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that maritime law in time of war has long been the subject of deplorable disputes, that uncertainty of the law and of the duties in such a matter gives rise to differences of opinion between neutrals and belligerents which may occasion serious difficulties, and even conflicts, that it is consequently advantageous to establish a uniform doctrine on so important a point; that the plenipotentiaries assemble in Congress at Paris can not better respond to the intention by which their Governments are animated than by seeking to introduce into international relations fixed principles in this respect.” Then immediately follows this declaration: “The above-mentioned plenipotentiaries, being duly authorized, resolved to concert among themselves as to the means of attaining this object, and having come to an agreement have adopted the following solemn declaration
(1) Privateering is and remains abolished
(2) The neutral flag covers enemy's goods, with the exception of contraband of war.
(3) Neutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag.
(4) Blockades in order to be binding must be effective—that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy.
I draw special attention to the fact that the expression “contraband of war” is twice used in this declaration without being in any way defined. This declaration was designed to give effect to the opinion of the plenipotentiaries expressed in the preamble, viz, that it was to the advantage of the civilized world to establish a uniform doctrine on the subject of maritime law in time of war, and with that object in view to introduce certain “fixed principles.” At the same sitting of the plenipotentiaries the following resolution was adopted (Protocol No. 24): “On the proposition of ('ount Walewski, and recognizing that it is for the general interest to maintain the indivisibility of the four principles mentioned in the declaration signed this day, the plenipotentiaries agree that the powers which shall have signed it, or which shall have aceeded to it, can not hereafter enter into any arrangement in regard to the application of the right of neutrals in time of war which does not, at the same time, rest on the four principles which are the object of the said declaration.”
It will be observed that by this Protocol the plenipotentiaries of Russia bind that Power not hereafter to adopt any attitude toward neutrals in time of war which does not rest upon the four principles enunciated in the declaration. This Protocol has an important bearing upon the contention at the Bar that Russia as an independent sovereign State possesses, as a concomitant to the right to make war, the right to declare what shall or shall not be considered contraband of war.
I dwell here upon the fact that the expression “contraband of war” occurs twice in the declaration in the treaty of Paris; that the expressions “privateering” and “blockade” occur each once; and that there is in that declaration no definition of the meaning of any of those expressions. Why was there this omission to define these expressions?
Was it not because they each had in the minds of the plenipotentiaries of the Powers a recognized meaning at the time when the treaty was signed? And because the expression “contraband of war” no more needed definition than the expressions “blockade" or "privateering” did. What, then, was the meaning which it must fairly be assumed the plenipotentiaries attached to the expression “contraband of war,” as used by them in the Treaty of Paris? It seems to me that the plenipotentiaries had in their minds the meaning which at that time attached to the expression “contraband of war” resulting from the decisions of the courts of law of the nations of Europe and America; principally, indeed, the decisions in the English courts on cases arising during the Napoleonic war. What, then, is the result of those decisions? What meaning has been thereby attached to the expression “contraband of war?” The result has been to attach to that expression the following twofold meaning: (1) Absolute contraband of war, which includes everything useful for war only; (2) that which is conditional contraband of war, which includes all which, though useful for both peace and war, becomes contraband if destined for the purposes of war, excluding from the meaning of contraband of war such things as are useful for the purposes of peace only. “Provisions,” consequently, come within the definition of conditional contraband only if and when destined for the enemy's forces; otherwise they are excluded from the definition. That is, in my opinion, the true meaning to be attached to the expression “contraband of war,” and that is the sense which, in my opinion, that expression bears on a true construction of the declaration of the plenipotentiaries who signed the Treaty of Paris of 1856.
The Supreme Court decision in the case of the Peterhoff (5 Wallace Supreme Court Reports, 28) gives an opinion on contraband:
The classification of goods as contraband or not contraband has much perplexed text writers and jurists. A strictly accurate and satisfactory classification is perhaps impracticable, but that which is best supported by American and English decisions may be said to divide all merchandise into three classes. Of these classes, the first consists of articles manufactured and primarily and ordinarily used for military purposes in time of war; the second, of articles which may be and are used for purposes of war or peace, according to circumstances, and the third, of articles exclusively used for peaceful purposes. Lawrence's Wheat., 772, 776, note; the Commercen, 1 Wheat., 382; Dana, Wheat, 629, note; Pars. Mar. Law, 93, 94. Merchandise of the first class, destined to a belligerent country or places occupied by the army or navy of a belligerent, is always contraband; merchandise of the second class is contraband only when actually destined to the
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military or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of the blockade or siege.
2. Free goods always free. -The third clause of the Declaration of Paris is:
Neutral goods with the exception of contraband of war are not liable to capture under enemy's flag.
Such matters as the destruction of belligerent vessels having on board neutral cargo may give rise to complications under the third clause of the Declaration. While by this clause the goods are not liable to capture they may under necessity of war be subject to severe treatment.
