COMPARATIVE VIEWS OF CONTRABAND.

[Contributed by JOHN M. GOVER, ESQ.]

Introductory Remarks.—" Contraband " is a term of Italian origin denoting "prohibited goods" (Contrabbando, derived from contra and bando: Low Latin bandum, a ban or proclamation.-Skeat, Etym. Dict.). Its derivation well indicates its meaning in International Law. By "Contraband of War " is meant goods which, by reason of their hostile nature and destination, are liable to seizure and confiscation by a belligerent even though neutral-owned and carried in a neutral vessel. The Declaration of Paris of 1856, in establishing the principle of immunity of neutral goods in enemy ships and of enemy goods in neutral ships, expressly excepted contraband in each case. In view of the action recently taken by the German Government in regard to the seizure of German vessels in African waters, there appears to be some probability that the whole subject of Contraband and the right of Visitation and Search will, in the near future, be seriously raised with a view to its definition by International Agreement. Meanwhile, like so many other "principles" of International Law, it remains to all appearances a thing of shreds and patches, lacking uniformity and certainty, and constituting a chronic source of danger to the peace of nations.

It is not intended in the present note to attempt any comprehensive survey of the Law of Contraband. Still less is there any desire to assert any personal opinions of the writer as possessing any value whatever in the matter. Exhaustive expositions of the subject have been attempted, with more or less success, on many occasions by jurists of real eminence, though it must be confessed that their value is too often marred by the importation into them of racial bias and national jealousy. The object of the present article is merely to call attention to certain aspects of the subject which it is thought are apt to be overlooked, and to certain considerations, the neglect of which considerably interferes with an accurate conception of the subject.

The Anglo-American and Continental Views of Contraband.--The principle of Contraband of War is a creature of International Law, and of International Law alone. There is no a priori rule on the subject to which nations can appeal for guidance. This is really a platitude, but a platitude

too often ignored. Even Continental jurists have at length freed themselves from the fetters of philosophical tradition, which sought for International Law in some vague Jus Naturæ, to which all states and all laws were subordinate, rather than in the agreement and actual practice of states themselves. In point of fact the question of what is contraband, and what are the rules governing it, must be determined solely by reference to such agreement and practice.

Is there a unanimity or substantial unanimity of agreement and practice among nations upon the point? If not, or in so far as there is not, then International Law upon the subject is lacking. It is quite true that absolute unanimity is not necessary to make what is substantially a working rule of International Law. The adhesion to a principle of all the greater powers whose interests are affected by it, is no doubt, for practical purposes, sufficient. It cannot be safely asserted that such substantial unanimity exists with regard to the subject of Contraband. But the modern tendency towards the adoption of a common rule is very noticeable.

Among the more recent writers, M. Richard Kleen, in his very able monograph upon the subject,1 has been at great pains to prove that the practice of nations with regard to contraband has, roughly speaking, followed two main lines: (1) that of Great Britain, and to a less extent of the United States of America, according to which contraband is not strictly confined to arms and munitions of war, but may embrace also "occasional contraband," varying with the circumstances of each case; and (2) that of all or most other states, which absolutely denies the principle of "occasional" contraband altogether, and confines the right of seizure to arms or munitions of war pure and simple. M. Kleen cannot at all events be accused of any bias in favour of this country. He is an extreme instance of the extreme type of anti-English Continental jurist. He at times almost forgets the philosophic calm beseeming a lawyer, in denouncing Great Britain as the chief stumbling-block in the way of international amity and unanimity. But in doing this he points the moral above mentionedthat there is, as a fact, a want of unanimity among nations upon the subject of Contraband. Whether he is justified in his accusation against this country is another matter. He admits that all the non-English-speaking states have on many occasions in treaties and practice lapsed from the ideal principle of the Armed Neutrality of 1780, and have temporarily deviated into the sphere of " occasional contraband." He also admits that Great Britain has at all events been consistent in her heterodoxy. It would therefore seem clear that, unless the British and American views are to be disregarded altogether, the elimination of the principle of "occasional contraband " from the sphere of International Law cannot be accepted at present. The truth is that the Law of Contraband is still in an evolutionary phase, and there "Le Droit de la Contrabande de Guerre," in the Revue de Droit International, vol. xxv., and published separately by G. Pedone, Paris.

