Attitudo of the powers at the London Conference. the existence of the law of contraband.1 The German delegates, however, strenuously opposed the doctrine, and a long discussion took place. But as neither side was inclined to make any concessions, nothing resulted from the deliberations of the committee; and the question of continuous voyage was never really detached from the other problems of contraband of war.2 Germany again opposed the doctrine at the Naval Conference of London, and in this attitude she was supported by Austria-Hungary and Spain; while Russia opposed its application to land transport, and Holland contended that it applied solely to transport to enemy territory without transhipment in a neutral port. But the majority of the states represented at the conference recognized the doctrine of continuous voyage to a greater or less extent.3 In the instructions to the British delegates Sir Edward Grey said: 'His Majesty's Government believe the more widely established rule to be that the destination of the contraband cargo, and not that of the vessel by which it is conveyed, is the decisive factor. In other words: it may be laid down that the fact of the destination of the carrying ship being a neutral port will not relieve the cargo from condemnation if it is established that the contraband did in fact possess a belligerent destination. This principle may rightly be extended not only to cases where the contraband is to be carried on to the enemy by transhipment, but also to cases where the goods are forwarded by land transit through neutral territory.' 4 The doctrine of continuous voyage was supported by the Prussian Regulations of 1864,5 and now has a con 1 La Deux. Confér. i. 855. 2 Hansemann, 58-9. 3 P. P. Misc. No. 5 (1909), 94–6; Hansemann, 59–63. 4 P. P. Misc. No. 4 (1909), 24. 5 17. L. Q. R. 197; Westlake, I. L. ii. 298. 2 tion of some text writers. culties tion doctrine. census of learned opinion, including that of Gessner 1 and Perels, in its favour.3 Some systematic writers of the Opposi nineteenth century, such as Hall and the editors of Wheaton, as we have seen, opposed the doctrine as an undue encroachment on the rights of neutrals; and it is obviously no easy matter to determine the degree of Diffi cogency to be required in the evidence of the ulterior in the hostile destination of the cargo. The presumption that applica the contraband goods are destined for the enemy, though of the it can hardly amount in any case to positive proof, should leave no reasonable doubt as to the justice of the sentence. In the British view, as laid down at the London Conference,5 the doctrine only holds good when the whole transportation is made in pursuance of a single transaction preconceived from the outset. If the goods were intended to reach the enemy without the intervention of a fresh commercial transaction, they can lawfully be condemned as contraband; but if the evidence went no further than to show that the goods were sent to the neutral port in the hopes of finding a market there for delivery elsewhere, they are immune from capture. Where the neutral port to which the vessel was bound appeared to be specially adapted through its situation or it was known that from it the enemy was furnished with material of war, the American courts assumed an intention in the mind of the owner of the cargo directed to a hostile destination after the termination of the voyage mentioned in the ship's papers." 1 Droit des neutres sur mer, 121. 2 Int. öffent. Seerecht, 259 (§ 45); 14 Ann. 63. 3 Cf. Westlake, I. L. ii. 298; Opp. I. L. ii. 504; Kleen, Neut. i. 388-9; Barc. Prob. 94; Elliott in 1 A. J. 102. 4 Supra, pp. 155–6. 5 P. P. Misc. No. 4 (1909), 8; No. 5 (1909), 95. 6 Hansemann, 40; Mr. Bryan's letter to Mr. Stone (9 A. J. (1915), 446). The Second Hague Conference. CHAPTER XIII CONTRABAND UNDER THE DECLARATION OF THE distinction between absolute and conditional or relative contraband was adopted as the basis of the discussion of the subject at the Second Hague Peace Conference in 1907. The United States, as we have already seen,1 were in favour of the complete abolition of conditional contraband, but although the suggestion received some support from the representatives of other powers, it met generally with so unfavourable a reception that it was not proceeded with. Brazil proposed to qualify the abolition of conditional contraband by permitting belligerents to sequestrate or purchase certain named articles-provisions, coal, raw cotton, and men's clothing—when destined either for an enemy port or for a neutral one clearly proved to be a stage (étape) towards an enemy destination. The German proposal, following the course adopted by Perels in 1895,2 maintained conditional contraband when diplomatically declared in advance by the belligerent government. The French proposal, like the rule finally laid down by the Institute of International Law in 1896,3 limited absolute contraband rather strictly, and then, while nominally proclaiming the freedom of neutral commerce in all things not absolutely contraband, allowed to belligerents the power of ' restraining its freedom' by a diplomatic notification of the things they intend to intercept, which might be 1 Supra, chap. ix. p. 104. 