CHAPTER XXXII CONFLICT OF NEUTRAL RIGHTS OF TRADE WITH THE BELLIGERENT RIGHT The conflict between the right of a neutral state to protect the commerce of its citizens and the right of a belligerent state to blockade the ports of its enemy has marked the history of international relations for the past three centuries. Grotius found it necessary to discuss the subject on the basis of the natural law, in the absence of rules of customary law.1 Shortly after, in 1630, the Dutch instituted a formal blockade of certain ports of Flanders and imposed upon offenders the penalty of confiscation of vessel and cargo. By the close of the eighteenth century two fairly distinct doctrines of blockade had developed, the one, supported mainly by Great Britain, favoring the side of the belligerent, the other, supported mainly by Holland, favoring the claims of neutrals. The Armed Neutralities of 1780 and 1800 directed their protests against blockades legally established although not effectively maintained. The United States, suffering from the British and French blockades during the Napoleonic Wars, championed the cause of neutrals; but when itself a belligerent in 1861-65 the American Government extended the scope of existing rules to make its own blockade of the Confederate States more effective. Aside from the vague principle laid down by the Declaration of Paris in 1856, that a blockade to be binding must be effective, the practice of states was still in a state of uncertainty in 1914. The Declaration of London, drawn up in 1909, presented, it is true, a comprehensive and fairly precise code of law upon the subject; but the failure of some of the leading powers to ratify it left the whole subject, so far as actual practice was concerned, in the state it was before the Declaration. A blockade need not be limited, as in earlier times, to the in- Scope of a vestment of fortified ports. It may extend to all ports of the blockade enemy state, including, if necessary, the entire coast-line, as in 1 De Jure Belli et Pacis (Eng. trans.), Bk. III, Chap. I, § V. The Armed Neutralities of 1780 and 1800, 299, 531. CHAP. Effectiveness of blockade the case of the blockade of the Confederate States in 1861-65. Whether an international river may be blockaded, when such action would interdict neutral commerce, remains unsettled. In 1854 the mouth of the Danube was blockaded by the enemies of Russia in spite of the protest of neutral states. On the other hand, the United States refrained from blockading the Rio Grande in 1861-65,1 and the French made exception of the Ems River in their blockade of Germany in 1870. The Declaration of London provided that "a blockade must not extend beyond the ports and coasts belonging to or occupied by the enemy," and that "the blockading forces must not bar access to neutral ports or coasts." 2 The chief controversial issue concerns the effectiveness of the blockade maintained by the belligerent. The Declaration of London stated a rule of customary law in providing that "in accordance with the Declaration of Paris of 1856, a blockade, in order to be binding, must be effective, that is to say, it must be maintained by a force sufficient really to prevent access to the enemy coastline," and further, that "the question whether a blockade is effective is a question of fact." 3 The meaning attached to these somewhat tautological provisions is not that a blockade ceases to be a blockade because individual vessels may succeed in breaking it successfully, but that a blockade, to be legal, must present an actual danger to vessels attempting to evade it. In the leading case of the Betsy the British Court of Admiralty held that the mere proclamation that the port of Guadaloupe had been put in a state of "complete investment and blockade" did not constitute a legal blockade justifying condemnation of an American vessel which had entered the port. In the case of the Franciska the British Privy Council released a captured vessel on the ground that the blockade of Riga was invalid by reason of the fact that belligerent subjects had been authorized to trade with the blockaded port. In the case of the Olinde Rodrigues the Supreme Court of the 1 See the case of the Peterhoff, below, p. 545. 4 7 5 2 Art. 1, 18. The translation of the declaration cited in the text is that printed for the use of the United States Senate. See Charles, Treaties, 268 ff. It differs verbally from the official British text printed in Higgins, Hague Peace Conferences, 540 ff. 'Art. 2, 3. 5 1 C. Rob., 93 (1798). Scott, Cases, 932; Evans, 644. 10 Moore P. C., 37 (1855). Scott, Cases, 944; Evans, 648. "No blockade," said the court, "can be legitimate which admits to either belligerent a freedom of commerce denied to the subjects of states not engaged in the war."' 174 U. S., 510 (1899). Evans, Cases, 665. The vessel in this case was released for lack of evidence of intent to enter the blockaded port. United States held that a single cruiser was adequate to maintain CHAP. an effective blockade of the port of San Juan in Porto Rico.1 2 XXXII In addition to being effectively maintained, a blockade must Notification be duly notified to neutral states. Before 1909 Great Britain and the United States held that notification must be made by diplomatic proclamation, and that, following such proclamation, knowledge of the blockade on the part of neutral vessels might be presumed. Moreover, mere notoriety of the existence of the blockade was held to be sufficient to raise a presumption of knowledge. In the leading case of the Neptunus the British court ruled that the fact of official notification raised an absolute presumption of knowledge on the part of the neutral captain; nevertheless, the vessel, captured in attempting to enter the port of Havre, was released in this case owing to misinformation given to the captain by an admiral of the British fleet. In the case of the Adula3 the Supreme Court of the United States upheld the legality of a de facto blockade of Guantánamo in 1898, although no proclamation of the blockade had ever been made.* On the other hand, France and other continental states held that information of a blockade must be given to the vessel directly by the blockading fleet, so that, in effect, a neutral vessel could make a first test of the effectiveness of a blockade with impunity. This position was abandoned in the Declaration of London, which provided for a general declaration of blockade, with specification of details, together with a notification of the blockade to neutral powers and to the local authorities of the blockaded port. Mere de facto blockades thus became invalid. The liability of the neutral vessel to capture continued to be contingent upon its knowledge, actual or presumptive, of the blockade." seizure Prior to the Declaration of London conflicting views were held Place of as to the time when the offense of breach of blockade might be committed and as to the place where a vessel might be seized. 