as long as we consider it our basic right to wage war against commerce, to blockade unfortified cities, and to destroy the industries of the civilian population. We may pay heed to soldiers and sailors who, having experienced on their own bodies the dangers and hardships of warfare, advocate (and this occurs rarely enough) severe measures for which they are perfectly willing to assume the responsibilities. Statesmen are in a different position.

To be sure, Loreburn is willing, as we shall see later on, to make, if necessary, certain concessions to the principle of contraband, but he demands that the right of capture at sea and the right of blockading the commerce shall be abolished under all circumstances.

In Germany, too, minimum programs are being proposed, but these disagree, of course, on the question concerning the nature of the potential concessions.

1

Wehberg hopes for "the abolition at an early date of the right of capture at sea under the leadership of America," as well as for an "agreement in the sense of an abolition of the right of contraband along the lines of a further development of the law of maritime warfare." "In due time," says Wehberg, "this radical reform cannot be avoided."2 Liepmann, too, desires the abolition of the rights of capture at sea and of contraband.3

An article in the issue of the Frankfurter Zeitung of September 12, 1915, advocated the inviolability of private property in maritime warfare, but made the following reservation:

only the conception of contraband in its sense, restricted in accordance with the standards of fairness, as likewise the establishment of a lawful and effective blockade, may impose restraints upon the freedom (of the seas).

Inversely Niemeyer, in a pamphlet published before the world war, comes to the conclusion:

that the unrestricted use of all proper means including the right of capture at sea, but not the application of those juridicial substitutes for weapons which enlist the unjustified sympathy of the neutral nations, is compatible with the principles of the law of maritime warfare; those legal substitutes are: the theory of a continuous voyage and the conception of contraband of

war.

Kurt Perels, too, is emphatically opposed to the abolition of the right of capture at sea. On the other hand, others demand nothing else but the abolition of the right of capture at sea."

1 "Seekriegsrecht," 1915, p. 255 f.

2 Loc. cit., p. 122.

Deutsche Juristenzeitung, 1917, Nos. 21-22, Sp. 926.

Similarly Nöldeke (Deutsche Juristenzeitung, 1915, Sp. 373 ff.). "Prinzipien des Seekriegsrechtes, 1909, p. 31.

"Der Kampf um das Seebeuterecht. Rückblicke und Ausblicke " in Deutsche Rundschau, 1915, p. 161 ff.

7 For example, Neumann-Frohnau, p. 39.

But in contrast to these divergent plans of reform there are also international jurists who still refuse to believe altogether in the possibility of a change.

Just as in 1913 Schramm assumed that the rights of capture at sea, of blockade, and of contraband "will not disappear from state laws for an incalculable time,"1 so is likewise Triepel of the opinion to-day that:

2

the incessant abolition of the laws of contraband and blockade is an utopy, while the abolition of the right of capture at sea without the simultaneous abolition of contraband and blockade would not only constitute an empty performance but also an innovation detrimental to German interests.

Stier-Somlo takes a similar attitude. He regards the downfall of the three maritime tyrannies possible only "under the supposition that maritime warfare will be prohibited, or, in other words, in the era of eternal peace.

6

5

994

Whereas Schücking considers the freedom of the seas as being insured only by a world-wide organization, and, after the pattern of Vollenhoven and R. Erich,' by an international police force and a federal navy capable of enforcing orders, Stier-Somlo regards the system of a balance of power as the sole security for justice and peace.s

A settlement, if at all possible, can be effected only after a thorough examination of the details of the usages of naval warfare or else through a recognition of the three systems of authority.

As long as it was possible to turn freedom of the sea into an absolute tyranny of the sea, it is and must also be inversely possible to effect and to guarantee the security of freedom of the sea. The problem of the freedom of the sea in times of war falls into several separate problems.

Out of this complication of problems there arise sharply defined individual programs. And just as many distinct programs come into existence as there are points, where the freedom of the sea in times of war is partly menaced and partly protected by the peculiarities of the laws of maritime warfare. At the same time we must always bear in mind that, according to Loreburn, the three systems of authority are closely interrelated and that consequently the whole

1 66 'Prisenrecht," pp. 119, 208, 214.

9

2" Die Freiheit der Meere und der künftige Friedensschluss," 1917, p. 15 f. See also p. 35 f.

3" Die Freiheit der Meere und das Völkerrecht," 1917, pp. 96, 103, 110, 119. 4 p. 112.

5" Der Dauerfriede," p. 55 ff.

"De Eandracht van het Land," 1913.

7" Das Problem einer internationalen Polizeimacht," Zeitschrift für Völkerrecht, VII. 303 ff.

