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Privy-Councilor Kohler desired, however, to turn our publication into a bill of indictment against the other nations. This seemed to me all the more unfortunate because we were still under the influence of the great events and peculiarly interested in the world drama. I felt absolutely certain that in a publication dedicated to the promotion of science, we could not sit in judgment upon other nations; that we should leave it to times of lesser stress before passing final judgment. Particularly at a time when the passions of the moment and the hatred of nations had risen to the surface, I felt that the Zeitschrift fur Vdlkerrecht should have remained faithful to its high mission. As a farseeing representative of the practical side of life and of justice, it should have proved a source of fresh glory to German science.
Kohler, however, did not only mean to turn a scientific periodical into an organ of defence and enlightenment; intended thenceforth to give expression to views in the publication that would have proved dangerous for the future of international law. First, in letters addressed to me, then in articles appearing in the daily press, and lastly and most emphatically, in the first pages of the present year's issue of the Zeitschrift filr Vdlkerrecht he advocated certain ideas that would ultimately have led to the denial of international law as a whole. He says, for instance, that an international treaty based upon international law could no longer exist, because our opponents are liars and cheats, and that all of the Hague Peace Conferences are only so many soap bubbles. In his publication he calls the French people a "nation of bragging jugglers"; the English people he calls a "perfidious company of peddlers" and the Italians, of whom he said toward the end of 1914 that no one could love them better than he himself did, he refers to in the same terms. Each of us must be his own judge as to whether he is to deliver himself of such judgments; but the expression of such views has no place in a scientific publication, and especially not in a publication whose highest mission it is to further the cause of international law.
If all that Kohler has said were true, he should have gone to the limit and drawn the conclusion that an international law is no longer possible and that a review of international law has no longer any right to exist. If, however, he issues a review of international law, he must in that case take preliminary measures in this review for the purpose of effecting an understanding with other nations with reference to questions upon which different points of view may be entertained. Such a review must not hold up neutral nations to public scorn, and thus offending them, claim the right to assert that outside of the German science of international law there is no other such science in the true sense. Kohler expresses this last idea with even greater emphasis when he flatly denies to the other nations the capacity of systematic, juridical thinking.
As associate-editor of the Zeitsckrift fur Vdlkerrecht, it seemed to me my unreserved duty to take issue with Kohler's conception regarding the nature of a scientific review. No one of us could ever have denied the worth of German science and of its objectivity; and for this very reason we should have taken care that ideas, to the effect, for instance, that the German science of international law was giving evidence of jingoistic tendencies, should never have gained currency in neutral countries.
We should have overcome our excitement, and have thought of the ever immutable and eternal tasks of all true science. My letter to Kohler resulted from these considerations. Already in the month of October, I felt inclined to notify Kohler of my withdrawal from the review; but deep attachment to the Review which had become so dear to me, and furthermore, as I was not quite certain that after all conditions might change and my withdrawal be prevented, I postponed for more than one month my sending the letter to him. It can therefore not be said that it was written in great hurry.
Whoever is well acquainted with scientific research and the peculiar essence of international law, will no doubt comprehend my view point and respect it. In the great crisis by which all mankind was confronted through the outbreak of the war, it became the sacred duty of all learned men, at least within the field of science, to pay just and impartial tribute even to other nations, and to uphold faith in a better future for humanity. [Signed] Dr. Hans Wehberq.
THE SALE OF MUNITIONS OF WAR
It is the right of neutral merchants, recognized by the practice of nations and incorporated in treaties and conventions, to manufacture articles technically called contraband, to sell to all belligerents who may wish to buy, and to export the articles of contraband to belligerent or neutral destination, subject to the right of belligerents to intercept the contraband articles destined to their enemies.
The Central European Powers, while admitting this, have contended that a neutral nation is not only authorized but required to forbid the exportation of contraband to their enemies, when (1) the manufacture of contraband during peace has become so great during war as to amount to the creation of a new industry; (2) when articles of contraband are exported exclusively, or almost so, to one of the belligerents, to the exclusion of other belligerents, although this may be due to the inability of a belligerent complaining thereof to convoy, directly or indirectly, the articles of contraband to its territory because of the superiority of its enemy; and (3) that it is the duty of a neutral country either to forbid the trade in contraband or to see to it that equity is done to the belligerents by an equal supply of the contraband to each belligerent.1
/. When the manufacture of contraband during peace has become.so great during war as to amount to the creation of a new industry
The question is not whether a new industry is being created in the United States, but whether the citizens of the United States are entitled
1 The text of the communications on these points may be found in the Special Supplement to the July Journal, as follows: Memorandum from the German Ambassador, Dec. 15, 1914, p. 216; memorandum from the German Ambassador, April 4, 1915, p. 125; note of the Austro-Hungarian Minister for Foreign Affairs, June 29, 1915, p. 146.
