seizure would have been converted into a mere civil embargo (a), and the property would have been restored. But if, as actually happened in the present case, hostilities ensued, then the outbreak of war had a retroactive effect. and rendered all property previously seized liable as enemy property seized under a measure hostile ab initio. Such property was then liable to be used as the property of persons guilty of injuries which they had refused to redeem by any amicable alteration of their measures. As to the second contention, he must hold that the property at the time of the capture belonged to subjects of the Batavian Republic, and that the subsequent acquisition of Demerara by Great Britain would not preclude the consequence of their original hostile character.

An embargo consists in the provisional seizure or detention by a State of ships or property-generally, although not invariably-in its own ports. A civil embargo is not an international proceeding, and usually applies only to vessels of the State that imposes it; having for its object the protection of commerce or other interests (b). A hostile embargo, on the other hand, consists in the provisional arrest by one State, of ships or goods belonging to the subjects of another State, against which there is some cause of complaint; this either as a means of extorting redress short of war, or as a measure anticipatory to war. But in neither character does it now possess much importance. As a measure anticipatory of war it has now been virtually abandoned, in deference to a usage which has recently developed, and which is now embodied in the "Convention relative to the Status of Enemy Merchant Ships at the Outbreak of Hostilities," framed by The Hague Conference, 1907 (c). By virtue of this modern custom a belligerent not only waives his right of seizure in anticipation of war, but even concedes to enemy vessels which are, at the time of the outbreak of war, either in or on their way to his ports, liberty to depart or to enter and depart, as the case may be, together with a further immunity from seizure on the return voyage to their own country (d); although these provisions do not apply to merchant ships whose build shows that they are intended for conversion into warships (Art. 5), as to which the earlier right of seizure remains; but if the other belligerent refuses to accord reciprocity, the old right of seizure is revived (The Marie Leonhart [1921] P. 1). As a measure of redress short of war a

(a) Civil" only in the sense of not involving a confiscation of the property.

(b) As to civil embargo in English law, see Phill. iii. 44.

(c) Arts. 1 to 4; Whittuck, p. 152. (d) As to the application of this rule, see The Buena Ventura (175 U. S. 384; and infra, vol. ii.).

hostile embargo might, indeed, still be resorted to; and in such a case the right of confiscation would seemingly still attach, if satisfaction were refused or if the embargo led to war. But such a measure would now scarcely be applied to vessels belonging to a major Power; whilst, as regards minor Powers, this form of embargo has been for the most part superseded by an embargo of a more efficient kind, which consists in the detention of the vessels of the offending State in its own ports, in which character it really appears to be an incident of "pacific blockade" (e).

AN ARBITRATION HELD IN 1903 BETWEEN GREAT BRITAIN, GERMANY, AND ITALY, AND VENEZUELA, WITH OTHER POWERS INTERVENING.

[Parl. Papers, 1902-4; British and Foreign State Papers, vols. 95, 96 (1901-2, 1902-3); Article by W. L. Penfield (Solicitor to Dept. of State, U.S.A.), N. A. Rev., July, 1903; Scott's Hague Reports, p. 55.]

Events leading to Arbitration.] FOR some time prior to 1902 the conduct of the Government of Venezuela and the action of the Venezuelan authorities towards foreign residents and in relation to foreign interests had provoked much dissatisfaction on the part of other Powers. Great Britain, in particular, had addressed a number of complaints to the Venezuelan Government, with reference to the seizure of British vessels, interferences with the person and property of British subjects, and the occasional violátion of British territory. Germany also alleged certain grievances arising out of injuries sustained by German subjects during the civil wars of 1898 and 1900. Other Powers had reason to complain of the non-fulfilment of contractual obligations incurred by the Venezuelan Government toward their subjects. All attempts to obtain satisfaction having proved ineffectual, in December, 1902, the Governments of Great Britain and Germany, and, at a somewhat later stage, the Government of Italy, agreed to adopt joint measures of reprisal against Venezuela, for the purpose of enforcing a settlement of these claims. In pursuance of this arrangement, the Venezuelan warships were seized by the British and German squadrons, several

(e) As to the relation between the two, see p. 359, infra; and on the

I.L.

subject of embargo generally, Hall, 381; Taylor, 432.

