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of the island, it must be restored notwithstanding this misconduct" (falsification of the bill of lading and concealment). But the doctrine of continuous voyage applied by the Supreme Court of the United States under circumstances wholly different from those under which it has been applied by Great Britain during the present war, and, therefore, with much more justification, was almost universally condemned outside the United States as an unwarranted violation of neutral rights. 41
It is probably safe to say that the majority of the controversies between belligerents and neutrals to which every war gives rise are connected with trade in contraband. It has therefore been proposed by some writers that neutral governments should forbid their nationals to engage in such traffic, and some even maintain that they are under an obligation to do so.42 In practice, the governments of certain states have occasionally undertaken to prevent the sale to belligerents of contraband goods. Thus, during the Franco-German War of 1870, the Governments of Austria, Denmark, Spain, the Netherlands, Belgium, Switzerland, and Japan prohibited the exportation of arms and munitions of war to either belligerent, those of Belgium, Switzerland, and Japan considering that it was their duty to do so.43 During the same war the German Government declared through its representatives at London and Washington that neutral governments were not permitted
41 See the strong protest prepared and signed by a committee of English and Continental jurists, published in the Revue Générale de Droit International Public, Vol. 14, pp. 329-331. See also Moore's Digest, Vol. 7, pp. 727-739 for this and numerous other protests and criticisms.
42 Among them may be mentioned Kleen (Contrabande de Guerre, p. 52), Hautefeuille (Nations Neutres en Temps de Guerre), and Field (Outlines, Sec. 964). Woolsey (International Law, p. 320) thinks all innocent trade with the enemy should be free, but that neutrals should pass stringent and effectual laws against contraband trade. Phillimore (International Law, Vol. III, Secs. 227–241) seems to hold the same opinion.
The question was discussed by the Institute of International Law at its sessions of 1892, 1894, and 1896 (see the Revue Générale de Droit International Public, Vol. III, pp. 648-658 for a review of the discussions). The proposal to prohibit trade in contraband was opposed by Lardy, Stoerk and General Den Beer Poortugael, but de fended by Brusa. At the session of 1896, the Institute agreed to a proposal to abolish conditional contraband, reserving to belligerents a right of sequestration or preëmption at their pleasure and to neutrals an equitable indemnity. (Annuaire, T. XV, pp. 205 et seq.
43 Kleen, op. cit., p. 52. See also Fauchille, p. 322, and Rivier, Vol. II, pp. 412-413. to allow their nationals to engage in such trade, but, on the contrary, it was their duty to prohibit it, because “the precepts of international law are binding upon states as well as upon individuals.” 44 During the Spanish-American War, the Governments of Brazil and Denmark likewise prohibited the exportation of war materials to either belligerent, and the government of Great Britain by a proclamation of April 23, 1898, warned British subjects against committing any acts “contrary to their duty as subjects of a neutral Power" or contravening the presumptions of international law. Among the acts enumerated in the proclamation were the transportation of arms, munitions of war or military goods or materials.45 These cases of prohibition are, however, exceptional. The general rule is that neutral governments are not bound to forbid their nationals from engaging in such trade, although they have an unquestioned right to do so, provided it is done at the outbreak of the war and not after one of the belligerents may have gained control of the seas, in which case an embargo might be construed as an unfriendly act toward the belligerent which, by its naval supremacy, has cut off the supply of the other. Thus the proposed American embargo now advocated by certain German-Americans would no doubt be so construed by Great Britain, and not without reason.
A practical objection to the proposal to create an obligation on the part of neutrals to prohibit the exportation of contraband goods is to be found in the heaviness of the responsibility which it would impose upon neutral governments. This was pointed out in the discussion of the proposal by the Institute of International Law in 1892, 1894 and 1896. As Spaight remarks, if a neutral Power were held responsible for all the commercial transactions of its subjects with belligerents, most of the nations of the world would have to rewrite their constitutions whenever a war began and establish a system of governmental espionage and interference which would be intolerable and impossible. 46
Another proposal which goes to the opposite extreme is to remove all restrictions on trade in contraband and to exempt contraband goods from liability to capture. Such a proposal was made by the British delegation at the Second Hague Conference. In its memorandum it called attention to the lack of precise rules governing the question of what is and what is not contraband and the multiplicity of controversies to which trade in contraband goods gives rise. It also pointed out that the right of capture in such cases is out of harmony with modern conditions. In the days of sail boats, it was said, contraband consisted almost exclusively of articles used only for war purposes, and the 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. To-day 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. 47
44 Bluntschli, Droit International Cod., Sec. 766, and Kleen, p. 51.
45 Proclamations and Decrees During the War With Spain, p. 35. See also an article by Professor J. B. Moore entitled La Contrabande de Guerre, in the Revue de Droit International et de Lég. Comp., 1912, pp. 226–227.
46 War Rights on Land, p. 475.
It is interesting to note that of thirty-five states voting on the British proposal, twenty-six voted for it.48 Only five; Germany, the United States, France, Montenegro, and Russia, voted against it. 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 new and less objectionable solution of the problem. 49
JAMES W. GARNER.
47 See the memorandum in Deuxième Conférence de la Paix, Actes et Documents, Tome I, pp. 256-258.
48 Ibid., Tome III, p. 881.
49 Professor J. B. Moore, in a recent address before the National Foreign Trade Convention at St. Louis, 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 says, 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 in the adoption of a plan embracing (1) 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 will then be heard of no more.
THE DIPLOMATIC CORRESPONDENCE LEADING UP TO
THE WAR Part I. FROM THE AUSTRIAN NOTE TO THE DECLARATION OF WAR BY
AUSTRIA ON SERVIA, JULY 23–28, 1914 The recent appearance of the Austrian Red Book and Servian Blue Book“ completes the history of the breaking out of the war, as told in the official diplomatic correspondence of the belligerent nations, so far as they have seen fit to make this correspondence public.
It is the purpose of this article to attempt to summarize the story told by this correspondence, and at the same time to indicate the conclusions which in the opinion of the writer may properly be drawn therefrom, with respect to the immediate causes of the war. The dispatches are so numerous, and the action they record was crowded into such a short space of time that it is difficult to keep this summary within reasonable limits. And this difficulty is increased by the fact that those who sympathize with the viewpoint of the belligerents on the one side or the other, are apt to differ radically as to which parts of the correspondence are important, therefore making it necessary for anyone desirous of summarizing the documents in a way to afford a basis for a fair consideration of the arguments advanced on either side, to go into the correspondence much more fully than would be necessary if there were a greater agreement as to the relative importance of the issues which it presents. It will be the effort of the writer, while confining himselfwith such exceptions as are specifically noted-strictly to the diplomatic correspondence, to set out impartially the portions of the correspondence especially emphasized, on the one side and on the other, with full references to the original documents. If he is successful in this, his readers can be relied on to correct any errors in his comments and conclusions.
THE EVIDENTIAL VALUE OF THE DIPLOMATIC CORRESPONDENCE In the discussions of the causes of the war, which have heretofore appeared, there has not only been manifest a great difference of opinion
a The latter has become available since this article was put in type. It does not materially affect the situation, but several references thereto have been added.