CHAPTER II.

THE RIGHTS OF BLOCKADE AND MINE-LAYING.

§ 5. THE RIGHT OF BLOCKADE AND THE ENGLISH BLOCKADE. I. A blockade, as will be seen later on, may be either military or commercial in character, and denotes in either case the closing by means of warships, of ports and coasts, and through it an incisive restriction of the freedom of the sea. For the freedom of the sea does not mean that it is possible to navigate on the high seas, but that through the use of the highways of commerce it is possible to make ports to carry on trade and commerce with over-sea countries. As a military operation the blockade is directed only against the enemy. Access to neutral ports and coasts must never be closed. But, nevertheless, the blockade directs her real wedge against neutral navigation. For thus far enemy merchant vessels are anyhow subject to the right of capture whenever and wherever they are met by an enemy warship; no blockade is necessary for that. It is true that neutral vessels can carry on commerce even in times of war, but blockaded ports remain closed to them. A neutral vessel caught in the act of running the blockade must pay for its disobedience with the loss of the ship and, in case the vessel is unable to prove its good faith, with the additional confiscation of the cargo.

Owing to this acute danger to neutral navigation the legal assumptions of blockade become of vital importance. Only such a blockade which fulfills all legal definitions can achieve, according to binding laws, its designated effectiveness and inflict mortal injury upon neutral trade and, respectively, upon communication with the blockaded territory. The assumptions of blockade are in this case the "component elements" of the freedom of the sea.

The right of blockade was regulated and developed more fully for the first time in 1909 by the London Declaration of the laws and customs of maritime war. It matters little in our discussion that this declaration was not ratified, because, as is explicitly emphasized in Article 2, the basic regulation of the right of blockade took place already through the Paris Declaration of maritime laws of 1856, which was ratified by the signatory powers and, as is brought out by

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the official interpretations to Article 2, "actually" accepted by the other nations, as far as the portions pertaining to legal blockade were concerned. Accordingly, the blockade, in order to be legally binding, must be effective in fact, that is to say, it must be maintained by a real fighting force sufficiently large to actually prevent access to the enemy coast. This legal restriction means a far-reaching protection for neutral navigation. Without an effective blockade by means of a naval squadron which, from a corresponding distance, actually closes the enemy coast from the seaside, communication is legally free; without these legal assumptions of blockade the neutral nations have freedom of the seas.

II. But what is the nature of the so-called "blockading" of Germany by England in the present world war?—No English squadron is actually blockading the German coast. No English ship is at anchor in front of a German port. And England knows the reason why. The English battle fleet, which, according to Churchill's boastful declaration, was to drag forth the German Navy from her mouse hole, is weighing her anchors safely in English ports and does not dare to send out a blockading squadron. This so-called blockading of Germany is the long-condemned "blocus anglais," a blockade from a distance and a paper blockade, which affects Germany indirectly and in so far only as the neutral nations to the north were cut off by a belt of mines.

The closing of the North Sea, with which England surprised the world on November 3, 1914,1 which the guilty English conscience tried to justify by bringing into play purely invented reasons of retaliation, and by means of which Germany was to be starved out, is not a blockade in the legal sense of the word, but an atrocious violation of international law. For, starvation is permitted only as a phase accompanying a siege and actual blockade in a legal sense, but never constitutes a war weapon in itself. Van Calker, too, emphasizes :

The English declaration of a barred zone, in view of its nature and its results, constituted thus far unquestionably the most serious violation of international law that was committed in the entire course of the world war and imposed uncommonly harsh hardships upon the entire German nation.3

But this so-called blockade is also a crime against the laws of neutrality. For neutral States must never be included in the barred belt.

1 See the communication of the British Ambassador at The Hague transmitted to the Dutch Minister for Foreign Affairs on November 3, 1914.

2 See Pohl, "England and the London Declaration," 1915, p. 16.

3" Das Problem der Meeresfreiheit," 1917, p. 25; Stier-Somlo, p. 116.

The English closure by means of mines violates the right of blockade as well as the right of placing mines. The right of blockade rejects a blockade from a distance, restricts its operation to the territory occupied by the enemy, and insists upon a closure effected through the medium of the naval fighting forces. On the other hand, the following has been established concerning the right of placing mines: It is true that a law against the strewing of mines on the high sea, which England herself advocated at the second Hague Peace Conference, was not enacted at that time, because the mines were regarded as offering a protection to the weak nations who, in view of existing conditions, could gain security for themselves against pursuing warships only by leaving behind them a field strewn with mines. However, this involved a war measure directed purely against the enemy, and England was not successful in her attempts to have this declared an illegal practice. But England's present attempts to establish a blockade by means of mines is nothing else but a direct challenge against the neutral nations. The Hague convention in regard to the placing of mines, after some introductory phrases, has for its main object "to guarantee to peaceful navigation, as far as possible, that security to which it is also entitled in time of war." Instead, England simply closes now an entire sea, and announces to neutral ships that they will have to fly henceforth through the air in their journey to a neutral port. The whole English declaration of a war zone is solely directed against neutral navigation in order that, with the barring to neutral ships of the road to Germany, the latter may be injured through the neutral nations. And since the neutral nations were not strong enough to protect their interests Germany was compelled in defense of her own rights to take the road of retaliation, with the result that the position of the neutrals became worse still.

