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ful or warlike purposes according to circumstances. Such a measure would be consistent with the law and practice of nations and with the well-established rights of neutrals. While maintaining the rights of a belligerent, the rights of neutrals would be respected, and the source of a serious and unprofitable controversy would be removed.
In making these representations to Your Excellency in accordance with the instructions which I have received from the Marquess of Lansdowne, I am convinced that you will give this matter the very serious consideration which is its due, and I trust that Your Excellency will be in a position to inform me shortly that a solution has been arrived at which may prove satisfactory to both Governments. I avail, etc.,
CHARLES HARDINGE. (Parliamentary Papers, Russia, No. 1 (1905), p. 24.)
In reply to the British ambassador's request the following interpretation was given by Russia:
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 by the Imperial Government that the articles capable of serving for a warlike object, and not specified in sections 1 to 9 of Article 6, as well as rice and food stuffs, shall be considered as contraband of war, if they are destined for
The Government of the belligerent Power;
In cảses where they are addressed to private individuals these articles shall not be considered as contraband of war.
In all cases horses and beasts of burden shall be considered as contraband of war. (Parliamentary Papers, Russia, No. 1 (1905), p. 27.)
In interpreting a contract entered into just before the Russo-Japanese war and involving the definition of contraband, the following statement was made by Chief Justice Berkley:
The contract was made in Hongkong, and therefore in the absence of evidence to the contrary which I could act upon the parties must be taken to have used the expression “contraband of war” in the sense in which it is understood in British courts of law, which is its sense in international law. It can not be successfully contended that provisions would be regarded by British courts of law as unconditional contraband of war, or that there is any likelihood that they will ever take that view. Had this court been asked at any time between the
COURT OPINION ON RUSSIAN DECLARATION.
signing of the charter party on the 10tb of February, 1904, and the issuing of the Russian declaration to construe the meaning of the words “contraband of war” it can not be doubted that it would have excluded provisions from the category of unconditional contraband. It is contended, however, that the court ought to place a different meaning on that expression, after, and in view of, the terms of the Russian declaration, inasmuch as Russia, being a sovereign independent Power, has a prerogative right to declare whatever she pleases to be contraband of war in any war in which she may be engaged, and that the effect of the Russian declaration may be to make provisions unconditionally contraband, the master of the ship Prometheus was excused from loading them on his ship. In this contention I am unable to
In the view which I take of the effect of the Declaration under Treaty of Paris of 1856, and of the agreement undertaken by the several powers signatory thereto given in the Protocol No. 24 not to depart from the principles enunciated in the Declaration, I think that Russia was not at liberty to declare provisions unconditional contraband of war, and that her declaration in that respect could not affect the contract between the parties to this charter party, even supposing it could be held that contraband of war means, as used in the charter party, whatever Russia may consider as such, for Russia, having been a party to the solemn declaration of "fixed principles” under the Treaty of Paris, was not at liberty to disregard those principles and was therefore bound to recognize and act upon the generally accepted rule of international law that provisions are not unconditional contraband. (The Osaka Shosen Kaisha v. The Prometheus.)
It is evident that no unvarying list of articles contraband of war can be made. The progress of invention may make an article previously entirely innocent exceedingly dangerous to the belligerent if he allows it to be freely transported. The question always is, How essential is the article for carrying on the war? If it is essential, it may be declared contraband, e. g., in many wars sulphur and saltpeter have led the list of contraband because essential in the making of gunpowder and not readily obtained in all places. Charcoal, on the other hand, while essential, is readily obtainable and not classed as contraband.
The change in the method of warfare has made treatment of coal a matter of much moment. France did not regard coal as contraband in 1859 or in 1870, and other States took the same position. It may, however, easily become contraband by destination under the regulations of these States.
Certain coals, such as the (Cardiff and Pocahontas, which are peculiarly adapted for use on war vessels, will naturally be more liable to be treated as contraband than ordinary domestic coals.
