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Some Questions of International Law in the European War1

Published online by Cambridge University Press:  04 May 2017

James W. Garner
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Extract

By an order in council issued on the 4th of August, 1914, the British Government announced a list of articles which it proposed to treat as contraband “during the war with the German Emperor”; by an order of August 12th the first mentioned order was extended to the war with “the Emperor of Austria—King of Hungary,” and by an order of September 21st certain additions were made to the list of contraband articles published in the two preceding orders. By an order in council of October 29th the list of contraband articles in the earlier proclamations was withdrawn in consequence of the complaint of the Swedish Government that it included metallic ores, which were on the free list in the Declaration of London, and that the treatment of such articles as contraband would seriously injure Swedish trade. A new list was therefore substituted, from which ores were omitted.

Type
Research Article
Information
American Journal of International Law , Volume 9 , Issue 2 , April 1915 , pp. 372 - 401
Copyright
Copyright © American Society of International Law 1915

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Footnotes

1

Continued from the January number, pp. 72-112.

References

2 The texts of the orders in council of October 29th and December 23d may be found in the Congressional Record for January 13, 1915, pp. 1540–1541. Those of September 21st and October 29th (but not that of December 23d) are published in an article by Mr. Norman Bentwich in this Journal for January last, pp. 38–40.

3 Compare Bentwich, The Declaration of London, p. 124

4 Mr. Thomas Gibson Bowles, a member of the English Parliament, in his Capture at Sea criticizes Articles 23 and 25 of the Declaration which allow additions to be made to both lists, as one of “the most monstrous and abusive features” of the Declaration, but he seems to overlook the fact that according to existing usage belligerents already had such power, so that the recognition of this right by the Declaration did not alter the existing situation.

5 Sir William Scott in the case of the Nostra Signora de Begona refused to condemn a cargo of rosin (5 C. Rob. 97) but the British prize courts have uniformly condemned pitch and tar. See the case of the Twee Jeffrowen, 4 C. Rob. 243.

6 Droit International Public, ed. by Fauchille, Sec. 1550. See also Travers-Twiss, International Law, Vol. II, Sec. 144.

7 Compare Oppenheim, International Law, Vol. II, p. 424.

8 Foreign Relations of the United States, 1904, p. 760.

9 This distinction, however, has been attacked by many Continental publicists, and the Institute of International Law, at its session of 1896, adopted a proposal for the abolition of what it called relative or accidental contraband (Annuaire, XVI, p. 205). For a summary of the views of Continental publicists on the subject, see Hershey, International Law in the Russo-Japanese War, pp. 162–163.

10 Parliamentary Papers, Russia, No. 1 (1905), p. 13.

11 Senator Walsh in a speech in the Senate on December 31st last (Congressional Record, pp. 773–779) stated that the number of cargoes of copper alone that had been detained prior to that date amounted to 31. Sir Edward Grey, in his reply to the American note, stated that of 773 shipments of all kinds from American ports between August 4th and January 3d, only 45 had been seized and sent to British ports for the verification of their cargoes, and that of these, only 8 had been placed in the jurisdiction of prize courts. Since the later date various other cargoes have been sent in for examination. A statement given out in March by the representatives of Chicago meat packers declared that cargoes of food products aggregating a value of $8, 000, 000 had been seized in October and November and were still in the custody of prize courts. Among the ships thus detained were the Alfred Nobel, the Bjorrnstjerne, the Fridland and the Vitalia. On March 22d, a British prize court awarded the owners of these cargoes the sum of $600, 000.

12 1 C. Rob. 340.

13 See the opinions on this point in Moore’s Digest, Vol. VII, pp. 475–479.

14 Atherley-Jones, Commerce in War, p. 343. The London Weekly Times in its issue of January 22d admitted that “much of the unavoidable delay, loss and annoyance involved in the necessity of diverting ships to British ports might be avoided if the process of searching them were expedited as much as possible, and if the American Government and the American public were at once put in possession of the facts in each case.” The Times complained of the slowness and secrecy of methods employed by the British Government.

15 See texts of the awards in this Journal, Vol. 7, pp. 623–626. See also the case of the Neptune (1795) in Moore, International Arbitrations, Vol. 4, pp. 3843 et seq. The cases of the Carthage and the Manouba and the award of the Hague Tribunal are the subject of an extended analysis by M. Robert Rusé in the Revue de Droit Int. et de Leg, Comp., Vol. 16, pp. 101–136.

16 By an order of October 28th, the American Government forbade collectors and other customs officials to make public such information until thirty days after the departure of the vessel. Prior to that date it had been the practice to file manifests before or at the time of sailing, and information regarding the contents and destination of the cargoes was furnished the press when it was requested. After the outbreak of the war, official representatives of the belligerent Powers communicated to their governments such information regarding suspected shipments as they thought would be of interest, in order that suspected cargoes might be searched on the high seas. The order was the subject of debate in Congress, and was criticized as tending to incite suspicion upon innocent cargoes. (Congressional Record, January 7, pp. 1176–1180.) It was revoked in February in consequence of the numerous complaints of exporters.

