compelled to take recourse to measures of self-help. The chase after contraband would be unnecessary, the sea would become free. If the difficulties of supervision have been hitherto overestimated, then the world war has taught us a different lesson. Under the new system, supervision would become child's play in comparison with the internal control which England demanded in this war of the neutral nations.

Besides, all difficulties would be removed at one stroke. It is only necessary, as has been proposed before by various individuals, to nationalize the war industries and, according to the arguments presented on page 80 f., the export becomes interdicted on the strength of existing laws.1

In conclusion, I wish to say one word more concerning enemy aid. The London Declaration of the laws and customs of maritime war regards every shipment of contraband as constituting an act of hostile assistance. But, according to the official "elucidations," Articles 45-47 deal with special cases which were considered, for that reason, as requiring special regulations. Two classes are distinguished here: minor cases (Article 45), and cases of a more serious nature (Article 46). In the first instance, the guilty vessel is treated according to the laws of contraband, while in the second case it is treated as an enemy ship. But it may be possible, perhaps, to charge the State in individual cases with the supervision, while in other cases, without making a distinction between neutral and enemy ships, the vessel may be given the designation of an auxiliary war ship, in which case the English proposal made at the Second Hague Peace Conference may be called into play. It is not necessary to go here into the further details.

§ 11. CONDITIONAL CONTRABAND.

My plan demands, furthermore, that the idea of conditional contraband disappear entirely from international law. While according to my proposal, all articles needed in warfare, hence the objects which hitherto constituted absolute contraband, can no longer be transported nor shipped in transit, and while the sovereign who fails in his supervisory duties renders himself liable to a breach of neutrality, for which he may be brought to account through diplomatic channels, commerce is to remain absolutely unrestricted in all other respects. It is easily perceived that the stakes involved in the control of war shipments are not too high; the sea becomes really free.

And if the existing right of contraband constituted for centuries one of the most debated phases of prizage, then this applies par

1 Wehberg, Seekriegsrecht," p. 122: "This might, perhaps, prove satisfactory." 2 See above, p. 70 f.

3 Schramm, "Das Prisenrecht," 1913, p. 204; Beckenkamp, "Die Kriegskonterbande," p. 1 ff.

ticularly to the conditional contraband with its confusing rules that can not be carried into effect easily and with its sphere of validity extended into the infinite on account of the system of auxiliary lists. In addition to this, its legal justification is rotten to the very core. By conditional contraband are meant articles and materials that may be "employed for war as well as peaceful purposes,"1 and, above all, foodstuffs which, for that very reason, were mentioned by the London Declaration of the laws and customs in maritime war in the first place.

In the case of conditional contraband we deal with articles of trade that are equally needed by the armed forces as well as by the peaceful population. The uncertainty concerning their ultimate use constitutes their characteristic trait.

For that very reason when, after the first session at Geneva (1874), the problem of contraband came up for discussion at the preparatory meeting of the Institute of International Law (Institut de droit international), three members immediately declared themselves strongly opposed to the conditional contraband, while the Englishman Westlake defended its retention.

Kleen's plan, too, which was fully discussed in the preceding pages, is in agreement with my own views. He wants to prohibit only the shipment of "actual war munitions" (munitions de guerre proprement dites) as constituting the chief articles of military aid. Kleen was of the opinion that it was not advisable to stamp as contraband and to prohibit by means of a contraband law the sale of such articles as were required too much in the course of daily life. According to §9 of his proposal, the powers were to come to an agreement concerning a general international convention that would cover only objects of so-called absolute contraband and likewise any changes in the contraband list that might eventually be required on account of inventions, progress in the art of warfare, or new international principles. For that reason, Kleen, whose far-seeing mind already perceived, as it were, the Hague Peace Conferences, had in view alternating revisions of the lists at periodically convoked conferences. He expressed himself strongly against contraband declarations being issued by the belligerents; these, in his opinion, were never determined by considerations of the general but invariably of selfish interests. Kleen's proposal did away entirely with the concept of conditional contraband and, in contradistinction to the Cambridge Resolutions, his (third) compromise plan, which defined, moreover, munitions of war more clearly as "war materials" (articles de guerre).2 His motion was adopted by a vote of ten against five members, took in

1 Declaration of London, Article 24.

2At the general meeting Desjardin moved to replace the descriptive conceptional definition with the method of enumeration.

section 4 the point of view that peaceful commerce is bound to suffer mainly from the retention of conditional contraband, because in modern times wars break out more suddenly and the commercial relations are much more extensive than in former days; it was stated, furthermore, that an intolerable injustice would be done to the neutral nations if no exceptions were granted at least to such of their transports as were caught on the high sea at the outbreak of the war.

3

This question caused a heated discussion at the Venice meeting in 1896,1 and the decision finally arrived at was in favor of a middle course, which had already been taken by Grotius,2 and which was also advocated in several of the newer scientific books, after the example set by the English writers. This new plan retained conditional contraband, but made it no longer subject to confiscation; instead the conference satisfied itself with the right of detention and eventually that of preemption in lieu of an additional compensation of ten per cent. In this way a measure still conceivable from the military point of view was replaced by a direct attack upon the right of sovereignty. Brusa, acting as reporter in place of Kleen, who was absent, was so displeased with this result that after an unsuccessful protest he even wanted to discontinue the report, but continued it only upon the express wish of the presiding officer.

The Venice Resolutions can not be regarded as a declaration of a general legal conviction, they do not even give expression to the so-called prevailing doctrine; but few authors defend in their writings the right of preemption and, moreover, the later writers are more often of the opposite view (v. Liszt, v. Martitz). Furthermore, in its practical application the doctrine has by no means followed the road pointed out by the Institute in 1896; in this respect I have only to refer to the extensive declarations of contraband made by both parties during the Russo-Japanese war.

