« AnteriorContinuar »
THE LEGAL BASIS OF THE RULES OF BLOCKADE IN
THE DECLARATION OF LONDON
Every new agreement between nations changes the sources from which court decisions on subjects pertaining to international law are taken. In some cases, as that of the Declaration of Paris of 1856, the rules laid down by a multipartite convention become almost the sole source of facts upon which they touch. Decision after decision of the courts goes no further than that Declaration for the rules as to blockade and neutral goods. Judges whose predilection for extensive citations of authorities is well known consider its provisions of so authentic a nature that they forego further investigation in cases where the point at issue is simple enough to be covered by the laconic statements of the Declaration.
But, on the other hand, the Declaration of Paris was a mere phrasing of principles generally recognized and for many decades before frequently laid down as almost axiomatic. Thus the Declaration of Paris can be considered best as a conventional statement of law previously established. This is generally the case with multipartite conventions, for the nations frequently have points of view too divergent to accept other principles than those already noncontestable or contestable to a slight degree only. Add the results of much compromising on specific points, and the general origin of the multipartite convention is stated.
To how great an extent the Declaration of London 2 will become for judicial purposes the source beyond which there will be no need of going must, of course, await the event to be ascertained. The rules of blockade phrased in it ought to suffice in a great majority of cases, for it includes the gist of the judicial decisions recognized as most authoritative. A comparison has been made between the text of the Declaration and adjudicated cases as published in Scott's Cases on International Law and some other sources, especially reports. Realizing that the London Conference was participated in by European nations as well as by Great Britain and the C'nited States, some attention has also been paid to the European point of view regarding the matters considered as expressed, for the most part, in Bonfil's Manuel de Droit International (cinquième édition, Paris, 1908). This study seemed particularly appropriate in view of the purpose of the Conference as stated in the preliminary provision:
1 Printed in SUPPLEMENT to this JOURNAL, Vol. I (April, 1907), p. 89. 2 Printed in SUPPLEMENT to this JOURNAL, Vol. III (July, 1909), p. 179.
The Signatory Powers are agreed that the rules contained in the following chapters correspond in substance with the generally recognized principles of international law.
The British delegates in their final report phrased this differently:
The purpose of the Conference has been, above all, to note, to define, and, where needful, to complete what might be considered as customary law.
The latter statement is perhaps preferable because the term international law is, for Anglo-Saxons, an indefinite one making no distinction between adjudicated law and the dicta and conclusions of text writers which are higher in favor among the Latin races as authorities than in the United States and Great Britain.
In may be said at the outset that the statement of the British delegates is an excellent one. A careful study of Chapter I of the Declaration and comparison of its provisions with the volumes mentioned above shows that the Conference did note, define and complete to a large extent what was already to be found in international legal rules.
In Chapter I, regarding blockade in time of war, fully half of the twenty-one articles is devoted to “completing” the dicta of customary law. This is perfectly natural, for a set of rules must necessarily lay down practical methods of carrying out their prorisions, and this is a matter of which courts take little cognizance. Rules coming under this head are contained in Articles 8, 9, 10 and 11 relative to the contents of a declaration of blockade and the methods of notification; Article 13 relative to notification when a blockade is voluntarily raised; provisions in Articles 15 and 16 relative to methods of determining a vessel's knowledge of a blockade and the modes of informing her of an existing circumvallation; and provisions in other Articles.
Article I provides that
A blockade must not extend beyond the ports and coasts belonging to or occupied by the enemy.
No adjudicated case hangs on the point regarding a blockade of a port or coast occupied by the enemy, probably because of the well recognized ability of a belligerent to treat such occupied territory as enemy country. In several American cases this was not even called in question. In United States v. Rice (U. S. Sup. Ct., 1819, 4 Wheaton, 246, Scott's Cas. 655), and in United States v. Hayward (1815, 2 Gall. 485, Scoit's Cas. 657), Justice Story held that Castine, Me., was British territory while occupied by military forces during the war of 1812. “By the surrender,” he says, in the first case," the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws * * * as it chose to recognize and impose.” In the second case it was held that Castine was to be considered a “foreign port” with reference to the nonimportation acts.
