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If then the German Admiralty which foresees everything and prepares everything did not foresee the potentialities of the submarine, or the barbarous use they intended to make of the new weapon, the British Foreign Office may be excused for not having been gifted with a greater foresight as to the influence of submarines on blockade.
Fortunately the British proposal was not accepted by the Conference.
THE FREEDOM OF THE SEAS
It will be convenient at this stage to consider another proposal which has been made; namely, the immunity of private property at sea, except contraband of war. For purely controversial purposes it might be sufficient to say that as everything is now contraband of war the proposal is inapplicable; but such a reply would be wanting both in courtesy and honesty. For the advocates of the proposal have certainly intended a great restriction of the list of contraband. The proposal has been made by four American Presidents and by writers such as Bluntschli, Pierantoni, De Martens, Bernard, Massé, de Lavelaye, Nys, Calvo, Maine, Hall, Woolsey, Field, Amos, etc. By English statesmen such as Brougham, Palmerston, Cobden, and Loreburn, as well as by Mill. It must therefore be examined as a proposal that comes before the world supported by the very highest authority.
The first criticism is that sea power always has been, is now, and always will be the power of the mercantile nation, as distinct from the military nation. It is possible that the trident may pass from the hands of England to the hands of America, many persons believe it will. Shipping and sea power go together, both require wealth to support them. But even so, it will only pass from the hands of one mercantile nation to the hands of another mercantile nation. To take the points from the trident is therefore to weaken the power of the mercantile nation in favor of the military nation. Is this desirable? The writer thinks not. The mercantile nation lives by peace and seeks peace. The military nation prepares for war, and regards war as a phase of policy—that is as a more active development of foreign policy than that pursued by the peaceful methods of diplomatists engaged in the game of chicane or of intrigue or coercion of neighboring or rival states. The matter was carefully considered by the British Government in 1907, and their view is expressed in the instructions addressed to Sir Edward Fry by Sir Edward Grey. The following is an extract from those instructions: It is probable that a proposal will be brought before The Hague Conference to sanction the principle of the immunity of enemies’ merchant ships and private property from capture at sea in time of war. His Majesty's Government have given careful consideration to this question, and the arguments on both sides have been fully set out in the various papers which have been at your disposal. They cannot disregard the weighty arguments which have been put forward in favor of immunity. Anything which restrains acts of war is in itself a step towards the abolition of all war, and by diminishing the apprehension of the evils which war would cause, removes one incentive to expenditure upon armaments. It is also possible to imagine cases in which the interests of Great Britain might benefit by the adoption of this principle of immunity from capture.
The British Navy is the only offensive weapon which Great Britain has against Continental Powers.
For her ability to bring pressure to bear upon her enemies in war Great Britain has therefore to rely on her Navy alone. His Majesty's Government cannot therefore authorize you to agree to any Resolution which would diminish the effective means which the Navy has of bringing pressure to bear upon an enemy. In the recent war England and America, the two mercantile, and nonmilitary nations, had large armies fighting on the Continent of Europe: but those armies had been transported and existed in virtue of sea power. The German armies opposed to them felt the pressure of sea power. The difficulties of the German soldier in regard to ammunition, transport and food, were the creation of sea power. If there was a shortage of copper for cartridges, of glycerine and cotton for explosives, of materials for poisonous gas, the shortage was caused by sea power. Facts are stubborn things, and the facts of the recent war justify those men who clung to the belief in sea power as a weapon of war and believed that the same conditions that created that power would
prevent its misuse. The illustrious men who have from time to time advocated the immunity of private property at sea carry weightdeservedly so: but their lives were devoted to the study of the prin. ciples of law and politics rather than to the hard facts of war. It is right therefore to cite the opinion of a student of war, and no name stands higher in that branch of historical research and military and economic science than that of the late Admiral Mahan. In his Essay on the Possibilities of an Anglo-American Reunion he wrote as follows:
In the same way it may be asserted quite confidently that the concession of immunity to what is unthinkingly called the private property of an enemy on the sea will never be conceded by a nation or alliance confident in its own sea power. It has been the dream of the weaker sea belligerents in all ages; and their arguments for it, at the first glance plausible, are very proper to urge from their point of view. That arch robber, the first Napoleon, who so remorselessly and exhaustively carried the principle of war sustaining war to its utmost logical sequence, and even in peace scrupled not to quarter his armies on subject countries, maintaining them on what after all was private property of foreigners, even he waxes quite eloquent and superficially most convincing as he compares the seizure of goods at sea, so fatal to his Empire, to the seizure of a wagon travelling on a country road.
