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So long as a doctrine of contraband is recognized, the same kind of indefiniteness, the same possible subterfuge, the same dangerous misunderstandings that at present exist, will continue. If belligerents are allowed to fix their own contraband lists (even upon notification and even though only absolute contraband is contemplated) there will be room for differences of view and interpretation. The doctrine of continuous voyage prior to this war was limited specifically to absolute contraband. During this war it has been developed into a theory of ultimate consumption covering absolute, conditional, and noncontraband, and unless eradicated from the law of nations will always play havoc with neutral commerce. There is no logical distinction between supplying civilians with food and supplying an army with food. The more civilians have, the more will be released to the army. The Declaration of Paris, thought to have been so well engrafted on international law that a violation would be impossible, has practically become a dead letter during this war, because while a neutral flag covered enemy goods, and neutral goods on an enemy vessel were immune from capture, there was an exception of contraband - and practically everything has been made contraband! Immunity of private property at sea must include contraband, or freedom of the seas will mean nothing.
Recognizing this, the British Government, in the Hague Conference of 1907, proposed that contraband be entirely abolished. Twentysix states supported the British proposal; five (Germany, France, Russia, the United States, and Montenegro) voted against it; four abstained from voting; and nine states took no part at all. It was evident, however, that the law of blockade involving the doctrine of continuous voyage was necessarily connected with consideration of the abolition of contraband. It was feared that an agreement on the abolition of contraband alone would leave an opportunity through a loose interpretation of the law of blockade to negative what was apparently conceded. As was said by Dr. James Brown Scott, "Marschall von Bieberstein was eminently justified in conditioning his approval of the proposed immunity of private property upon an agreement upon contraband and blockade.”
The Hague Peace Conferences of 1899 and 1907, Vol. I, p. 705.
The purpose of a naval blockade is to reduce a fortress or other place of military occupation. The purpose of a commercial blockade is to affect noncombatants and to produce such distress among them as to bring pressure to bear upon the enemy government to make peace.
Along with the abolition of contraband must go the abolition of commercial blockade, if the seas are to be free. This was supported by the draft presented to the Havana Conference. “The commercial blockade both of the belligerent ports and the maritime zones along belligerent coasts is formally forbidden, no matter what the means by which the blockade is to be effected.”
The American doctrine would further extend immunity to enemy merchant vessels. We refused to enter into the Declaration of Paris because it did not go this far. England, with its large merchant fleet, particularly in view of the development of the submarine, may find its major interest in supporting this doctrine against which it has always contended. Germany and Austria supported the American proposal at the Second Hague Conference, but possibly their views may have changed in view of the effectiveness of the submarine. At any rate, the offensive power of all nations to destroy the merchant fleets of their enemies has been greatly enhanced. Opposed to Great Britain's supremacy at sea is the fact that her merchant marine is so much larger than that of any other Power and her dependence upon it so much greater, that an agreement on this point might seem more important to her than heretofore. It is inconceivable, however, that an agreement can be reached which would allow the capture but forbid the destruction of enemy ships. Such a distinction disregards belligerent necessities. Either enemy merchant vessels must be free from capture and destruction, or it must be agreed that immunity extends neither to life nor property on an enemy ship. Granted that an agreement can be reached on either one of the above alternatives or the other, there is nothing indefinite about the proposition, and what international law needs more than anything else is certainty.
“Freedom of the seas” means abolition of the doctrine of contraband and of commercial blockades, and of the right of capture or destruction of enemy vessels. Any doctrine of contraband involving changing lists of material, notification, illogical distinction between
civilians and armed forces, questions of continuous voyage and ultimate consumption, merely cause confusion and different interpretations which threaten to and do involve neutrals. Commercial blockades involve some of these difficulties. There can be no certainty while such doctrines remain in the law. To permit capture but condemn destruction of enemy merchant vessels is likewise illogical, and is a law that will never be observed. The two must be taken together. Either the law must allow both or neither, and neutrals must act accordingly; but if the law is either way, it is neither illogical nor uncertain. So long as there is certainty of rule and the same principle is applicable to either method of interference, the greatest danger that of uncertainty — will be avoided.
