LETTERS OF MARQUE

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP57-00384R000400040039-3
• Release Decision: RIFPUB
• Original Classification: S
• Document Page Count: 11
• Document Creation Date: December 20, 2016
• Document Release Date: September 10, 2001
• Sequence Number: 39
• Publication Date: January 5, 1952
• Content Type: MFR

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$ECUIITY INFORMATION
M0 I0HANDUM FOR THE RECORD
SUBJECT: Letters of Marque
5 January 1952
1. Back round: Letters of Marque, like letters of reprisal,
were orig_U.n" ally issued by the sovereign to his subjects when the
latter had been oppressed and injured by the subjects of another
state and justice was denied by that state to which the oppressor
belonged. The letter granted the holding party authority to seize
the bodies or goods of the subjects of the state to which the of-
fender belonged. As such the authorizing letters were concerned
with private, as distinguished from public reprisals and were ra-
tiona ized as follows by Vattel;
We have observed ... that the wealth of the citi-
zens constitutes a part of the aggregate wealth of a
nation, -- that, between state and state, the private
proper- of the members is considered as belonging to
the body and is answerable for the debts of that body;
whence it follows, that in reprisals we seize the pro-
perty of the subject just as we would on that of tie
state or sovereign. everything that belongs to the
nation is subject to reprisals, whenever it can be
seized, provided it is not a deposit intrusted to the
public faith. (As it is only in consequence of that
confidence which the proprietor has placed in our good
faith, that we happen to have such deposit in our hands,
it ought to be respected, even in case of open war).
If... this violent measure approaches very near to
an open rupture,, and is frequently followed by one, it
is, therefore, an affair too serious in nature to be
left to the discretion of private individuals. And
1Vattel, Law of Nations, (1833), p. 284.
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accordingly we see, that in every civilized state, a sub-
ject who thinks himself injured by a foreign nation, has
recourse to his sovereign, in order to obtain permission
to make reprisals. This is what the French call applying
for Letters of Marque."
These reprisal authorizations are distinct from a specie of
later origin -- the public reprisal -- but similar terminology is
often used interchangeably. Historically, Letters of Reprisal ware
also granted in time of war to privateers -- and this authorization
has no relation to prior loss on the part of the individual receiv-
ing a license.
Generally, public reprisals were used as a means of coercion
short of open warfare and are in fact so defined by Hackworth:2
"Public reprisals may thus be defined as coercive
measures taken by one state against another, without
belligerent intent, in order to secure redress for, or
to prevent recurrence of, acts or omissions which under
international law constitute international delinquency."
This view is found frequently among the writers on the subject3
but other writers have compounded the confusion by defining the
"Letters of Marque" as authorizations granted by one nation at war
with another. Thus lheaton4 states:
".., the term "Letter of marque' suns to be confined
to the authorization to private armed trading vessels to
make captures of property of the enemy in war. If there
is no declared or recognized status of war, and the govern-
ment, for a public purpose, desires to seize property, in
the way of security or warning or specific retaliation,
such authorization to such vessels would be called 'Letters
of Reprisals' or 'Letters of Marque and Reprisal.' If, in
2Hackworth, Digest of International Law, Department of State (1941),
P. 156?
3Vattel, Op. Ct., p. 284, states: "On the subject of reprisals,
it is necessary to observe that when we adopt that expedient, as
being a gentler mode of proceeding than that of war, the reprisals
ought not to be general. The grand pensionary DeWitt very properly
remarked: 'I do not see any difference between GENERAL reprisals
and open war."
Wheaton, Elements of International Latin, p. 311. SECURITY 1NFORMAF
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let
time of war, the private vessel receiving the authorization
is fitted out and employed solely as a cruiser, she is called
a privateer."
Historically, it is apparent that Letters of Marque have been
issued by one sovereignty at war with another. When the inited
States attempted to restore eivil authority by use of milijary force,
the Confederacy declared war and issued Letters of Marque.
2. Present Legal Status.
The European powers formally renounced (for "all time") Letters
of barque and Reprisal at the Treaty of Paris in 1856 and although
the United States Constitution specifically grants Congress the power
to issue these letters, Shotwell says:
this right of Congress belongs to an era which has
passed away, for it would now be regarded as little else than
the sanction of piracy."
