non Theoretical support. Galiani. of war. By virtue of a Joint Resolution of Congress of March 13, 1912, the President of the United States is authorized to forbid, in his discretion, the export of arms or munitions of war to any American country in which he shall find conditions of domestic violence to exist.2 BelliThere have also been occasions when belligerents have gerent protested against the refusal of a neutral state to prohibit protests against the export of contraband of war from its territory, and responsi- theoretical writers have supported the doctrine, which bility of neutral seems to have had its origin in the Italian universities,3 states. that the belligerent injuriously affected by such a refusal is entitled to resent the conduct of the neutral government by war. One of the earliest exponents of this doctrine was the Abbate Galiani, Sicilian Secretary of Legation at Paris, who in the interest of the Armed Neutrality published in 1782 a work entitled De' doveri de' principi neutrali verso i principi guerreggianti. In it he contended that the conventional law of nations interdicting commerce with the enemy in contraband of war extends to the sale of the same articles within the neutral territory, and that neutral individuals cannot continue to sell arms and other warlike stores to the belligerents.4 When the United States declared, in the instructions issued to the Commissioners of Customs in 1793, that 'the purchasing within and exporting from the United States by way of merchandise articles commonly called contraband . . . is free to all the parties at war, and is 1 Westlake, I. L. ii. 299. Attitude 2 6 A. J. (1912), 477. The powers conferred upon the British Government by sec. 8 of the Customs and Inland Revenue Act, 1879 (replacing sec. 150 of the Customs Consolidation Act, 1853), of forbidding at any time, by Order in Council, the export of articles useful in war, have sometimes (cf. Smith & Sib. 432–3) been considered to refer to trade in contraband; but the powers thus given have no relation to the duties of neutrality, and their object is to enable Great Britain, when at war, to retain in the country articles of which she may herself be in need, or to prevent them from reaching the hands of her enemies (cf. Hol. Letts. 116; Owen, War, 350-1). 3 Kleen, Neut. i. 351. 4 Bk. i, chap. ix, § 7 (pp. 382–95). , 6 not to be interfered with ', Great Britain suggested that the American Government would 'deem it more expedient to prevent the execution of the President's proclamation than to expose vessels belonging to its citizens to those damages to which it was admitted in the instructions they would be exposed through carrying articles of contraband.1 France went further in 1796, and contended that neutral states are bound to restrain their subjects from selling or exporting contraband to the belligerent powers; to which the United States Secretary of State replied: Our citizens have always been free to make, vend, and export arms; it is the constant occupation and livelihood of some of them. To suppress their callings, the only means, perhaps, of their subsistence, because a war exists in foreign and distant countries, in which we have no concern, would scarcely be expected. It would be hard in principle and impossible in practice.' 2 During the American civil war both parties, especially The the Northern States, profited largely from the British civil market.3 At the Geneva arbitration the United States war. leaned to the view that the character of contraband trade alters with the scale upon which it is carried on, and urged that though belligerents may not infringe upon the rights which neutrals have to manufacture and deal in military supplies in the ordinary course of commerce', yet that a neutral ought not to permit a belligerent to use the neutral soil as the main if not the only base of its military supplies'. But in the Bermuda 1 Chase, C. J., laid it down that in their own country neutrals may sell to belligerents whatever the latter choose to buy, and the Board which arbitrated in the matter of the Alabama claims gave no damages in respect 1 Moore, Dig. vii. 750-1; Taylor, I. L. 639-40; Hist. Letts. 133; Hall, I. L. 78; Lawr. Prin. 699. 2 Kent, 361-2; Hist. Letts. 133; Lawr. Prin. 699–700. 6 American 3 Westlake, Col. Paps. 368. 4 (1865), 3 Wall. 514. The Franco war. of the purchase of arms in England by the Confederate agents.1 In August, 1870, during the Franco-Prussian war, Prussian Germany accused the British Government of not acting in conformity with the position of strict neutrality taken by it', in permitting its subjects to supply arms and ammunition to France.2 But in the diplomatic correspondence Count Bernstorff did not appeal to any general rule prohibiting the transport of contraband to neutrals. He based his claim upon the fact that the German cause was just, that public opinion and even English statesmen had declared in this sense, and that in consequence England ought to observe, not merely a strict neutrality, but a neutrality calculated in a way to express efficaciously her sentiments, real or supposed, in favour