2 Supra, p. 129. 3 Supra, p. 130. confiscated if their hostile purpose (but nettement hostile) was proved, but otherwise only pre-empted.1 memo to the The distinction was also recognized in the majority The of the memoranda submitted by the powers represented randa at the Naval Conference of 1908-9. According to the submitted German Memorandum articles of the second or conditional London Conclass should be considered contraband when destined to ference. the armed forces or to the government service of a Germany. belligerent, and there would be an irrebuttable presumption of such destination if the goods were consigned to enemy authorities. This destination was also to be presumed (although, in these cases, the presumption might be rebutted) if the goods were consigned to a trader (commerçant) who, as a matter of common knowledge, supplied articles of that kind to the enemy, or if they were consigned to a fortified place belonging to a belligerent or other place serving as a base for the operations or revictualling of his armed forces; unless it was a question of proving the contraband character of the vessels themselves bound for one of those places. According to the Russian Memorandum articles of the Russia. second class (contrebande de guerre relative) destined to the armed forces of the enemy would be liable to confiscation unless the claimants proved that the goods transported were not destined to be used for the purposes of the war. Destination to the armed forces of the enemy included destination to (a) the enemy's army or fleet, (b) a naval port or fortified place of the enemy, (c) a port occupied by the enemy, and (d) any other enemy port if the goods were transported for the enemy government or its purveyors. The Japanese Memorandum Japan. deemed articles coming within the category of conditional contraband to be destined for the enemy's military or 1 Westlake, I. L. ii. 289–90; La Deux. Confér. iii. 1156 sq. (Annexes 28-32). United France. Great Question of aboli tion of con ditional band raised. naval forces when they are destined to enemy territory and, from circumstances connected with the place of destination, there is reason to believe that they are intended for the military use of the enemy.1 The United States Memorandum deemed articles of the second class to be contraband when actually and specially destined to the enemy's military or naval forces; the French Memorandum treated in the same way coal and petroleum destined directly and solely for the use of an enemy fleet or naval port. According to the British Memorandum there should be a presumption that conditional contraband is on its way to assist in the warlike operations of the enemy only if there is proof that its destination is for the naval or military forces of the enemy, or for some place of naval or military equipment in the occupation of the enemy, or if there has been fraudulent concealment or spoliation of papers.2 3 In the deliberations of the Conference the question of the abolition of conditional contraband was raised by Holland and Spain, but it was outside the scope of the contra- British programme, which limited the discussion to the existing rules of international law. As was therefore to be expected, the Declaration of London adopts the principle of the Anglo-American distinction between absolute and conditional contraband. Article 22 enumerates eleven classes of articles (including, besides practically every object that is exclusively used for war, saddle, draught, and pack animals suitable for use in war, and clothing, equipment, and harness of a distinctively military character) which may without notice be treated as List of absolute contraband. 1 Cf. supra, p. 134. 2 P. P. Misc. No. 5 (1909), 66-9. 3 Ibid. 136-7; cf. supra, p. 104. 4 De plein droit; i. e. after ratification of the Declaration the list would come into force for the signatory powers ipso facto on the outbreak of war without the necessity for any formal promulgation or notification (cf. P. P. Misc. No. 4 (1909), 44, 78). |