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signed it, some had no authorization to act in the matter, but as their action was never disclaimed it must be held to be binding. It is held in Great Britain that so far as the Declaration itself is concerned it has never been properly authorized.
The obvious intent of the first clause of the Declaration of Paris, “Privateering is and remains abolished," was that from the date of its adoption war should be confined to the regularly commissioned vessels built for hostile purposes. Debates and discussions of the rule show that it was thus understood by many officials in its early days. Doubtless the opposition to the rule would have been much less marked in the United States if it had been understood to mean merely that from its adoption the use of private vessels for belligerent purposes shall be allowed only when they are under responsible control of one of the belligerents.
T. G. Bowles, writing in 1878 after there had been much discussion on the subject, shows that the effect of the first clause of the Declaration of Paris abolishing privateering is open to differences of interpretation. Of the general provisions of the Declaration he says:
The effect of them upon Great Britain is without doubt and beyond question greater than upon any other power, because Great Britain, being the principal maritime power in the world, must feel more than, any other the effects of any change in the laws of maritime warfare. And the fact that Great Britain has shown herself before the change was made able to resist the whole of Europe in arms, and to come victorious out of the struggle by the very aid of the very principles now declared to be abrogated and reversed, must lead us to conclude in limine that the change made is one fraught with especial disadvantage to her. Let us, however, examine the changes themselves and their effects.
I. “Privateering is and remains abolished,” that is to say, is abolished for Great Britain whenever she is at war with any other States than the United States or Spain; but not when she is at war with either of those two. The effect of this is to deprive Great Britain of the services of volunteers at sea, and to preclude her from employing in warlike operations either the vessels or the men of her vast mercantile marine; for a privateer is but a private vessel commissioned by the State. She loses thus not only an offensive but also a defensive weapon; for privateers do not only capture enemy's vessels, but also recapture those of their own nation; and they are to the State navy a CRITICISM OF CLAUSE ON PRIVATEERING.
most valuable auxiliary, without which an amount of power proportioned to the size of the mercantile marine of the State remains unemployed in time of war. She loses the power of withdrawing a considerable number of merchant vessels from exposure to the enemy as unarmed merchantmen by turning them into offensive weapons as armed cruisers, and thus at once diminishing the number of vessels liable to be captured and increasing the number of those able to capture. She loses one of the best schools for the formation of daring and adventurous sailors, and with it those traditions of prize money won in conflict, which have always been found the most urgent incentive to daring and adventurous men. (Maritime Warfare, p. 83.)
It may be safely said that prior to the time of the Declaration the first clause, viz, “Privateering is and remains abolished,” would have been regarded as a proposition very
liable to stir up unnecessary “deplorable disputes.” Privateering had been an accepted means of warfare which was supposed to give to a state an opportunity to enlarge its navy. In regard to privateering, Secretary Marcy, in a letter of July 28, 1856, to Count Sartiges, said that for those powers acceding to the Declaration of Paris it would be necessary to “surrender a principle of maritime law which has never been contested—the right to employ privateers in time of war." The first clause of the Declaration can not be properly regarded as one whose introduction removed disputes.
It has been the object of much criticism. In the first place, the Declaration is a convention binding signatory powers only. Many of the leading men in the states which became parties to the Declaration were opposed to this provision. Some
Some maintained that it was not sufficiently definite, but would give rise to action in effect like privateering under another name, or so masked as to avoid condemnation under the letter of the law. Such critics also maintained that what was needed was an agreement as to the use of private or quasi-private vessels in time of war, with such regulations as would avoid the evils of privateering. The truth of this position as to the need of definite regulations for the use of such vessels in time of war has become more and more evident since 1856, and the status of voluntary or auxiliary fleets is at present a matter of uncertainty, involving grave consequences. Just what was really abolished and remained abolished under the first clause of the Declaration has become an increasingly important question.
The United States were willing to accede to the Declaration when it was thought that it would work to the advantage of the North against the South, at the opening of the civil war.
The French Academy had discussed the question of abolition of privateering in 1860, and the practice of privateering was ably defended. It was not denied that privateering should be regulated, for this was generally admitted. It was not quite clear what the word “privateering” included. The discussion as to the definition of the word was renewed through the action of the Prussian Government in 1870.
It is necessary that the provision in regard to privateering be merged in the question of the regulation of the status of private or quasi-private ships which in time of war are introduced into the military forces of the belligerent.
