International Law. A Treatise. Volume 2 (of 2) / War and Neutrality. Second Edition

The Declaration of London recognises by article 7—see above, § 386—that a vessel which, on account of distress, entered a blockaded port, must be allowed to leave it afterwards, provided she has neither discharged nor shipped cargo there. And article 16, second paragraph—see above, § 384—enacts that a vessel coming out of a blockaded port must be allowed to pass free, if, through the negligence of the commander of the blockading fleet, no declaration of blockade has been notified to the local authorities, or if, in the declaration as notified, no period has been mentioned within which neutral vessels might come out. But beyond these the Declaration of London does not specify any cases in which egress is not considered breach of blockade. The International Prize Court will, if established, have to develop a more detailed practice concerning the matter.

§ 388. A breach of blockade can only be committed by passing through the blockaded approach. Therefore, if the maritime approach to a port is blockaded whilst an inland canal leads to another unblockaded port of the enemy or to a neutral port, no breach of blockade is committed by the egress or the ingress of a vessel passing such canal for the purpose of reaching the blockaded port.[803]

Although the Declaration of London does not mention this point, the International Prize Court would surely decide it as stated, since this decision is based on common sense.

V CONSEQUENCES OF BREACH OF BLOCKADE

See the literature quoted above at the commencement of § 368.

§ 389. It is universally recognised that a vessel may be captured for a breach of blockade in delicto only, that means, during the time of an attempt to break it, or of the breach itself. But here again practice as well as theory hitherto have differed much, since there has been no unanimity with regard to the extent of time during which an attempt of breach and the breach itself could be said to be actually continuing.

It has already been stated above in § 385 that it has been a moot point from what moment a breach of blockade could be said to have been attempted, and that according to the practice of Great Britain and the United States an attempt was to be found in the fact that a vessel destined for a blockaded port was starting on her voyage. It is obvious that the controversy bore upon the question from what point of time a blockade-running vessel must be considered in delicto.

But it has been likewise a moot point as to when the period of time during which a blockade-running vessel might be said to be in delicto came to an end. According to Continental theory and practice, such vessel was considered to be in delicto only so long as she was actually on the line of blockade, or, having fled from there, so long as she was pursued by one of the blockading cruisers. On the other hand, according to the practice of Great Britain[804] and the United States,[805] a blockade-running vessel was held to be in delicto so long as she had not completed her voyage from the blockaded port to the port of her destination and back to the port from which she started originally, the voyage out and home being considered one voyage. But a vessel was held to be in delicto so long only as the blockade continued, capture being no longer admissible in case the blockade had been raised or had otherwise come to an end.

The Declaration of London, when ratified, will settle the controversy, for, according to article 20, a vessel is in delicto so long only as she is pursued by a man-of-war of the blockading force, and she may no longer be captured if the pursuit is abandoned or if the blockade is raised. Stress must be laid on two points. Firstly, the pursuit must be carried out by a man-of-war belonging to the blockading force, and not by any other cruiser. Secondly, a blockade-breaking vessel is liable to capture so long as the pursuit lasts, whether or no she is still within the area of operations; even if for a while she has taken refuge in a neutral port, she may, on coming out, be captured, provided the captor is one of the men-of-war of the blockading force which pursued her and waited for her outside the port of refuge.[806]

§ 390. Capture being effected, the blockade-runner must be sent to a port to be brought before a Prize Court. For this purpose the crew may be temporarily detained, as they will have to serve as witnesses. In former times the crew could be imprisoned, and it is said that even capital[807] punishment could have been pronounced against them. But since the eighteenth century this practice of imprisoning the crew has been abandoned, and nowadays the crew may not even be made prisoners of war, but must be released as soon as the Prize Court has pronounced its verdict.[808] The only penalty which may be pronounced is confiscation of the vessel and the cargo. But the practice[809] of the several States has hitherto differed much concerning the penalty for breach of blockade. According to British and American practice, confiscation of both vessel and cargo used to take place in case the owners of the vessel were identical with those of the cargo. In case vessel and cargo had not the same owners, confiscation of both took place only when the cargo consisted of contraband of war or the owners knew of the blockade at the time the cargo was shipped for the blockaded port.[810] And it mattered not whether the captured vessel which carried the cargo had herself actually passed through the blockaded line, or the breach of blockade was effected through a combined action of lighters and the vessel, the lighters passing the line and discharging the cargo into the vessel near the line, or vice versa.[811] The cargo alone was confiscated according to the judgments of the American Prize Courts during the Civil War in the case of the Springbok and in similar cases[812] when goods ultimately destined for a blockaded port were sent to a neutral port on a vessel whose owners were ignorant of this ulterior destination of the goods.