Now private property borne upon the seas is engaged in promoting, in the most vital manner, the strength and resources of the nation by which it is handled. When that nation becomes belligerent the private property, so called, borne upon the seas is sustaining the well-being and endurance of the nation at war and consequently is injuring the opponent to an extent exceeding all other sources of national power.
Blockade, such as that enforced by the United States Navy during the Civil War, is evidently only a special phase of commerce destroying; yet how immense—nay decisive-its results !
It is only when effort is frittered away in the feeble dissemination of the guerre de course instead of being concentrated in a great combination to control the sea that commerce destroying justly incurs the reproach of misdirected effort.
How do these words, written in 1894, read today? Napoleon no longer lives—but does the Power that clamors for the freedom of the seas respect private property on land? Is the control of commerce by the use of sea power an effective weapon, or is it not? Is the guerre de course any more worthy of respect than it was when Admiral Mahan correctly characterized it ?
We see, therefore, that sea power is an effective weapon in war, and that whilst the old right of a belligerent to weaken and exhaust his enemy is as legitimate as ever, the manner of the exercise of that right calls for modification. Everything that man produces can be utilized by science for purposes of war, and even a baby's feeding bottle can be converted into a dangerous bomb. Everything therefore is now either contraband or conditional contraband. This creates an impossible condition for neutrals, and when facts or the changes caused by human progress render the old laws or the old rules intolerable, common sense calls for their amendment, but the Anglo-Saxon sense of justice calls also for a fair compromise between conflicting claims. It is impossible to define contraband when everything is contraband, but it is easy to distinguish between absolute contraband, that is to say, war material—and articles which have a double use. A fifteen inch howitzer is not an article used in a citizen's household, nor is a machine gun, and there is no difficulty in distinguishing articles which are of military use only: but it is the fact that everything else has both a military and a civil use. To confiscate all articles of conditional contraband would be an intolerable act of robbery and injustice to neutrals. But the right of a belligerent to intercept supplies and succors to his enemy remains. A fair compromise has been found in the past between these two conflicting rights by the system of preemption, or purchase. By the control of commerce, instead of the confiscation of commerce. There is no reason in justice why a belligerent should not intercept supplies going to his enemy provided he pays for them, if they are neutral property, and have a double use. War material always has been liable to confiscation, and there is no reason why it should not remain so liable.
But this rule has a logical consequence. If private property on board ship is exempt from confiscation the ship that carries that property must be exempt from destruction. The iniquitous destruction of peaceable merchant ships during the recent war has horrified and disgusted humanity. It would be easy to show that it has no legal justification, but it would be a waste of words to do so. For in this matter, we are dealing with a question which transcends the logic or the rules of jurists. It affects all humanity, and whatever rules may be framed for the future guidance of belligerents it is certain that suffering humanity will see to it that the destruction of merchant ships must be prohibited, and the prohibition must be made effective without any exception of any kind whatsoever. A merchant ship taken as prize, must be brought into port and not destroyed.
But this rule would admittedly be to the advantage of the strongest naval power. So it is but just that some concession should be made to the weaker naval powers. During the eighteenth century the right of asylum, or the right to take prizes into neutral ports, was frequently stipulated in treaties not limited to America, but treaties made by European powers including England. The concession of the right of asylum might be and is recommended as a compensation for the limited, and exceptional right of destruction such as it exists in International Law today.
But the prohibition of the right to destroy involves the abandonment of the right to arm. In this, as in every war, it has been proved that if an orgie of barbarism is to be avoided it is all important that there shall be a clear distinction between combatants and noncombatants—and a noncombatant should not be armed. It is no doubt the legal right of a noncombatant merchant vessel to arm and to fight in self-defense. But if the noncombatant is to be immune and to enjoy the rights of a noncombatant she must be a noncombatant. From the moment that the law protects the immunity of noncombatants, the right to arm, and the right to resist visit and search cease to have justification. It is not always possible to define self-defense. If two men meet, each carrying pistols, each entitled to shoot, it is hard to say that the man who fires first does not act in self-defense. The frontier between offense and defense is an indeterminate frontier, and it is but just that if a merchant ship should be exempt from all danger she should cease to be a danger to the vessel exercising the right of visit and search.
Here, then, if we are to examine history and the experience of