EFFECT ON BLOCKADE AND CONTRABAND 455

As has also been pointed out, the distinction between absolute and conditional contraband has, under modern conditions, ceased to have any real basis in fact, and the attempt of the belligerents during the early part of the recent war to respect the distinction broke down in practice. Whether all restrictions on the carriage of contraband, or at least upon everything except arms and munitions should be removed, as was proposed by the British delegation at the second Hague Conference, and belligerents left only the weapon of blockade, is a question on both sides of which much may be said. In any case the question is one which should be carefully reëxamined at a future conference. One thing is clear, if the right to seize contraband is to be retained the right of search should be defined with more precision, and the question of the right of a captor to take neutral vessels into his home ports and to detain them for the purpose of search should be removed from the domain of controversy. Under modern conditions it would seem that this right will have to be recognized. Neutrals may and should, however, be spared the ruinous delays which must often result from this practice, by some form of certification under which vessels carrying innocent cargoes shall be exempt from search or detention. But it would seem that the retention of the doctrine of continuous voyage under modern conditions is a necessity. The interpretation of the existing rules in regard to the status of mails and of so-called "noxious" persons on neutral merchant vessels was the cause of much irritating controversy between belligerents and neutrals; the uncertainties should be cleared up and the right of belligerents to interfere with their transportation should be more specifically defined.3

574. Other Unsettled Questions of Maritime Law. The law in respect to the places where and the conditions under which merchant vessels may be converted into naval auxiliaries was left unsettled by the Declaration of London and there is

1 The proposed code of the American Institute of International Law, adopted at its session at Havana in January, 1917, abolishes the right of search and provides that merchant vessels shall carry papers certifying to the character of their cargoes, which papers shall be viséed by the local authorities of the ports from which they sail.

2 Cf. Perrinjaquet, La Guerre Européenne, etc., 22 Rev. Gen. 129.

The proposed American Institute code for neutrals declares that official or private postal correspondence of neutrals or belligerents found in the open sea on board a neutral or enemy vessel shall be inviolable.

a divergence of view and of practice among States in regard to the matter. During the late war Germany claimed and exercised the right to so convert merchant vessels on the high seas; Great Britain vigorously contested the right and demanded that neutrals should not recognize such vessels as lawful belligerent craft. This question like the others mentioned above should be definitely settled by a future conference.

As was pointed out in a previous chapter, the rules of the Declaration of London in regard to the transfers of flag are imperfect and unsatisfactory. The failure of the powers to ratify the Declaration has left the law in a chaotic state, each State being free to follow whatever rule it chooses. The question raised by the transfer to American registry of the Wagner ships and the refusal of the British and French prize courts to recognize the legality of the transfers should be settled by the adoption of a rule definitely determining whether the nationality of the owner or the flag shall be conclusive as to the character of the ship. The question also whether neutrals circumstanced as were the United States, Chili and other countries during the late war, which found themselves without ships for carrying on their commerce should not be allowed to purchase and transfer to their own merchant marines, belligerent ships lying idle in their ports, is one which deserves the favorable consideration of a future conference. Their right to requisition such ships upon payment of compensation ought to be clearly affirmed so as to remove all doubt and to avoid irritating controversies such as occurred during the late war between several neutral and belligerent powers. The whole matter of prize destruction should be regulated with more detail. The circumstances under which neutral prizes may be destroyed, if it is to be allowed at all, should be more precisely defined. Under no circumstances should belligerent ships which do not possess accommodations for taking care of passengers and crews be permitted to sink merchant vessels, either of enemy or neutral nationality, and the setting of crews and passengers adrift in small life boats should not be recognized as a compliance with the rule in respect to the obligation of the captor to provide for their safety. Since submarines in their present state of development do not possess such facilities, they should be prohibited absolutely from attacking merchant vessels, except in case of attempted escape or

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resistance.1 No distinction should be recognized between the obligations of submarine commanders and the commanders of cruisers to provide for the safety of crews and passengers and this should be definitely affirmed by the new international law. The right of merchant vessels to carry armament for the purpose of defence against unlawful attacks of submarines or other belligerent craft should be definitely affirmed and made a rule of the conventional law of nations. The proposal that they should surrender this right in return for an abandonment on the part of submarines of their claim to attack such vessels should be rejected.2 The status of vessels so armed should be definitely fixed and it should include the right to enter and use neutral ports on equality with unarmed merchant vessels. The status of commercial submarines should also be defined. The British and French contention that no distinction should be made between commercial and war submarines does not appear to be warranted; but the question should be settled by a positive rule of the law of nations.

§ 575. The Freedom of the Seas. The unprecedented assertions of belligerent authority over the high seas and the grave infringement upon the rights of neutral commerce during the late war provoked a widespread discussion concerning the nature and limits of what is popularly known as the freedom of the seas. Throughout all the years of the war the Germans professed to be fighting, among other things, for this freedom which it was asserted Great Britain had destroyed. The

1 Compare the recommendations of a committee of British jurists appointed by the Grotius Society. Transactions of the Grotius Society, vol. IV, p. xli.