Hall says of this matter:
In 1872 the French prize court gave judgment in a case, arising out of the war of 1870-71, in which the neutral owners of property on board two German ships, the Ludwig and the Vorwärts, which had been destroyed instead of being brought into port, claimed restitution in value. It was decided that though “under the terms of the Declaration of Paris neutral goods on board of an enemy's vessel can not be seized, it only follows that the neutral who has embarked his goods on such vessel has a right to restitution of his merchandise, or in case of sale to payment of the sum for which it may have been sold; and that the Declaration does not import that an indemnity can be demanded for injury which may have been caused to him either by a legally good capture of the ship or by acts of war which may have accompanied or followed the capture;" in the particular case “the destruction of the ships with their cargoes having taken place under orders of the commander of the capturing ship, because, from the large number of prisoners on board, no part of the crew could be spared for the navigation of the prize, such destruction was an act of war, the propriety of which the owners of the cargo could not call in question, and which barred all claim on their part to an indemnity.”
It is to be regretted that no limits were set in this decision to the right of destroying neutral property embarked in an enemy's ship. That such property should be exposed to the consequences of necessary acts of war is only in accordance with principle, but to push the rights of a belligerent further is not easily justifiable, and might under some circumstances amount to an indirect repudiation of the Declaration of Paris. In the case, for example, of a state, the ships of which were largely engaged in carrying trade, a general order given by its enemy to destroy instead of bringing in for condemnation would amount to a prohibition addressed to neutrals to employ as carrier vessels, the right to use which was expressly conceded to them by the Declaration in question. It was undoubtedly intended by that Declaration that neutrals should be able to place their goods on board belligerent vessels without as a rule incurring further risk, than that of loss of market and time, and it ought to be incumbent upon a captor who destroys such goods together with his enemy's vessel to prove to the satisfaction of the prize court, and not merely to allege, that he has acted under the pressure of a real military necessity. (International law 5th ed. p. 717.)
The reported acts of some of the vessels of Russia during the Russo-Japanese war also show that there is need of further provisions in the Declaration.
4. Blockades."--Mr. Marcy's opinion in regard to the fourth clause of the Declaration, the clause in regard to effective blockade, is one which has received frequent sanction.' He said:
The fourth principle contained in the “ declaration," namely: “Blockades, in order to be binding, must be effective; that maintained by a force sufficient really to prevent access to the coast of the enemy;" can hardly be regarded as one falling within that class with which it was the object of the congress to interfere; for this rule has not for a long time been regarded as uncertain, or the cause of any “deplorable disputes.” If there have been any disputes in regard to blockades, the uncertainty was about the facts, but not the law. Those nations which have resorted to what are appropriately denominated " * paper blockades," have rarely, if ever, undertaken afterwards to justify their conduct upon principle; but have generally admitted the illegality of the practice, and indemnified the injured parties. What is to be adjudged “a force sufficient really to prevent access to a coast of the enemy," has often been a severely contested question; and certainly the declaration, which merely reiterates a general undisputed maxim of maritime law, does nothing toward relieving the subject of blockade from that embarrasment. What force is requisite to constitute an effective blockade, remains as unsettled and as questionable as it was before the congress at Paris adopted the “declaration.” (Senate Ex. Doc. 54th Cong., 1st Sess., No. 104, p. 6.)
It is evident that the fourth clause in regard to blockade needs further clarifying from the fact that the British Admiralty Manual of Naval Prize Law adds after the clause of the Declaration of Paris the words, "Or, at any rate, to create evident danger to ships attempting ingress or egress.” The general statement in regard to valid
. blockade in the Manual is as follows:
a See also International Law Situation, 1901, Naval War College, pp. 166–175.
BRITISH MANUAL ON EFFECTIVE BLOCKADE.
108. A Blockade to be valid must be confined to ports and coasts of the Enemy, but it may be instituted of one port, or of several ports, or of the whole seaboard of the Enemy.
109. It may be instituted to prevent ingress only (“Blockade inwards”), or egress only (“Blockade outwards”), though it is generally instituted to prevent both ingress and egress.
110. A Blockade to be valid must be effective—that is to say, maintained by a force sufficient really to prevent access to the coast of the Enemy, or, at any rate, to create evident danger to ships attempting ingress or egress.
111. It is therefore the first duty of a Commander authorized to institute a Blockade so to dispose his Squadron as to bring about this result. There is then in existence a Blockade de facto.
112. A Blockade, though thus validly instituted, ceases to exist if not effectually maintained. It will accordingly cease to exist if the blockading force
1. Abandon its position, unless abandonment be merely temporary, or caused by stress of weather; or
2. Be driven away by the Enemy; or 3. Be negligent in its duties; or
4. Be partial in the execution of its duties toward one ship rather than another, or toward the ships of one nation rather than those of another.
113. Should, however, the Commander seize several Vessels at once and find himself unable to detain them all, it will not be an improper act of partiality, nor is it a relaxation of the Blockade if he releases some and detains the rest. (P. 29.)
The doctrine of blockade was not the same among the powers signatories of the Declaration of Paris. The phrase "* Maintained by a force sufficient really to prevent access to the coast of the enemy” would mean for France a force which would give notitication of the existence of the blockade to each vessel appearing before the port. By Great Britain no such notification is deemed necessary. A general public notification is deemed sufficient. The amount and kind of force is also a matter of much difference of opinion. Can a blockade be established by sinking
a stones, vessels, or other obstructions in a channel! Does a line of mines or torpedoes constitute a blockade under the detinition of the Declaration of Paris? How far sball blockade by cruisers be admitted? What constitutes a sufficient number of cruisers to render a blockade effective?