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RUSSIA AND CONDITIONAL CONTRABAND.
handed me by Count Lamsdorff practically reiterating what he had said to me on former occasions with reference to any discussion of the facts or of the principle involved in the seizure and condemnation by the prize court at Vladivostok of that part of the cargoes of these two ships which were consigned to merchants in open Japanese ports.
Count Lamsdorff was not prepared to take any issue with me on the declarations and principles contained in your circular note (circular of June 10, 1904, printed ante) and your instructions No. 143, of August 30 (printed ante), a copy of the former having been handed to him, and the contents of the latter having been transmitted to him practically in extenso as well as the contents of your instruction on the subject of the seizure of the cargo of the Arabia.
Count Lamsdorff said, in addition to what I have already transmitted to you by cable, that to unconditionally accept as noncontraband all merchandise not universally accepted or described in their own rules as such would open the door to contractors in Japan to import food stuffs and other merchandise without limit for account of the Japanese Government; that is, on account of or in destination of the enemy. That the Russian Government could not but consider as contraband a cargo of flour consigned to a port at which was quartered a large body of troops, and that, extending this principle, the ultimate destination of the cargo had to be taken into consideration, although its direct consignment might be to a merchant in an open port.
This statement, with a copy of the aide-memoire which is herewith inclosed, will enable you to understand the position of the Russian Government at this time.
My only reply was that it meant, practically, abrogation of the principle "that the blockade, in order to be obligatory, must be effective,” and relieved Russia of the necessity of maintaining one. To this he replied that nobody would be so naive as to consign merchandise not prima facie contraband, although intended for the enemy, to the destination of the enemy, substituting therefor a middleman in the shape of a merchant in the open port. He added here, as he repeated several times, that we would see that in the future there would be less ground for complaint and that it was far from the desire of the Russian Government to place any obstacles in the way of legitimate commerce with Japan, but that they would be compelled to take such steps as would be necessary to prevent supplies of any character ultimately intended for the use of the enemy from reaching their destination. He added that the several notes I had written on the subject, as well as your circular note of June 10, had been handed to Professor Martens, who would consider the representations made therein when the cases of the Arabia and Calchas came before the admiralty court of St. Petersburg.
The Russian Government admitted that provisions might be regarded as conditionally contraband.
The British Government expressed its approval and commented on the matter.
Sir C. Hardinge to Count Lamsdorff.
ST. PETERSBURG, September 28 (October 11), 1904. M. LE COMTE: I duly reported to His Majesty's Government that Your Excellency had informed me that the Russian Government have, in consequence of the decision of the Commission appointed by Imperial Order under the Presidency of Professor Martens, to study the question of contraband of war, issued supplementary instructions to Naval Commanders and Naval Prize courts, defining the interpretation of section 10 of Article 6 of the Regulations of the 27th February last. According to the supplementary instructions, the conditionally contraband nature of rice and provisions, used for peaceful or warlike purposes according to circumstances, is admitted by the Russian Government.
I am now instructed by the Marquess of Lansdowne to inform Your Excellency that His Majesty's Government desire to acknowledge the friendly spirit in which their representations in this matter have been met by the Russian Government. They learn with satisfaction that it is not intended to treat rice and provisions as unconditionally contraband of war, and they trust that Your Excellency's anticipation (which I mentioned to Lord Lansdowne), that the decision arrived at will tend to avoid difficulties in the future, may be realized.
His Majesty's Government note that, in the view of the Russian Government, such articles are not necessarily free from seizure and condemnation as contraband of war merely because they are addressed to private firms or individuals in the enemy's country, the Russian Government holding that they may, nevertheless, be in reality intended for the military or naval forces of the enemy.
While His Majesty's Government do not contend that the mere fact that the consignee is a private person should necessarily give immunity from capture, they hold, on the other hand, that to take vessels for adjudication merely because their destination is the enemy's country would be vexatious and constitute an unwarrantable interference with neutral commerce. To render a vessel liable to such treatment there should, in the opinion of His Majesty's Government, be circumstances giving rise to a reasonable suspicion that the provisions are for the enemy's forees, and it is in such a case for the captor to show that the grounds of suspicion are adequate and to establish the fact of destination for the enemy's forces before attempting to procure their condemnation,
In bringing these views to Your Excellency's notice I am to state that, for the reasons mentioned, His Majesty's Government trust that the instructions now issued will be interpreted in a liberal and considerate spirit by the Naval Commanders and the Prize Courts to whom they are addressed.
I am to add, at the same time, that His Majesty's Government can not refrain from expressing their regret that the same principle has,
RUSSIAN INTERPRETATION OF RULES.
so far, not been admitted in the case of certain other commodities enumerated in the Regulations issued in February last-such, for example, as coal and raw cotton, which clearly appear to be susceptible of use for other than warlike purposes. They cherish, however, the hope that the views which His Majesty's Government have already expressed on this subject may receive favorable consideration at the hands of the Russian Government and that the principle of conditional contraband, which has been admitted by the Russian Government, may receive still further extension in its application. I avail, etc.,
(Signed) CHARLES HARDINGE. (Parliamentary Papers, Russia, No. 1 (1905), p. 26.)
In consequence of the questions and protests, interpretations and modifications of the rules were made.
In the Journal de Saint Petersbourg of September 30, 1904, the following appeared:
In consequence of doubts which have arisen as to the interpretation of article 6, section 10, of the regulations respecting contraband of war, it has been resolved, as we are in a position to announce, that the articles in regard to which no decision has been taken shall be considered as contraband of war if they are destined for:
The government of the belligerent powers;
In cases where they are addressed to private individuals these articles shall not be considered as contraband of war.