The Declaration of London settles the matter by a very simple rule, for according to article 21 the penalty for blockade-breaking is condemnation of the vessel in all cases, and condemnation of the cargo also, unless the owner proves that at the time of the shipment of the goods the shipper neither knew nor could have known of the intention of the vessel to break the blockade. The case in which the whole or part of the cargo consists of contraband, is not mentioned by article 21, but its condemnation is a matter of course.

CHAPTER IV CONTRABAND

I CONCEPTION OF CONTRABAND

Grotius, III. c. 1, § 5—Bynkershoek, Quaest. jur. publ. I. cc, IX-XII—Vattel, III. §§ 111-113—Hall, §§ 236-247—Lawrence, §§ 253-259—Westlake, II. pp. 240-265—Maine, pp. 96-122—Manning, pp. 352-399—Phillimore, III. §§ 226-284—Twiss, II. §§ 121-151—Halleck, II. pp. 214-238—Taylor, §§ 653-666—Walker, §§ 73-75—Wharton, III. §§ 368-375—Moore, VII. §§ 1249—1263—Wheaton, §§ 476-508—Bluntschli, §§ 801-814—Heffter, §§ 158-161—Geffcken in Holtzendorff, IV. pp. 713-731—Gareis, § 89—Liszt, § 42—Ullmann, §§ 193-194—Bonfils, No. 1537-158815—Despagnet, Nos. 705-715 ter—Rivier, II pp. 416-423—Calvo, V. §§ 2708-2795—Fiore, III. Nos. 1591-1601, and Code, Nos. 1827-1835—Martens, II. § 136—Kleen, I. §§ 70-102—Boeck, Nos. 606-659—Pillet, pp. 315-330—Gessner, pp. 70-144—Perels, §§ 44-46—Testa, pp. 201-220—Lawrence, War, pp. 140-174—Ortolan, II. pp. 165-213—Hautefeuille, II. pp. 69-172—Dupuis, Nos. 199-230, and Guerre, Nos. 137-171—Bernsten, § 9—Nippold, II. § 35—Takahashi, pp. 490-526—Holland, Prize Law, §§ 57-87—U.S. Naval War Code, articles 34-36—Heineccius, De navibus ob vecturam vetitarum mercium commissis dissertatio (1740)—Huebner, De la saisie des bâtiments neutres, 2 vols. (1759)—Valin, Traité des prises, 2 vols. (1763)—Martens, Essai sur les armateurs, les prises, et surtout les reprises (1795)—Lampredi, Del commercio dei populi neutrali in tempo di guerra (1801)—Tetens, Considérations sur les droits réciproques des puissances belligérantes et des puissances neutres sur mer (1805)—Pistoye et Duverdy, Traité des prises maritimes, 2 vols. (1855)—Pratt, The Law of Contraband of War (1856)—Moseley, What is Contraband and what is not? (1861)—Upton, The Law of Nations affecting Commerce during War (1863)—Lehmann, Die Zufuhr von Kriegskonterbandewaren, etc. (1877)—Kleen, De contrebande de guerre et des transports interdits aux neutres (1893)—Vossen, Die Konterbande des Krieges (1896)—Manceaux, De la contrebande de guerre (1899)—Brochet, De la contrebande de guerre (1900)—Hirsch, Kriegskonterbande und verbotene Transporte in Kriegszeiten (1901)—Pincitore, Il contrabbando di guerra (1902)—Remy, Théorie de la continuauté du voyage en matière de blocus et de contrebande de guerre (1902)—Knight, Des états neutres au point de vue de la contrebande de guerre (1903)—Wiegner, Die Kriegskonterbande (1904)—Atherley-Jones, Commerce in War (1906), pp. 1-91 and 253-283—Hold, Die Kriegskonterbande (1907)—Hansemann, Die Lehre von der einheitlichen Reise im Rechte der Blockade und Kriegskonterbande (1910)—Hirschmann, Das internationale Prisenrecht (1912), §§ 24-30—Westlake in R.I. II. (1870), pp. 614-655—Kleen in R.I. XXV. (1893), pp. 7, 124, 209, 389, and XXVI. pp. 214-217 (1894)—Bar in R.I. XXVI. (1894), pp. 401-414—Brocher de la Fléchère, in R.I. 2nd Ser. I. (1899), pp. 337-353—Fauchille in R.G. IV. (1897), pp. 297-323—Kleen in R.G. XI. (1904), pp. 353-362—Gover in The Journal of the Society of Comparative Legislation, new series, II. (1900), pp. 118-130—Kennedy and Randall in The Law Quarterly Review, XXIV (1908), pp. 59-75, 316-327, and 449-464—General Report presented to the Naval Conference of London by its Drafting Committee, articles 22-44.

