OPINION OF PROFESSOR WESTLAKE. 129 by inspection, for the physical character of the vessel may remain the same in private or in public control. The control is the main difference, and this may be transferred by radiotelegraph or even on a certain date by previous agreement, which date may not have arrived at the time when the vessel was met by the belligerent of the other flag. Prof. Westlake's opinion.-The late Prof. Westlake, of Cambridge, in a note to Latifi's "Effects of War on Property," speaks of the commercial blockade as a war against neutrals. But if only sentiment can be gratified by limiting the war against the enemy's commercial flag, the war against neutrals is to continue, with the certainty that commercial blockades, when they have become the sole means of paralyzing the enemy's sea trade, will be practically carried as far as audacity can venture to strain or to violate rules. The name in which this topsy-turvy policy is advocated is that of immunity at sea of private enemy property as such, and this is asserted to be the extension to the sea of a principle admitted on land. In truth, however, the immunity of private enemy property is not admitted anywhere as absolute. It is only admitted so far as it does not interfere with any operations deemed to be useful for putting pressure on the enemy or for defense against him. (Latifi, Effects of War on Property, p. 147.) After a considerable discussion Prof. Westlake says: Lastly, if it can not be maintained, either legally or as a question of political fact, that individual subjects or citizens are foreign to the wars of their State, there remains the plea urged on the ground of humanity-that they ought to be exempted as far as possible from the consequences of their solidarity. But they have to bear those consequences in land war, and in naval war the risk and loss are far more easily met and spread over the community by insurance and by the increased price of the cargoes which escape the risk. The conclusion is: (1) That there is no principle, consistent with the existence and nature of war, on which a belligerent can be required to abstain from trying to suppress his enemy's commerce under his flag. (2) That between trying by commercial blockades to suppress the enemy's commerce under the neutral flag and allowing it to pass free under his own flag there is a glaring inconsistency. (3) And that the subject is therefore open to be dealt with on the ground of the probable effects of any change in the law. (Ibid, p. 151.) Résumé. The wide consideration that has been given to the subject of immunity of private enemy property at sea shows that there are differences of opinion among different states and even within single states. These differences are supported by arguments which are worthy of careful consideration. It is not proved to the satisfaction of many that the exemption of private enemy property will shorten or even make war more humane. Some maintain with strong arguments that the reverse would be the result. It is certain that not all private enemy property could consistently with the ends of war be exempt from capture. It is probable that in some wars the list of free goods could be extended more than in other wars. The United States has uniformly striven for the principle of exemption of private property at sea in time of war. The other states of the world have not been willing to adopt this principle. The United States has therefore been obliged to shape its policy in recent years accordingly and to accept the fact that other nations were not prepared to agree to exemption of private property at sea. There are many who maintain that in war, under present conditions of fleets, the capture of private property could not be resorted to as a means of injuring the enemy, as it would be more to the disadvantage of the captor than to the belligerent from whom capture is made. It is certain that the capture of private enemy property at sea as an object of war has become of much less importance than formerly, and the United States may regard the question as much less vital than before the twentieth century. Certain private property at sea could certainly be seized under restrictions similar to those governing seizure on land even if the doctrine of inviolability was approved. This, in fact. would result in treatment which would be about all that could be demanded if war upon the sea is to exist. There would therefore arise, in case of the adoption of the principle of inviolability, a doctrine in regard to exception of certain classes of property from the inviolability. On the other hand, the same result is gradually being brought about by the agreement not to interfere with or not to capture certain classes of vessels or property in time of war on the sea. Perhaps the gradual enlargement of the list of exemptions may be more easy to obtain and more in accord with rational procedure than a sweeping prohibition which would be accompanied with a large list of exceptions of classes of property which would be liable to capture. The United States can consistently indorse either method of harmonizing maritime warfare with the principles of humanity, for one method of procedure may reach the goal sought as quickly as the other, and the gradual development of a list of property free from capture may be practicable with the minimum of friction and difficulty. Conclusion.-The United States may with propriety abandon the contention for the general exemption of enemy private property at sea and seek agreement upon a certain list of exemptions which meet the approval of the states of the world and which may from time to time be expended as the sentiment for exemption becomes more general. TOPIC VI. MEANS OF INJURING THE ENEMY. Having regard to The Hague conventions, what limits should be imposed upon the means of injuring an enemy, including the use of mines? CONCLUSION. Having regard to the regulations adopted at The Hague and to regulations which have seemed to meet wide approval, the following regulations in regard to means of injuring the enemy in maritime war may be suggested: Means of injuring the enemy 1. "The right of belligerents to the choice of means of injuring the enemy is not unlimited." 2. It is forbidden (a) To employ poison or poisoned weapons or projectiles whose sole object is the diffusion of asphyxiating or deleterious gases. (b) To employ arms, projectiles, or material of a nature to cause unnecessary suffering. 3. Torpedoes and mines (a) It is forbidden to use torpedoes which do not become harmless when they have completed their run. (b) It is forbidden to lay mines in the high seas except within the immediate area of belligerent operations. (c) It is forbidden in the high seas and in marginal waters of the belligerent (1) to lay unanchored automatic contact mines, except when they are so constructed as to become harmless one hour at most after those who laid them have lost control of them; (2) to lay anchored automatic contact mines which do not become harmless as soon as they have broken loose from their moorings. (d) A belligerent is forbidden to lay mines off the the coast or before the ports of the enemy except for strictly military or naval purposes. It is forbidden to lay mines in order to establish or to maintain a commercial blockade. 132 RESTRICTIONS ON INSTRUMENTS OF WAR. 133 (e) When mines are employed every possible precaution must be taken for the security of peaceful shipping. The belligerents undertake to provide as far as possible that these mines shall become harmless within a limited time, and, should they cease to be under surveillance, to notify the danger zones as soon as military exigencies permit by a notice to mariners, which must also be communicated to the Governments through the diplomatic channel. (f) At the close of the war the belligerent states undertake to do their utmost to remove the mines which they have laid, each state removing its own mines. As regards anchored automatic contact mines laid by one of the belligerents off the coast of the other, their position must be notified to the other party by the state which laid them, and each state must proceed with the least possible delay to remove the mines in its own waters. The belligerent states upon which the obligation to remove the mines falls after the end of the war should as soon as possible give notice that the mines have so far as possible been removed. NOTES. Restrictions on instruments of warfare.-From early days it has been customary for writers and others, from time to time, to propose restriction upon the instruments of warfare, particularly upon the introduction of new instruments. There was opposition to the introduction of the musket in the sixteenth century, and four centuries earlier objection had been raised to projectiles in general. In 1759, even, Admiral Conflans is reported to have ordered his captains not to use shells. The rules for war on land developed earlier than those for war on the sea. These rules did not develop early, however. The perfecting of a bullet which exploded on contact with a hard substance, in Russia, in 1863, and later of one which would explode on contact with a soft. substance led in 1868 to the formation of the Declaration of St. Petersburg. The declaration was the first formal international agreement restricting the means of The actual restriction of the use of a specified form of projectile is not now of an importance at all |