Slike strani
PDF
ePub

Secretary Root felt special consideration should be given to an agreement upon what should be deemed to constitute contraband of war. There had been a recent tendency to extend the list of articles, and it was probable that if the belligerents themselves were to determine at the beginning of a war what should be contraband, this tendency would continue until the list was made to include a large proportion of all articles of commerce. When this result was reached, especially if the doctrine of continuous voyages were applied at the same time, the doctrines that free ships made free goods and that blockades in order to be binding must be effective, as well as any rule giving immunity to the property of belligerents at sea, would be deprived of a large part of their effect, and "we shall find ourselves going backward instead of forward in the effort to prevent every war from becoming universally disastrous." The exception of contraband of war in the Declaration of Paris would be so expanded as to very largely destroy the effect of the declaration. On the other hand, resistance to this tendency toward expansion of the list of contraband should not be left to the neutrals affected by it at the very moment when war existed, because that was the process by which neutrals themselves became involved in war. The delegates were to do all in their power to bring about an agreement upon what was to constitute contraband; and it was "very desirable that the list should be limited as narrowly as possible."

Shortly after the American proposition for immunity of private property at sea failed of adoption by the Fourth Committee of the Conference, the British proposal for abolition of contraband was considered. The American delegation then wired home for instructions. Secretary Root replied on July 30, 1907, that limitation of contraband by specific enumeration was preferred as better adapted to secure practical relief for neutral commerce, but that the delegation was at liberty to vote for entire abolition with the reservation that such abolition should not be deemed in any way to "increase the duties resting upon neutral States to prevent their citizens from helping belligerents." The delegation, however, voted against the British proposal for abolishing contraband. On September 18 the delegation was informed that Secretary Root approved "endorsing abolition of conditional contraband ".2

INSTRUCTIONS TO DELEGATES TO THE LONDON NAVAL CONFERENCE

Instructions were sent to the delegates to the London Naval Conference on November 21, 1908.3 The delegates were provided with a copy of the instructions to the American delegation to the second Hague Conference, and they were directed to guide themselves "in 3 Document 164, p. 521.

2

1 Document 163, p. 520. "Ibid, footnote 2.

the consideration of any matter discussed at the conference by the general and specific provisions of the instructions relating to maritime warfare and the rights and duties of neutrals." They were authorized and instructed to present to the Conference, as a basis for discussion, the Naval War Code of 1900 as modified by the amendments suggested by the Naval War College.

On December 9 the delegates were instructed that they might, in their discretion, advocate the abolition of conditional contraband.1 On January 26, 1909, the following instructions were sent to the delegates: "Insist upon continuous voyage for absolute contraband. Agree to abandonment of continuous voyage for conditional contraband and for blockade." 1

THE DECLARATION OF LONDON

The Declaration of London of February 26, 1909, was signed by the delegates of the United States.2 The fate of the declaration was prejudiced by the adverse vote of the British House of Lords in December, 1911. Ratification was advised by the United States Senate on April 24, 1912, but it was not ratified by the President.

Stipulations of the Declaration of London important in connection with this study were as follows:

1. Blockade. "In accordance with the Declaration of Paris of 1856, a blockade, in order to be binding must be effective, that is to say, it must be maintained by a force sufficient really to prevent access to the enemy coastline." A blockade must not extend beyond the ports and coasts belonging to or occupied by the enemy; neutral vessels were not to be captured for breach of blockade except within the area of operations of the blockading warships, and "Whatever may be the ulterior destination of a vessel or of her cargo, she cannot be captured for breach of blockade, if, at the moment, she is on her way to a non-blockaded port."

2. Contraband of war. The following articles could, without notice, be treated as absolute contraband: arms of all kinds; munitions; military clothing and equipment; saddle, draught, and pack animals; armor plates; warcraft and component parts; and "Implements and apparatus designed exclusively for the manufacture of munitions of war, for the manufacture or repair of arms, or war material for use on land or sea."

The following articles could, without notice, be treated as contraband of war under the name of conditional contraband: foodstuffs; forage; clothing, fabrics for clothing, and boots and shoes, suitable for use in war; paper money and gold and silver in coin or bullion;

1

'Document 164, footnote 1, p. 524.

2 Document 165, p. 524.

vehicles of all kinds available for use in war; floating docks and vessels, craft, and boats of all kinds; railway, telegraph, and telephone material; aircraft; fuel and lubricants; powder and explosives not specially prepared for use in war; barbed wire and implements for fixing and cutting the same; horseshoes and shoeing materials; harness and saddlery; and field glasses, telescopes, chronometers, and all kinds of nautical instruments.

Articles exclusively used for war could be added to the list of absolute contraband by a declaration, and articles susceptible of use in war could be added to the conditional list in the same manner. Absolute contraband was liable to capture if shown to be destined to territory belonging to or occupied by the enemy, or to the armed forces of the enemy. It was immaterial whether the carriage of the goods was direct or entailed transshipment or a subsequent transport by land. Conditional contraband was not liable to capture except when found on board a vessel bound for territory belonging to or occupied by the enemy, or for the armed forces of the enemy, and when not to be discharged in an intervening neutral port.