§ 391. The term contraband is derived from the Italian "contrabbando," which, itself deriving from the Latin "contra" and "bannum" or "bandum," means "in defiance of an injunction." Contraband of war[813] is the designation of such goods as by either belligerent are forbidden to be carried to the enemy on the ground that they enable the latter to carry on the war with greater vigour. But this definition is only a formal one, as it does not state what kinds of goods belong to the class of contraband. This point was much controverted before the Declaration of London. Throughout the seventeenth, eighteenth, and nineteenth centuries the matter stood as Grotius had explained it. Although he does not employ the term contraband, he treats of the matter. He[814] distinguishes three different kinds of articles. Firstly, those which, as arms for instance, can only be made use of in war, and which are, therefore, always contraband. Secondly, those, as for example articles of luxury, which can never be made use of in war and which, therefore, are never contraband. Thirdly, those which, as money, provisions, ships, and articles of naval equipment, can be made use of in war as well as in peace, and which are on account of their ancipitous use contraband or not according to the circumstances of the case. In spite of Bynkershoek's decided opposition[815] to this distinction by Grotius, the practice of most belligerents until the beginning of the twentieth century has been in conformity with it. A great many treaties have from the beginning of the sixteenth century been concluded between many States for the purpose of fixing what articles belonging to the class of ancipitous use should, and what should not, be regarded between the parties as contraband, but these treaties disagree with one another. And, so far as they were not bound by a treaty, belligerents formerly exercised their discretion in every war according to the special circumstances and conditions in regarding or not regarding certain articles of ancipitous use as contraband. The endeavour of the First and the Second Armed Neutrality of 1780 and 1800 to restrict the number and kinds of articles that could be regarded as contraband failed, and the Declaration of Paris of 1856 uses the term contraband without any attempt to define it.

It is by the Declaration of London that the Powers have, for the first time in history, come to an agreement concerning what articles are contraband. The distinction which Grotius made between three classes of goods, while still recognised, has been merged by the Declaration of London into the distinction between articles of absolute contraband, articles of conditional contraband, and such articles as may under no circumstances or conditions be considered contraband. This Declaration, moreover, has put the whole matter of contraband upon a new basis, since the Powers have by articles 22 to 44 agreed upon a common code of rules concerning contraband.

§ 392. Apart from the distinction between articles which can be made use of only in war and those of ancipitous use, two different classes of contraband must be distinguished.

There are, firstly, articles which by their very character are destined to be made use of in war. In this class are to be reckoned not only arms and ammunition, but also such articles of ancipitous use as military stores, naval stores, and the like. They are termed absolute contraband.

There are, secondly, articles which by their very character are not destined to be made use of in war, but which under certain circumstances and conditions can be of the greatest use to a belligerent for the continuation of the war. To this class belong, for instance, provisions, coal, gold, and silver. These articles are termed conditional or relative contraband.

