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WHAT IS MEANT BY THE FREEDOM OF THE
FREEDOM is a relative term. It involves limitations as well as rights. There is no such thing as absolute freedom of any kind. A man is free only when his neighbors are limited. The matter is one of adjustment. As to the seas, the question is not one of "whether," but of “how much.” It is, therefore, not surprising that there is a wide divergence of opinion as to what the term "freedom of the seas” means.
Each world Power has certain major and certain minor interests, and it is from this point of view that each fixes its definition of terms. Possibly peace will come about through an agreement on phrases, the divergences of opinion appearing only on conference; but when this country speaks of the "freedom of the seas” as a necessary peace term, it states nothing more definite than if it had said, “ we want peace with honor."
Freedom of the seas in time of peace is so generally acknowledged that it is hard to realize it was not so very long ago, as the course of history runs, that America fought for this principle. For a long time it was strenuously asserted that the cruisers of one nation might lawfully search merchant vessels of another nation in time of peace. Algiers, Tripoli, Tunis, and Morocco, in the early part of the last century, supported themselves by tribute levied on commerce as an alternative to piratical depredations. America's first military excursion to Europe put a stop to this practice.
Since the freedom of the seas in time of peace is now questioned by no one, this can not be the intent of the term today. Neither does it mean that all countries shall have free access to the seas, or that tariffs and other restraints upon commerce over the seas shall be removed, or that canals, straits, and other waterways shall be unfortified and internationalized. While the security or freedom of commerce of various nations might depend to a large extent upon conclusions reached on these subjects, yet they are problems other than are included in the term under consideration.
In our note to Great Britain of December 26, 1914, this country said it “confidently awaited amendment to a course of action which denied to neutral commerce the freedom to which it was entitled by the law of nations.” In our note to Germany of July 21, 1915, we insisted that Germany and ourselves were “both contending for the freedom of the seas.” The only questions involved were those of commerce in time of war on the open seas.
Had international law been strictly observed by belligerents, neutral commerce might have been carried on during this war with little substantial interference; but the illogical compromises in international law, involved in subtlety and technicality, made the claims of belligerents seem sound, and the demands of neutrals, in the words of Mr. Asquith, a web of “juridical niceties.” A belligerent had a right to visit and search a neutral ship and if, upon examination, the vessel was found to be engaged in unneutral service or to be carrying contraband of war intended for the enemy government or armed forces, he had the further right to capture and condemn. A belligerent had the right to blockade, not an enemy country, but merely enemy ports, and to capture and condemn any vessel trying to break such blockade. These were the only exceptions to universal equality of right upon the seas. Enemy vessels were subject to capture, but enemy goods (except contraband) under a neutral flag were safe.
In actual practice, had the law been regarded, very little opportunity would have been left to interfere with enemy trade. If the original commercial transaction had ended in a neutral country, a new contract could have been made to sell to a belligerent and there would have been no right of interference even with contraband. Visit and search would merely have indicated that the merchandise was intended for a neutral country, and the transaction could have been so framed that this would unquestionably have been the fact. The right to blockade an enemy's ports and coasts was of considerable
i Note of Department of State to British Government, March 30, 1915.
importance when there was great difficulty of shipment and of transshipment. It means little in view of present transportation opportunities, particularly where a country is practically surrounded by neutrals. Under international law as it existed prior to the war, belligerent rights were so circumscribed that for all practical purposes neutrals might have traded almost as freely as if private property (except enemy vessels) had been immune from capture.
Secretary of State Lansing requested the American Institute of International Law, meeting at Havana on January 22, 1917, to consider a code of neutrality. The code presented was the private work of one of the members of the Institute and was referred to the national societies of international law for consideration and future action. While not authoritative, yet it may be regarded as representing the American point of view. The code contained a declaration that private property at sea was inviolable, but "if (ships carry] contraband, this may be confiscated or destroyed by the captor."
The historical American demand (and in the light of this, one must determine what we mean by freedom of the seas) was contained in the instructions to the American Delegation to the First Hague Conference:
As the United States has for many years advocated the exemption of all private property not contraband of war from hostile treatment, you are authorized to propose to the Conference the principle of extending to strictly private property at sea the immunity from destruction or capture by belligerent Powers which such property already enjoys on land as worthy of being incorporated into the permanent law of civilized nations.
