PROPOSAL TO ABOLISH CONTRABAND

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destination of the ship sufficed ordinarily to indicate the hostile destination and character of the goods. Moreover, ships were small in size, and the right of search could be exercised easily and without the necessity of diverting the ship to a distant port for the purpose of verifying the character of the cargo, and thus subjecting the shipper to ruinous losses on account of long detention. Today these conditions no longer exist. The number and variety of contraband articles are vastly greater, and the increased size of ships makes search on the high seas much more difficult. Furthermore, with increased railroad facilities contraband easily finds its way to belligerents, so that prohibitions are usually ineffective. All these circumstances tend to render more difficult the exercise of the right of search, to multiply the number of controversies, and to inflict upon neutral commerce an inconvenience out of all proportion to the legitimate interests of belligerents. It would be better, therefore, to abolish the right of capture and allow contraband to be carried freely, except where prevented by blockade.

It is interesting to note that of the thirty-five States voting on the British proposal, twenty-six voted for it. Only fiveGermany, the United States, France, Montenegro, and Russia — voted against it, although five others abstained from voting. This vote was very significant and indicated a general dissatisfaction with the present rule and practice in regard to trade in contraband and the desire for a less objectionable and more logical solution of the problem.3

1 See the memorandum in Deuxième Conférence de la Paix, Actes et Documents, Vol. I, pp. 256-258. This proposal was advocated by Secretary Marcy in 1856; also by Lorimer, Coceje, Kluber, Rayneval, von Bar, and others at the meeting of the Institute of International Law in 1874. Cf. Pyke, Law of Contraband, p. 102. 2 Deuxième Conférence de la Paix, Actes et Documents, t. III, p. 881. Professor J. B. Moore in an address before the National Foreign Trade Convention at St. Louis in June, 1915, pointed out the unsatisfactory character of the rules of the Declaration of London in respect to trade in contraband. The inferences which it creates in regard to hostile destination, he said, are so vague that "they would seem to justify in almost any case the presumption that the cargo, if bound to an enemy port, was 'destined for the use of the armed forces or of a government department of the enemy state.' Any merchant established in the enemy country, who deals in the things described, will sell them to the government; and, if it becomes public that he does so, it will be 'well known' that he supplies them. Again, practically every important port is a 'fortified place'; and yet the existence of fortifications would usually bear no relation whatever to the eventual use of provisions and various other articles mentioned. Nor can it be denied that, in this age of railways, almost any place may serve as a 'base,'

for supplying the armed forces of the enemy. And of what interest or advantage is it to a belligerent to prevent the enemy from obtaining supplies from a 'base,' from a 'fortified place,' or from a merchant 'well known' to deal with him in his own country, where, the entire community being subject to his authority, he can obtain by requisition whatever he needs, if dealers in commodities hesitate to sell voluntarily." The proper solution according to Professor Moore is to be found, if not in the abolition of the principle of contraband, at any rate (1) in the adoption of a plan embracing the abolition of conditional contraband, and (2) a single list having been agreed upon, in the coöperation of neutrals and belligerents in the certification of the contents of cargoes so that the risk of capture may be borne by those who may voluntarily assume it. "Harassing searches and detentions" he added, "will then be heard of no more."

CHAPTER XXXIII

BLOCKADES

§ 509. The German Submarine "Blockade" of England; § 510. Some Examples of Actual Blockades; § 511. The Anglo-French Blockade of Germany; § 512. Criticism of the Proposed Blockade; § 513. The Order in Council of March 11, 1915; 514. Character of the Blockade thus Established; § 515. Neutral Protests; 8516. The British Defence; 8517. Legality of the Anglo-French Blockade; § 518. Criticism regarding the Discriminatory Features of the Blockade; 519. Charge that the Blockade Applied to Neutral Ports; § 520. Extension of the Doctrine of Continuous Voyage to Blockade Running; § 521. Defence of the Doctrine; 522. Popular Demand in England for a Real Blockade; § 523. German Criticism of the Blockade as a "Starvation" Measure; § 524. Attitude of the British and French Governments in Regard to the Admission of Hospital Supplies to Germany; 8525. Admission of Food Supplies to the Occupied Districts of Belgium, France, and Poland; § 526. The Problem of Preventing Commerce with the Enemy; § 527. The Netherlands Overseas Trust; 8528. The System of "Rationing" Neutrals; $529. Neutral Protests; § 530. American Policy; 531. Other Expedients.

