$571. Navigation of the River Scheldt by Belligerents. At the outbreak of the war a number of German and Austrian ships which were lying in the port of Antwerp were seized by the Belgian government. On September 2, 1914, the British minister at the Hague notified the Dutch government of the intention of his government to transfer these vessels with their English crews to England by way of the Western Scheldt. The right to do this, he affirmed, was based on the free navigation of the river guaranteed by the treaty of London of 1839, and the view was expressed that the Dutch government would not object to the passage of these unarmed merchant vessels through Dutch territory to the sea. The Dutch government in its reply to this communication, however, stated that it could not permit the right of passage requested, since the vessels in question had fallen into the power of the Belgian government as the result of an act of war and the observance of a strict neutrality forbade it from allowing its territory to be used for the continuation of the act of war. It was further added that the freedom of navigation guaranteed by the treaty of 1839 had reference only to commerce and not to the passage of ships seized as an act of war by a belligerent. Notice was therefore given that if an attempt were made to take the ships through the Scheldt they would be seized upon entering Dutch territory and would be interned until the end of the war. Upon the subsequent occupation of Antwerp by the German forces the ships in question fell into the possession of the German government, which was thereupon notified by the Dutch government that they would not be allowed to pass through the territory of the Netherlands. Several of them later entered Dutch territory and were sequestered, with the understanding that their ultimate disposition would be determined at the close of the war. Boats for internal navigation belonging to German subjects and which found themselves in Belgian jurisdiction at the outbreak of the war were treated differently, however, from ocean-going vessels such as those for which the British government demanded the right

refusing to allow wounded or disabled Canadian soldiers who had been discharged from passing through the State of Maine as individuals on the way from Europe to their homes in Canada. See the correspondence between the American and British governments regarding the matter, in Supp. to Amer. Jour. of Int. Law, October, 1917, pp. 231–232.

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of passage, and they were freely admitted within the jurisdiction of the Netherlands.1

When, however, the British government, in October, 1914, requested permission for a hospital ship, the China, flying the British flag to pass through the Scheldt to Antwerp and to take on board a number of sick and wounded and return with the same to England, the request was granted subject to the conditions mentioned in article 14 of the Hague convention concerning the rights and duties of neutral persons and powers in case of war on land and also subject to the condition that the ship should transport neither personnel nor material of war.2

1 Dutch orange book, Ministere des Affaires Etrangères, Recueil de Diverses Communications, etc., pp. 170-172.

2 Ibid., pp. 172-174. In consequence of the early capture of Antwerp by the Germans, the China was unable to avail herself of the permission thus accorded.

CHAPTER XXXVII

EFFECT OF THE WAR ON INTERNATIONAL LAW

§ 572. Imperfections of International Law Revealed by the War; § 573. Effect of the War on the Laws of Maritime Warfare; Blockade and Contraband; § 574. Other Unsettled Questions of Maritime Law; § 575. The Freedom of the Seas; §576. The Need of New Regulations; § 577. Necessity for an International Conference.

8572. Imperfections of International Law Revealed by the War. It was inevitable that the recent war, embracing as it did so large a number of the States of the world, conducted to a great extent by new instrumentalities and according to new methods and carried on under conditions widely different in many respects from those of previous wars, should not only have revealed many imperfections in the existing rules governing the conduct of war, but that the whole system of international law itself should have been rudely shaken to its very foundations. It was equally inevitable that such a war should have brought to light many divergencies of view as to what the law allows and what it forbids, both to belligerents and neutrals, and that there should have been many irritating controversies between neutrals and belligerents concerning their respective rights.

In the first place, the war demonstrated in a striking manner that many of the rules which had been agreed upon by the body of States for the conduct of war were inadequate, illogical, or inapplicable to the somewhat peculiar and novel conditions under which they had to be applied during the late war. In the second place, the war brought out the fact that the existing rules did not by any means cover the whole field; that they were wholly silent in regard to the employment of various agencies and instrumentalities for waging war, and that they did not deal at all with certain conditions and circumstances which were unforeseen at the time the rules were formulated.1

1 Dr. J. de Louter, Professor of International Law in the University of Utrecht, in an article entitled La Crise du Droit International, published in the Revue Générale

