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order conferred powers, would impress upon them the duty of acting with the utmost despatch and of showing in every case such consideration for neutrals as may be compatible with the object of establishing the blockade.
After an examination of this order in council the United States on March 30, 1915 informed Great Britain that, were its provisions to be actually carried into effect, it would constitute "a practical assertion of unlimited belligerent rights over neutral commerce within the whole European area, and an almost unqualified denial of the sovereign rights of the nations now at peace." It was asserted by the United States that "a nation's sovereignty over its own ships and citizens under its own flag on the high seas in time of peace is unlimited; and that sovereignty suffers no diminution in time of war, except in so far as the practice and consent of civilized nations has limited it by the recognition of certain now clearly determined rights, which it is conceded may be exercised by nations which are at war." These rights were enumerated as the right of visit and search and the right of capture and condemnation if, upon examination, a neutral vessel is found to be engaged in unneutral service or to be carrying contraband of war intended for an enemy's government or armed forces; the right to establish and maintain a blockade of the enemy's ports and coasts and to capture and condemn any vessel taken in trying to break the blockade; the right to detain and take into port for judicial examination all vessels which may be suspected for substantial reasons to be engaged in unneutral or contraband service, and to condemn them if the suspicion is sustained. "But such rights," continued the American note, "long clearly defined both in doctrine and practice, have hitherto been held to be the only permissible exceptions to the principle of universal equality of sovereignty on the high seas as between belligerents and nations not engaged in war."
Taking up the provisions of the order in council, the United States, assuming that a blockade exists and the doctrine of contraband as to unblockaded territory is rigidly enforced, entered a protest against Great Britain's claim of the right to detain, requisition or confiscate innocent shipments which may be transported from the United States through neutral countries to belligerent territory and enemy goods which may be transported from neutral countries to the United States in neutral ships.
Recurring to Great Britain's notification that her measures constituted a blockade, the United States pointed out that the order in council included not only the coasts and ports of Germany, but "embraces many neutral ports and coasts, bars access to them, and subjects all neutral ships seeking to approach them to the same suspicion that would attach to them were they bound for the ports of the enemies of Great Britain, and to unusual risks and penalties." Such limitations, risks and liabilities the United States contended "are a distinct invasion of the sovereign rights of the nation whose ships, trade, or commerce is interfered with."
Admitting that the changes which have occurred in the condition and means of naval warfare might make it impracticable to maintain the old form of "close" blockade with its cordon of ships in the immediate offing of the blockaded ports, the United States, however, maintained that:
If the necessities of the case should seem to render it imperative that the cordon of blockading vessels be extended across the approaches to any neighboring neutral port or country, it would seem clear that it would still be easily practicable to comply with the well-recognized and reasonable prohibition of international law against the blockading of neutral ports by according free admission and exit to all lawful traffic with neutral ports through the blockading cordon. This traffic would of course include all outward-bound traffic from the neutral country and all inward-bound traffic to the neutral country except contraband in transit to the enemy. Such procedure need not conflict in any respect with the rights of the belligerent maintaining the blockade since the right would remain with the blockading vessels to visit and search all ships either entering or leaving the neutral territory which they were in fact, but not of right, investing.
The British notes and the order in council announced that the interdiction of commercial intercourse with Germany was decreed as a measure of retaliation against Germany's war zone decree and activities in pursuance thereof, but the United States answered in the same terms in which it answered Germany on the same point, namely, that the allegation by Great Britain of illegal acts on the part of her enemy could not be cited as in any sense or degree a justification for similar practices on her part as they affect neutral rights.
The United States called attention to the great area of the high seas included in the so-called blockade and the distance from the territory affected to the cordon of blockading ships, and insisted that American vessels passing through this area on the way to neutral ports which Great Britain has not the legal right to blockade, be not interfered with; and, finally, the United States indicated its purpose to demand of Great Britain full reparation for every act which, under the rules of international law, constitutes a violation of neutral rights.
Great Britain's reply of July 24,1915, alleged that the right of a belligerent to blockade the enemy's ports has no value save in so far as it gives power to a belligerent to cut off the sea-borne exports and imports of his enemy, and that the contention put forward by the United States that if a belligerent is so circumstanced that his commerce can pass through adjacent neutral ports as easily as through ports in his own territory, his opponent has no right to interfere and must restrict his measures of blockade in such a manner as to leave such avenues of commerce still open to his adversary, is unsustainable either in point of law or upon principles of international equity. Continuing along this line, Sir Edward Grey said:
As a counterpoise to the freedom with which one belligerent may send his commerce across a neutral country without compromising its neutrality, the other belligerent may fairly claim to intercept such commerce before it has reached, or after it has left, the neutral state, provided, of course, that he can establish that the commerce with which he interferes is the commerce of his enemy and not commerce which is bona fide destined for or proceeding from the neutral state.
