rely upon importation and convoys. All supply vessels were simply to be treated as warships and to fall prey to the hostile fleet without a prize-court procedure.1 By driving all supply vessels out of existence new difficulties would have been placed in the way of the transformation of merchant vessels on the high sea.

England, apparently, was not interested in the question of access to enemy ports. However, she would have certainly held up the neutral vessels in order to assure herself and to be able to claim that their cargo was intended to supply the needs of the enemy fleet. But above all, the English fleet would have throttled later on the enemy country by a strict application of the rights of capture at sea and of blockade; and all this would have been accomplished after the formal repeal of the right of contraband.

3

At the special meeting of the executive committee which was charged with the duty of defining clearly the new conception of auxiliary war vessels, it was distinctly recognized that it merely signified the reappearance of the principle of contraband in a different form, acceptable particularly to England; 2 hence the English plan fell through. The English delegation withdrew the proposal, giving the remarkable explanation that it was premature and, inasmuch as the question was not included in the program of the Conference, it would have to be presented before a future conference. However, all that seemed useful in this proposal, as far as it related to neutral vessels, was embodied later on in the Declaration of London, in the third chapter, "Unneutral assistance," in Articles 45-47. And the right of contraband itself was retained by the Declaration of London and even underwent a thorough elaboration (Articles 22-44).

II. More recently German representatives of the science of international law, following the example of Cocceji," have also demanded the complete repeal of the right of contraband. This was particularly demanded by Liepmann, who represents the view that the differentiation between absolute and conditional contraband is no longer consistent with the realities of modern warfare and life. He states that it is particularly no longer practicable to distinguish, in

1 This was particularly pointed out by the American delegate, Porter (III, 849).

2 The report of the commission (III, 863) emphasizes: "The hostile character recognized in vessels carrying munitions, fuel, foodstuffs, etc., it is necessary to point out, would mean nothing else but the sanctioning of the idea of contraband, and this would be in direct contradiction to the proposal made by Great Britain to abolish this principle entirely." (Le caractère hostile reconnu aux navires transporteurs de munitions, combustibles, vivres, etc., a-t-on fait remarquer, ne serait autre chose que la consécration de la notion de contrebande-ce qui paraît en contradiction avec la proposition, faite d'autre part par la Grande Bretagne, d'abolir cette notion.)

3 For a report of the discussions see Schramm, "Das Prisenrecht," p. 256 ff. Protoc. III, 917 (Lord Reay).

5" Elementa iustitiae naturalis et romanae

1740.

(Elements of Natural and Roman Law),

"Die Freiheit der Meere in Deutsche Juristenzeitung, 1917, Nos. 21-22, Sp. 926.

these times of the strictest application of the principle of universal inilitary service and especially of the law of auxiliary service, whether the foodstuffs are intended for the army or for the peaceful population.

As a matter of fact, the world war has shown that commercial warfare without hastening in the least the end of the combat eventually destroys also the trade and economic conditions of its originator and under all circumstances shoves into the background the interests of neutral States in a most irresponsible manner.

The destruction of private property on the sea and in the colonies, the liquidation and destruction of prosperous enterprizes, the annihilation of the fruits of endeavour of whole gererations, in short, every measure of economic warfare, show their consequences for a long time after the war. And in view of the indissolvable, universal economic relations between the civilized States, in view of the community of interests that exists, among the nations of Europe and their fight against Asiatic and American competitors of the future, the present senseless destruction of economic values must also affect those who have wrought it. Hence, in the last analysis the fight for the freedom of the seas demanding a future abolition of the rights of capture at sea and of contraband means also the protection granted to Europe for values, for the loss of which we ourselves can never be reimbursed.1

Even before the world war Niemeyer directed his sharpest legal attacks against the right of contraband and declared that the right of contraband is incompatible with the principle of neutrality. In his opinion the right of contraband constitutes, just like the theory of a continuous voyage in the right of blockade, an invalidation of the principle of effectiveness, which is demanded of the right of blockade. For that reason he maintains:

The acceptance of the right of contraband of war means: You are unrestricted in the definition of war contraband. Consequently, through a proper handling of the meaning of war contraband, you may evade the demands imposed upon blockade. By overstretching the right of contraband you may achieve approximately the results of an effective blockade that would otherwise be either impossible for you or else highly inconvenient. And by exercising as much as possible the right of contraband you may even surpass, under certain conditions, the imperfect, because locally restricted, effect of an efficient blockade.2

As a matter of fact, England, unable to blockade Germany effectively in the world war, attempted to tie up our arteries of life by declaring foodstuffs absolute contraband. Thereupon the United

States, frightened by the threatening danger of confiscation, suspended all exports to Germany. Niemeyer is right in asserting:

The right of war contraband (with or without the theory of continuous voyage) is on the same line as the principle of a continuous voyage in the right of blockade. The effect of both institutions lies mainly in their deterring power. By means of a mandatory law, one may even say by means of a legal trick, it is attempted to prevent with a partial success that which can not be prevented or is a great deal more difficult to prevent by means of an effective application of military weapons. The belligerents call upon the lawyers to aid them, so that these may add to their power by using professional mysterious remedies, and in this respect the magic formulas 'continuous voyage' and 'war contraband' have proven themselves highly useful.1

It is admitted that a neutral vessel which sails into the firing zone of the combatants must suffer the consequences. But, as is stated admirably by Niemeyer, "the confiscation of neutral property outside of the field of combat is an entirely different matter. This, according to the natural, nonlegal point of view, constitutes purely and simply an act of hostility against the neutral nations.”

