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British subjects were the principal sufferers from this action, the British Government, says Sir Edward Grey, took a broad view and looked below the surface at the underlying principles, and abstained from all protest against the decisions by which the ships and their cargoes were condemned. An analogy is drawn in the following language between the situation of the United States in the Civil War and the situation of the Allies in the present war:
The difficulties which imposed upon the United States the necessity of reshaping some of the old rules are somewhat akin to those with which the Allies are now faced in dealing with the trade of their enemy. Adjacent to Germany are various neutral countries which afford her convenient opportunities for carrying on her trade with foreign countries. Her own territories are covered by a network of railways and waterways, which enable her commerce to pass as conveniently through ports in such neutral countries as through her own. A blockade limited to enemy ports would leave open routes by which every kind of German commerce could pass almost as easily as through the ports in her own territory. Rotterdam is indeed the nearest outlet for some of the industrial districts of Germany.
In another passage Sir Edward Grey, speaking of the adaptation of . existing principles to altered circumstances, referred to the need of avoiding all unnecessary injury to neutrals and stated that Great Britain has tempered the severity with which her measures might press upon neutrals “by not applying the rule which was invariable in the old form of blockade that ships and goods on their way to or from the blockaded area are liable to condemnation.”
In answer to the American protest against the blockade of neutral ports, Great Britain denies that her measures can be properly so described. “If we are successful,” she says, “in the efforts we are making to distinguish between the commerce of neutral and enemy countries, there will be no substantial interference with the trade of neutral ports except in so far as they constitute ports of access to and exit from the enemy territory."
As to the provision of the order in council concerning the detention of enemy goods in neutral vessels, against which the United States also protested, Great Britain explains that in actual practice she is not detaining goods on the sole ground that they are the property of the enemy, but detains only in such cases where proof of enemy property affords strong evidence that it is of enemy origin or destination, the purpose being to intercept commerce on its way from or to an enemy country.
The reply of the United States to this note has not been made at the
time the Journal goes to press, and comment upon the contentions of the British Government will therefore be withheld for a future number.
THE SALE OF ARMS AND AMMUNITION BY AMERICAN MERCHANTS TO
In view of the exchange of notes on this question between Germany and the United States and Austria-Hungary and the United States it is advisable to examine it with some care and in some detail.
At the very outset we are met by a distinction between the acts of governments and of individuals, a distinction of the greatest importance, which must be borne in mind if confusion is to be avoided. This distinction was carefully noted in the Hague convention respecting the rights and duties of neutral Powers and persons in case of war on land of October 18, 1907, which convention was signed by Germany on that date and ratifications thereof deposited by Germany at The Hague November 27, 1909. The United States likewise had signed and deposited ratifications on the same date as Germany. This convention may or may not be in force. It is quoted here as indicating the views of Germany in 1907 when it signed it, and in 1909 when it ratified it, as to the duties and rights of belligerent and neutral Powers. Article 2 of this important convention reads:
Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power.
Article 4 reads:
Corps of combatants can not be formed nor recruiting agencies opened on the territory of a neutral Power to assist the belligerents.
Article 6 reads:
The responsibility of a neutral Power is not engaged by the fact of persons cross-, ing the frontier separately to offer their services to one of the belligerents.
Article 7 reads:
A neutral Power is not called upon to prevent the export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or a fleet.
This convention was signed by thirty-four countries. It has been ratified by twenty-five and has been adhered to by three non-signatory
Powers (indicating a respectable consensus gentium, so frequently referred to in the books), and no nation reserved, either on signing, ratifying, or adhering to, the articles above mentioned.
The articles, however, contain nothing new. They are declaratory, not amendatory, of the law of nations. Their provisions would exist and be binding upon the nations whether or not they had been codified at the Second Hague Conference, and the provisions of these articles are binding, whether or not the Convention itself, by reason of Article 20, be ineffective. Article 20 provides that this convention does not apply “except between contracting Powers, and then only if all the belligerents are parties to the Convention.” The convention has been quoted merely to show that the provisions above quoted were thought to be acceptable in practice by the nations generally in 1907, when they were all at peace and could express their matured views without the excitement and passion which accompanies war.
But that is not all. Article 7 above quoted, dealing with the shipment of arms, reappears as Article 7 of the convention concerning the rights and duties of neutral Powers in naval war, signed at The Hague October 18, 1907. This convention was ratified, and ratifications deposited by Germany at The Hague November 27, 1909, and was adhered to by the United States on December 3, 1909. This convention contains in Article 28 thereof a provision that it only applies to contracting Powers, "and then only if all the belligerents are parties to the convention.” For reasons previously stated, it is immaterial whether this convention binds the belligerents or not. It is especially immaterial to the present discussion, because the United States is not a belligerent, and the mere fact that Germany is a belligerent neither enlarges nor lessens the rights and duties of the United States under international law, unless there be special treaties between the two countries concluded in time of peace, varying their obligations under international law. The treaty of May 1, 1828 between Prussia and the United States, and which Germany regards as binding the German Empire, as will appear from the Frye case commented on in our last issue, deals with the subject of contraband when one or the other nation is at war, and will be discussed after some observations of a general nature.