The unrestricted warfare with which Germany answered the attrocious violations of law on the part of the English, has demonstrated to England that Germany may not be challenged unpunished. We have paid in kind. The war of starvation begins to throw its shadows even in the countries of the Entente Powers, and the Austro-Hungarian minister of foreign affairs, Count Czernin, was able to assure the Hungarian delegation in December, 1917, that those in authority in Germany as well as in Austria knew with a certainty that as a result of the submarine warfare "the interference with the supply of munitions on the eastern and western fronts is so great that it has a decisive influence upon the course of the war and that our opponents suffer from its effects severely." The breaking

1 Van Calker, "Das Problem der Meeresfreiheit," p. 25; my essay, "Lusitania-Fall," p. 37 ff.

of the convention on the part of the English has given us back the freedom of trade. Thanks to our submarines, we were in a position. to make, through our declarations of barred zones, such a use of this freedom as was hardly ever conceived possible by England.1 Even the vainglorious English prime minister, Lloyd George, is already beginning to lament: "Nothing can give us victory, unless we improve our tonnage problem. Tonnage means cannon, airships, munitions, tanks, and troops, regardless of whether they are in France or in the East."

But the neutrals who were dragged into this joint state of suffering must consider that nothing but their own attitude of toleration compelled Germany to resort to retaliatory measures. We had a right to expect that, since the neutral nations answered the English violations merely with paper protests, the German measures of retaliation would not be judged more harshly.2 The American Union, above all, should have taken this into consideration. On the whole, I have nothing to add to my previous arguments concerning the justification of the German submarine warfare.3

The right of blockade and the right of placing mines are touched upon in Article 2 of the convention concerning mines, where it is stated:

It is forbidden to place automatic contact mines in front of the coasts and ports of the enemy for the sole purpose of tieing up commercial navigation.

According to this a blockade by means of mines or the blockading of commerce that is directed against the neutral nations and that can be carried out only by means of mines, is forbidden; only the placing of mines as a war operation directed against the enemy remains in force.

Germany added, indeed, a reservation to Article 2, in conjunction with France, but only because of the fact that "the belligerent (who places mines with the purpose in view of tieing up commerce) has merely to allege a different reason in order to render illusory the application of this law."

1 Vollert ("Das militärische Gebiet des Englischen Nordsee-erlasses vom 3ten November, 1914, und das Kriegsgebiet der deutschen Bekanntmachung vom 4ten Februar, 1915," Dissertation of the University of Würzburg, 1917) attempts to prove in a noteworthy manner that there exists a legal coordination between these two announcements, but is unable to come to a conclusive decision because he is unwilling, as a matter of principle, to even consider the question of retaliation. Still his essay contains the most complete up-to-date bibliography on the subject of submarine warfare.

2 See also the speech of the Imperial Chancellor v. Bethmann Hollweg delivered before the Imperial Parliament on February 27, 1917.

3" Der Lusitania-Fall," 1915, p. 37 ff.; "England-Amerika und das Völkerrecht" in Frankfurter Universitäts-Zeitung, "Sonderheft, ihren Studenten im Felde gewidmet von der Königlichen Julius-Maximilians Universität Würzburg" (Special Edition, dedicated by the Royal Julius Maximilian University of Würzburg to its students in the service), 1917. p. 3 ff.

4 German White Book issued on December 6, 1917, p. 10.

Loreburn, too, states that there is little sense in forbidding such a practice,

because nothing is easier to maintain than that the mines are intended among other things to render impossible the retreat or provisioning of the enemy in a commercial port and that the interference with trade is merely a deplorable consequence. Such a practice would constitute a highly effective blockade, and it could be proclaimed under a different name without any guarantees and responsibilities.1

On the other hand, as was shown by the placing of German mines at the mouth of the Thames River, even the strewing of mines intended purely as a military operation could be just as easily characterized and attacked by the opposing side as constituting a commercial blockade. But the latter eventuality is immaterial, for the effects of law upon commerce are neither desired here nor intended; and the war value of a military operation is independent of such an attack, particularly as it rests upon a wrong assumption.

Thus nothing else remains but that Article 2 has absolutely no value, as far as protection of trade is concerned. Such may be the case, but this provision has some value just the same. This is proven

by the fact that, unfortunately, the present English closing of the sea by mines, which was unquestionably intended as a commercial blockade, does not seem to be affected by Article 2, because Germany added a restriction to this section. Fortunately this does not matter at all, since a blockade by means of mines is already forbidden in the Paris Declaration of maritime laws through its demands for "effectiveness." For, according to this declaration, a blockade, as has been previously stated, must be enforced by a fighting force (force suffissante). And the English closure of the North Sea does not agree with this provision.

During an address delivered at Norwich toward the end of November, 1917, Lord Robert Cecil boasted that "he was in a position to state that in the previous history of the world nothing had been accomplished that could equal the present blockade." He is right, in so far as the illegality and brutality of the English "blockade" are still without their equal.

§ 6. THE POSTULATE OF THE FUTURE,

We have now arrived at a stage where we can attempt to formulate the future demands.

I. In the matter of placing mines a partial understanding had been achieved already in 1915 between Germany and the American Union, still "neutral" at that time, that failed to obtain universal legality

1 "Privateigentum im Seekrieg" (translated into German by Niemeyer), p. 138 f.