are very many cogent, and some obvious, reasons why the Anglo-American view should merit the very gravest consideration in any future attempt to define the rules on the subject by International agreement. In the process of building up International Law the practice of a majority (even though a large one) of states cannot, merely by reason of being the practice of a majority, lay claim to inherent force and sanction. With regard to the question of the relative weight and value of the Anglo-American and Continental views of Contraband, the following considerations, amongst others that might be mentioned, afford some scope for reflection.

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I. The Armed Neutrality, 1780.-The inspiration of the Continental policy of Contraband is to be found in the Declaration of the Armed Neutrality of 1780. Primarily the Declaration was an attempt by the Baltic powers to protect their trade in naval stores and provisions. Mr. W. E. Hall has astutely remarked, "It was natural that the secondary maritime powers should in time accommodate their theories to their interests." And, indeed, nearly all the states which acceded to the Declaration within a very short time afterwards found it expedient to relapse from the rigid ideal embodied in it. To gauge accurately the value of the Declaration as a bonâ-fide attempt to define the rights of belligerents on an equitable basis, it is necessary to scrutinise carefully the history of the Armed Neutrality. The result is not encouraging to admirers of its principles.

II. The Peculiar Position of Great Britain. Again, it is a curious fact, though sufficiently obvious, that the materials from which the International Law of Visitation and Search, Contraband and Blockade, are almost entirely derivable, are to be found in the history of the great naval wars during and immediately preceding the Napoleonic period. In other words, national policies as to Contraband, and such "International Law" on it as can be deduced from them, took form during that long period when Great Britain had command of the sea, and was at war with half of the civilised world. A divergence of views between our Own country and Continental states is therefore not an altogether unexpected phenomenon.

During the present century, and since the Treaty of Vienna, the only wars in which the maritime rights of belligerents have been materially affected have, with two exceptions, been those in which Great Britain was engaged. Even as regards these, owing to the temporary decadence of our own navy or the insignificance of the naval power of our adversaries, very few disputes upon questions such as Contraband and Visitation and Search have in fact arisen. As regards purely Continental struggles, such as the FrancoPrussian, the Russo-Turkish and the Graeco-Turkish wars, for all practical purposes they have added no precedents to the maritime aspects of International Law. In the only two cases in which Great Britain was not engaged and in which serious questions of contraband and capture did arise, one of 'See Phillimore, International Law, iii. 335, and the authorities there mentioned.

the belligerents was the United States of America; and in both these cases the United States vigorously asserted the English doctrine of "occasional contraband.” In some respects the American view is even a broader one than the British, though it must be confessed that it has the merit (not generally allowed to the English practice by Continental critics) of having been propounded in unambiguous and consistent terms. Mr. Bayard, as recently as 1886, in referring to the inclusion of cotton in the category of Contraband in the Confederate war said, "I apprehend it to be the settled rule of International Law that the question of Contraband is to be determined by the special circumstances of each case." 1

In the war between the United States and Spain, an elaborate list of contraband articles was issued on June 20th, 1898, by the Department of the Navy by way of "Instructions to Naval Officers." This followed very closely the list in our own Admiralty Manual, and similarly classified the goods into those (1) absolutely and (2) conditionally contraband. The former included, in addition to arms and ammunition of various kinds, such things as pontoons, "portable range finders," military uniforms and equipments and horses. The latter comprised coal when destined for a naval station or port or for the enemy's navy, railway and telegraph materials and money when destined for the forces of the enemy, and also provisions when destined for the enemy's ships of war or for a besieged place."

