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SOME QUESTIONS OF INTERNATIONAL LAW IN THE
International law allows a belligerent two means of preventing wholly or in part sea-borne commerce between his enemy and neutral states. These are: first, the right to seize and confiscate absolute contraband goods destined to enemy territory and conditional contraband intended for the use of the armed forces or government of the enemy state; and, second, the right to blockade the ports and coasts of the enemy and thereby to prevent commercial intercourse with him in all articles whether contraband or not. In the April number of this Journal (pp. 372-401) I discussed in the light of the rules of international law applicable thereto the measures that have been adopted by the British Government in respect to trade in contraband since the beginning of the present war.2 The present article will be devoted mainly to a con
1 Continued from the July number, p. 594.
* Since the publication of the article referred to above, British policy in respect to contraband has received an important extension by an order in council of August 21, 1915, placing raw cotton, cotton waste, and cotton yarn on the list of absolute contraband. Cotton is on the free list in the Declaration of London and shortly after the outbreak of the present war the British Government gave assurances to the American Government that shipments of cotton to Germany would not be interfered with, but after the establishment of the blockade in March all cargoes of cotton destined to Germany and even to neutral ports, when there was evidence that the ultimate destination was enemy territory, were seized by British cruisers and taken in (except that cotton sold to German buyers prior to March 2d was allowed to be delivered, or if stopped, to be purchased at the contract price, provided the ship sailed not later than March 31st). In a memorandum of the British Government of July 24th, it was stated that more than $2,250,000 had been paid by the British Government to American claimants for cotton seized in pursuance of the order in council of March 11th. In a letter of April 18th addressed to certain memorialists requesting that cotton be placed on the list of contraband, the Attorney General of England stated that cotton was being excluded from Germany and
i sideration of the British order in council of March 11,1915, the purpose and effect of which was to establish a blockade of all commerce entering and leaving Germany.
During the first months of the war neither Germany nor Great Britain resorted to blockading operations against the other. It is true, however, that the German war zone decree of February 4th 3 was frequently described by the press as a blockade measure.4 The English press described it as an attempt by Germany to obtain all the advantages and effects of a blockade without assuming the responsibilities and duties incumbent
Austria under the order in council as effectively as if it were absolute contraband and that nothing would be gained by putting it on the list of contraband. The order in council prevented access to German ports of all articles whether contraband or not; the effect of the order, he said, was virtually that of a blockade and therefore to declare cotton contraband would not alter the situation. But public opinion in England continued to demand that cotton be treated as contraband and this opinion was intensified by the belief, not to say the evidence, that large quantities of cotton were reaching Germany and Austria, especially through neutral ports, in spite of the blockade. The result of this pressure was the order in council of August 21st placing cotton on the list of absolute contraband. The British Government justified its action on the ground that cotton is now extensively used by the enemy in the manufacture of explosives, particularly those of a propulsive character, and that it has largely taken the place of saltpetre in the manufacture of gunpowder. Inasmuch, however, as cotton is also used much more extensively in the peaceful industrial arts the treating of it as absolute contraband is, of course, a violation of the distinction between conditional and absolute contraband. I discussed and criticised in the April number of this Journal the disregard of this well settled distinction by the British Government. As is well known, the British Government during the Russo-Japanese War protested vigorously against the action of the Russian Government in treating cotton as contraband. It also protested against the American blockade upon outgoing cotton from the Southern States during the Civil War.
Germany and Austria before the present war ordinarily took about 2,000,000 bales, or about one-sixth of the American crop. During the past year they took about 1,000,000 bales from the United States; all of which, except 200,000 bales, was brought in through neutral ports. The British Government was reported in August to have been conducting an investigation with a view to determining what is the normal consumption of cotton in the neutral countries adjacent to Germany, the inference being that no cotton in excess of that amount would be allowed to go to those countries.
* Considered in the July number of this Journal, pp. 594-626.
4 It was so designated by some of the German papers, notably the Berlin Post. The London Times characterized it as a "so-called" blockade. It did not merit the name of "blockade," said the Times, "it was really an announcement that on and after the 18th of March Germany will run amuck in the North Sea."
upon the belligerent proclaiming a blockade. It was not a blockade, however, either in law or in fact, and it is doubtful whether the German Government intended it as such. If it was so intended, as some English publicists maintain, it was really a "paper" blockade because no adequate naval forces were stationed off the coasts of England to make it effective.5 The German decree merely announced that within a certain area of the sea, the limits of which were specifically denned, all enemy ships after a certain date would be destroyed, and, while neutral vessels were warned that they would be exposed to the danger of destruction while traversing the area designated, there was no intimation of an intention to prohibit neutral vessels from entering, or issuing from, enemy ports, such as a blockade implies.
The first instance during the present war of the institution of a real blockade was that established by Austria-Hungary of the coast of Montenegro in August, 1914. Due notice was given to neutrals and it was announced that the blockade would be made effective by means of naval forces. A second instance was that established by Great Britain and France in the latter part of February, 1915, of the coast of German East Africa. The British and French orders proclaiming the blockade announced that the area of the blockade would include the coast from latitude 4°, 41" South to latitude 10°, 40" South, a distance of 300 miles, and that four days' grace would be allowed for the departure of neutral vessels from the blockaded ports.