17 This suggestion has been made by Lawrence in his International Law, p. 474. It has been repeatedly urged by the London Times since the raising of the present controversy. See the weekly issues of December 25, 1914, and January 22, 1915. Mr. Henry J. Bigham, a New York admiralty lawyer, suggests a system of loading under the joint inspection of American customs officials and British consuls, the correctness of the manifest being certified to by the collector of the port and the British consul. It is desirable in any case, he adds, that the ships’ hatches should be sealed by inspectors, the seals not to be removed during the voyage. This done, the ships should be free to prosecute their voyages without detention. See his suggestions in the London Weekly Times for January 22, 1915. It may be remarked that several treaties have been concluded between the United States and various countries in the past providing that certificates of this kind should be accepted by belligerents as evidence that the cargo did not contain contraband. See the list in International Law Situations, 1911, p. 104.

18 For example, the Greenbrier, an American steamer bound from New Orleans to Bremen with a cargo of cotton, and bearing a certificate of the British consul at New York, was seized in January by a British cruiser and taken into the port of Kirkwall where it was detained for several days for the purpose of conducting the search.

19 Notably the Alfred Nobel, the Bjornsterne and the Fridland laden mainly with Chicago meat products consigned “to order” in Copenhagen. The ships sailed prior to the order in council of October 29th, which laid down the new rule in regard to consignments “to order.” Notwithstanding this fact, they were seized and detained until March 22d when the prize court ordered the government to pay $600, 000 for the cargoes. Other cargoes consigned “to order” in Holland, Sweden, Norway, and Italy, have likewise been seized.

20 See the remarks of Senator Walsh on this point in the Senate, December 31, 1915, Congressional Record, p. 779.

21 See the observations of Mr. Bentwich on this point, in his Declaration of London, p. 71.

22 Compare, for example, Sir Edward Grey’s contention in the case of the Oldhamia (1910), referred to by Dr. Edwin M. Borchard in this Journal for January last, p. 140.

23 International Law in South Africa, p. 10.

24 See an article by Geffcken entitled “ La France en China et le Droit International, “ in the Rev. de Droit International et de Lég. Comp., Vol. 17, p. 149 (1885).

25 Moore, J. B., “La Contrabande de Guerre ,” Revue de Droit International et de Lég. Comp., Vol. 44, p. 239 Google Scholar. The whole subject of these seizures is examined at length in Campbell’s Neutral Rights and Obligations in the Anglo-Boer War, Chap. III. See also the Congressional Record, January 17, 1900, p. 900.

26 Letter to Lord Salisbury, January 14, 1900.

27 Mr. Norman Bentwich in an article in this Journal for January last (p. 36), referring to the exception made by the Declaration of London in the case of belligerents which have no seaboard, asserts that there are “peculiar conditions in the present war, due to the fact that neutral ports, such as Rotterdam and Copenhagen, became the chief means of access to a large part of Germany, owing to the mining of the North Sea and the naval operations. Germany, in fact, was assimilated to the position of a country having no sea coast, because there were no ports on her coast line to which neutral shipping could put in. And the allies naturally could not be expected to allow his armies to be supplied through neighboring neutral ports with food stuffs or fuel or military clothing or railway material any more than with arms and ammunition.” Such an interpretation goes to show that the Declaration means what belligerents following their own interests choose to construe it to mean, and nothing more.

28 When the attention of Lord Salisbury was called to .these passages by Count Hatzfeldt at the time of the controversy over the seizure of the Bundesrath, he replied that the manual “could not be admitted to contain an authoritative statement of the views of the Lords Commissioners” and that the rules of the manual were “quite inapplicable to the case of a war with an inland state whose communication with the sea is over a few miles of railway to a neutral port.”

29 International Law, p. 673.

30 Ibid., Vol. II, p. 253.

31 See the case of the Doelwick, a Dutch ship captured by an Italian cruiser in 1896 while bound for the French-African port of Djibouta. A part of the cargo consisted of arms and munitions of war which, it was alleged, were to be transported across French territory to Abyssinia. Curiously enough, the Italian prize court held the capture to be legal, but released the ship because at the time of the trial the war had closed. The decision is strongly criticised as “a new and specious doctrine” by the Italian jurist, Brusa, in the Beime Générale de Droit International Public, Vol. 4, pp. 159–175. He holds that the cargo should have been condemned. See also an article in the same Revue, pp. 39 et seq. by M. Despagnet and another by M. Fauchille, (ibid., pp. 297–323) who attacks vigorously the whole doctrine of continuous voyage as applied to the carriage of contraband.

32 Commerce in War, p. 257.

33 International Law in South Africa, pp. 6, 19.

34 The Declaration of London, pp. 18, 75. Since the outbreak of the present war, Mr. Bentwich has apparently changed his views on this point. See his article in this Journal for January last, p. 37.

35 This is a literal translation from the French text. Proceedings of the International Naval Conference, House of Commons Sessional Papers, Misc., No. 5 (1909), p. 95.

36 Spaight, War Rights on Land, p. 478. Article 7 of the Hague Convention of 1907 Respecting the Rights and Duties of Neutral Powers and Persons in case of War on Land declares that “a neutral power is not bound to prevent the export or transport on behalf of one or the other belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or a fleet.”