'During the World War the operations of the submarine made it impossible to maintain the cordon of warships formerly regarded as an accompaniment of legal blockade on a large scale. The complete control of the seas by one of the belligerents made it possible, however, to maintain an effective blockade at greater distances from the blockaded coast. 22 C. Rob., 110 (1799). Scott, Cases, 935; Evans, 646. 176 U. S., 361 (1900). Evans, Cases, 661. For the important case of the Circassian, 2 Wallace, 135, dealing with the legality of the blockade of a port occupied by the forces of the blockading state, see Hall, International Law, § 263. 5 Art. 8, 9, 10. 6 Art. 11. 'Art. 14, 15, 16. France abandoned her earlier doctrine in 1914. CHAP. XXXII b. Doctrines of "continu ous voyage" and "ultimate destination" British and American courts enforced the rule that a vessel which sailed from its port of departure with the intention to break blockade might be seized at any point on its voyage toward the blockaded port, and that should the vessel succeed in breaking blockade it was liable to capture at any time during its return voyage. On the other hand, France, Italy, and other states looked upon a blockade as in the nature of a line drawn around the blockaded port, and held that the offense of breach of blockade consisted in attempting to cross this line. A compromise was effected in the Declaration of London which provided that "neutral vessels may not be captured for breach of blockade except within the area of operations of the warships detailed to render the blockade effective." 1 2 During the American Civil War new conditions confronted by the blockading fleet resulted in the introduction of new doctrines of blockade. Neutral vessels were captured on their way to neutral ports lying off the Confederate coasts, and were condemned on the ground that the neutral ports were only stopping-places and that the ultimate destination of the vessel was a blockaded port. This doctrine, already applied by British courts in dealing with prohibited colonial trade, was known as the doctrine of "continuous voyage." Moreover, the further and more important innovation was introduced that where the vessel itself had a bona fide neutral destination, but its cargo, after being deposited in the neutral port, was to be transshipped to a smaller and swifter vessel to be used as a blockade-runner, the said cargo, whether contraband or not, was liable to seizure. The term "continuous transports," or the doctrine of "ultimate destination," has been applied to the rule governing such cargoes. In the leading case of the Springbok the Supreme Court condemned the cargo of a British vessel captured en route to Nassau on the ground that the character of the cargo was such as to indicate that its true destination was a blockaded port. "We cannot doubt," said the court, "that the cargo was originally shipped with intent to violate the blockade; 1 1 Art. 17. For the penalty for breach of blockade, see The Panaghia Rhomba, 12 Moore, P. C., 168 (1858), and The Wren, 6 Wallace, 582 (1867). Scott, Cases, 951, 954. For a modified rule introduced during the World War, see below, p. 541. See the Rule of 1756, below, p. 549. The doctrine appears to have been extended to blockade first by France during the Crimean War. See the Frau Houwina, Imperial Prize Court, May 26, 1855. Scott, Cases, 995. 5 Wallace, 1 (1866). Evans, Cases, 729; 392. II, Stowell and Munro, Cases, XXXII that the owners of the cargo intended that it should be transhipped CHAP. at Nassau to a smaller vessel more likely to succeed in reaching safely a blockaded port than the Springbok: that the voyage from London to the blockaded port was, as to cargo, both in law and in the intent of the parties, one voyage; and that the liability to condemnation, if captured during any part of the voyage, attached to the cargo from the time of sailing."1 The rule applied in the case of the Springbok brought forth sharp criticism from neutral states as having the effect of extending the blockade of enemy ports to neutral ports as well. A committee of the Institute of International Law condemned the theory as "a serious inroad upon the rights of neutral nations." Finally, the Declaration of London rejected it in laying down the provision that "whatever may be the ulterior destination of a vessel or of her cargo, she cannot be captured for breach of blockade, if, at the moment, she is on her way to a non-blockaded port." World War During the World War the existing rules of blockade were Practice during the enlarged and extended to meet conditions for which no provision had been made. On February 4, 1915, in retaliation for British measures taken in the North Sea, Germany issued a decree making the waters surrounding the British Isles a war zone within which all enemy vessels, of commerce as well as of war, would be sunk without warning. This war zone did not constitute a blockade in the strict sense, both because it failed to meet the test of effectiveness and because it was not directed against neutral trade with the enemy. By way of retaliation, Great Britain announced on March 1, 1915, that it was her intention to detain and take into port ships carrying goods of presumed enemy destination, ownership, or origin." The procedure was not designated as a blockade and was not planned to conform to the conditions of a valid blockade. An order in council of March 11 provided that all vessels of enemy destination be required to discharge their With respect to the character of the cargo the court observed that it referred to it only as evidence of its distination; for "contraband or not, it could not be condemned if really destined for Nassau and not beyond; and contraband or not, it must be condemned if destined to any rebel port.' For cases illustrating the doctrine of ultimate destination as applied to contraband, see below, p. 544. The student should observe that in many cases the courts failed to distinguish carefully between the rules governing blockade and those governing contraband, with resulting confusion on the part of critics and commentators. Cited by Moore, Digest, VII, 732. Art. 19. Garner, op. cit., II, § 511. |