Declaration of Paris. § 177. Things began to undergo a change with the outbreak of the Crimean War in 1854; all the belligerents proclaimed that they would not issue letters of marque; Great Britain declared that she would not seize enemy goods on neutral vessels; and France declared that she would not appropriate neutral goods on enemy vessels. Although this alteration of attitude on the part of the belligerents was originally intended for the Crimean War only and exceptionally, it led after the conclusion of peace in 1856 to the famous and epoch-making Declaration of Paris,1 which enacted the four rules (1) that privateering is abolished, (2) that the neutral 2 flag covers enemy goods with the exception of contraband of war, (3) that neutral goods, contraband of war excepted, are not liable to capture under the enemy flag, (4) that blockades, in order to be binding, must be effective, i.e. maintained by a force sufficient really to prevent access to the coast of the enemy. Since, with the exception of the United 1 See Martens, N. R. G., xv. p. 767, and above, vol. i. § 559. See also Piggott, The Declaration of Paris (1919), who is an opponent of the declaration. 2 Only the neutral flag covers enemy goods, not the flag of a belligerent, who may, therefore, seize enemy goods carried by his own merchantmen (The Roumanian, (1915) 1 B. and C. P. C. 536. See above, § 102, and below, § 196 n.). The neutral flag protects enemy goods only so long as they are under it; they lose protection so soon as they are transhipped into lighters (The Dandolo, (1916) 2 B. and C. P. C. 339). On the other hand, when enemy goods shipped in enemy vessels before the outbreak of war are transhipped in transitu into neutral vessels, the neutral flag does not protect them (The Jeanne, (1916) 2 B. and C. P. C. 227; The Bawean, (1917) 3 B. and C. P. C. 116; The Vesta, [1920] P. 385). Although the Declaration of Paris is a declaration in favour of neutral commerce, 3 not only the neutral concerned, but also the enemy can claim restitution of non-contraband goods seized in spite of being carried by a neutral vessel (The Dirigo, (1919) 3 B. and C. P. C. 439). 3 It has been asserted-see, for instance, Rivier, ii. p. 429, and Schramm, p. 93-that the neutral flag covers only private, not public, enemy property, and therefore that such goods on neutral vessels as belong to the State of the enemy may be seized and appropriated. The Italian Prize Court in 1912, during the Turco-Italian War, in The Sheffield, The Newa, and The Menzale, gave its decision in favour of this opinion (see Coquet in R.G., xxi. (1914), pp. 281-290). However, the Declaration of Paris speaks of marchandise neutre without any qualification, only excepting contraband goods, and it ought not therefore to be maintained that public enemy property does not enjoy the protection of the neutral flag. See below, § 319 n. States of America and a few other States, all members of the Family of Nations are now parties to the Declaration of Paris, it may well be maintained that the rules quoted are general International Law, the more so as the non-signatory Powers have hitherto in practice always acted in accordance with those rules.1 However, through the application of the doctrine of continuous voyages by the United States during the Civil War in the form of the doctrine of continuous transports,2 through the application of that doctrine even to conditional contraband during the World War, by a number of presumptions of hostile destination, by the imposition of a duty upon a neutral consignor of proving the innocent destination of the cargo, and by an enormous extension of the list of contraband,3 the rule of the Declaration of Paris that a neutral flag covers enemy goods with the exception of contraband of war, has to a great extent been frustrated.4 ciple of of Private Vessels Goods § 178. The Declaration of Paris did not touch the The Prinold rule that private enemy vessels and private enemy Approgoods thereon, or on ships of the capturing belligerent, priation may be seized and appropriated, and this rule is, there- Enemy fore, as valid as ever, although there is much agitation and for its abolition. In 1785, Prussia and the United Enemy States of America had already stipulated by Article thereon. 23 of their Treaty of Friendship 5 that in case of war between them merchantmen should not be seized and appropriated. Again, in 1871, the United States and Italy, by Article 12 of their Treaty of Commerce, stipulated that in case of war between them merchantmen, with the exception of those carrying contraband 1 That there is an agitation for the abolition of the Declaration of Paris has been mentioned above, § 83 n. 2 See below, § 401. 