CHAPTER IV CONTRABAND I CONCEPTION OF CONTRABAND Grotius, 'iii. c. 1, § 5-Bynkershoek, Quaestiones Juris publici, i. cc. ix.-xii.— Vattel, iii. §§ 111-113-Hall, §§ 236-247-Lawrence, §§ 253-259-Westlake, ii. pp. 277-302, and Papers, pp. 362-392, 461-474, 519-522-Maine, pp. 96-122-Manning, pp. 352-399-Phillimore, iii. §§ 226-284-Twiss, ii. §§ 121-151-Halleck, ii. pp. 243-270-Taylor, §§ 653-666—Walker, §§ 73-75-Wharton, iii. §§ 368-375-Hershey, Nos. 496-512-Moore, vii. §§ 1249-1263-Wheaton, §§ 476-508-Bluntschli, §§ 801-814-Heffter, §§ 158-161-Geffcken in Holtzendorff, iv. pp. 713-731-Gareis, § 89Liszt, § 42-Ullmann, §§ 193-194-Bonfils, No. 1535-158815-Despagnet, Nos. 705-715 ter-Rivier, ii. pp. 416-423-Nys, iii. pp. 626-670—Calvo, v. §§ 2708-2795-Fiore, iii. Nos. 1591-1601, and Code, Nos. 1850-1858Martens, ii. § 136-Kleen, i. §§ 90-102-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. 69-173-Dupuis, Nos. 199-230, and Guerre, Nos. 137-171-Bernsten, § 9-Nippold, ii. § 35-Takahashi, pp. 490-525-Schramm, § 10Holland, Prize Law, §§ 57-87-U.S. Naval War Code, Articles 34-36Heineccius, 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)-Hirsch, Kriegskonterbande und verbotene Transporte in Kriegszeiten (1897)—Manceaux, De la Contrebande de Guerre (1899)— Brochet, De la Contrebande de Guerre (1900)-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 VOL. II. 2 M Definition band of War. au point de vue de la Contrebande de Guerre (1903)-Wiegner, Die Kriegskonterbande (1904) — Atherley-Jones, Commerce in War (1907), 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-Wehberg, pp. 97-123-Garner, ii. §§ 495-508a-Piggott, The Neutral Merchant (1915)-Pyke, The Law of Contraband of War (1915), and in the Law Quarterly Review, xxxii. (1916), pp. 50-69 (The Kim case) -Westlake in R.I., ii. (1870), pp. 614-635-Kleen in R.I., xxv. (1893), pp. 7, 124, 239, 389, and xxvi. (1894), pp. 214-217-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 Comparative Legislation, New Ser. 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-Moore in R.I., 2nd Ser. xiv. (1912), pp. 221247-Phillimore in the Journal of Comparative Legislation, New Ser. xv. (1915), pp. 223-238-Perrinjaquet in R.G., xxii. (1915), pp. 127-238. § 391. The term contraband is derived from the of Contra- Italian contrabbando,' which, itself deriving from the Latin contra' and 'bannum' or 'bandum,' means ' in defiance of an injunction.' Contraband of war 1 is the designation of such goods as by either belligerent are forbidden to be carried to the enemy on the ground that they enable him to carry on the war with greater vigour. But this definition is only formal, as it does not state what kinds of goods belong to the class of contraband. This has been much controverted. Throughout the seventeenth, eighteenth, and nineteenth centuries, the matter stood as Grotius had explained it. Although he did not employ the term contraband, which only came into general use after his time, he treated of the matter, and distinguished 2 three different 1 Although-see above, §§ 173-174 -prevention of carriage of contraband is a means of sea warfare against the enemy, it chiefly concerns neutral commerce, and is, therefore, more conveniently treated with neutrality.-A good short survey of the origin and development of the modern law of contraband is given by Pyke, The Law of Contraband (1915), pp. 29-54. The same work (pp. 100-104) gives an account of the attempt to abolish contraband altogether. * See Grotius, iii. c. 1, §5: 'Sunt res quæ in bello tantum usum habent, ut arma: sunt quae in bello nullum habent usum, ut quae voluptati inserviunt: sunt quae et in bello et extra bellum usum habent, ut pecuniae, 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 to this distinction, the practice of most belligerents 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 are not bound by a treaty, belligerents exercise 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 Neutralities 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 attempting to define it. By Articles 22-29 of the Declaration of London of 1909 the Powers seemed to have come to an agreement concerning what articles are, and what are not, contraband; but the declaration remained unratified, and the World War has shown that it is impossible once and for all to settle the ques Quaestiones Juris publici, i. c. x. Absolute and Con tion what articles are to be considered as contraband. Furthermore, the interests of the States when they are belligerents are opposed to their interests when they are neutrals; and for this reason all States when belligerents take up a different attitude with regard to contraband from that which they take up when neutrals. § 392. Apart from the distinction between articles ditional which can be made use of only in war and those of Contra- ancipitous use, two different classes of contraband must be distinguished. band, and Free There are, in the first place, articles which by their very character are destined to be used 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. These are termed absolute contraband. There are, secondly, articles which, by their very character, are not necessarily destined to be used 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, which is important not only in determining whether or not a particular article is contraband, but also in determining the consequences of carrying contraband,1 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 1 See below, § 405. 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.1 The unratified Declaration of London adopted 2 the distinction, but added a third class. To this class were assigned all articles which were either not susceptible of use in war, or the possibility of the use of which in war was so remote as practically to make them not susceptible of use in war. These articles were termed free articles.4 But although till the outbreak of the World War the distinction between absolute and conditional contraband was certainly correct in theory, and of value in practice, the war has shaken its foundation. It dates from the time when armies were small, and comprised only a very small fraction of the population of the belligerent countries. But during the World War, when, as has already been explained,5 every fit male in each belligerent State became by choice or compulsion a member of the military forces, when the whole country with all its resources was gradually mobilised, and the means of communication were nationalised and developed to an unprecedented and unforeseen degree, many declared that the distinction between absolute and conditional contraband was out of date, because a belligerent Government could at any moment, and would if necessary, lay its hand on, and requisition, all articles in the country which were, or might be, of use for carrying on the war. § 393. That absolute contraband cannot, and need not, be restricted to arms and ammunition only and 1 See, for instance, Hautefeuille, ii. p. 157, and Kleen, i. § 90. Articles 23, 24. 3 Article 27. 4 But there are a number of other free articles, although they do not belong to the articles characterised above; see below, § 396a. Above, § 57a. |