Although hitherto not all the States have made this distinction, nevertheless they did make a distinction in so far as they varied the list of articles which they declared contraband in their different wars; certain articles, as arms and ammunition, have always been on the list, whilst other articles were only considered contraband when the circumstances of a particular war made it necessary. The majority of writers have always approved of the distinction between absolute and conditional contraband, although several insisted that arms and ammunition only and exclusively could be recognised as contraband, and that conditional contraband did not exist.[816] The distinction would seem to have been important not only regarding the question whether or no an article was contraband, but also regarding the consequences of carrying contraband.[817]

The Declaration of London has adopted (articles 22 and 24) the distinction between absolute and conditional contraband, but it distinguishes, besides these two classes of articles, a third class (article 27). To this class belong all articles which are either not susceptible of use in war, or the possibility of the use of which in war is so remote as practically to make them not susceptible of use in war. These articles are termed free articles.[818]

§ 393. That absolute contraband cannot and need not be restricted to arms and ammunition only and exclusively becomes obvious, if the fact is taken into consideration that other articles, although of ancipitous use, can be as valuable and essential to a belligerent for the continuance of the war as arms and ammunition. The necessary machinery and material for the manufacture of arms and ammunition are almost as valuable as the latter themselves, and warfare on sea can as little be waged without vessels and articles of naval equipment as without arms and ammunition. But formerly no unanimity existed with regard to such articles of ancipitous use as had to be considered as absolute contraband, and States, when they went to war, increased or restricted, according to the circumstances of the particular war, the list of articles they considered absolute contraband.

According to the British practice[819] which has hitherto prevailed—subject, however, to the prerogative of the Crown to order alterations of the list during a war—the following articles were considered absolute contraband:—

Arms of all kinds, and machinery for manufacturing arms; ammunition, and materials for ammunition, including lead, sulphate of potash, muriate of potash (chloride of potassium), chlorate of potash, and nitrate of soda; gunpowder and its materials, saltpetre and brimstone, also guncotton; military equipments and clothing; military stores; naval stores, such as masts, spars, rudders, ship timbers, hemp and cordage, sail-cloth, pitch and tar, copper for sheathing vessels, marine engines and the component parts thereof (including screw propellers, paddle-wheels, cylinders, cranks, shafts, boilers, tubes for boilers, boiler-plates and fire bars), maritime cement and the materials used for its manufacture (as blue lias and Portland cement), iron in any of the following forms: anchors, rivet-iron, angle-iron, round bars of from 3/4 to 5/8 of an inch diameter, rivets, strips of iron, sheet plate-iron exceeding 1/4 of an inch, and Low Moor and Bowling plates.

By articles 22 and 23 of the Declaration of London an agreement has been reached according to which two classes of absolute contraband must be distinguished. Article 22 enumerates eleven groups of articles which may always, without special declaration and notice, be treated as absolute contraband. These constitute the first class. The second—see article 23—consists of such articles exclusively used for war as are not enumerated[820] amongst the eleven groups of the first class; these may be treated as absolute contraband also, but only after special declaration and notification. Such declaration may be published during time of peace, and notification thereof must then be addressed to all other Powers; but if the declaration is published after the outbreak of hostilities, a notification need only be addressed to the neutral Powers. Should a Power—see article 26—waive, so far as itself is concerned, the right to treat as absolute contraband an article comprised in the first class, notification thereof must be made to the other Powers. The following are the groups of articles comprised in the first class:—

(1) Arms of all kinds, including arms for sporting purposes, and their distinctive component parts.

(2) Projectiles, charges, and cartridges of all kinds, and their distinctive component parts.

(3) Powder and explosives specially prepared for use in war.

(4) Gun-mountings, limber boxes, limbers, military waggons, field forges, and their distinctive component parts.

(5) Clothing and equipment of a distinctively military character.

(6) All kinds of harness of a distinctively military character.

(7) Saddle, draught, and pack animals suitable for use in war.

(8) Articles of camp equipment, and their distinctive component parts.

(9) Armour plates.

(10) Warships, including boats, and their distinctive component parts of such a nature that they can only be used on a vessel of war.

(11) Implements and apparatus designed exclusively for the manufacture of munitions of war, for the manufacture or repair of arms, or war material for use on land or sea.

It is apparent that this list embodies a compromise, for it includes several articles—such as saddle, draught, and pack animals suitable for use in war—which Great Britain and other Powers formerly only considered as conditional contraband.