The following articles could not be declared contraband of war: raw materials of the textile industry and yarns of the same; copra, oil seeds and nuts; rubber, resins, gums, and lacs; hops; raw hides and horns, bones and ivory; natural and artificial manures; metallic ores; earths, clays, lime, chalk, stone, including marble, bricks, slates, and tiles; chinaware and glass; paper and paper-making materials; soap, paint, and colors; bleaching powder, soda ash, caustic soda, salt cake, ammonia, sulphate of ammonia, and sulphate of copper; agricultural, mining, textile, and printing machinery; precious and semiprecious stones; clocks and watches, other than chronometers; fashion and fancy goods; feathers of all kinds, hairs, and bristles; articles of household furniture and decoration; office furniture and requisites.

LANSING ON BLOCKADE

Acting Secretary of State Lansing made a statement on blockade in a note of May 16, 1914, to the Chargé of the Dominican Republic.1 He stated that as the Government had been informed that the blockade at Puerto Plata was maintained effectively, the blockade of that port was recognized by the United States. However, as the Government had not been informed that the blockade of Monte Christi was effective, that blockade could not be recognized until it was made effective.

1 Document 166, p. 533.

42179-34- -9

CHAPTER XV

SUMMARY

ENEMY GOODS IN NEUTRAL SHIPS

The United States very early urged incorporation into the international code of the principle that enemy goods, with the exception of contraband articles, should be exempt from capture and confiscation when found in neutral ships. Thereafter, and until the incorporation was made, the American Government frequently reiterated this position. While favoring the rule that free ships should make free goods, the Government originally held that, under the existing law of nations, enemy goods in neutral ships were liable to capture and confiscation.

The treaty plan of 1776 and American naval instructions of 1780 provided that free ships should make free goods with the exception of contraband articles. Most of the early American treaties included similar provisions, the Government maintaining that these stipulations did not affect the law of nations in this regard but merely controlled relations between the parties. In the treaties of 1794 with Great Britain and 1799 with Prussia no such provision was included, although the American Government had tried unsuccessfully to insert it in the former. It was omitted from the latter treaty at Secretary Pickering's direction because he felt that, as the principle was not universally admitted, treaty stipulations for it were of little or no avail. Treaties with the Barbary States included a statement that free ships should make free goods, with no expressed exception of contraband articles. In the treaty of 1819 with Spain the provision for free ships making free goods was qualified by a statement that the principle should apply only to those powers which recognized it, and this qualification was included in practically all the treaties with Latin American states which contained provisions relating to neutral rights.

Jefferson, while President, and John Quincy Adams, while Secretary of State, questioned the principle of the law of nations by which enemy goods found in neutral ships were liable to confiscation, but they admitted that the rule was generally followed. Secretary of State Van Buren even went so far as to say that the principle of free ships making free goods was a rule of international law when the United States became a nation and that it remained so. This position was not maintained by any other Secretary of State or

President, and the Supreme Court in the case of The Nereide held that, according to the law of nations, enemy goods in neutral ships were liable to confiscation.

When the British and French Governments announced that during the Crimean War they would follow the principle that free ships should make free goods with the exception of contraband articles, Secretary Marcy said there was a fair prospect of getting the principle incorporated into the international code. Efforts of the United States to further this proposition resulted in stipulations in six treaties to the effect that the parties recognized it as "permanent and immutable" and would apply it to the commerce of the powers consenting to adopt it as such. The Declaration of Paris included a statement that free ships should make free goods, contraband articles excepted. The United States did not adhere to the declaration, but the Government later acknowledged the principle as a recognized rule of international law and applied it in the Civil War and in the war with Spain.

NEUTRAL GOODS IN ENEMY SHIPS

The Government of the United States has always maintained that, according to the law of nations, neutral goods not contraband, found in enemy ships, are exempt from capture. This position was upheld by the United States Supreme Court in the cases of The Nereide and The Atalanta.

Although the above is an expression of what the United States considered the law of nations on the subject of neutral goods in enemy ships, many American treaties controlled the law by coupling with the provision that free ships should make free goods the statement that neutral goods found in enemy ships should be subject to confiscation. This provision was included in the plan of 1776 and, until 1851, in all treaties relating to neutral rights except those with Great Britain, Spain, Prussia, and the Barbary States. In the treaties with the three European powers no provision was included on the subject, while in the Barbary treaties it was provided that all neutral goods found in enemy ships should be free. In treaties with Latin American states until 1851, the provision for enemy ships making enemy goods was qualified by a statement that if the neutral flag did not protect enemy property, neutral goods in such enemy ships should be free. The only American treaty after 1851 which provided that enemy ships should make enemy goods was the treaty of 1870 with Peru.

When the British and French Governments in 1854 announced that they would apply the rule that neutral goods not contraband should be free in enemy ships, Secretary Marcy made the statement that this was no concession to neutrals as the principle was already

« PrejšnjaNaprej »