in war of Hungarian Governments announced their intention to Adoption observe the rules of the Declaration without addition or 1914-15. amendment, but they have since added to the list of contraband articles and in other ways departed from the terms of the Declaration.1 Great Britain and her Allies have also adopted the provisions of the Declaration as their rule of action, subject to such modifications and additions, consistent with the law as previously established, as are rendered necessary by the special circumstances of the war.2 Although by a preliminary provision the signatory powers declared themselves agreed that the rules of the Declaration correspond in substance with the generally recognized principles of international law, it was admitted that those rules really 'represent what may be called the media sententia', and 'are not always in absolute agreement with the views peculiar to each country'. In view of the amount of compromise and concession which was required to arrive at this media 3 Britain to ratify the Convention and Declaration (Bent. Decl. 171-5), but on December 12 it was rejected by the Lords, mainly on the ground of certain points which, as the powers could not agree on them, the Declaration left still for decision by the international prize court, in case it should be established, in accordance with its sense of justice and equity (Westlake, I. L. ii. 255-6; Hol. Letts. 193–5: 9 A. J. (1915), 200-1). It is incompatible with the constitution of the United States that a decision of the Supreme Court should be formally annulled by an appeal, and in order to overcome this difficulty an additional protocol was signed at the Hague on September 19, 1910 (5 A. J. (1911), Sup. 95; cf. 6 id. (1912), 799; Pearce Higgins, 443–4; Lawr. Prin. 492). For opinions as to the probable influence of the Declaration upon international practice apart from ratification cf. Westlake, I. L. ii. 256; Col. Paps. 645-7; Cob. Cases, ii. 285, 387; and as to the attitude towards it of other states than Great Britain cf. 9 A. J. (1915), 201. 1 See infra, pp. 182-3, 185-6. 2 See the Orders in Council of August 20 and October 29, 1914 (Appendix B, infra, pp. 282-5). The alterations chiefly concern the law of contraband. The German Government addressed a memorandum to neutral powers in which she complained of the attitude of Great Britain and France towards the Declaration of London as nullifying its chief points and also violating existing international law (The Times, October 26, 1914). 3 P. P. Misc. No. 4 (1909), 34. The Renault sententia, Article 65 of the Declaration stipulates that its provisions must be treated as a whole and cannot be separated; but this does not prevent a state which has not ratified the Declaration from declaring that it will act in accordance with some of the rules of that convention and depart from others which are inconsistent with its own previously established views of the law.1 The Declaration is accompanied by a General Report of the Drafting Committee, prepared by M. Renault, which not only discloses the considerations by which the Conference was guided in drawing the Declaration up, but also amplifies or qualifies many of its articles and suggests that many details not specified in them are to be implied. In accordance, as it seems, with the continental practice, the Report was adopted by the Conference as a guide to the meaning of the Declaration; but it has been seriously questioned whether it would be binding on the signatory powers unless expressly adopted by them on ratification.3 The Order in Council of August 20, 1914, by which the modified rules of the Declaration were first adopted, directed all British prize courts to consider the Report as an authoritative statement of the meaning and intention of the Declaration and to construe and interpret its provisions by the light of the commentary therein. But this direction was dropped in the subsequent Order in Council of October 29, 1914,5 which repealed and replaced the earlier one. In English law a draftsman 4 1 Cf. Bent. in 9 A. J. (1915), 37; and Editorial Comment, ibid. 201-2. 2 But see Lord Alverstone's remarks in the debate in the House of Lords on March 13, 1911 (7 Hansard (1911), 464–5). 3 P. P. Misc. No. 4 (1909), 94, and No. 4 (1910), 21-2; Pearce Higgins, 567, n. 1; Bent. Decl. 8; Bate, Decl. 11-12; Hol. P. C. 6-8; Letts. 