CHAPTER XXXII CONTRABAND, RIGHT OF SEARCH, AND $495. Importance of the Question during the Recent War; § 496. British and French Policy; § 497. Protests against the Disregard of the Declaration of London; § 498. Cotton as Contraband; $499. Food-Stuffs as Contraband; § 500. American Complaints regarding British Detentions; § 501. Extension of the Doctrine of Continuous Voyage to the Carriage of Conditional Contraband; § 502. History of the Doctrine of Continuous Voyage; § 503. Neutral Embargoes on Exportations to Belligerent Territory; § 504. British and American Practice Compared; § 505. Defence of the Doctrine of Continuous Voyage under Modern Conditions; § 506. The Case of the Kim and Others; § 507. French Cases; § 508. German Cases; § 508a. Conclusion. $495. Importance of the Question during the Recent War. On account of the fact that all the principal maritime powers were belligerents, traffic in contraband goods naturally assumed an importance during the recent war hitherto unknown. Owing also to the fact that Germany, the chief belligerent on one side, was flanked by a group of neutral States most of which have seaboards and through whose ports trade, had it not been intercepted by her enemies, could easily have found its way to Germany, the whole problem of dealing with contraband traffic raised difficulties for England and France which could hardly have been met without infringing upon the well-recognized rights of neutrals. The difficulty was further increased by the existence of a situation in which it was practically impossible to distinguish between supplies intended for the civilian population of Germany and those intended for the armed forces. Finally, owing to the recent progress of invention and the extensive military use that was made of many articles which formerly were not adapted to such use, the distinction between contraband and non-contraband largely disappeared. § 496. British and French Policy. By a succession of orders in council beginning on August 4, 1914, the British government announced lists of articles which it proposed to treat as contraband. The first list was identical with that of the Decla ration of London, except that air craft, which is listed as conditional contraband in the Declaration, was put on the list of absolute contraband by the order in council. On September 21 various articles, such as unwrought copper, iron ore, lead, glycerine, rubber, hides, and skins, which are either on the free list in the Declaration or are not mentioned at all, were placed on the list of conditional contraband. On October 29 this list was withdrawn and replaced by a new one which placed on the list of absolute contraband many articles which are either on the free list or on the list of conditional contraband in the Declaration of London. This list was superseded on December 23 by a new one which contained still further additions to the category of absolute contraband. On March 11 raw wool, worsted yarns, tin, castor oil, paraffine wax, ammonia, and other articles, none of which are used exclusively for war purposes, were declared to be absolute contraband. Although food-stuffs had from the outset been regarded as conditional contraband, corn, wheat and flour were in effect treated as absolute contraband from February, 1915, in consequence of the German government's having taken over the control and distribution of these commodities. By a proclamation of May 27, 1915, maps, toluole, lathes and other machines or machine tools capable of being employed in the manufacture of munitions were added to the list of absolute contraband. By a proclamation of August 20, 1915, raw cotton was added; by a proclamation of January 27, 1916, cork, bones, soap, and vegetable fibres were declared to be absolute contraband, while caseine, bladders, guts, and sausage skins were placed on the list of conditional contraband; by a proclamation of April 13, 1916, gold, silver, paper money, and all negotiable instruments and realizable securities, metallic chlorides, starch, borax, boric acid, and sabadilla seeds were declared to be absolute contraband.1 In the Declaration of London gold and silver bullion or coin and also paper money (but not checks or bills of exchange) are treated as conditional contraband, and they 1 The British prize court at Malta in the case of the Turkish Moneys Taken at Madras condemned a quantity of Turkish coin and Ottoman bank notes which were being taken to Constantinople by two Greek money-lenders from Saloniki on the ground that the "moneys, having a commercial purpose in enemy territory, had a hostile commercial or trade domicile." Trehern, British and Colonial Prize Cases, Vol. II, p. 336. BRITISH AND FRENCH POLICY 287 were so treated in the early British proclamations. The reason given by the British government for putting these articles on the list of absolute contraband was the "unprecedented importance which the transfer of credit had taken on since the outbreak of the war." It will be noted that in all these proclamations the distinction between absolute and conditional contraband was maintained, but so many articles were put on the list of absolute contraband which were in fact only conditional contraband when tested by former principles of classification, that the attempt to preserve the distinction became absurd, and accordingly, by a proclamation of April 19, 1916, the British government adopted the more logical course of formally abandoning the distinction. A single list of contraband articles embracing several hundred items arranged alphabetically, without distinction as to whether they were absolute or conditional contraband, was accordingly issued. In explanation of this action, the foreign office stated that "The circumstances of the present war are so peculiar that His Majesty's government consider that for practical purposes the distinction between the two classes of contraband has ceased to have any value. So large a proportion of the inhabitants of the enemy country are taking part, directly or indirectly, in the war that no real distinction can now be drawn between the armed forces and the civilian population. Similarly, the enemy government has taken control, by a series of decrees and orders, of practically all the articles in the list of conditional contraband, so that they are now available for government use. So long as these exceptional conditions continue our belligerent rights with respect to the two kinds of contraband are the same and our treatment of them must be identical." 