G. G. Phillimore has recently said of the position of Russia in the Russo-Japanese war:
The Russian attitude with regard to coal is in direct conflict with her declaration of 1884, at the West African Conference, that she would never recognize coal as contraband. While no doubt a State may define contraband differently on different occasions, to suit the particular circumstances of the warfare it is engaged in, it can not expect other States to acquiesce in its refusal to recognize the general rules governing the subject which it has formerly accepted and which stand on a basis of general acceptance in practice. (30 The Law Magazine and Review, p. 79.)
The Russian prize court at Vladivostok in 1904 condemned flour and railway materials consigned to merchants at Japanese ports on board the German vessel Arabia, and took similar action in regard to the British steamer Calchas. The goods on these vessels were consigned by United States merchants.
Secretary Hay protested against the seizure and condemnation, saying that
In view of its well-known attitude it should hardly seem necessary to say that the Government of the United States is unable to admit the validity of the judgment which appears to have been rendered in disregard of the settled law of nations in respect to what constitutes contraband of war. (Note August 30, 1904, Foreign Relations, p. 760.)
Two days earlier the British Government had stated that proof is necessary “that the goods are intended for the belligerent’s naval or military forces before they can be considered as contraband."
The appeal in the case of the decision on the steamer Calchas was taken to the High Admiralty ('ourt at St. Petersburg. That court handed down its decision on June 13, 1905. The decision does not directly recognize the category of conditional contraband; but, in justifying the seizure of the cotton and timber, maintains by an extended argument that there was fair evidence that the cotton was destined for the arsenal at Kobe, and that the timber was destined for Japanese military railways and telegraph,
CONCLUSIONS ON CONTRABAND.
thus introducing the principle of destination for enemy military use as a ground of condemnation.
In the recent report of the British Royal Commission on Supply of Food and Raw Material in Time of War is enunciated the following opinion formulated by Professor Holland:
Provisions in neutral ships may be intercepted by a belligerent as contraband only when, being suitable for the purpose, they are on their way to a port of naval or military equipment belonging to the enemy, or occupied by the enemy's naval or military forces, or to the enemy's ships at sea, or when they are destined for the relief of a port besieged by such belligerent. (p. 24, sec. 101.)
Conclusion.-The position taken in the above extended discussions showing recent opinions as well as early decisions recognize the categories of absolute and conditional contraband and regard destination as the factor determining the innocent or belligerent character of certain goods. The recognition of such principles seems reasonable as regards belligerents and neutrals.
The following regulations in regard to contraband are therefore proposed:
1. Absolute contraband.—When within or destined for the territory within the enemy's jurisdiction or for his military or naval use, the following articles are absolute contraband:
(a) Military materials, such as weapons, ammunition, etc.
(6) Instruments solely for use in warlike purposes, as machinery for the manufacture of military materials.
(c) Any other articles intended solely for use in war.
2. Conditional contraband.-When destined for the enemy's military or naval use, the following articles are contraband: Means of subsistence, fuel, means and material for transportation and communication on land or sea, money and other articles, such as cement, cotton, lumber, etc., of use either for warlike or for peaceful purposes.
(a) If the United States and Denmark were at war, and Great Britain neutral, would war vessels of Denmark be justified in visiting and searching British or other neutral vessels in the Red Sea?
(6) Should the right of visit and search be limited to a certain area in the neighborhood of the seat of war?
(a) Denmark would be justified in visiting and, for good reason, in searching neutral vessels outside of neutral jurisdiction in the Red Sea.
(6) The area of the exercise of the right of visit and search should not be limited, but greater restrictions may justly be demanded against its exercise in an arbitrary and burdensome manner.
DISCUSSION AND NOTES.
Restriction of visit and search.-(a) If the United States and Denmark were at war, and Great Britain neutral, would war vessels of Denmark be justified in visiting and searching British or other neutral vessels in the Red Sea?
In the case of the Maria, in 1799, Sir William Scott states the general principle as follows:
That the right of visiting and searching merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestible right of the lawfully commissioned cruisers of a belligerent nation. (I. C. Robinson's Admirality Reports, 340.)
The action of Russia in visiting and searching neutral vessels in the Red Sea during the Russo-Japanese war of 1904–5 gave rise to much discussion. Frequently it was urged that the right of visit and search be abandoned altogether by belligerents as a right causing too great