23

of them being sunk in the process. In consequence of a further outrage on a British vessel at Puerto Caballo, certain adjacent forts were also atacked, and one of them demolished. A blockade of the Venezuelan ports was also decided on. Great Britain appears to have contemplated from the first a war blockade (f). But Germany, on the 12th of December appears to have proposed a pacific blockade, under which the vessels of other Powers would have been turned away but not otherwise penalised. The latter proposal, however, was resisted by the Government of the United States, which adhered to the position previously taken up on the occasion of the blockade of Crete in 1897, and refused to acquiesce in any extension of the doctrine of pacific blockade which might adversely affect the rights or commerce of States that were not parties to the controversy. In deference to this objection, the project of a pacific blockade was abandoned in favour of an ordinary war blockade. A blockade was thereupon proclaimed of various Venezuelan ports and the mouths of the Orinoco River, to take effect as from the 20th of December, and the requisite notifications to that effect were isued by the allied Powers (g). Meanwhile a proposal already made by the United States for a reference of the dispute to arbitration was considered, and ultimately accepted by the Powers; subject to the reservation of certain claims, as to which immediate payment was insisted on. In January, 1903, these terms were provisionally accepted by Venezuela. In the negotiations which followed an attempt was made to bring about an immediate settlement of all outstanding claims, including those of other Powers; but this project was defeated by the insistence on the part of the allied Powers that their claims should be settled in priority to those of other Powers. On the 13th of February, 1903, however, a definite arrangement was come to, and the blockade was thereupon raised. The protocols in which this arrangement was embodied were to the following effect: (1) Venezuela recognised in principle the justice of the claims preferred by each of the blockading Powers. (2) Venezuela also agreed to satisfy immediately certain claims,

amounting to about £5,500, on the part of Great Britain, arising out of the seizure of British vessels and maltreatment of British subjects; to make an immediate payment of a similar amount to Germany, on account of a sum of 1,718,815 bolivares (francs), agreed to be due to German subjects; and also to make an immediate payment of a similar amount to Italy in satisfaction of a point of honour, as well as a subsequent payment of 2,810,255 bolivares in respect of other claims. (3) All other claims by the three Powers were to be referred to a mixed commission, subject, however, to an admission of liability by Venezuela, in cases where the claim was for injury to or wrongful seizure of property (h). (4) The mixed commission was to consist of one member nominated by the complainant Powers, and one by Venezuela, and in case of disagreement an umpire to be nominated by the President of the United States. (5) For the purpose of discharging the claims of the allied Powers, as well as similar claims on the part of other Powers, Venezuela agreed to pay over, as from the 1st of March, 1903, 30 per cent. of the customs revenue of the ports of La Guayra and Puerto Caballo to the Bank of England branch at Caracas; any further questions arising out of this arrangement being made referable to The Hague tribunal. (6) Venezuela also undertook to make new arrangements with respect to her external debt. (7) All Venezuelan vessels seized by the Powers were to be restored. (8) The blockade was to be raised immediately. (9) Express provision was also made for the renewal and confirmation of certain treaties between Venezuela and two of the Powers, that might otherwise have been regarded as having lapsed by reason of the

war.

Similar arrangements were also entered into between Venezuela and various other Powers, including the United States, France, Spain, and Mexico, so far as related to the reference of their claims to a mixed commission and their right to share in the funds allocated for payment.

By a further protocol between Great Britain and Venezuela it was agreed that the question as to whether the blockading

(h) The only question in such cases, apparently, being whether the injury

took place, and, if so, what compensa. toin was due.

Powers were entitled to preferential or separate treatment in the matter of payment should be submitted to arbitration; it being left to the Emperor of Russia to name from amongst the members of the Permanent Court (i) three persons, not being subjects or citizens of any of the signatory or claimant Powers, to act as arbitrators; each claimant having, however, right to be represented at the arbitration. Protocols to the same effect were entered into with Germany and Italy; and also with other Powers having claims against Venezuela.

The Arbitration and Award.] In the result the Emperor of Russia appointed M. Mouravieff, Secretary of State; Professor Lammasch, of the University of Vienna; and M. de Martens, Privy Councillor, as a Court of Arbitration. By a unanimous award, delivered on the 22nd of February, 1904, the Court decided, in effect, that Germany, Great Britain, and Italy had a right to preferential treatment for the payment of their claims; and that they were further entitled to prior payment out of the funds which had been assigned by Venezuela for the discharge of such claims. This conclusion was based (inter alia) on the following grounds: (1) That Venezuela, in the protocols of the 13th of February, 1903, had recognised the principle of the justice of the claims preferred by Germany, Great Britain, and Italy, whilst in the protocols entered into with other Powers the justice of their claims was not recognised in principle; (2) That prior to the end of January, 1903, Venezuela had not protested against the pretension of the blockading Powers to special security for the satisfaction of their claims, and had, indeed, always drawn a formal distinction between the allied Powers" and "the neutral or pacific Powers"; (3) That the neutral Powers had not protested against such preferential treatment, either at the moment the war came to an end or immediately afterwards; (4) That the undertaking on the part of Venezuela to offer special guarantees for the discharge of its engagements had been entered into only with the allied Powers; and, finally, (5) That inasmuch as the neutral Powers had taken no part in the warlike operations against Venezuela, they could not be deemed to acquire any direct rights.

(i) See p. 36, supra.