1 The French government by a decree of August 11, 1914, proclaimed a list of contraband articles which included various articles as conditional contraband which are either on the free list of the Declaration of London, or which are not enumerated at all. Among them were iron and steel- including oxides, sulphides, and carbonates of iron copper, lead, nickel, chrome 1 The list of articles thus declared to be contraband may be found in the London weekly Times of April 28, 1916. Cf. also European War, No. III, pp. 109-113. In all of the proclamations the number of articles placed on the list of absolute contraband greatly outnumbered those on the list of conditional contraband so that in fact the distinction had already been largely abandoned. Thus in one of the proclamations of April, 1916, 299 articles and groups of articles are designated as absolute contraband and 78 designated as conditional contraband. iron, hides, and automobile tires. By a decree of November 6, 1914, the lists of absolute and conditional contraband were largely extended, and by a further decree of January 2, 1915, the French lists were made identical with the British lists. § 497. Protests against the Disregard of the Declaration of London. The German government addressed a protest to neutral powers against the action of the British and French governments in thus modifying the Declaration of London, although German submarines from the outset sank neutral vessels laden with cargoes of conditional contraband destined to unfortified British ports and ports not serving as bases of military operation.1 In its note of December 28, 1914, to the British government, in respect to the detention of neutral ships and their cargoes, the American government refrained from discussing at that time the propriety of including certain articles in the contraband list, although it asserted that some of them were open to objection. The right of belligerents, said the note, to determine what they shall regard as contraband and to adopt such classification as they choose cannot be denied, but it is well established that their action must be in conformity with existing treaties and the generally recognized rules of international law. The right cannot therefore be arbitrarily exercised. When the French government in 1895 announced its intention of treating rice as contraband when destined to Chinese ports north of Canton, Lord Granville stated that "His Majesty's government feel themselves bound to reserve their rights of protesting at once against the doctrine that it is for the belligerent to decide what is and what is not contraband of war, regardless of the well-established rights of neutrals." During the RussoJapanese war Lord Lansdowne in a communication of July 29, 1904, to secretary of state John Hay, apropos of the action of the Russian government in putting coal, naphtha, and other fuel on the list of absolute contraband, expressed substantially the same view, and so did Mr. Hay in his protest against the condemnation of the cargoes of the Arabia and the Calchas.* 1 See the cases of the Frye, the Maria, the Samanthe, and the Anita. Cf. Pyke, The Law of Contraband, p. 185. Cf. on this point Oppenheim, International Law, Vol. II, p. 424. ' Quoted by Atherley-Jones, Commerce in War, p. 45. • Foreign Relations of the United States, 1904, p. 760. COTTON AS CONTRABAND 289 The distinction between absolute and conditional contraband is as old as Grotius, and as a principle of international law it had never been contested by the United States or Great Britain.1 § 498. Cotton as Contraband. For some time the British government declined to treat cotton as contraband. In a letter of April 18, 1915, addressed to certain memorialists who urged that cotton be placed on the list of contraband, the attorneygeneral stated that cotton was being excluded from Germany and Austria under the blockade order in council of March 11 as effectively as if it were absolute contraband, and that nothing would be gained by putting it on the list of contraband. The order in council prevented access to German ports of all articles whether contraband or not; the effect of the order, he said, was virtually that of a blockade, and therefore to declare cotton contraband would not alter the situation. But public opinion in England continued to demand that cotton be formally placed on the contraband list, and this opinion was intensified by the belief, not to say the evidence, that large quantities of cotton were reaching Germany and Austria, especially through neutral ports, in spite of the blockade. The result of this pressure was an order in council of August 20, 1915, placing raw cotton, cotton linters, cotton waste, and cotton yarns on the list of absolute contraband. The British government defended its action on the ground that evidence had accumulated that cotton was being extensively used by the enemy in the manufacture of explosives, particularly those of a propulsive character, and that it had largely taken the place of saltpetre in the manufacture of gunpowder. Under the circumstances "it was right and proper that cotton with an enemy destination 1 This distinction, however, has been attacked by many continental publicists, and the Institute of International Law at its session of 1896 adopted a proposal for the abolition of what is called relative or accidental contraband. For a summary of the views of continental publicists on the subject cf. Hershey, International Law and Diplomacy in the Russo-Japanese War, pp. 162-163. At a public meeting held in London on August 11, 1915, to urge upon the government the necessity of declaring cotton contraband Sir William Ramsay stated that cotton was the only substance required for the manufacture of munitions which the Germans could not supply themselves. He asserted that no chemical products could take the place of cotton in the manufacture of propulsive ammunition, and that ammunition made from used cotton was not as effective as that made from unused cotton. He maintained that while substitutes for cotton could be used in making nitro-cellulose, none of them had what was called the "ballistic power" of cotton. VOL. 1-19 |