1 A brief report of the transactions is given by Beckenkamp on p. 68 f. 2" The Laws of War and Peace " (De iure belli ac pacis), III, c. 1, § 5. What we call to-day conditional contraband (and this is the phrase used in Article 24 of the London Declaration) and also accidental (occasional) or potential contraband, respectively, was designated by Grotius as "articles having a double use' (res ancipitis usus). Such articles are involved here which ordinarily satisfy the needs of the peaceful population, but which may be also utilized for war purposes and whose potential utilization for such purposes must be always taken into consideration. Their eventual destiny is determined by the war situation (status belli); that is to say, in adaptation to given circumstances. A belligerent may appropriate such articles for his own use only in cases of dire necessity, and even then he is required to indemnify the owner.

8 For that reason Westlake emphasized during the discussions that the idea of a right of preemption is in perfect agreement with the practice hitherto followed by the English admiralty. To be sure, during the present world war the admiralty applied this theory only for the purpose of intensifying the English plan of starvation, in accordance with a provision of the order in council of March 11, 1915, subjecting to the rights of confiscation and preemption all articles shipped to or from Germany which slip through the tight meshwork of the right of contraband.

The invalidation of the right of confiscation into a mere right of attachment and preemption reveals a guilty conscience. We see in it the valuable admission that articles which are also required by the peaceful population can not be placed upon an equal footing with war materials. But the promulgation of a right of seizure and preemption is really of no advantage to the civilian population, it merely diminishes the losses of the shipper while exposing at the same time every phase of commerce to new complications.

For that reason, the London Declaration of the laws and customs in maritime war took a different point of view. Bynkershoek already opposed strongly the principle of a purely potential contraband set up by Grotius and propounded the view that only such articles ought to be regarded as contraband as are intended for use in war operations or are actually delivered for the utilization by an enemy military force, and he maintained, furthermore, that such articles must be accorded the same treatment as the exclusive war materials.

From a conceptional point of view the London Declaration of the laws and customs in maritime war adhered to this doctrine, but resisted its right, logical consequence, otherwise it would not have adopted the twofold division of contraband.

The London Declaration makes it perfectly clear, in the first place, that, in contraband of whatever sort, the quality and destination of the object are equally essential; and thus an article, which at first constitutes only potential contraband on account of its quality, in so far as it can be also utilized by the military forces, becomes an object of absolute contraband only upon the demonstration of its military destination. The principle is clear; it is the view expressed by Bynkershoek. But now there arises a difficulty: How is this destination for military purposes to be recognized in objects of conditional contraband? In the case of absolute contraband this is a simple matter. The Declaration states: According to the terms of Article 30, in the case of objects constituting absolute contraband, it is sufficient if the captor proves that the cargo is on its way to the enemy territory or enemy fleet. Under these circumstances no difficulties can arise, particularly in view of the regulation contained in Article 31 and intended to facilitate the demonstration of the final proof. Everyone knows the eventual use for which a shipment of cannon is intended. and which is on its way to the country of a belligerent.

But in the case of objects of conditional contraband complete proof is necessary. Whoever brings up the prize that is to say, the captor-must prove, in accordance with Article 33, that the shipment is not meant to be of benefit to the civilian population, but is "intended for the use of the fighting force or of the administrative depots of the enemy Government." But how are such proofs to be produced

if the consignment is not made out directly to some official administrative point? One is compelled to resort to conjectures, in accordance with Article 34, and these have to do partly with the identity of the receiver and partly with the nature of the point of destination. In the first case the mere consignment to an enemy authority or to its agent is sufficient. In the latter instance it suffices to prove that the shipment goes to a fortified point or to a place serving as an auxiliary base for provisioning which is intended to become a source of power to a fighting force on account of the war materials that are being piled up there. But England, to whom on second thought these conjectures did not seem formulated clearly enough, and which desired a plainer wording as a protection against the starving out of the English population, thereby proving that she perceived clearly the real significance of Article 34, by her openly admitted dastardly attempt to starve out Germany, has shown during the present world war how the legal conjectures in the matter of a precise wording and meaning may be extended, until eventually all guarantees for the sustenance of the people are nullified. Furthermore, the order in council of August 20, 1914, § 5, deprived contraband of all the protection given to it by Article 35 of the London Declaration by rejecting the theory of a continuous voyage. As early as November 16, 1914, the English Prime Minister stated in the House of Commons that it was England's principal task to prevent the shipment of foodstuffs via neutral ports that are intended for the German people. Thus the distinction between absolute and conditional contraband was actually wiped out, and in the English contraband list of April 13, 1916, this differentiation is made no longer, with the justification that "for practical purposes" such a distinction has gradually lost all value. The constant amplifications of the contraband list eventually had the effect of practically abolishing the free list, and even in the case of goods of a noncontraband character all imports and exports to and from Germany became subjected to English confiscation ever since March 11, 1915, the day on which the order in council was issued.

The idea of conditional contraband is that, in the case of objects which are also needed for the use of the civilian population, confiscation is permissible only when it can be proven that this contraband is intended for the fighting forces. But England substitutes a mere potentiality for the reality in the sense in which it was meant by Grotius, at the same time reacting, in contradistinction to the latter, with measures which he considered permissible only from the point of view of reality. England renounced the new regulation of the law of contraband, although it was enacted with her cooperation and under her leadership, and threw out the gauntlet to the lofty