3 See below, §§ 393, 394, 403a. See Quigley, The Immunity of See Martens, R., iv. p. 37. • See Martens, N. R. G., 2nd Ser. i. p. 57. of war or attempting to break a blockade, should not be seized and appropriated. In 1823, the United States had already made a proposal to Great Britain, France, and Russia1 for a treaty abrogating the rule that enemy merchantmen and enemy goods thereon may be appropriated; but Russia alone accepted the proposal on the condition that all other naval Powers consented. Again, in 1856,2 on the occasion of the Declaration of Paris, the United States endeavoured to obtain the victory of the principle that enemy merchantmen should not be appropriated, making it a condition of her accession to the Declaration of Paris that this principle should be recognised. But again the attempt failed, owing to the opposition of Great Britain. In 1865 Italy, by Article 211 of her Marine Code, enacted that, in case of war with any other State, enemy merchantmen (not carrying contraband of war or breaking a blockade) should not be seized and appropriated, provided reciprocity was granted. At the outbreak of war in 1866, Prussia and Austria expressly declared that they would not seize and appropriate each other's merchantmen. At the outbreak of the Franco-German War in 1870, Germany declared French merchantmen exempt from capture, but changed her attitude when France did not act upon the same lines. The United States of America made unsuccessful attempts to secure immunity from capture for enemy merchantmen and goods at sea at the First and Second Hague Conferences. 3 It cannot be denied that the constant agitation, since the middle of the eighteenth century, for the abolition of the rule that private enemy vessels and 1 See Wharton, iii. § 342, pp. 260-261, and Moore, vii. § 1198, p. 465. * See Wharton, iii. § 342, pp. 270-287, and Moore, vii. § 1198, p. 466. See Holls, The Peace Conference at the Hague, pp. 306-321, and Scott, Conferences, pp. 699-707. sea-borne goods may be captured, might, during the second half of the nineteenth century, have met with success but for the decided opposition of Great Britain. Public opinion1 in Great Britain was not, and is not, prepared to consent to the abolition of this rule; and there is no doubt that its abolition would involve a certain amount of danger to a country like Great Britain, whose position and power depend chiefly upon her navy. The possibility of annihilating an enemy's commerce by annihilating his merchant fleet is a powerful weapon in the hands of a great naval Power. Moreover, if enemy merchantmen are not captured, they can be fitted out as cruisers, or at least be used for the transport of troops, munitions, and provisions. Before the World War several maritime States made arrangements with their steamship companies to secure the building of their transatlantic liners according to plans which made them easily convertible into men-of-war, and these vessels were of great service to the belligerents in that war. The argument that it is unjust that private enemy citizens should suffer through having their property seized has no weight in face of the probability that fear of the annihilation of its merchant fleet in case of war may well deter a State intending to go to war from doing so. It is a matter for politicians, not for jurists, to decide whether it is necessary for Great Britain to oppose the abolition of the rule that sea-borne private enemy property may be confiscated. However this may be, from the end of the nineteenth century to the outbreak of the World War, it was not the attitude of Great Britain alone which stood in the way of the abolition of the rule. After the growth of navies among Continental Powers, these 1 The author would doubtless have rewritten the remainder of this sec tion in the light of experience gained during the World War. Powers learned to appreciate the value of the rule in war, and the outcry against the capture of merchantmen became less loud. It may perhaps be said that, even if Great Britain had in or about 1912 proposed the abolition of the rule, it is probable that a greater number of the maritime States would have refused to accede. For at the Second Hague Conference, France, Russia, Japan, Spain, Portugal, Mexico, Colombia, and Panama, besides Great Britain, voted against its abolition; and there was noticeable before the World War a slow, but constant, increase in the number of Continental publicists 1 who opposed the abolition of the practice of capturing enemy merchantmen, to which so much objection was once taken. § 179. Be that as it may, the time did not then seem 1 See, for instance, Perels, § 36, pp. 195-198; Röpcke, Das Seebeuterecht (1904), pp. 36-47; Dupuis, Nos. 29-32; Pillet, p. 119; Giordana, La Proprietà privata nelle Guerre maritime, etc. (1907); Niemeyer, Prinzipien des Seekriegsrechts (1909); Boidin, pp. 144-167; Hirschmann, Das internationale Prisenrecht (1912), § 2. On the other hand, the Institute of International Law has several times voted in favour of the abolition of the rule; see Tableau général de l'Institut de Droit International (1893), pp. 190-193, and Annuaire, xxv. (1912), p. 600. The literature concerning the confiscation of private enemy property at sea is abundant. See, besides those already quoted at the commencement of § 173, Upton, The Law of Nations affecting Commerce during War (1863); Cauchy, Du Respect de la Propriété privée dans la Guerre maritime (1866); Vidari, Del Rispetto della Proprietà privata fra gli Stati in Guerra (1867); Gessner, Zur Reform des Kriegsseerechts (1875); Klobukowski, Die Seebeute oder das feindliche Privateigenthum zur See (1877); Bluntschli, Das Beuterecht im Kriege und das Seebeuterecht insbesondere (1878); Boeck, De la Propriété privée ennemie sous Pavillon ennemi (1882); Dupuis, La Guerre maritime et les Doctrines See |