Freedom means certainty of clear rights. The demand for the freedom of the seas means that international law must be made logical, that the cobwebs must be swept away, that legal quibbles must be avoided. As Mr. Root said in his instructions to the American Delegation at the First Hague Conference: “Misunderstandings regarding the rights and duties of neutrals constantly tend to involve them in controversy with one or the other belligerent."
The historical American doctrine of immunity of private property at sea (including enemy vessels, but excepting contraband) is, on analysis, not only involved but will not avoid the present equivocations. Everything will be called contraband, and whether intended for neutrals or for belligerents, a doctrine of ultimate consumption, supported not by fact but by inference, will be applied. The Declaration of Paris will have no force. Enemy ships themselves will be called contraband, and they or their contents captured, and reprisals will lead to destruction.
So that what we mean by the freedom of the seas does not do away with the real difficulty of confusion. The abolition of the doctrine of contraband heretofore supported by the British but not by the American Government; the abolition of commercial blockade, now presumably a doctrine of the American Government though not of the British; and the American doctrine of immunity of enemy merchant ships would all seem to be necessary before there can be said to be freedom of the seas. Such freedom must be based upon definite legal
and logical principles, rather than upon compromises not founded in reason which profess to grant that which no belligerent would ever concede.
Of course, this means that a merchant ship loaded to the gunwale with guns and ammunition would be allowed to pass by an enemy cruiser. “Preposterous," you say. “Even on land contraband may be requisitioned and held.” The thought is astounding only because it is new. The fact that private property of a neutral in a neutral country is inviolable may well interfere with the operations of a belligerent, but it has been a concept so universally accepted that no one would question it. For instance, Holland might have an ammunition factory within a hundred feet of the German border and might from that factory supply the Allies. If the Germans invaded Dutch territory to seize that factory a state of war would necessarily arise. We should all howl with indignation at the violation of Dutch territory. That is because no one would for a moment question the inviolability of private property on land in a neutral state. Of course, the sea does not belong to a neutral nation, but neither does it belong to a belligerent nation.
Does the proposal for freedom of the seas necessarily depend upon the closely related propositions of limitation of armament and a league of nations to enforce the law? English opinion would make such propositions contingent. The Wilson suggestion includes them all, but rather as interrelated than as mutually conditional. The Germans seem to profess to be unable to see any connection whatever. But the struggle for the freedom of the seas in war time finds its support in inherent justice and in the fact that, irrespective of other considerations, no power owns the ocean. A league of nations would undoubtedly make the observance of the law more probable, yet the law and its enforcement are two different things. There is little doubt that in the absence of superior force, whether moral or physical, any agreement would be violated if that were to the vital interest of a belligerent; but after all even civil law, with all our vast machinery of government and our ability to punish violation, is rarely specifically enforced. The law merely fixes a measure of damage, to which a violator must respond.
There are few world wars, however. Where they do exist, they ordinarily develop out of conflicts among a few nations and others are entangled because of shifting interpretations of what the law is. Unless practically all great nations are engaged, those involved would not dare to violate a definitely fixed body of law. If the rights of neutral nations were clear — if the principles were on a logical foundation based upon sound reasoning, it would seldom be to the military interest of a belligerent to rouse the world over depredations which could have no possible justification or explanation. One thing seems clear: either we must accept the doctrine of immunity, or the rights of belligerents under the law must be so extended as to be of some practical benefit to them. The latter would mean rivalry in development of naval armament, because heretofore nations in regarding the value of control of the seas have had in mind only the limited rights of belligerents and the protection by law of the most considerable portion of foreign trade. Neutrals would vigorously oppose any extension of belligerent rights. The present law, based upon an illogical series of compromises, merely leads to an immoderate extension when it suits the purposes of the belligerent. The only alternative would seem to be the inviolability of private property at sea, including even contraband and enemy merchant ships.
The law must be logical and definite. It must be based upon the principle that belligerent rights do not extend beyond the territory controlled or occupied. It must be founded upon the sovereign rights of nations to travel freely over the oceans, which are owned by none; on a recognition that law is as potent an instrument of protection as might.
ARTHUR GARFIELD HAYS.