It was also announced that a sufficient number of vessels would be stationed off the blockaded ports to make the blockade effective. Apparently the institution of both blockades was entirely in conformity with the rules of international law as embodied in the Declaration of London and, so far as known, no complaints have been made by neutrals either in respect to their legality or mode of execution.8
5 Compare Phillipaon, International Law and the Great War, p. 384. Commenting on the failure of the "ao-called" German blockade of England, the London Times stated that during the firet nine weeks following the going into effect of the decree, of 11,635 arrivals and sailings from British ports only 35 British steamers had been sunk by German submarines.
• The British order in council of August 20, 1914, and the French decree of August 25, putting into force, with certain modifications and additions, the Declaration of London, made no changes in those portions of the Declaration dealing with block
The controversy between the governments of Great Britain and the United States respecting blockade began with a declaration delivered to the American Government on March first of the intention of the British and French Governments "to seize all ships carrying goods of presumed enemy destination, ownership or origin." The declaration characterized the German war zone decree of February 4th as a claim, in effect, to torpedo at sight, without regard to the safety of the crew or passengers, any merchant vessel under any flag; it called attention to the fact that the destruction of merchant vessels by the enemy was permissible only in extraordinary circumstances and then only after provision had been made for the safety of all persons on board; that the responsibility for discriminating between neutral and enemy vessels and their cargoes obviously rests with the attacking ship, whose duty it is to verify their status and to preserve all papers before sinking it; that German submarines fulfill none of these obligations and therefore their methods of warfare are entirely outside the scope of international law. These methods, it was added, were adopted by Germany against peaceful traders and non-combatant crews with the avowed object of preventing commodities of all kinds, including food for the civil population, from reaching or leaving the British Isles or Northern France. In conclusion the British declaration stated that:
Her opponents are therefore driven to frame retaliatory measures in order in their turn to prevent commodities of any kind from reaching or leaving Germany. These measures will, however, be enforced by the British and French Governments without risk to neutral ships or to neutral or non-combatant life and in strict observance of the dictates of humanity. The British and French Governments will therefore hold themselves free to detain and take into port ships carrying goods of presumed enemy destination, ownership, or origin. It is not intended to confiscate such vessels or cargoes unless they would otherwise be
ade, except that two provisions respecting the presumption of knowledge regarding the existence of the blockade were added. They were the following: The existence of a blockade shall be presumed to be known—
(a) To all ships which sailed from or touched at an enemy port a sufficient time after the notification of the blockade to the local authorities to have enabled the enemy government to make known the existence of the blockade;
(b) To all ships which sailed from or touched at a British or allied port after the publication of the declaration of blockade.
liable to condemnation. The treatment of vessels and cargoes which have sailed before this date will not be affected.7
This declaration presents two aspects of special interest to students of international law In the first place, it contains an announcement of an intention to establish what in effect is a blockade without designating it as such and without conforming it to the requirements, either as to form or mode of execution, heretofore recognized as essential to a valid blockade. In the second place, the non-conformity to recognized legal requirements was defended as a justifiable act of retaliation against the enemy for violation of the laws of war. The Prime Minister of England, in a memorable speech in the House of Commons on March 1st announcing the measure, declared that it had been decided upon in the exercise of "an unquestionable right of retaliation." "In the retaliatory measures we propose to adopt," he said, " 'blockade,' 'contraband' and other technical terms do not occur; and advisedly, in dealing with an opponent who has openly repudiated all the restraints of law and humanity, we are not going to allow our efforts to be strangled in a net work of juridical meshes." 8
7 A Communication from the French Ambassador at Washington in practically identical language was sent to the Secretary of State at the same time. The German war zone decree, it may be remarked, was itself defended by the German Government as a justifiable act of retaliation for various alleged violations of international law by Great Britain, notably the British measures in respect to contraband, disregard of the Declarations of Paris and of London and the conversion of the North Sea into a military area.
8 The measure was generally defended by the English press as a justifiable act of retaliation.
"The German Government," said the London Times (Weekly ed., March 19, 1915) "have placed themselves outside the region of the ordinary rules of international law by declaring, and acting upon their declaration, that all British and allied vessels coming within what they are pleased to term a 'military area' shall be destroyed without regard to the safety of the lives of passengers and crew. Whether those who ordered, or who take part in, these operations against non-combatants are, in the technical sense, 'murderers' or 'pirates' matters little. Their immunity according to municipal law is by no means so certain as some of our correspondents assume. But they have, at all events, been guilty of flagrant violation of the usages of civilized warfare, amply warranting reprisals, without prejudice to other measures at some later time against the individual offenders. The order in council announces, in effect, though not in name, a stringent blockade. The order in council is our answer to measures intended to reduce us by starvation. It is a question, too, of the fate of