Anticipating the difficulty of citing authority in support of this alteration in acknowledged principles, it was contended that "what is really important in the general interest is that adaptations of the old rules should not be made unless they are consistent with the general principles upon which an admitted belligerent right is based," and that "if it be recognized that a blockade is in certain cases the appropriate method of intercepting the trade of an enemy country, and if the blockade can only become effective by extending it to enemy commerce passing through neutral ports, such an extension is defensible and in accordance with principles which have met with general acceptance." In this connection Great Britain cites the position of the United States in the Civil War when it was vital to the cause of the United States that it should cut off the trade of the Southern States. Neighboring neutral territory afforded convenient centers from which contraband could be introduced to supply the Confederate armies and from which blockade running could be facilitated. To meet this difficulty Great Britain alleges that "the old principles relating to contraband and blockade were developed and the doctrine of continuous voyage was applied and enforced under which goods destined for the enemy territory were intercepted before they reached the neutral ports from which they were to be reexported." Although British subjects were the principal sufferers from this action, the British Government, says Sir Edward Grey, took a broad view and looked below the surface at the underlying principles, and abstained from all protest against the decisions by which the ships and their cargoes were condemned. An analogy is drawn in the following language between the situation of the United States in the Civil War and the situation of the Allies in the present war:
The difficulties which imposed upon the United States the necessity of reshaping some of the old rules are somewhat akin to those with which the Allies are now faced in dealing with the trade of their enemy. Adjacent to Germany are various neutral countries which afford her convenient opportunities for carrying on her trade with foreign countries. Her own territories are covered by a network of railways and waterways, which enable her commerce to pass as conveniently through ports in such neutral countries as through her own. A blockade limited to enemy ports would leave open routes by which every kind of German commerce could pass almost as easily as through the ports in her own territory. Rotterdam is indeed the nearest outlet for some of the industrial districts of Germany.
In another passage Sir Edward Grey, speaking of the adaptation of existing principles to altered circumstances, referred to the need of avoiding all unnecessary injury to neutrals and stated that Great Britain has tempered the severity with which her measures might press upon neutrals "by not applying the rule which was invariable in the old form of blockade that ships and goods on their way to or from the blockaded area are liable to condemnation."
In answer to the American protest against the blockade of neutral ports, Great Britain denies that her measures can be properly so described. "If we are successful," she says," in the efforts we are making to distinguish between the commerce of neutral and enemy countries, there will be no substantial interference with the trade of neutral ports except in so far as they constitute ports of access to and exit from the enemy territory."
As to the provision of the order in council concerning the detention of enemy goods in neutral vessels, against which the United States also protested, Great Britain explains that in actual practice she is not detaining goods on the sole ground that they are the property of the enemy, but detains only in such cases where proof of enemy property affords strong evidence that it is of enemy origin or destination, the purpose being to intercept commerce on its way from or to an enemy country.
The reply of the United States to this note has not been made at the time the Journal goes to press, and comment upon the contentions of the British Government will therefore be withheld for a future number.
THE SALE OF ARMS AND AMMUNITION BY AMERICAN MERCHANTS TO
In view of the exchange of notes on this question between Germany and the United States and Austria-Hungary and the United States it is advisable to examine it with some care and in some detail.
At the very outset we are met by a distinction between the acts of governments and of individuals, a distinction of the greatest importance, which must be borne in mind if confusion is to be avoided. This distinction was carefully noted in the Hague convention respecting the rights and duties of neutral Powers and persons in case of war on land of October 18, 1907, which convention was signed by Germany on that date and ratifications thereof deposited by Germany at The Hague November 27, 1909. The United States likewise had signed and deposited ratifications on the same date as Germany. This convention may or may not be in force. It is quoted here as indicating the views of Germany in 1907 when it signed it, and in 1909 when it ratified it, as to the duties and rights of belligerent and neutral Powers. Article 2 of this important convention reads:
Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power.
Article 4 reads:
Corps of combatants can not be formed nor recruiting agencies opened on the territory of a neutral Power to assist the belligerents.
Article 6 reads:
The responsibility of a neutral Power is not engaged by the fact of persons crossing the frontier separately to offer their services to one of the belligerents.
Article 7 reads:
A neutral Power is not called upon to prevent the export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or a fleet.
This convention was signed by thirty-four countries. It has been ratified by twenty-five and has been adhered to by three non-signatory