to manufacture the articles forming the industry. If American citizens have the right to manufacture arms and ammunition and to sell and export them to belligerents, it would seem that their right does not become a wrong merely because they exercise the right. For this and other reasons it seems to be clear that the Central European Powers have clearly no right to object to the manufacture of arms and munitions in the United States, for an independent nation may allow its citizens or subjects to make or manufacture any kind of articles within its jurisdiction; but a foreign nation may see to it that these articles, manufactured in the United States, are not used in such a way as to injure it. This is a right recognized by international law, and by virtue of which the foreign nation, when a belligerent, may intercept those articles destined to its enemy. It is not the duty of the neutral nation to prevent its citizens or subjects from manufacturing the articles, as until these articles have left its jurisdiction, and are on the way to the enemy of the belligerent, it can not be said that they will injure the belligerent. When it becomes apparent that an injury may result, the belligerent is allowed to protect itself by the capture and confiscation of the articles destined to the enemy, and for that purpose may visit and search all neutral vessels suspected of carrying articles of contraband to the enemy. If the belligerent is driven from the seas, and is thus unable to exercise the right of visit and search, and to capture and confiscate the cargoes, that is the misfortune of the belligerent which it must bear, and which cannot be shifted by the belligerent upon the neutral. If a would-be purchaser has lost his money he cannot purchase, and the owner is not to be blamed if he sell to a purchaser having the money to Pay
Although this point seems too clear for argument, an authority may nevertheless be cited as peculiarly in point, because the exact question of number was involved, and the decision was against this contention, advanced by the British Government in the case of the Ariel (II Roscoe's Prize Cases, 600, 615; 11 Moore P. C. 119), decided in 1867 by the highest court of appeal. In the course of his judgment, Mr. Justice Patteson said:
Their lordships are unable to see why, if the transfer of one ship was legal under the circumstances which have here occurred, if it had stood alone, such transfer should bo rendered illegal because six other ships were purchased, under similar circumstances, at the same time; unless, indeed, as affording ground to believe that all the purchases were fraudulent and collusive.
The right or wrong of the transaction does not depend upon the purchaser. The right to make and to sell is one thing, the ability to pay or to maintain possession of the article bought is quite a different thing.
2. When articles of contraband are exported exclusively, or almost so, to one of the belligerents, to the exclusion of other belligerents, although this may be due to the inability of a belligerent complaining thereof to convoy, directly or indirectly, the articles of contraband to its territory because of the superiority of its enemy
If, as a matter of fact, American markets were closed to Germany while open to its enemies, there would be good reason to complain of unneutral conduct; but such is not the case, and, to paraphrase the German statement in the memorandum transmitted by Ambassador Bernstorff on April 4,1915, the American willingness to supply Germany if Germany were in a position to buy does not alter the case. The truth of the matter is that, both as individuals and as nations, we resent as belligerents what we ourselves have done as neutrals, and the conduct of nations as neutrals is often inconsistent with their claims as belligerents.
France does not object to the sale of munitions to its Allies, because it is a beneficiary. However, during the French Revolution, when France was at war with Great Britain, and the latter Power was drawing its supplies from the United States, "It was," to quote Chancellor Kent, "contended, on the part of the French nation, in 1796, that neutral governments were bound to restrain their subjects from selling or exporting articles contraband of war to the belligerent Powers. But it was successfully shown, on the part of the United States, that neutrals may lawfully sell, at home, to a belligerent purchaser, or carry, themselves, to the belligerent Powers, contraband articles subject to the right of seizure, in transitu.2
During the Franco-Prussian War, Germany regarded the sale of munitions of war to France by citizens of the United States as a very unfriendly act, whereas Prussia considered it proper to supply Russia with arms and ammunition during the Crimean War, when Russia and Great Britain were enemies, and to supply Great Britain with arms and ammunition to be used to crush the Boers, when the gallant burghers were being conquered by Great Britain.
•Kent's Commentaries, 12th ed., 1896, pp. 142-143.
In regard to the sale of arms and munitions during the Franco-Prussian War, it seems desirable to quote a portion of a letter from Goldwin Smith, an ardent Prussian sympathizer, to his friend, Max Mtiller, then Professor at the University of Oxford, as it is a statement of American law and practice by a distinguished foreigner, who cannot therefore be taxed with self-interest:
You asked in your last letter how it was that the Americans were permitting the exportation of arms to France, and whether there has been any change of feeling here. I believe, none. * * * It is simply the American view of international law, and, I venture to think, the right view.1
This is, however, a general principle and a general reply. It does not meet the situation claimed by Germany to exist, namely, that although American merchants are willing to sell to the Central European Powers, as a matter of fact sales are not made to those Powers, and hence it is unneutral to sell to their enemies. Germany had no such compunction, and allowed its subjects to turn a penny when Great Britain needed arms and ammunition from Germany to crush the Boer Republics. The Boers had no vessels upon the high seas, and had no sea-ports to which arms and ammunition could be carried in neutral bottoms. It did not then occur to Germany that it was unneutral for German subjects to sell arms and ammunition to one belligerent who could purchase, take possession and use the arms and ammunition against the other belligerent which was wholly shut off from the sea. No doubt German subjects were willing to supply the Boers, if the Boers had been able to purchase the arms and ammunition of which they were sorely in need. The sale to Great Britain was not regarded then as unneutral, and what was not unneutral then is not unneutral now.
The German memorandum of April 4, 1915, however, asserts that "the situation in the present war differs from that of any previous war," and that "therefore any reference to arms furnished by Germany in former wars is not justified, for then it was not a question whether war material should be supplied to the belligerents, but who should supply it in competition with other nations." This seems to admit that war material could be supplied to the belligerents, which admission is apparently destructive of the German case, for if all nations have the right to supply, it necessarily follows that any one nation has the right to supply arms and ammunition; and if, for one reason or another, some neutral
* Goldwin Smith's Correspondence, edited by Arnold Haultain, 1913, p. 35.