A case arose as a result of the Spanish-American War in which a vessel sought to make port in Cuba. The Adula (176 U. S. 361, Scott's Cas. 826) was condemned as prize of war by the District Court after being captured in the attempt to reach Guantanamo, Cuba, and the deoree of the lower judicial body was affirmed by the Supreme Court. A proclamation issued by the President June 27, 1898, established a blockade of all ports on the southern coast of Cuba between Cape Frances on the west and Cape Cruz on the east. Both Santiago and Guantanamo are to the eastward of Cape Cruz. Rear Admiral Sampson, however, on June 7, as commander of the naval forces, had ordered the investment of the ports of southern Cuba, and this investment was maintained as an effective blockade. The Adula was chartered by a Spanish subject, one Solis, from the Atlas Steamship Company, a British corporation, to bring refugees from Guantanamo, Santiago or Manzanillo, the voyage being primarily
a commercial one for personal profit. She sailed near the end of June from Kingston, Jamaica, and was overhauled by the Vixen. The American warships controlled Guantanamo Bay, from which the city is twenty-five miles distant. While it seems to have been accepted by the court that the city itself was still in the bands of the Spanish, it was contended by the defendants that the port was in the possession of the Americans. Justice Brown lays no stress on this contention in his decision, evidently being of the opinion that the blockading, or occupying, Americans -- which they were — had in either event a perfect right to treat as hostile a vessel which was attempting to do a thing they conceived to be prejudicial to their interests. It may be added that the text writers of Europe almost unanimously accept the opinion that neutral ports occupied by the enemy are subject to blockade.
The fourth dictum of the Declaration of Paris, which is reaffirmed in Article 2, is too generally accepted to require any lengthy citations to demonstrate that it is law. It may be mentioned, however, that though the United States has never adhered to the Declaration officially, the maxim was cited as authoritative by Chief Justice Fuller in his decision in the case of the Olinde Rodrigues (1898) (174 U. S. 510, Scott's Cas. 835); and that the second of the instructions issued by the Secretary of the Navy, June 20, 1898, General Order No. 492, read: “A blockade to be effective and binding must be maintained by a force sufficient to render ingress to or egress from the port dangerous.” The Declaration of Paris reads “to prevent access to the enemy coastline.” We submit that the American phrasing might have well been embodied into the Declaration of London, referring to coastline instead of to a port.
That the question whether a blockade is effective is a question of fact is also a legal truism. One has only to refer to the decisions of Sir William Scott in the High Court of Admiralty (1 and 2 C. Robinson) and of the Right Hon. T. Pemberton Leigh (10 and 12 Moore's Privy Council) to see that the de facto blockade is well recognized in law. In fact, the phrase has lately fallen into disuse on account of the disposition to consider the one sort only; that is, those properly maintained. American and British jurists have also
recognized a blockade de facto, as one in wbich notification was not given. This tenet has been disputed on the Continent and Article 3 is a very satisfactory reconciliation of the two theories.
The effect of bad weather on a blockading force has long been acknowledged not to terminate the circumvallation. Article 4 has the sanction of British and American jurisprudence, though European opinions will have to be modified to a small extent. Dr. Lushington in the High Court of Admiralty in 1865 (The Helen, 1 L. R. 1 Ad. and Ecc. 1, Scott's Cas. 823), says: “The blockade must and (save accidental interruption by weather) be constantly enforced." Chief Justice Fuller in the Olinde Rodrigues quotes approvingly Sir William Scott in The Hoffnung (6 C. Rob. 112, 117):
When a squadron is driven off by accidents of weather, which must have entered into the contemplation of the belligerent imposing the blockade, there is no reason to suppose that such a circumstance would create a change of system, since it could not be expected that any blockade would continue many months without being liable to such temporary interruption.
The London conferees have satisfied themselves with stating simply that interruptions by stress of weather do not raise a blockade. They have by this plırasing steered clear of the extreme theory that a vessel inaking the closed port during this period of respite violates the blockade. This theory, according to Bonfils (S 1645), is held by the courts of admiralty of Great Britain, Denmark and the United States. Besides the English writers Phillimore and Travers-Twiss, Bello, Brocher, Fiore and Kent subscribe to it. Ortolan, on the other hand, considers that weather exigencies suspend the blockade, while Bulmerincq and Halleck believe they operate to lengthen the duration of the investment.
France's learned text-writer evidently misunderstood the attitude of the Anglo-Saxon jurists, for Sir William Scott in the passage cited above continues (6 C. Rob, 117):
But when a squadron is driven off by superior force, a new course of events arise, which may tend to a very different disposition of the blockading force, and which introduces therefore a very different train of presumptions, in favor of the ordinary freedom of commercial speculations. In such a case the neutral merchant is not bound to foresee or to conjecture that the blockade will be resumed.