Mr. F. R. Stark, in his careful study on the "Abolition of privateering,” says:
The Declaration of Paris is truly, as Mr. Marcy said, a halfway measure. It is inchoate, unfinished, and, it can not be denied, somewbat faulty, as the first steps of all great reforms have been. But to call it an epoch-making event or a red-letter day in the calendar of the law of nations would be superfluous. Perhaps that which is to come- -the abolition of all capture of private property at sea, including the abolition of commercial blockades—is easier than that which has already been accomplished. In international law, as in other things, it is the first step that costs (p. 159).
Attitude of United States on abolition of privateering.-On the clause in regard to privateering, Mr. Marcy, in his letter to Count Sartiges, makes various comments, among which is the following:
If the principle of capturing private property on the ocean and condemning it as prize of war be given up, that property would, and of right ought to be, as secure from molestation by public armed vessels as by privateers; but if that principle be adhered to, it would be
ATTITUDE OF UNITED STATES ON PRIVATEERING.
worse than useless to attempt to confine the exercise of the right of capture to any particular description of the public force of the belligerents. There is no sound principle by which such a distinction can be sustained, no capacity which could trace a definite line of separation proposed to be made, and no proper tribunal to which a disputed question on that subject could be referred for adjustment. The pretense that the distinction may be supported upon the ground that ships not belonging permanently to a regular navy are more likely to disregard the rights of neutrals than those which do belong to such a navy is not well sustained by modern experience. If it be urged that a participation in the prizes is calculated to stimulate cupidity, that, as a peculiar objection, is removed by the fact that the same passion is addressed by the distribution of prize money among the officers and crews of ships of a regular navy. Every nation which authorizes privateers is as responsible for their conduct as it is for that of its navy, and will, as a matter of prudence, take proper precaution and security against abuses.
But if such a distinction were to be attempted, it would be very difficult, if not impracticable, to define the particular class of the public maritime force which should be regarded as privateers. “Deplorable disputes," more in number and more difficult of adjustment, would arise from an attempt to discriminate between privateers and public armed ships.
If such a discrimination were attempted, every nation would have an undoubted right to declare what vessels should constitute its navy and what should be requisite to give them the character of public armed ships. These are matters which could not be safely or prudently left to the determination or supervision of any foreign power, yet the decision of such controversies would naturally fall into the hands of predominant naval powers, which would have the ability to enforce their judgments. It can not be offensive to urge weaker powers to avoid as far as possible such an arbitrament and to maintain with firmness every existing barrier against encroachments from such a quarter.
No nation which has a due sense of self-respect will allow any other, belligerent or neutral, to determine the character of the force which it may deem proper to use in prosecuting hostilities; nor will it act wisely if it voluntarily surrenders the right to resort to any means sanctioned by international law which, under any circumstances, may be advantageously used for defense or aggression. (Senate Ex. Doc. No. 104, 34th Cong., 1st. sess., p. 9.)
2. Free ships, free goods.—The second clause of the Declaration of Paris is:
The neutral flag covers enemy's goods with the exception of contraband of war.
This phraseology has given rise to certain misconceptions particularly because some have inferred that contraband of war might be thus affirmed of enemy goods. The probable intent of the clause was to the effect that
The neutral flag covers enemy's goods, with the exception of such as would, if neutral, be contraband of war.
If, however, all innocent private property at sea is to be exempt from capture, whether neutral or enemy, the phraseology is correct in the main, because in such event the doctrine of contraband must be extended to enemy as well as to neutral property.
The phraseology also introduces the question of destination, which is essential in contraband. Neutral goods bound for a neutral port, even though consisting of arms and ammunition, are not contraband. Would enemy goods of similar nature bound for a neutral port be exempt from capture under a strict interpretation of the second clause of the declaration?
It may be justly held that if the belligerent is to be bound by the second clause of the Declaration, viz, “The neutral flag covers enemy's goods, with the exception of contraband of war," the neutral shall be held to make plain to the belligerent that the flag is truly neutral.
A somewhat full presentation of the effect of this Declaration upon establishing a definition of contraband of war and of the significance of Protocol No. 24 is given by Chief Justice Berkley in the case of the Osaka Shosen Kaisha versus the owners of the steamship Prometheus in 1904:
In my opinion the expression “contraband of war” has a wellknown and accepted meaning among the civilized commercial powers of the world. If that were not so we should not, as we do, find that expression used without definition in solemn treaties between the powers. The expression “contraband of war” is used without any definition of its meaning in the Treaty of Paris of the 16th April, 1856. The inference from that fact is, to my mind, irresistible that there was no definition needed, because the expression had the same definite meaning in the minds of all the plenipotentiaries of the powers parties to that treaty.
The Treaty of Paris, to which Russia is a party and to which she still adheres, commences with the following preamble: “Considering