There are many references to Letters of Marque in the various
neutrality laws of European nations, primarily enacted during the
periods of the Crimean War or the American Civil War. The following
excerpt from the Netherlands neutrality laws indicates the substance
of these acts&
".., to maintain neutrality ..* no cruisers under
any flags, commissions, or letters of marque whatever,
will be admitted to our seaports,-with or without prizes,
except in cases of sea-danger, and that, in any case what-
ever, such cruisers and their prizes will be watched and
ordered to sea as soon as possible."8
eaton, Ibid, p. 71. The United States did not declare war against
the Confederacy, nor did it issue Letters of Marque since it did not
recognize the body-politic but rather considered the rebellion as
one of individuals.
6Art. I., Sec. 8.
7Shotwell, James, 71ar as an Instrument of National Policy, Harcourt,
Brace & Co., N. f.717929., p. 27.
8Deak and Jessup, Neutrality Laws, Regulations and Treaties, Car-
negie Endov?nent for International Peace, 1937, p+ 3
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Treaties of amity between European states often provided that
"the parties will not give Letters of Marque to their subjects, nor
to other parties..." (Russia-Sweden, 1801).9 Presumably, these
treaty references were to authorizations for private rather than pub-
lic reprisals.
China, of course, was not a signatory to the Treaty of Paris,
nor have we found any treaty banning or restricting the use of re-
prisal letters to which she was a participant.
The Covenai6 of the League of Nations did not forbid reprisals.
Hackworth says;
"They (peaceful means of repression) are not forbidden
by any of its articles. I may add that in its Preamble the
principles of international law are expressly recognized.
Among these principles is the right of peaceful reprisals and
of occupation as a means of guarantee. These reprisals are
therefore legitimate. It should be noted that such eminent
authorities on international law as Professors Schucking and
Wehberg ... who have studied in detail the Covenant of the
League of Nations, state most explicitly that reprisals and
retorsion are not forbidden."
If the Kuominstang government were to issue Letters of Marque
against the Chinese Communists as a means of reprisal her ccmmittments
as a signatory to the United Nations and to the Article 36 of the
Statute of the Permanent Court of International Justice would require
consideration. Colbert has considered the status of public reprisals
in relation to the Charter of the United Nations in some detail and
her section on this point is attached as Appendix A. The provisions
of Article 36 of the Permanent Court of International Justice are
attached as Appendix B.
9roid, p. 1436.
1OHackworth, Op. Cit., p. 155?
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3. Alternative to Historical Confusion.
Chapter I, Article 2(7} of the United Nations Charter provides:
"Nothing contained in the present charter shall authorize
the United Nations to intervene in matters which are essentially
within the domestic jurisdiction of any state or shall require
the members to submit such matters to settlement under the pre-
sent charter... It
Historically, internal revolt has been a prime example of "mat-
ters which are essentially vithin the domestic jurisdiction of a
state." As such the recognized authority may use any means authorized
by the laws of war ("the laws of ar are applicable, and must be ob-
served, in a civil war as in any other war.")11 to quash the rebellion.
The outfitting and authorizing of privateers to prey on the shipping
of belligerents is a traditional device of war. According to inter-
national law, a belligerent has an inherent right to capture enemy
ships and cargoes.
There is no apparent legal reason (from the standpoint of in-
ternational law) why the Nationalists could not commission private,
armed vessels as privateers to cruise during a recognized war against
the commerce of the enemy.
1
67 C.J. 347.
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PUBLIC REPRISALS AND THE CHARTER OF THE UNITED NATIONS'
Article I of the Charter defines as among the purposes of the United
Nations "To maintain international peace and security and to that end:
to take effective collective measures for the prevention and removal of
threats to the peace, and for the suppression of acts of aggression or
other breaches of the peace, and to bring about by peaceful means, and
in conformity with the principles of justice and international law, ad-
justment or settlement of international disputes or situations w1dch
might lead to a breach of peace..." Article II binds the members to set-
tle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered (and
to)refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the United
Nations." Chapter VI binds the parties to a dispute to seek peaceful means
of settlement and provides various means whereby the Security Council may
investigate the dispute and facilitate its settlement. Chapter VII pro-
vides for the punitive action to be taken by the Security Council "with
respect to threats to the peace, breaches of the peace, and acts of ag-
gression."