§ 394. There are many articles which are not by their character destined to be made use of in war, but which are nevertheless of great value to belligerents for the continuance of war. Such articles are conditionally contraband, which means that they are contraband when it is clearly apparent—see below, § 395—that they are intended to be made use of for military or naval purposes. This intention becomes apparent on considering either the destination of the vessel carrying the articles concerned, or the consignee of the articles.

Before the Declaration of London neither the practice of States nor the opinion of writers agreed upon the matter, and it was in especial controversial[821] whether or no foodstuffs, horses and other beasts of burden, coal and other fuel, money and the like, and cotton could conditionally be declared contraband.

(1) That foodstuffs should not under ordinary circumstances be declared contraband there ought to be no doubt. There are even several[822] writers who emphatically deny that foodstuffs could ever be conditional contraband. But the majority of writers has always admitted that foodstuffs destined for the use of the enemy army or navy might be declared contraband. This has been the practice of Great Britain,[823] the United States of America, and Japan. But in 1885, during her hostilities against China, France declared rice in general as contraband, on the ground of the importance of this article to the Chinese population. And Russia in 1904, during the Russo-Japanese war, declared rice and provisions in general as contraband; on the protest of Great Britain and the United States of America, however, she altered her decision and declared these articles conditional contraband only.

(2) The importance of horses and other beasts of burden for cavalry, artillery, and military transport explains their frequently being declared as contraband by belligerents. No argument against their character as conditional contraband can have any basis. But they were frequently declared absolute contraband, as, for instance, by article 36 of the United States Naval War Code of 1900. Russia, which during the Russo-Japanese War altered the standpoint taken up at first by her, and recognised the distinction between absolute and conditional contraband, nevertheless maintained her declaration of horses and beasts of burden as absolute contraband. The Declaration of London, by article 22, No. 7, declares them as absolute contraband.

(3) Since men-of-war are nowadays propelled by steam power, the importance of coal, and eventually other fuel for waging war at sea is obvious. For this reason, Great Britain has ever since 1854 maintained that coal, if destined for belligerent men-of-war or belligerent naval ports, is contraband. But in 1859 France and Italy did not take up the same standpoint. Russia, although in 1885 she declared that she would never consent to coal being regarded as contraband, in 1904 declared coal, naphtha, alcohol, and every other kind of fuel, absolute contraband. And she adhered to this standpoint, although she was made to recognise the distinction between absolute and conditional contraband.

(4) As regards money, unwrought precious metals which may be coined into money, bonds and the like, the mere fact that a neutral is prohibited by his duty of impartiality from granting a loan to a belligerent ought to bring conviction that these articles are contraband if destined for the enemy State or its forces. However, the case seldom happens that these articles are brought by neutral vessels to belligerent ports, since under the modern conditions of trade belligerents can be supplied in other ways with the necessary funds.

(5) As regards raw cotton, it is asserted[824] that in 1861, during the Civil War, the United States declared it absolute contraband under quite peculiar circumstances, since it took the place of money sent abroad for the purpose of paying for vessels, arms, and ammunition. But this assertion is erroneous.[825] Be that as it may, raw cotton should not, under ordinary circumstances, be able to be considered absolute contraband. For this reason Great Britain protested when Russia, in 1904 during the Russo-Japanese War, declared cotton in general as contraband; Russia altered her standpoint and declared cotton conditional contraband only.[826]

By articles 24 to 28 of the Declaration of London an agreement has been reached by the Powers according to which two classes of conditional contraband must be distinguished. Article 24 enumerates fourteen groups of articles which may always, without special declaration and notice, be treated as conditional contraband; these constitute the first class. The second—see article 25—consists of articles which are not enumerated either amongst the eleven groups of absolute contraband contained in article 22 or amongst the fourteen groups of conditional contraband contained in article 24, but which are nevertheless susceptible of use in war as well as for purposes of peace; these may be treated as conditional contraband also, but only after special declaration and notification. Such declaration may be published during time of peace, and notification thereof must then be addressed to all other Powers; but if the declaration is published after the outbreak of hostilities a notification need be addressed to the neutral Powers only. Should a Power—see article 26—waive, so far as itself is concerned, the right to treat as conditional contraband an article comprised in the first class, notification thereof must be made to the other Powers. But it is of course obvious, although not specially stated in article 26, that a Power may treat as conditional contraband any article belonging either to the first or second class of absolute contraband; in such a case, however, special declaration and notification would seem to be necessary. The following are the groups of articles comprised in the first class of conditional contraband:—

(1) Foodstuffs.