186-90; Cohen in 27 L. Q. R. (1911), 12. Westlake, however, considered that the Report had been duly incorporated in the Declaration (Col. Paps. 651-4, 667–71). 4 Clause 6 (App. B, infra, p. 283). 5 Declaration of London, Order in Council No. 2, 1914 (App. B, infra, p. 284). is not allowed to define the intention of his own document in the way attempted by the Naval Conference; this can only be done by the document itself; 1 and it is therefore to be regretted that the Report was not originally expressly incorporated into the Declaration.2 1 Beal, Legal Interpretation, 287-90. 2 The Declaration of London will be found, with the Report. in Pearce Higgins, 538-613, and also in M. E. L. 447-514; and see Appendix A, infra, pp. 256-81. Antiquity of the notion of contraband. Classical instances. CHAPTER IV CONTRABAND IN THE WARS OF THE GREEKS 1. INSTANCES OF THE APPLICATION OF THE PRINCIPLE OF CONTRABAND IN THE WARS OF THE GREEKS AND ROMANS At the present day the rules regarding contraband of war, being concerned with the relations between belligerent states and neutral individuals, are universally treated as a branch of the law of neutrality. But, as we have already observed,1 the fully-developed principles of the modern law of neutrality, the foundation of which is a duty on the part of non-belligerent states and their subjects to observe the strictest impartiality towards the contending parties and to refrain from taking part in, or from interfering with, any operation of war that is legitimate as between the belligerents,2 are of comparatively recent growth; whereas the origin of the law of contraband is to be found in times long anterior to the recognition of this general duty of impartiality and abstention on the part of a neutral state. Attempts by belligerents to prevent the transport of arms and other necessaries of war to their enemies by the subjects of non-belligerent states-the essential idea of contraband of war-is as old as war between civilized communities. In 295 B.C. we meet with a case more akin to blockade than contraband. Demetrius Poliorcetes, King of Macedonia, who was besieging Athens, captured a merchant 1 Supra, p. 2. 2 Westlake, I. L. ii. 192; Kleen, Neut. i. 208. ship bound for that city with a cargo of wheat, and put to death both the owner and the pilot. Other traders were so alarmed at this that, as Plutarch informs us, they were deterred from attempting to carry further supplies to the Athenians, with the result that a famine ensued and the city was speedily compelled to surrender.1 Later on, at the close of the first Punic war, a clearer case of the practice of contraband occurred. A formidable insurrection broke out among the mercenary troops of Carthage, and in 239 B.C. five hundred persons sailing from Italy with provisions for the mutineers were captured by the Carthaginians and thrown into prison. This aroused great resentment at Rome. Ambassadors were sent to Carthage, and eventually possession of the men was recovered by diplomatic means. But the Romans were so gratified with this result that they proceeded to prohibit the export of provisions to the mutineers, while they expressly allowed their merchants to export to Carthage whatever from time to time was required.2 3 Although, however, in some matters-as, for example, Their legal in reference to the inviolability of heralds and the observ- character ance of truces a system of rules and customs analogous and value. to the modern law of nations existed in antiquity, and although the idea of a community remaining on friendly terms with both sides in a controversy with which it had no concern seems to have been more or less clearly understood, it must not be supposed that the particular incidents referred to in the preceding paragraph arose from the recognition of any general rules or principles 1 Plutarch, Demet. chap. 33; Phillipson, Greece and Rome, ii. 383. 2 Polybius, bk. i, chap. 83; Hosack, 9; Phillipson, op. cit. ii. 383. 3 Walk. Hist. i. 50-4; Westlake, Chaps. 18-19; Col. Paps. 18–19; Hershey, in 5 A. J. (1911), 901. When Queen Tueta sent men to assassinate a Roman ambassador on his return home, the Romans, Polybius says (bk. ii, chap. 8), were highly incensed at the queen's violation of the law of nations (διοργισθέντες ἐπὶ τῇ παρανομίᾳ τῆς γυναικὸς εὐθέως). |