Self-defense against an armed attack "until the Security Council has
taken the measures necessary to maintain international peace and secur-
ity..." is the only unilateral use of force specifically authorized by
the Charter. Logically, therefore, unless it has been directed to take
such measures by the Security Council acting under Chapter VII, the in-
dividual state loses the right to embark on acts of force short of war
on the grounds that a prior illegality has been committed by another
state (except in self defense as defined). Thus, in a sense, the right
to determine when an illegal action has occurred and to decide on and
direct the methods of punishment is transferred from the individual state
to the Security 'ouneil, which becomes itself the author of re=prisals.
Under this reasoning the position of the Security Council, in the ab-
sence of an international police force, becomes somewhat analogous to
that of the ruler who authorized his subject to take private reprisals
but regulated the means by which they might be carried out. Such assim-
'Colbert, Evelyn S., Retaliation in International Law, King's Crown
Press, N. Y., 1948, p. 202-206-. + -""
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ilation of retaliation to the provisions of the Charter, moreover,
may be of some advantage in strengthening the position of the Security
Council with regard to states not actually involved in the action
taken in view of the precedents earlier established by the acquies-
cence of third states in measures undertaken on retaliatory grounds
which limited or affected their rights.
Since the provisions of the Charter are by no means entirely clear,
however, and since they will have to be interpreted in the light of
existing situations and political realities, it is probably premature
to assume even that the states signatory to the Charter by accepting
it in general have agreed in particular that they no longer possess
the right of retaliation. Rather it would seem advisable to examine
the Charter to determine what questions regarding peacetime retalia-
tion it leaves unanswered.
It is the aim of the Charter to ,bring about the peaceful settle-
ment of international disputes or failing this to prevent the unilateral
adoption of measures of force. It would be unjust to say, however, that
the aim of the Covenant was less comprehensive. As the Corfu Incident
has shown, mere paper provisions for settlement will not, in themselves,
suffice to eradicate reprisals, if the will to enforce such provisions
is absent. The Charter, however, does appear to provide a more satis-
factory basis for the handling of a reprisal case than did the Covenant.
The latter with its emphasis on war or threats of war made it possible
for Italy to erect a legally arguable case upon its essentially political
aims. The Charter is concerned less specifically with war and more
generally with threats to or breaches of the peace and does, therefore,
at least narrow the range within which legalistic obfuscation is possi-
ble. Nevertheless there exists gaps in the Charter, as there did in
the Covenant, which might make it possible for a state to embark upon
retaliatory measures and pursue them unscathed.
With regard to definition of terms, the question arises as to
whether a reprisal, ostensibly undertaken for no other purpose than
to secure justice which would otherwise be denied, is a use of force
"inconsistent with the Purposes of the United Nations" or not rain
the common interest." It might indeed be argued in certain cases
that the reprisal in question not only served to rectify the wrong
done to the retaliating power but also served to advance the purposes
of the United Nations.
It would, of course, be for the Security Council, under Chapter VI
to call upon the parties to the dispute to settle by peaceful means
before the situation developed to a point where the adoption of a
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retaliatory policy was threatened. But in order for the Council tQ
take this step there must be unanimity among the permanent members
and it is not difficult to envisage a situation in which this unanim-
ity could not be achieved. The same problems apply, of course, to
any other of the Security Council functions with regard to international
disputes envisaged in Chapter VI: investigation; recommendation of
appropriate procedures or methods of adjustment; and recommendation
of terms of settlement. The failure of the Council to act under
Chapter VI as the result of a veto by a permanent member might eventu-
ally lead to a situation in which one party to the dispute would pro-
ceed to reprisals against the other. Under these circumstances it
would seem very likely that the failure of unanimity under Chapter
VI would be repeated when efforts were made to have the Council take
action under the much more drastic provisions of Chapter VII.3
Should the potentially retaliating power be itself a permanent
member of the Council the unanimity requirement would be of less
weight in decisions under Chapter VI since, when these decisions are
made, parties to a dispute must refrain from voting. Were a permanent
member actually to resort to measures of retaliation, however, action
under Chapter VII would be barred by the unanimity requirement.