(2) Forage and grain, suitable for feeding animals.

(3) Clothing, fabrics for clothing, and boots and shoes, suitable for use in war.

(4) Gold and silver in coin or bullion; paper money.

(5) Vehicles of all kinds available for use in war, and their component parts.

(6) Vessels, craft, and boats of all kinds; floating docks, parts of docks and their component parts.

(7) Railway material, both fixed and rolling-stock, and material for telegraphs, wireless telegraphs, and telephones.

(8) Balloons and flying machines and their distinctive component parts, together with accessories and articles recognisable as intended for use in connection with balloons and flying machines.

(9) Fuel; lubricants.

(10) Powder and explosives not specially prepared for use in war.

(11) Barbed wire and implements for fixing and cutting the same.

(12) Horseshoes and shoeing materials.

(13) Harness and saddlery.

(14) Field glasses, telescopes, chronometers, and all kinds of nautical instruments.

This list represents a compromise, just as does the list of absolute contraband of article 22. Those opponents of the Declaration of London who object to foodstuffs being on the list of conditional contraband forget that several times in the past—see above, p. 486 (1)—belligerents have declared foodstuffs absolute contraband.

§ 395. Whatever may be the nature of articles, they are never contraband unless they are destined for the use of a belligerent in war. Arms and ammunition destined for a neutral are as little contraband as other goods with the same destination. As this hostile destination is essential even for articles which are obviously used in war, such hostile destination is all the more important for such articles of ancipitous use as are only conditionally contraband. Thus, for instance, provisions and coal are perfectly innocent and not at all contraband if they are not purposely destined for enemy troops and naval forces, but are destined for use by a neutral. However, the destination of the articles must not be confounded with the destination of the vessel which carries them. For, on the one hand, certain articles with a hostile destination are considered contraband although the carrying vessel is destined for a neutral port, and, on the other hand, certain articles, although they are without a hostile destination, are considered contraband because the carrying vessel is to touch at an intermediate enemy port and is, therefore, destined for such port, although her ultimate destination is a neutral port.

(1) The destination of articles of absolute contraband is, according to article 30, to be considered hostile if it be shown that they are being sent either to enemy territory, or to territory occupied by the enemy, or, further, to the armed forces of the enemy. And, according to article 31, hostile destination of absolute contraband is considered to be completely proved, firstly, when the goods are consigned to an enemy port or to the armed forces of the enemy, and, secondly, when the vessel is to call either at enemy ports only, or when she is to touch at an enemy port or meet the armed forces of the enemy before reaching the neutral port to which the cargo concerned is consigned.

(2) The destination of articles of conditional contraband, on the other hand, is, according to article 33, considered to be hostile if they are intended for the use of the armed forces or of a government department of the enemy State, unless in this latter case the circumstances show that the articles concerned cannot in fact be used for warlike purposes. Gold and silver in coin or bullion and paper money, however, are in every case considered to have a hostile destination if intended for a government department of the enemy State. And, according to article 34, hostile destination of articles of conditional contraband is, if the contrary be not proved, presumed when the articles are consigned, firstly, to enemy authorities or to an enemy contractor[827] established in the enemy country, who as a matter of common knowledge supplies articles of this kind to the enemy, or, secondly, to a fortified place of the enemy or to another place serving as a base[828]—whether of operations or supply—for the armed forces of the enemy. On the other hand, if the articles are not so consigned and if the contrary be not proved, their destination is presumed to be non-hostile. And in the case of a merchantman which can herself be conditional contraband if bound to a fortified place of the enemy or to another place serving as a base for the armed forces of the enemy, there is no presumption of a hostile destination, but a direct proof is necessary that she is destined for the use of the armed forces or of a government department of the enemy State.