Vessels shall only be confiscated in cases where prohibited merchandise forms more than half of the cargo.
In the contrary case only the cargo shall be confiscated. All possible measures have thus been taken to insure freedom of commerce to neutral powers.
It is to be hoped that the Powers will appreciate the considerable latitude which is at present allowed to the free movement of their commerce and will not give occasion to reproach them with abuses relative to the Regulations on Contraband of War. (Parliamentary Papers, Russia, No. 1 (1905), p. 23.)
The Russian rules relating to conditional contraband received further consideration by the British Government. The following letter indicates the position taken: Sir C. Hardinge to Count Lamsdorff.
ST. PETERSBURG, October 9, 1904. M. le Comte: On the 16th August I had the honour to communicate to Your Excellency the substance of a despatch which I had received from the Marquess of Lansdowne, in which the views of His Majesty's Government were very clearly expressed on the subject of the treatment by the Russian Government as unconditional contraband of an extensive category of articles enumerated under sections 8 and 10 of Rule 6 of the Regulations published by the Russian Government on the 14th February of this year. In this statement of the views of His Majesty's Government, Lord Lansdowne explained the grounds upon which it was impossible to admit the claims of the Russian Government, and he defined the measures which His Majesty's Government would be reluctantly compelled to take in the event of the interests of British subjects suffering by the application of these rules.
It was with much satisfaction that I received on the 16th ultimo a verbal communication from Your Excellency to the effect that the principle of conditional contraband was admitted by the Russian Gorernment, and that all the articles mentioned in paragraph 10 of article 6 of the Rules of the 14th February, 1904, with the exception of horses and beasts of burden, had been recognized as articles of a conditionally contraband nature.
I have since had the honor to point out to Your Excellency that the principle of conditional contraband having been admitted by the Russian Government, the application of this principle could not be logically withheld from coal, which, though essentially contraband when used for warlike objects, has a much wider use for peaceful purposes, and being a commodity of primary necessity for heating, cooking, and manufactures, enjoys when so employed a perfectly innocent character.
In reply to my representation, Your Excellency has been so good as to inform me that the conclusions of the Ministry for Foreign Affairs upon the question of principle raised by me have been communicated to the Ministry of Marine for their consideration, and I can only hope that a solution of this question may be arrived at in accordance with international usage, and that the instructions already issued to Naval Commanders and Prize Courts may be extended so as to include as conditionally contraband all articles of dual use when not destined for the belligerent forces of the enemy.
The new doctrine, which is in complete contradiction to the law and practice of nations sanctioned by international usage, and which is entirely contrary to the former views of the Russian Government, viz, that coal and fuel of every kind are contraband, irrespective of their destination, and that the seizure of cargoes, or the vessels containing them, upon the ground that they included such articles is justifiable in international law, is one which it is impossible for His Majesty's Government to admit. It has been suggested to me by Your Excellency that in view of the fact that Russian war ships proceeding to the Far East are not allowed to purchase coal in British ports it could hardly be claimed that British merchant vessels should have the right to carry coal to the ports of the enemy, even if it is not destined for warlike purposes. The reply to this suggestion is obvious. An article of commerce may be so essential for hostile purposes that
no war ship should be supplied with it in neutral waters, and yet so essential for the ordinary purposes of civil life that it should not be prevented from reaching the peaceful inhabitants of belligerent countries. The dual character of coal, as contraband of war, forms a very apt illustration of the above.
There is another aspect of this question to which I would invite Your Excellency's attention. From the enormous quantities of coal which arrive daily in Russia from Great Britain, for both peaceful and warlike purposes, it is evident that the British trade in coal is of very great importance. It is equally certain that the importance of this trade is not confined to exports to Russia, and that very large exports of coal to Japan, for purposes both of peace and war. take place. Your Excellency will, I am confident, admit that the fact of the Governments of Russia and Japan being at war is not in itself a sufficient reason why the peaceful commerce between Great Britain and commercial houses in Japan should be treated with such severity as to render commerce both dangerous and even prohibitive.
So, also, as regards raw cotton, which, by Imperial Order on the 21st April, was declared to be absolute contraband of war. Your excellency may not be aware that British India is by far the largest importer of raw cotton into Japan, the quantities imported in 1901 and 1902 being more than double those imported from the United States of America or from any other country, while the value of raw cotton sent to Japan from India in each of the above-mentioned years amounted to nearly 40,000,000 rubles and one-half of the total value of all the cotton imported into Japan. The quantity of raw cotton that might be utilized for explosives would be infinitesimal in comparison with the bulk of the cotton exported from India to Japan for peaceful purposes, and to treat harmless cargoes of this latter description as unconditionally contraband would be to subject a branch of innocent commerce which is speciaļly important in the Far East to a most unwarrantable interference.
As I have already had the honor of explaining to Your Excellency, His Majesty's Government have no desire to place obstacles in the way of a belligerent desiring to take reasonable precautions in order to prevent his enemy from receiving supplies, but they can not admit that the right of adopting such precautions implies a consequential right to abolish by a stroke of the pen the long-established distinction between articles which are conditionally and those which are absolutely contraband of war, and to intercept at a distance from the scene of operations and without proof of their ultimate destination a numerous category of articles in themselves of an innocent description and largely dealt in by neutral Powers, but which that belligerent may have announced his intention of regarding as unconditional contraband of war.
The principle of conditional contraband has already been recognized by the Russian Government, and it only remains to extend its application to coal, cotton, and other articles which may be used for peace