Despite the obvious gaps in the Charter, however, -- and academic
anticipation of legal loopholes is generally far outdistanced in actual
practice -- the Statute of the International Court of Justice provide-
a further basis for the subordination of reprisals, as distinct from
other unilateral acts of force short of war, to orderly international
processes.
As had been pointed out elsewhere in this paper a state embarking
upon a retaliatory policy, whatever its motives, must at least pay lip-
service to international law by claiming that its actions are a res-
ponse to a prior oblation of that law. This very emphasis on the
legal nature of the dispute brings the whole question of peacetime
Subject always to the exception that in decisions under Chapter VI
a party to the dispute may not vote.
31n theory the same situation might obtain without the exercise of
the great power veto if the five permanent members, having agreed
upon a course of action, were unable to secure the support of two
non permanent members. Actual development of such a situation
seems unlikely, however.
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retaliation much more clearly within the jurisdiction of the In-
ternational Court of Justice than are other acts of force short of
war. States that have made declarations under Article 36 of the
Statute of the International Court of Justice have accepted, with
various reservations regarding questions of domestic jurisprudence
and other matters, the compulsory jurisdiction of the Court "in all
legal disputes concerning: a. the interpretation of a treaty; b.
any question of international law; c. the existence of any fact which,
if established, would constitute a breach of an international obli-
gation; d. the nature or extent of the reparation to be made for the
breach of an international obligation.$'
Many of the disputes which have given rise to public reprisals
in the past have fallen under the relatively specific categories set
forth in clauses a, c, and d of Article 36. In addition, the broad
terms of clause b coupled with the requirement that for a normally
illegal act to be justified on retaliatory grounds it must itself
be a response to a prior illegality might well justify the conclusion
that as between states party to Article 36, rich do not choose to
adopt other means of peaceful settlement, most if not all of the dis-
putes of the type which have hitherto given rise to reprisals must be
submitted to the International Court. Under such circumstances i;he
occasion for reprisals could not arise unless the offending state
fai led to carry out the award of the court, an eventuality rendered
less likely by the general tendency of states to accept the findings
of a court once they have submitted to its jurisdiction. Thus for
purposes of limiting as opposed to abolishing peacetime retaliation,
as wide an extension as possible of acceptance of the optional clause
would at least allow for the judicial determination of the question as
to whether grounds for retaliation exist and would probably reduce the
occasions on which unilateral acts of force could plausibly be employed
on retaliatory grounds. That states Mich have bound themselves by
Article 36 and regard themselves as aggrieved might abandon the re-
taliatory argument and seek other justification for a unilateral act
of force is, of course, all too possible; it is not however, a problem
with which this paper is concerned.
d Or under Article 36 of the Statute of the Permanent Court of In-
ternational Justice.
5
An excellent example of resort to judicial settlement in a situation
resembling many in the past that had led to reprisals is the sul.mis-
sion to the International Court of Justice of the dispute between
Great Britain and Albania over the sinking of British ships in Corfu
Channel in October, 1946.
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ARTICLE 36
1. The jurisdiction of the Court comprises all cases which the
parties refer to it and all matters specially provided for in the
Charter of the United Nations or in treaties and conventions in force.
2. The states parties to the present Statute may at any time
declare that they recognize as compulsory ipso facto and without
special agreement in relation to any other state accepting the same
obligation, the jurisdiction of the Court in all legal disputes con-
cerning:
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which if established, would
constitute a breach of an international obliga-cion;
d. the nature or extent of the reparation to be made for
the breach of an international obligation.
3.. The declarations referred to above may be made uncondition-
ally or on condition of reciprocity on the part of several or certain
states, or for a certain time.
4. Such declarations shall be deposited with the Secretary-
General of the United Nations, who shall transmit copies thereof to
the parties to the Statute and to the Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the
Permanent Court of International Justice and -which are still in
force shall be deemed as between the parties to the present Statute,
to be acceptances of the compulsory jurisdiction of the International
Court of Justice for the period which they still have to run and in
accordance with their terms.
6. In the event of a dispute as to whether the Court has juris-
diction, the matter shall be settled by the decision of the Court.
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