8" Die Freiheit der Meere," p. 119 ff.

Loreburn-Niemeyer, "Privateigentum im Seekrieg," p. 154. Similarly Triepel, p. 16.

question must not be discussed "so to speak within water-tight bulkheads."

The detailed elaboration of a "system of regulations" that would insure and develop further the principle of the freedom of the sea will, perhaps, take place only at a peace conference which presumably will follow soon upon the heels of a conclusion of peace. It may be possible, however, to even formulate the authoritative principles as constituting conditions of peace or at least, as was done at the conclusion of peace in Paris in 1856, to group them into a new declaration of the maritime law. The detailed perfection, in so far as such may be still desirable, could then be easily left to a future conference.

CHAPTER I.

THE RIGHT OF CAPTURE AT SEA.

§ 3. THE PAST AND THE PRESENT.

The greatest divergence of the present laws and customs of war on land and on the sea lies in the importance that is attached to private property. Private property is protected in warfare on land as a matter of principle,1 but is exposed in maritime warfare to the right of capture.

I. In this way the present world war, too, stands largely under the influence of the right of capture at sea. To be sure, Italy proclaimed in its merchant marine code the principle of protection for private property in maritime warfare, but abolished this clause upon her entrance into the war.

Consequently, the practice of capture at sea is lawful, according to international law hitherto binding.

But the right of capture at sea has its legal restrictions, and these were simply brushed aside by England.

In the first place the Paris Declaration of 1856 of the principles of maritime law comes into consideration, according to which enemy goods sailing under a neutral flag are to be immune from confiscation. In 1856 the English accepted the principle: "The flag covers the cargo," only with deep reluctance, remained inwardly opposed to it, and threw it overboard at the present time as a mere scrap of paper."

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Moreover, three agreements of the Second Peace Conference at The Hague were constantly violated.

1. The (VI) convention regarding the treatment of the enemy's merchant ships at the outbreak of hostilities 2 contained, in Article 1, a recommendation for the granting of a respite for unmolested departure to those merchant vessels that were caught unawares in an enemy port by the outbreak of the war. England knew well how to circumvent the adoption of this recommendation in the form of a legal obligation.

1 Hague Convention concerning the laws and customs of war on land, Articles 23g, h, 28, 46, 47. For exceptions and special cases, respectively, see Articles 48-56. 2 See Pappenheimer, "Die Behandlung der feindlichen Kauffahrteischiffe bei Ausbruch der Feindseligkeiten" (Dissertation of the University of Würzburg), 1911.

29

Accordingly, Germany promised in her declaration of war against France (Aug. 3, 1914) the release of all enemy vessels lying in German ports, provided complete reciprocity would be guaranteed within. 48 hours.

But the English recognized neither the principle of respite nor the agreement concerning the Suez Canal. All ships of the Central Powers that were caught in the ports of Port Said and Suez were driven out into the sea by the English forces of occupation and captured by English ships that lay in wait for them. As for the steamers lying in English ports, England herself had prepared for them a trap in the form of Article 5 of the Hague Convention. For, Article 5 excludes from the operation of this agreement such merchant vessels "whose construction makes it apparent that they have been intended for transformation into warships."

And what construction has England placed upon this definition? The Order in Council of August 4, 1914, simply understands by it all vessels of over 5,000 tonnage and of a speed of at least 14 knots, or, in other words, all ships of value.

Not without reason did Lord Reay declare at the conference at The Hague: "that Article 5 constitutes for Great Britain an essential part of the program" (que, pour la Grande-Bretagne, l'article 5 est une partie essentielle du projet). England had assigned in advance to Article 5 the task of an authorization to piracy.

Even for those merchant ships that had been caught on the high sea at the outbreak of hostilities, the (Hague) convention had made, in Article 3, the following protecting provision:

Restoration after the war without compensation, or, especially, destruction, on payment of compensation.

Concerning the obligation to indemnity in case of destruction,s Germany did, indeed, make a reservation to Article 3, which had now the effect of making perfectly good prizes of the German merchant ships that had been caught on the high sea by the declaration of war.

It may be a debatable question whether the German proviso was a wise thing to do. But it is a fact that those States which, like Germany, are wanting in naval bases of support and, for that reason, can salvage prizes only under great difficulties, have a keen interest. in a destruction without indemnification. But, on the other hand,

1 Compare my article, "Die völkerrechtliche Stellung des Suez-kanals " in Leipziger Zeitschrift, 1915, p. 21, and my discussion in Archiv für öffentliches Recht, 1915, p. 538 ff.

2 Protoc. III. 1037.

954.

Compare the expositions of the German Plenipotentiary, Dr. Kriege, in Protoc. III,