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greater importance to the enemy than a cargo of contraband, however noxious that might be.

SOLUTION.

The commander should decline to escort the merchant vessel through the strategic area.

He should advise the master of the merchant vessel to keep clear of the strategic area.

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SITUATION V.

TAKING COAL IN NEUTRAL PORT.

[It is granted in this situation that the Declaration of London is binding.]

War exists between States X and Y. Other States are neutral.

A coal dealer, K, resident at B, in neutral State Z, is known to be furnishing steaming coal of high quality. (a) To coal dealers at a port of Y.

(b) To the Government of Y and to merchant colliers at B.

(c) To merchant colliers of Z which clear for a port of Y.

(d)

To neutral merchant colliers which clear for a

port of Y.

1. Under (a) a cruiser of X meets a cruiser of Z on the high seas escorting a collier of K toward B. The cruiser of X requests the cruiser of Z to dismiss the collier from his convoy on the ground of carriage of contraband.

What action should the cruiser of Z take?

2. Under (b) the Government of X requests Z to forbid naval and merchant colliers of Y to load coal of any quality in B on the ground that this makes B a base for Y.

What action should the Government take?

3. Under (c) the Government of X requests Z to forbid K to furnish high quality steaming coal except to neutral ships for bunker coal only.

What action should the Government take?

4. The Government of X requests Z to intern at B, a collier of Y loaded with steaming coal and about to clear for a second trip to a port of Y.

A collier of Z about to do the same.

A collier of M about to do the same.

In the cases of the colliers of Z and M unneutral service

is alleged.

What action should be taken in each case?

5. A cruiser of X meets a collier of Z and a collier of M returning in ballast from a third coal-carrying trip,

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since the opening of hostilities, between port B and a port of Y. The cruiser captures both colliers as being engaged in unneutral service, Z and M request the release of the colliers and indemnity.

What action should be taken?

SOLUTION.

(1) As the apparent destination of the cargo is a neutral port of Z, the commander of the cruiser of Z should not withdraw his protection unless he is reasonably certain that his confidence has been betrayed.

(2) The Government of neutral State Z should heed the request of belligerent State X as regards the naval colliers and other colliers belonging to or in the service of State Y, though there might be circumstances when it would be justifiable to allow a collier to take coal necessary for its own use, but merchant colliers may be allowed to take coal.

(3) The Government of neutral State Z is under no obligation to forbid the supply of cargo coal to neutral vessels.

(4) If the collier of belligerent State Y has entered or is sojourning in the port of neutral State Z in contravention of the regulations of State Z, the collier may be interned.

The colliers flying the merchant flag of neutral State Z or neutral State M may be guilty of unneutral service, but this does not involve State Z in any obligation to intern the colliers.

(5) The colliers should be released if their relations to the belligerent have been simply those of neutral merchant colliers. Their liability for carriage would be deposited with the cargo.

If the colliers were chartered entire by or under the orders or control of the enemy government, or otherwise engaged in unneutral service, they would be liable to detention.

NOTES.

Duty of State as to contraband. There are some who hold the opinion that a State is under obligation not only as a political unity to refrain from all sale of contraband, but also to prevent those who are under its jurisdiction from engaging in the sale of contraband. Those

who support this contention often regard the manufacture and sale of contraband as analogous to the construction of ships to the order of one of the belligerents. Others regard the trade in contraband simply as a business venture which may yield an exceptional profit if it succeeds, or involve an exceptional loss if it fails. Of this latter point of view Kleen, who advocates State supervision of trade in war material, says:

Il n'est guère besoin de faire observer combien cette dernière manière de voir est illogique et peu digne, disons même révoltante. Parler d'une "défense," mais fermer les yeux sur son infraction; prohiber certain commerce, mais déclarer qu'il dépend du particulier de courir le risque; permettre à l'une des parties en cause d'attaquer une action qualifiée d'inoffensive en ellemême, pour pouvoir justifier la négligence du gouvernement de la réprimer; exposer enfin les neutres à des poursuites appartenant au droit de guerre, voilà, à vrai dire, autant de maximes pour le moins étranges et une méthode de réglementation peu sérieuse, qui sent singulièrement le moyen âge. C'est le hasard qui décide alors si une action peut passer librement ou non. Et encore, à supposer qu'elle soit attaquée, c'est de nouveau le hasard qui décide de la répression et de la question de savoir à quel point sera sévère l'application des moyens de la guerre.

Et cependant, cette manière nonchalante de régler une grande catégorie des devoirs de la neutralité, à savoir au moyen d'une extension du droit de la guerre aux dépens de l'ordre et de la souveraineté d'État, a prêdominé partout, tant dans la doctrine que dans la marine. Pour excuser l'anomalie, qui dans ce seul rapport de la neutralité sépare le ressortissant neutre de son gouvernement pour le placer sous une souveraineté étrangère, l'on a essayé de faire valoir pendant toute notre ère cette thèse absurde, que ce n'est pas le droit international mais le belligérant qui interdit les secours de guerre par contrabande, et qu'en conséquence la seule répression qui soit nécessire est celle qui consiste dans les saisies et confiscation par le croiseurs en case de surprise. (Lois et usages de la neutralité, I, p. 380.)

Opinion of Prof. Holland, 1904.-Prof. Holland, in 1904, tried to condense the obligation of the neutral in regard to coaling and its relation to the use of territory as a base. This position showed the divergence from that of some of those who, like Kleen, would have the neutral State exercise supervision to prevent the export of

articles of contraband. Prof. Holland, in a letter to the Times, said:

As a good deal of discussion is evidently about to take place as to the articles which may be properly treated as contraband of war, and, in particular, as to coal being properly so treated, I venture to think that it may be desirable to reduce this topic (a sufficiently large one) to its true dimensions by distinguishing it from other topics with which it is too liable to be confused.

Articles are "contraband of war" which a belligerent is justified in intercepting while in course of carriage to his enemy, although such carriage is being effected by a neutral vessel. Whether any given article should be treated as contraband is, in the first instance, entirely a question for the belligerent Government and its prize court. A neutral Government has no right to complain of hardships which may thus be incurred by vessels sailing under its flag, but is bound to acquiesce in the views maintained by the belligerent Government and its courts, unless these views involve, in the language employed by Lord Granville in 1861, a flagrant violation of international law." This is the beginning and end of the doctrine of contraband. A neutral Government has none other than this passive duty of acquiescence. Its neutrality would not be compromised by the shipment from its shores, and the carriage by its merchantmen, of any quantity of cannon, rifles, and gunpowder.

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Widely different from the above are the following three topics, into the consideration of which discussions upon contraband occasionally diverge:

1. The international duty of the neutral Government not to allow its territory to become a base of belligerent operations, e. g., by the organization on its shores of an expedition, such as that which in 1828 sailed from Plymouth in the interest of Dona Maria; by the dispatch from its harbors for belligerent use of anything so closely resembling an expedition as a fully equipped ship of war (as was argued in the case of the Alabama); by the use of its ports by belligerent ships of war for the reception of munitions of war, or, except under strict limitations, for the renewal of their stock of coal; or by such an employment of its colliers as was alleged during the Franco-Prussian War to have implicated British merchantmen in the hostile operations of the French fleet in the North Sea. The use of the term "contraband ” with reference to the failure of a neutral State to prevent occurrences of this kind is purely misleading.

2. The powers conferred upon a Government by legislation of restraining its subjects from intermeddling in a war in which the Government takes no part. Of such legislation our foreign enlistment act is a striking example. The large powers conferred by it have no commensurable relation to the duties which attach to the

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