsion in kind.

• Message of Dec. 5, 1870, For. Rel. 1870, II, Moore, Dig., VII, 107.