The rule respecting private property on land was framed by the Peace Conference of 1907. Article 46 stated:— “Private property ... must be respected” and “can not be confiscated.” But by Article 53 an army of occupation might seize the same class of goods as we regard as contraband, subject to restoration and compensation, on the conclusion of peace.
We therefore propose that the seas be free for everything except contraband. That is our kind of freedom – not perhaps so idealistic as a more unlimited freedom, but perhaps more practical.
So long as a doctrine of contraband is recognized, the same kind of indefiniteness, the same possible subterfuge, the same dangerous misunderstandings that at present exist, will continue. If belligerents are allowed to fix their own contraband lists (even upon notification and even though only absolute contraband is contemplated) there will be room for differences of view and interpretation. The doctrine of continuous voyage prior to this war was limited specifically to absolute contraband. During this war it has been developed into a theory of ultimate consumption covering absolute, conditional, and noncontraband, and unless eradicated from the law of nations will always play havoc with neutral commerce. There is no logical distinction between supplying civilians with food and supplying an army with food. The more civilians have, the more will be released to the army. The Declaration of Paris, thought to have been so well engrafted on international law that a violation would be impossible, has practically become a dead letter during this war, because while a neutral flag covered enemy goods, and neutral goods on an enemy vessel were immune from capture, there was an exception of contraband — and practically everything has been made contraband! Immunity of private property at sea must include contraband, or freedom of the seas will mean nothing.
Recognizing this, the British Government, in the Hague Conference of 1907, proposed that contraband be entirely abolished. Twentysix states supported the British proposal; five (Germany, France, Russia, the United States, and Montenegro) voted against it; four abstained from voting; and nine states took no part at all. It was evident, however, that the law of blockade involving the doctrine of continuous voyage was necessarily connected with consideration of the abolition of contraband. It was feared that an agreement on the abolition of contraband alone would leave an opportunity through a loose interpretation of the law of blockade to negative what was apparently conceded. As was said by Dr. James Brown Scott, “Marschall von Bieberstein was eminently justified in conditioning his approval of the proposed immunity of private property upon an agreement upon contraband and blockade.”
2 The Hague Peace Conferences of 1899 and 1907, Vol. I, p. 705.
The purpose of a naval blockade is to reduce a fortress or other place of military occupation. The purpose of a commercial blockade is to affect noncombatants and to produce such distress among them as to bring pressure to bear upon the enemy government to make peace.
Along with the abolition of contraband must go the abolition of commercial blockade, if the seas are to be free. This was supported by the draft presented to the Havana Conference. “The commercial blockade both of the belligerent ports and the maritime zones along belligerent coasts is formally forbidden, no matter what the means by which the blockade is to be effected.”
The American doctrine would further extend immunity to enemy merchant vessels. We refused to enter into the Declaration of Paris because it did not go this far. England, with its large merchant fleet, particularly in view of the development of the submarine, may find its major interest in supporting this doctrine against which it has always contended. Germany and Austria supported the American proposal at the Second Hague Conference, but possibly their views may have changed in view of the effectiveness of the submarine. At any rate, the offensive power of all nations to destroy the merchant fleets of their enemies has been greatly enhanced. Opposed to Great Britain's supremacy at sea is the fact that her merchant marine is so much larger than that of any other Power and her dependence upon it so much greater, that an agreement on this point might seem more important to her than heretofore. It is inconceivable, however, that an agreement can be reached which would allow the capture but forbid the destruction of enemy ships. Such a distinction disregards belligerent necessities. Either enemy merchant vessels must be free from capture and destruction, or it must be agreed that immunity extends neither to life nor property on an enemy ship. Granted that an agreement can be reached on either one of the above alternatives or the other, there is nothing indefinite about the proposition, and what international law needs more than anything else is certainty.
“Freedom of the seas" means abolition of the doctrine of contraband and of commercial blockades, and of the right of capture or destruction of enemy vessels. Any doctrine of contraband involving changing lists of material, notification, illogical distinction between