of his country. During the Chino-Japanese war in 1894 Japan seems to have complained of the export of arms and vessels of war from British ports with a destination for China; 4 and in 1904 Russia appears to have questioned the legality of British trade in contraband with Japan.5 State responsibility advocated by jurists of nineteenth 9 The doctrine of state responsibility expounded by Galiani was advocated by several jurists of the nineteenth century, notably Hautefeuille, Pistoye and Duverdy," Phillimore, Field, Woolsey,10 Gessner,11 and Kleen.12 century. These writers recognize that carriage of contraband is directly prohibited by international law and constitutes a breach of the duties imposed by that law upon the 1 Hall, I. L. 79; Moore, Dig. vii. 699; Lawr. Prin. 700; Cob. Cases, ii. 446. 2 Hall, I. L. 79; Opp. I. L. ii. 428. 3 Westlake, Col. Paps. 374-5; 2 R.D.I. 4 Kleen, Neut. i. 382. 6 Droits et devoirs, tit. viii, sec. iii. 8 I. L. iii. 405–6 (§ 230). 10 Introduction, 330 n. (§ 193). (1870), 619, sq. 5 Hershey, R. J. 183–4. 7 Traité, i. 394. 9 Draft Code, 615 (§ 964). 11 Droit des neutres, 115. 12 Cont. 59-72; Neut. i. 378–87; cf. Hist. Letts. 121-37; Manceaux, 131; Brochet, 93; Gessner in 9 A. J. (1915), 398 and n. 42. citizens of neutral states. But to punish the attempted breach only when it is intercepted, they consider illogical ; and they argue that the neutral government should be under the same responsibility to prevent and punish the traffic of its subjects in contraband of war as it is under to prevent the use of its territory as a base for the naval or military operations of either belligerent. And as it makes little or no difference to the effectiveness of the assistance rendered to a belligerent whether the contraband goods are transported to him by sea or sold directly to his agents in the neutral country, it logically follows that the neutral government should be equally responsible for both forms of traffic. This is to be deduced, says Phillimore, from the fact that it is the true character of a neutral to abstain from every act that may better or worsen the condition of a belligerent. sion at national The majority of the members of the committee, how- Discusever, which was appointed by the Institute of Inter- Institute national Law in 1874 to consider the treatment of private of Interproperty in naval war, was of opinion that a neutral Law. government is under no obligation to prevent trade in contraband by means of its municipal legislation.1 Kleen himself admits this to be the predominant rule in theory and in practice, but in introducing the Projet de Règlement international de la contrebande de guerre, which he had prepared in collaboration with Brusa in 1893, he contended that henceforth traffic in contraband of Kleen's war, including commerce passif on neutral territory, proposal. should be regarded as an international crime which it should be the duty of neutral states to prevent or restrain, under the penalty of involving their own responsibility, but without prejudice to the right of restraint which the belligerents should still be entitled to exercise themselves. The suggestion to place this responsibility upon neutral Opposi 1 7 R. D. I. (1875), 605-8. 2 Cont. 49; Neut. i. 381. tion thereto. The Cam bridge resolutions. Bluntschli's doctrine. governments encountered great opposition among the other members of the committee, but Kleen and Brusa replied to their critics and only made a few modifications in detail in the draft which they submitted to the committee at Paris in 1894.1 This draft, very slightly altered, was adopted by the Institute at the plenary meeting on March 30, 1894.2 The opposition still continued, however, and finally Perels put in a contre-projet,3 whereupon the Institute decided to adjourn the discussion in plenary meeting to another session. After the session at Paris the personnel of the committee was considerably changed, and when it met again at Cambridge in 1895 the ideas that prevailed were different from those of the preceding year. The draft prepared by Perels, with whom Westlake was now associated, was taken as the basis of the discussions. In this draft the prohibition of contraband was limited to transport by sea, and the neutral trader was to act simply at his own risk. Perels desired to add that the neutral state should be bound to forbid the unlawful transports to its subjects, but Westlake opposed this and the majority of the committee agreed with him. Owing to the incompatibility of the principles underlying this decision with those of Kleen's original draft, all stipulations as to the obligation of neutral states to prohibit commerce in contraband to their subjects, and all mention of such trade in the neutral territory, were omitted in the draft finally submitted by Kleen and Brusa in the name of the committee and adopted by the Institute at Venice in 1896.4 Bluntschli endeavours to make a distinction between 1 See the Report in 13 Ann. 75 sq. and the text of the draft at p. 101 sq. 2 14 Ann. 33 sq. 3 14 Ann. 43, 64 sq. 4 15 Ann. 189-233; Dupuis in 3 R. G. D. I. (1896), 650–1. |