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§ 573. Effect of the War on the Laws of Maritime Warfare; Blockade and Contraband. The recent invention and employment on a large scale, for the first time during the recent war, of the submarine mine, the submarine torpedo boat, the wireless telegraph and the air ship have largely transformed the methods of war on the sea and upset some of the rules that had been formulated to govern the conduct of naval warfare under different conditions. Thus the old form of blockade, with its cordon of ships stationed in the immediate offing of the blockaded port, has been rendered impossible, and this was admitted by the American secretary of state in a note of March 5, 1915, to the American ambassador at London. The "long range "blockade in which the blockading cruisers are permitted to remain far enough out to be beyond the reach of mines planted by the blockaded belligerent will therefore have to be recognized. The employment by a blockaded power of submarines for defence still further increases the difficulty of the enemy's maintaining an "effective" blockade by means of surface plying craft. The old rule as to "effectiveness" will therefore have to be modified if both mines and submarines are to be used by the blockaded power for this purpose. The powers will have to determine also whether a blockade maintained by submarines shall be recognized as a lawful blockade, when it is notoriously ineffective. A more important question still is

de Droit Int. Pub. (Jan.-Feb. 1919), observes that the existing body of international law, although by no means destroyed, as well as the old organization of international relations, have proved to be inadequate to prevent war or to curb its violence. It is now passing through a period analogous to a pathological crisis in the case of a sick man and its foundations and content must be reformed. The content of the reformed law of nations should be enlarged so as to embrace within its scope the larger domain of international commerce, communication, finance, instruments of exchange, public health and the like. Among the bases of the new law should be justice, the maintenance of a juridical order among States, respect for the principle of nationality, abolition of the right of conquest, no cession of territory without the consent of the inhabitants thereof, liberty of commerce, freedom of the seas, abolition of secret treaties, etc.

1 This is the thesis of M. Alessandri in his treatise Contribution à l'Étude des Blocus Nouveaux (Paris, 1919). This writer contends that in consequence of the use of mines and submarines "fictitious" blockades will now have to be looked upon with less disfavor.

Alessandri, in the book referred to in the preceding note, maintains that a lawful blockade may be maintained by submarines provided the old rule as to "effectiveness" is modified though he admits that if they ply beneath the surface it will be difficult to verify the fact of effectiveness. In short, a belligerent might

whether belligerents shall be allowed to apply the doctrine of continuous voyage or ultimate destination to blockade, so that a belligerent may intercept the transportation of non-contraband goods to his enemy, through neutral ports. The Declaration of London expressly forbade the application of the rule to blockade, but the Entente powers declined to abide by it. Much may be said on both sides of the question; an endeavor should be made to find some rule by which the just rights of both belligerents and neutrals may be reconciled, and this will involve the determination of the large question as to whether the rights of belligerents shall be recognized as paramount to those of neutrals, the affirmative of which was asserted by more than one high authority during the recent war. Another question which should receive the careful consideration of a future conference is whether commercial blockades shall be abolished and belligerents left merely the resource of military blockade. There has been some demand in the past for this change, and the conduct of the belligerents during the late war served to accentuate it.

As was pointed out in a preceding chapter of this work, the old rules in respect to contraband, especially those regarding the test of its liability to capture, have been shown to be unsatisfactory, illogical, and to some extent out of harmony with present-day conditions. The distinction which the Declaration of London makes between consignments to fortified places, military bases, and government contractors, on the one side, and those to commercial ports and private merchants, on the other, is, for all practical purposes, illogical and arbitrary.

proclaim a blockade, declare it to be effective, and yet it might be impossible for neutrals to ascertain whether it was so or not. He thinks the right of belligerents to employ submarines for purposes of blockade will have to be recognized, although they should be required to conform to the same rules that apply to cruisers that are employed in maintaining a blockade. But since they are hardly fitted for capturing and taking in vessels charged with violating the blockade, what resource will they have except to destroy them? Fauchille, on the contrary, maintains that a legal blockade cannot be maintained by submarines. There is no means, he points out, of determining whether such a blockade is effective, if the blockading submarines choose to remain below the surface. Neutrals, therefore, cannot know whether the blockade is effective or not. When a neutral vessel approaches the blockade zone it is entitled to notice, yet if the blockading submarines are beneath the surface, how are they to be notified? See his article, La Guerre Sous-Marine Allemande, 25 Rev. Gén. 79.