Article 4 of the President's Proclamation of May 9th, 1898, seems also to indicate that coal would under certain circumstances be regarded as contraband. In the course of the war, a British ship, the Ristormel, was captured and its cargo of coal in fact confiscated.1

In the same war the Spanish Government published a decree including in contraband, in addition to arms and ammunition, such things as "uniforms, straps, pack-saddles and artillery, and cavalry equipment, marine engines, and in general all appliances used in war."5 It is also worthy of special note that the present Shipping Code of Italy, in defining contraband, does so expressly "subject to special treaties and to special declarations made at the beginning of war." This seems to show a distinct tendency towards the AngloAmerican view.

III. Inconsistency of the Continental Practice. The Continental practice during this century has certainly been far from consistent with the rigid rule of the Armed Neutrality. The most noteworthy deviations into the sphere of "occasional contraband" have not even been justified by the Anglo-American principle of belligerent expediency. M. Kleen, in referring to the well-known rice case, during the Franco-Chinese “state of 'See Wharton, International Law Digest, s. 373, pp. 7438 and 989: cf. U.S. v. Dienkelman, 92 U.S. 520, and Young v. U.S., 97 U.S. 39.

Journal du Droit International Privé, 1898, p. 1018.

3 See London Gazette, May 10th, 1898.

4 See Times, June 3rd, 1898.

5 See London Gazette, May 3rd, 1898.

reprisals" in 1885, naïvely defends the French attitude on the ground that it was an "act of retorsion" against England, for refusing to allow French warships to coal in British ports. Apparently this was following the lead of Germany, when in 1870 Bismarck in effect declared coal contraband,1 "provoked," as M. Kleen says, "by the vacillations of the London Cabinet, against which it was an act of retorsion."

In the greater wars of the last ten years, few of the great European powers have made any clear declaration as to contraband. No reference to it was made in the Neutrality Decrees of France or Russia in the ChinoJapanese war of 1894, the Turco-Greek war of 1897, or the United StatesSpanish war of 1898.

No

It may further be observed that, even as regards "munitions of war," there is no unanimity of opinion and practice among Continental states. attempt was made to define the expression in the Declaration of the Armed Neutrality, and the ambiguity of the term is certainly accentuated by the fact that, in the latter document, sulphur, and in many subsequent treaties and decrees, other distinctly belligerent articles are mentioned in connection with "munitions of war," but in separate terms. For instance, the French "Instructions to the Navy" in 1854 and 1871 add "saltpetre and military equipments, and things made for war and destined for the enemy"; the Italian treaty with the United States of 1871 adds "military equipment and clothing"; and the Russian ukase in 1877 added sulphur and saltpetre. "Munitions of war" is so vague and elastic a term as almost to admit within its scope all articles which the Anglo-American view treats as "occasional contraband." An examination of the full list of articles stated to be "absolutely" or "conditionally" contraband in Mr. T. E. Holland's British Admiralty Manual of Prize Law (1888), indicates how easily the inclusion of almost every item might, at any rate, be justified by adopting the French test of 1854 and 1871.

IV. Practice of States in Recent Times.-In an attempt to arrive at a conclusion as to the maximum extent to which there can be said to be community of view between modern states with regard to the nature of contraband, it is very necessary to confine attention to the most recent declarations or practice of each state.

To rely too much upon traditions of the Armed Neutrality, or of the Napoleonic wars, is entirely misleading. It is equally unsatisfactory to treat the opinions or obiter dicta of theoretical jurists, however eminent, as any definitive indication of actually existing Law. This, it is submitted, applies not merely to isolated text-books, but even to the resolutions of the Institute of International Law. It is owing to an undue regard for ancient history and the opinions of writers, that so many text-books, and particularly Continental ones, are, as expositions of concrete International Law, somewhat stale and unprofitable. The opinions of eminent International jurists, like

'See Wharton, s. 369.