? The committee of English jurists referred to in the preceding note recommends that the destruction of enemy merchantmen before adjudication by a prize court should be entirely prohibited, in return for which belligerents and their subjects should be forbidden to arm merchantmen for purposes of offence or defence against submarines or other war vessels. From this recommendation, however, Sir John Macdonell vigorously dissented, on the ground that it would take away an immemorial right of self-defence; that it would be a concession to "militarism"; that it was contrary to the unanimous conclusions of the Institute of International Law; that there was no likelihood that nations, especially those with small navies, would surrender the right; that the contention that it is impossible to distinguish between acts of offence and defence is not well founded, etc. Ibid., pp. xlii, xlv.

The German government, in one of its notes to the American government, enumerated among the objects for which Germany was fighting: “definite rules and safeguards, limitation of armaments on land and sea, as well as the freedom and community of high seas." Count Czernin, Austrian foreign minister, in a note to the American government, stated that "the high seas which rightfully

British government, on the other hand, asserted that the only real encroachments upon the principle of the freedom of the seas had been made by the Germans through the planting of mines in the open seas, by treating vast areas of the ocean as war zones within which commerce of every description and nationality was destroyed and by their ruthless methods of submarine warfare against merchant vessels of both belligerent and neutral nationality. Their professed solicitude for the maintenance of the freedom of the seas was therefore more hypocritical than sincere. Juristic discussion of the question was precipitated by a proposal of the President of the United States in January, 1918. One of the fourteen conditions of peace which he laid down in his address of January 8 to Congress was as follows:

"Absolute freedom of navigation upon the seas, outside territorial waters, alike in peace and in war, except as the seas may be closed in whole or in part by international action for the enforcement of international covenants." Since no contention had been made that the seas were not free in time of peace the President's proposal could in fact therefore have had reference only to their freedom in time of war.

Under the established rules of international law the restrictions upon the freedom of the seas in time of war consist of the right of belligerents to cut off by means of a lawful blockade all trade and intercourse by seas with the enemy, to intercept the carriage of contraband of war to the enemy, and to prevent

belong to all the nations of the earth must be freed from domination or paramountcy and opened equally to all." In a note of July 21, 1915, to the British government the American secretary of state observed that "Germany and ourselves are both contending for the freedom of the seas." Professor A. S. Hershey, in an article entitled "The German Conception of the Freedom of the Seas" (13 Amer. Jour, of Int. Law, pp. 206 ff.), reviews the opinions that have been put forward by German writers and jurists. He points out that there is no agreement among them concerning the essentials of a program. Some like Schücking favor internationalization of the high seas; some like Meurer advocate the abolition of commercial blockade, contraband, and the capture of private property at sea; while others like Triepel and Stier-Somlo consider the proposal to do away with contraband and blockade as utopian.

i A year earlier, while the United States was still a neutral power, the President had in an address to the Senate declared that "the paths of the sea must alike in law and in fact be free. The freedom of the seas is the sine qua non of peace, equality, and coöperation." The Pope in a peace message of August 1, 1917, also made an appeal for the recognition of the principle of the freedom of the seas.

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459 certain unneutral acts such as the carriage of dispatches, noxious persons, etc. The President's proposal for "absolute " freedom of the seas literally interpreted would therefore require belligerents to surrender these long-recognized methods of putting stress upon their enemies.1 Naturally the proposal did not meet with favor at the hands of the British and French governments and in their reply they called attention to the fact that the language employed by the President was open to various interpretations, some of which they could not accept. They stated, therefore, that they must reserve to themselves complete freedom on this subject when they entered the peace conference. The President's proposal does not appear to have been pressed at the peace conference and had it been, there is little likelihood that it would have found favor. There are of course and have long been writers who have advocated the abolition of commercial as contra-distinguished from purely military blockades, but they are greatly in the minority. In any case if it were desirable to prohibit the former, belligerents could not be justly deprived of the latter weapon unless the right of siege in land warfare were also taken away. The abolition of blockade and the taking away from belligerents of the right to seize contraband going to the enemy would place naval powers at a disadvantage in comparison with the great military land powers. It would, especially if it were accompanied by the abolition of the right of capture of private property at sea, virtually put an

1 Some of the more advanced advocates, especially Germans, would extend the principle of the freedom of the seas to include even the abolition of the right to capture enemy private property on enemy ships. See Hershey's article cited above.

See an article by A. G. Hays in 12 Amer. Jour. of Int. Law, 283, where it is argued that freedom of the seas means abolition of the doctrine of contraband, of commercial blockades and immunity of private property from capture at sea. The American Institute of International Law at its session at Havana in January, 1917, adopted a code of rules of maritime neutrality which went to the length of abolishing commercial blockade, of proclaiming the immunity of private property (except contraband) at sea, of forbidding the sinking of merchant ships of both belligerent and neutral nationality under any pretext whatever, the search of properly certified neutral merchant vessels, and the seizure on the high seas of mails on neutral or enemy steamers under any pretext. Text in New York Times, June 23, 1917.

Meurer, a German jurist, declares that the right of commercial blockade is "rotten; it is a defiance of neutrality; it is the legal form for brutal acts against neutrals and their trade." Das Program der Meers-freiheit, p. 60. But Triepel and Stier-Somlo think there is no likelihood that the nations will agree to abolish it. (Quoted by Hershey, loc. cit., p. 225.)