I, too, must ask: How does it happen that international law compels the neutral nations to pay the costs of the belligerents?

The whole idea can be explained historically only. It is a reminiscence of those days when the conception of neutrals in war ('medii in bello') had not yet been found. It rests upon the supposition that the neutrals must agree to everything that happens to suit the belligerent. But this is contrary to the leading thought of the principle of neutrality which is based upon the idea that the belligerents are supposed to carry on the combat only among themselves and to respect the neutrals.2

This applies also to war materials, hence to objects of absolute contraband. Niemeyer claims that the large wharves, the arms and munition factories, the numerous industrial and commercial enterprises that are dependent entirely or mostly upon the demand for war materials, would be outright deprived of their means of livelihood, were they not permitted to supply the belligerents.

No one can fail to recognize the weight of the arguments that have been put forth here. With the complete abolition of the right of capture at sea, the contracting business in war would also lose its unneutral tang which in the practice of contraband must be more or less accepted, and which can assert itself to an intolerable degree. For that reason I, too, should like to advocate in the first place the complete abolition of the right of contraband. The neutral nations would again enjoy their full liberty and would be compelled no longer to contribute to the costs of warfare. Further

1 Ibid.

2 Op. cit., p. 29 f.

more, entanglements would be almost precluded under such conditions of freedom; the sea would become free in reality.

But is our present generation ripe for such a degree of freedom? Considered from the point of view of the belligerent, too much, perhaps, would be expected of him, were he asked to look suddenly with complaisance upon a clearly evident aiding of the enemy by means of shipments of war materials.

At any rate it would seem advisable to provide also a minimum program and to hold in readiness a proposal for a compromise.

Triepel is, perhaps, right when he says: "As matters stand now, there is not the least prospect in sight that the right of contraband may disappear completely, now or later, from the laws of warfare. No belligerent will allow himself to be deprived of the right not to interfere as much as possible with the transmission to his opponent of at least war materials, hence of so-called absolute contraband wares."

If this idea is permitted to have its effect, then a conciliatory solution will be aimed at which would take into consideration the difference between absolute and conditional contraband, but in such a manner that the interests of the belligerents and of the neutrals would appear evenly balanced.

Individual states, in their preparatory memoranda to the London Conference, have already sacrificed the right of conditional contraband.1 But no one was willing to give up the principle of absolute contraband. This will have to serve as a basis for the compromise program which, unlike the maximum program, does not do away with the whole idea of contraband, but merely aims at improvements within the right of contraband.

SECTION II.-AN ADJUSTMENT OF INTERESTS.

§ 9. THE LEADING PRINCIPLE.

Earl Loreburn, to whom it was my privilege to refer several times, has also worked out the problem of an adjustment of interests.2

After bringing to light the weak points of the right of contraband, and after describing the unsuccessful efforts made by England in behalf of its abolition, he turns to the problem of reform. He begins by referring to a statement made by one of the American delegates to the Second Peace Conference at The Hague, to the effect that, while America voted, indeed, against the abolition of the right of contraband, she was not opposed to restricting this right only to

1 France and Italy have no longer mentioned conditional contraband in their memoranda; Austria, Spain, and Holland have explicitly rejected it. Compare Schramm, "Prisenrecht," p. 226.

2 pp. 102-129.

objects of absolute contraband, as was already advocated in the first declaration of armed neutrality (1780).1 Loreburn emphasizes:

This in itself would already constitute a tremendous step forward, not so drastic and complete as the British proposal, but nevertheless a step of decisive importance for all commercial interests of the world, since materials that are used exclusively in warfare form but a very small part of the wares that are transported across the sea. The usual oversea trade would then remain free from all molestations.2

The sensible basis for the interdiction of contraband, so he declares further on, is always taken from the principle of absolute contraband; and other, by no means logical, nay, even absurd, definitions revealed in a like manner the intentions of the various States to hold on to the principle of the right of contraband, in so far only as it involves articles that are used exclusively in warfare. Then he goes on:

*

3

Our delegates were correct in maintaining that the right of contraband constitutes an interference with neutral commerce which stands in no relation whatsoever to the interests of the belligerents. However, it may be that the unfavorable attitude of the leading powers who opposed us during both conferences can not be overcome entirely. In that case an effort in the direction of the American proposal might have, perhaps, been successful, in spite of the fact that thus far it was defeated outright. * * In accordance with this proposal all materials used in warfare only would have remained liable to confiscation, whereas all articles that are used for peaceful purposes also would have been protected. To be sure, abolition alone would not have removed all difficulties, but it would have at least reduced greatly the number of controversies. Furthermore, it would have taken into consideration the previously described feeling of resentment toward a trade which in difficult times of war embitters the combatants in the highest degree. For that reason we ought to receive it with open arms.*

But Loreburn goes even a step further. Inasmuch as up to the present time there exists a rule forbidding the departure from a port of embarkation of armed ships, he also favors the enactment of a law against the exportation of all articles that constitute absolute contraband. Of course, thus he states, it would have to be made perfectly clear that no State is to be held responsible for exportations that take place in good faith and with appropriate caution. However, Loreburn is exceedingly cautious in this respect, and is of the opinion "that this subject needs careful deliberation."