Retorsion, how exercised.
§ 31. The essence of retorsion consists in retaliation for a noxious act by an act of the same kind. But a State in making use of retorsion is by no means confined to acts of the same kind as those complained of, acts of a similar kind being equally admissible. However, acts of retorsion are confined to acts which are not internationally illegal. And, further, as retorsion is made use of only for the purpose of compelling a State to alter its discourteous, unfriendly, or unfair behaviour, all acts of retorsion ought at once to cease when such State changes its behaviour.
Value of Retorsion.
§ 32. The value of retorsion as a means of settling certain international differences consists in its compulsory force, which has great power in regulating the intercourse of States. It is a commonplace of human nature, and by experience constantly confirmed, that evil-doers are checked by retaliation, and that those who are inclined to commit a wrong against others are often prevented by the fear of it. Through the high tide of Chauvinism, Protectionism, and unfriendly feelings against foreign nations, States are often tempted to legislative, administrative, and judicial acts against other States which, although not internationally illegal, nevertheless endanger friendly relations and intercourse within the Family of Nations. The certainty of retaliation is the only force which can make States resist the temptation.
III REPRISALS
Grotius, III. c. 2—Vattel, II. §§ 342-354—Bynkershoek, Quaestiones jur. publ. I. c. 24—Hall, § 120—Lawrence, §§ 136-137—Westlake, II. pp. 7-11—Twiss, II. §§ 11-22—Moore, VII. §§ 1095, 1096-1098—Taylor, §§ 436-437—Wharton, III. §§ 318-320—Wheaton, §§ 291-293—Bluntschli, §§ 500-504—Heffter, §§ 111-112—Bulmerincq in Holtzendorff, IV. pp. 72-116—Ullmann, § 160—Bonfils, Nos. 975-985—Despagnet, Nos. 487-495—Pradier-Fodéré, VI. Nos. 2637-2647—Rivier, II. § 60—Nys, III. pp. 84-91—Calvo, III. §§ 1808-1831—Fiore, II. Nos. 1228-1230, and Code, Nos. 1391-1399—Martens, II. § 105—Lafargue, Les représailles en temps de paix (1899)—Ducrocq, Représailles en temps de paix (1901), pp. 5-57, 175-232—Westlake in The Law Quarterly Review, XXV. (1909), pp. 127-137.
Conception of Reprisals in contradistinction to Retorsion.
§ 33. Reprisals is the term applied to such injurious and otherwise internationally illegal acts of one State against another as are exceptionally permitted for the purpose of compelling the latter to consent to a satisfactory settlement of a difference created by its own international delinquency. Whereas retorsion consists in retaliation of discourteous, unfriendly, unfair, and inequitable acts by acts of the same or a similar kind, and has nothing to do with international delinquencies, reprisals are acts, otherwise illegal, performed by a State for the purpose of obtaining justice for an international delinquency by taking the law into its own hands. It is, of course, possible that a State retaliates in consequence of an illegal act committed against itself by the performance of an act of a similar kind. Such retaliation would be a retorsion in the ordinary sense of the term, but it would not be retorsion in the technical meaning of the term as used by those writers on International Law who correctly distinguish between retorsion and reprisals.
Reprisals admissible for all International Delinquencies.
§ 34. Reprisals are admissible not only, as some writers[32] maintain, in case of denial or delay of justice, or of any other internationally interdicted ill-treatment of foreign citizens, but in every case of an international delinquency for which the injured State cannot get reparation through negotiation,[33] be it ill-treatment of its subjects abroad through denial or delay of justice or otherwise, or be it non-compliance with treaty obligations, violation of the dignity of a foreign State, violation of foreign territorial supremacy, or any other internationally illegal act.