37 See notably the cases of the Circassian (1864), 2 Wall. 135; the Springbok (1866), 5 Wall. 1; the Dolphin (1863), 7 Fed. Cases, 868; the Bermuda (1865), 3 Wall. 514.

38 See his vigorous attack on the whole doctrine of continuous voyage as applied to the carriage of contraband, in an article entitled “La Theorie du Voyage Continu en matière de contrabande de Guerre” in the Revue Gine’rale de Droit International Public, Vol. 4, pp. 279–232 (1897). M. Fauchille declares that the doctrine of continuous voyage is itself a veritable juridical anomaly. To inflict on a voyage between two neutral ports, he says, the penal consequences of a voyage between a neutral port and an enemy port, under the pretext that the cargo will be re-exported to an enemy port is, in fact, to assimilate successive voyages to a single voyage. The theory rests on a fiction of law. But fictions are by their essence contrary to international law. Compare also Twiss, “The Theory of Continuous Voyage Applied to Contraband of War and to Blockade.” See especially p. 27, where he calls attention to the consequences to which shipments of saltpeter from Calcutta to London would be exposed, for example, during a war between Russia and Turkey, if the doctrine of continuous voyage should be applied. The view expressed by Fauchille and Twiss is that held by practically all English and Continental jurists. Compare, for example, Geffcken, in Holtzendorff’s Handbuch des Völkerrechts, Vol. IV, Sec. 161; Heffter, Droit International de I’Europe, p. 392, and Gessner, Le Droit des Neutres sur Mer, 2d ed., p. 137.

39 5 Wall. 514.

40 Ibid., 1 (1865).

41 See the strong protest prepared and signed by a committee of English and Continental jurists, published in the Revue Generate de Droit International Public, Vol. 14, pp. 329–331. See also Moore’s Digest, Vol. 7, pp. 727–739 for this and numerous other protests and criticisms.

42 Among them may be mentioned Kleen (Contrabande de Guerre, p. 52), Hautefeuille (Nations Neutres en Temps de Guerre), and Field (Outlines, Sec. 964). Woolsey (International Law, p. 320) thinks all innocent trade with the enemy should be free, but that neutrals should pass stringent and effectual laws against contraband trade. Phillimore (International Law, Vol. III, Sees. 227–241) seems to hold the same opinion.

The question was discussed by the Institute of International Law at its sessions of 1892, 1894, and 1896 (see the Revue Generate de Droit International Public, Vol. III, pp. 648–658 for a review of the discussions). The proposal to prohibit trade in contraband was opposed by Lardy, Stoerk and General Den Beer Poortugael, but defended by Brusa. At the session of 1896, the Institute agreed to a proposal to abolish conditional contraband, reserving to belligerents a right of sequestration or preemption at their pleasure and to neutrals an equitable indemnity. (Annuaire, T. XV, pp. 205 et seq.

43 Kleen, op. cit., p. 52. See also Fauchille, p. 322, and Rivier, Vol. II, pp. 412–413.

44 Bluntschli, Droit International Cod., Sec. 766, and Kleen, p. 51.

45 Proclamations and Decrees During the War With Spain, p. 35. See also an article by Professor Moore, J. B. entitled La Contrabands de Guerre, in the Revue de Droit International et de Lég. Comp., 1912, pp. 226–227 Google Scholar.

46 War Rights on Land, p. 475.

47 See the memorandum in Deuxième Conférence de la Paix, Acles et Documents, Tome I, pp. 256–258.

48 Ibid., Tome III, p. 881.

49 Professor J. B. Moore, in a recent address before the National Foreign Trade Convention at St. Louis, pointed out the unsatisfactory character of the rules of the Declaration of London in respect to trade in contraband. The inferences which it creates in regard to hostile destination, he says, are so vague that “they would seem to justify in almost any case the presumption that the cargo, if bound to an enemy port, was ‘destined for the use of the armed forces or of a government department of the enemy state.’ Any merchant established in the enemy country, who deals in the things described, will sell them to the government; and, if it becomes public that he does so, it will be ‘well known’ that he supplies them. Again, practically every important port is a ‘fortified place’; and yet the existence of fortifications would usually bear no relation whatever to the eventual use of provisions and various other articles mentioned. Nor can it be denied that, in this age of railways, almost any place may serve as a ‘base’ for supplying the armed forces of the enemy. And of what interest or advantage is it to a belligerent to prevent the enemy from obtaining supplies from a ‘base,’ from a ‘fortified place,’ or from a merchant ‘well known’ to deal with him in his own country, where, the entire community being subject to his authority, he can obtain by requisition whatever he needs, if dealers in commodities hesitate to sell voluntarily.” The proper solution according to Professor Moore is to be found, if not in the abolition of the principle of contraband, at any rate in the adoption of a plan embracing (1) the abolition of conditional contraband and (2) a single list having been agreed upon, in the cooperation of neutrals and belligerents in the certification of the contents of cargoes so that the risk of capture may be borne by those who may voluntarily assume it. Harassing searches and detentions will then be heard of no more.