A nation cannot preserve its neutrality and yet take part in the war; nor can it perform its neutral duties if, without taking a direct part in the war, it nevertheless aids by its acts one or the other party. It must be neutral in the sense that it aids neither and allows neither to make a hostile use of its territory. An act would be none the less unneutral if the so-called neutral government did it to both of the belligerents or allowed both of the belligerents to commit it against the neutral. Thus, a neutral nation could not properly sell arms and ammunition to a belligerent. It would simply commit a two-fold violation of neutrality if it sold arms and ammunition to each of two belligerents. It could not loan money to one or the other or both of the belligerents; it could not allow its ports to be the bases of naval operations to one or both. Neutrality does not mean indifference. It means that the nation claiming to be neutral shall not aid one or the other and shall not allow either or both of two belligerents to use it or its territory for a hostile purpose. It must abstain from the war. This is the meaning of Articles 2 and 4, previously quoted, of the convention respecting the rights and duties of neutral Powers and persons in case of war on land.
Article 5 thereof, not previously quoted, stated expressly that “a neutral Power must not allow any of the acts referred to in Articles 2 to 4 to occur on its territory." These articles, however, refer specifically to acts of belligerents as such, a fact pointed out by the reporter in his official interpretation of the convention, who said, in speaking of Article 2:
The prohibition created by Article 2 is addressed to the belligerents; it is not in contradiction with Article 7, which only concerns commercial operations undertaken by private individuals.
Let us now consider Article 7, which had the good fortune of being approved on two occasions by the Second Hague Conference, and which is incorporated in two formal conventions of that illustrious assembly.
It is the custom in international conferences to accompany the texts of conventions with a report which is a statement of the origin and meaning of the text, and the convention adopted by the conference is understood and interpreted in the sense in which the convention is explained in the report accompanying it. The report is carefully read by the delegates and, upon motion, changes are sometimes made in its text in open session, in order to ensure entire accuracy. This fact alone would justify the quotation of the reporter commenting on Article 7. There is, however, another reason which suggests that this be done. Article 7 of each of the two conventions was adopted in times of profound peace. The reporter of the first convention in which this article is found (No. V), Colonel Borel, is an enlightened publicist. The reporter of the second convention (No. XIII) was Professor Renault, without question the most eminent authority on international law then or now living. There is still another reason. The statement is non-controversial, in that it does not seek to justify the action of any one Power which has been called into question, but it is a statement of what the delegates believed was correct practice.
First as to Colonel Borel:
The rule enunciated in this article is justified in itself, independently of the reasons of a practical kind in its favor. Theoretically, at least, neutral states and their populations are not to suffer from the consequences of a war in which they do not participate. Therefore the duties imposed on them by the war and the restrictions placed on their liberty of action should be reduced to the minimum of what is strictly necessary. There is no reason for prohibiting or interfering with the commerce of a neutral state even in regard to the articles mentioned in the text of the article above. Any obligation in this matter laid upon the neutral state would cause the greatest difficulties in actual practice, and would create inadmissible interference with commerce.
Article 3 of the French project, corresponding to the Article 7 under discussion, mentions only the export, by the subjects of the neutral state, of arms, munitions of war, &c. It was on the motion of the Belgian delegation, supported by the French delegation, that the Commission adopted the more general text, embracing the transport as well as the export and making no mention of the nationality of the merchants interested, which is, indeed, quite beside the question,
After commenting upon Article 6 of the convention concerning the rights and duties of neutral Powers in naval war, which forbids “the supply, in any manner, directly or indirectly, by a neutral Power to a belligerent Power, of war-ships, ammunition, or war material of any kind whatever," Mr. Renault proceeded to remark that:
On the other hand, the practice has become established that a neutral state is not bound to prevent the export of arms or ammunition destined for one or other of the belligerents, whether for an army or for a fleet. There is a like provision in the draft regulations already mentioned. A neutral state may, moreover, if it prefers, forbid the export of the articles in question. It should then simply put into force a prohibition that applies equally to the two belligerents.
The German press, publicists, and apparently the Imperial German and Austro-Hungarian Governments do not question the right of the citizens or subjects of a neutral nation to furnish arms and ammunition, and, in general, supplies, to the enemy. They apparently maintain that the spirit of neutrality is violated because, as a matter of fact, Germany's
· Deuxième Conférence Internationale de la Paix, 1907, Vol. 1, p. 141.