8509. The German Submarine "Blockade" of England. During the early months of the war neither the British nor the German government proclaimed a blockade of the ports of the other. It is true that the German war zone decree of February 4, 1915, was frequently referred to as a blockade measure,1 but it does not appear to have been so intended by the German government. If so, it possessed few if any of the elements of a lawful blockade as blockades have heretofore been understood, because no adequate naval forces were stationed off the coasts of England to make it effective, its enforcement being left entirely to submarines. In fact, several thousand ships arrived

1 In the British diplomatic correspondence it was frequently so referred to. But Heilbronn in the Zeitschrift für Völkerrecht (Bd. IX, p. 58) denies that it was a "blockade," since no intention of interdicting neutral ships from entering British ports had been asserted by Germany. In short, the German measure was directed only against enemy ships. The German war zone decree of January, 1917, was even more frequently referred to as a "blockade." It was so characterized by Dr. Paul Ritter, Swiss minister at Washington, in a communication to the American government of March 23, 1917.

and cleared from British ports each week after the German decree was put into effect.1

§ 510. Some Examples of Legal Blockades. The first instance during the recent war of the institution of a real blockade, as the term is understood in international law, was that established by Austria-Hungary of the coast of Montenegro on August 10, 1914. Due notice was given to neutrals, and it was announced that the blockade would be made effective by means of naval forces.2 A second example was that established by Great Britain and France in the latter part of February, 1915, of the coast of German East Africa. The British and French orders proclaiming the blockade announced that the area of the blockade would include the coast from latitude 4°, 41" South to latitude 10°, 40" South, a distance of 300 miles, and that four days' grace would be allowed for the departure of neutral vessels from the blockaded ports. It was also announced that a sufficient number of vessels would be stationed off the blockaded ports to make the blockade effective. Apparently the institution of both blockades was entirely in conformity with the rules of international law as embodied in the Declaration of London, and, so far as known, no complaints were made by neutrals either in respect to their legality or mode of execution.

Other blockades were those proclaimed on August 27, 1914, by Japan of the coast of Kiau-Chau; by Great Britain on June 2, 1915, of certain parts of the coast of Asia Minor; 3 by France on August 22, 1915, of the coasts of Asia Minor and Syria from the Island of Samos to the Egyptian frontier; by the English and French fleets of the Egean coast of Bulgaria, October 16, 1915; by Italy of certain parts of the Austro-Hungarian

5

1 Sir Edward Carson stated that during the first eighteen days after the German decree was announced an average of 607 ships of over 100 tons burden, not including fishing craft and sailing vessels, arrived in the ports of England each day, and that during this period 5873 vessels cleared therefrom. As to the ineffectiveness of the German "blockade” of England cf. also Villeneuve-Trans, Le Blocus de l'Allemagne, ch. III. I have considered in sec. 573 the question as to whether a legal blockade can be maintained by submarines. See also Fauchille in 25 Rev. Gén. p. 79 and 9 Amer. Jour. of Int. Law, 461.

2 Text in 22 Rev. Gen. de Droit Int. Pub. (1915), p. 74.

London Gazette, October 19, 1915.

▲ Législation de la Guerre, Vol. II, pp. 302–303.

Clunet, 42:299.

ANGLO-FRENCH BLOCKADE OF GERMANY 319

coast and the coast of Albania, May 26, 1915,' and by Great Britain and France of Saloniki in June, 1916, and later of all the Greek coasts from the mouth of the Struma river to the Greco-Bulgarian frontier.2 Greece being a neutral country, the blockade of its coasts under ordinary circumstances would, of course, have been unjustified; but the situation was anomalous, owing to the occupation of the country by British and French forces, who, their governments claimed, were there by invitation. The legality of the blockade was, therefore, a subject of controversy.

Other blockades were proclaimed and established by the various belligerent governments from time to time. Most of them were in the customary form. They were expressly proclaimed as blockades; the extent of the coasts blockaded was specified; due notice was given as to when they would take effect, and in nearly every case days of grace were allowed during which neutral vessels in the blockaded ports would be allowed to depart.*

§ 511. The Anglo-French Blockade of Germany. The blockades mentioned above were, on the whole, of minor importance, and owing to the comparative commercial insignificance of the blockaded territories they did not seriously interfere with neutral trade, nor did they, except in the cases of the Albanian and the Greek blockades, evoke protest or controversy. It was otherwise, however, with the Anglo-French blockade of Germany. As stated above, the war had been in progress some seven months before Great Britain and France decided to have recourse to blockade as a means of cutting off trade with Germany. During this period such goods as had not been declared

1 Ibid., 42: 265; Rev. Gén. de Droit Int. Pub., 1915, Docs., pp. 215, 220. There were some protests against the blockade of the coast of Albania because it was a neutral State. It was also complained that the blockade extended to arms of the open seas. Cf. the criticism of Professor Lammasch quoted in the Continental Times of July 3, 1915. Albanians in the United States protested that the blockade was unlawful and unprecedented. The Italian government appears to have defended the blockade on the ground that Austro-Hungarian forces were making use of certain of the Albanian ports for the purpose of revictualling the Austrian fleet.

? Press despatches of June 8, 1916. Text of the blockade proclamation, which took effect December 8, in 24 Rev. Gén. de Droit Int. Pub. (1917), p. 53.

3 I have described this anomalous situation more at length, in ch. XXX. As to the character of these earlier blockades see Pchédecki, Le L'oit Maritime et la Grande Guerre, p. 175.