duty of America to close her markets to the latter. She is under no obligation to equalize the difference due to the relative naval strength of the belligerents' by preventing all trade in contraband. On the contrary, to deprive a belligerent of the fruits of his naval supremacy under the established law of nations by prohibiting the export to him of the arms and ammunition which his command of the sea enables him to prevent his adversary from receiving, would be, as is recognized in the United States, a distinct breach of neutrality.

When a state may

neutral

forbid its

in contra

Where, however, a neutral state is so situated that, unless it prohibits the export from, or transit through, its territory of articles required by one of the belligerents subjects for the maintenance of the war, the other belligerent to trade will be compelled in self-defence to prevent such articles band. from being imported into the neutral country, or where such a prohibition would not ensure benefit to only one side in the contest to the exclusion of the other, the neutral government may, so long as it is actuated solely by motives of self-interest, quite legitimately prevent its subjects from trading in contraband of war.

neutral

war of

During the present war of 1914-15 the Danish and Policy of Swedish Governments have prohibited the export of states in various articles of warlike use.1 Great Britain held up 1914-15. cargoes destined for Scandinavian ports until the government of the country of destination gave a guarantee against re-export to Germany, and arrangements were subsequently made to prevent such re-export of contraband articles. On October 28, 1914, a Bill was passed Denmark by the Danish Parliament containing drastic regulations as to the destinations of ships or cargo to be imported into or exported from Danish harbours, to enable the Government to give an effective guarantee to Great Britain as

1 See the lists in The Times, November 13 and December 7, 1914; and cf. Garner in 9 A. J. (1915), 393–4.

Holland.

Italy.

to Danish imports from America.1 In order to eliminate the risk of a cargo being transferred to a German vessel during a coasting voyage, Norway and Denmark prohibited the dispatch of grain from the port of arrival to any other by sea; any grain to be forwarded had to be sent by rail.2

Large quantities of tea exported from England found their way into Germany through Holland till the latter country placed an embargo on the export of tea. The Dutch Government itself became the sole consignee of all food-stuffs and nitrate destined for Holland; it also prohibited the export of certain things either to Germany or to other countries, but under the Rhine Acts it is obliged to let through to Germany by the Rhine any consignments arriving either on a through bill of lading or the order of a merchant declaring that they are in transit, or on proof by documents of the transit.3 At first Italy did not prohibit the export of grain, but she was subsequently reported to have followed the lead of Holland and Denmark. The Italian Government was also said to have put in force a decree that shipments of copper to Italian consignees or 'to order' could not be exported or transhipped. The British policy of making effective arrangements with neutral countries for preventing the re-export of contraband goods to Germany received the approval and support of the United States Government.4

1 The Times, October 30, 1914.

2 Id. October 28, 1914.

3 Id. October 7 and November 17, 1914; and as to the Netherlands Oversea Trust, which is under heavy bonds to prevent goods consigned to it from being re-exported to Germany, see id. July 31, 1915.

4 Id. January 12, 1915.

CHAPTER VII

THE INTERNATIONAL STATUS OF THE

NEUTRAL INDIVIDUAL

differ in

THE great majority of theoretical writers support the Jurists doctrine that a neutral state is not responsible for the opinion. carriage of contraband by its subjects, and that a belligerent cannot complain of the sale of contraband articles to his enemy on neutral territory. But there are great differences of opinion among jurists as to the nature of the compromise between the conflicting interests of belligerents and neutrals and as to the legal status of the neutral merchant and the nature of his relation to the belligerents.

gerent

neutral

obligation

other.

Kleen.

With some writers there is a tendency to eliminate Belliindividuals altogether from the theory even of those state and international relations in which they are particularly individual concerned. 'In the society of nations', says Kleen,1'all under no neutral rights and duties pass through the state as to each intermediary, the state being the party immediately responsible and having rights.' In order to bring the branch of the law of neutrality which is concerned with neutral commerce into conformity with the view that international law is exclusively a law between states, it is presented under the guise of a duty of acquiescence on the part of the neutral state, and it is said that the belligerent state and the neutral individual can be bound by no obligation to each other. 'Individuals',

1 Neut. i. 135. Rousseau asserted in his Contrat Social that states and men are things of such different natures that no true relation can be established between them (Cob, Cases, ii. 16).

Oppenheim.

Carriage of contraband a

mercial

adven

ture.

says Oppenheim,1 'derive neither rights nor duties, according to international law, from the neutrality of those states whose subjects they are.' 'All duties which might necessarily have to be imposed upon individual human beings according to the law of nations are not international duties, but duties imposed by municipal law in accordance with a right granted to or a duty imposed upon the respective state by international law.' 2

Carriage of contraband, he contends, is a mere commercial adventure, undertaken at the personal risk of mere com- the neutral trader, and not an offence against international law; and he asserts that when belligerents seize and punish neutral carriers of contraband on the open sea without their home state having a right to interfere, individuals appear simply as objects of the law of nations.3 The duty of neutral subjects to comply with the injunctions of belligerents regarding certain forms of prohibited trade is, he says, 'a duty imposed upon them by these very injunctions of the belligerents and not by international law'. The carriage of articles of contraband by neutral merchantmen on the open sea is, so far as international law is concerned, 'quite as legitimate as their sale. The carrier of contraband by no means violates an injunction of the law of nations. But belligerents have by the law of nations the right to prohibit and punish the carriage of contraband by neutral merchantmen, and the carrier of contraband violates, for this reason, an injunction of the belligerent concerned. It is not international law, but the municipal law of the belligerents, which makes carriage of contraband illegitimate and penal.' 5

Hall.

"The only duty of the individual', says Hall, 'is to his own sovereign. At the same time the only duty of

1 I. L. ii. 363-4.

4 Ibid. ii. 364.

...

the belligerent state is to beings of like kind with itself and it is merely bound to behave in a particular manner to the neutral individual because of the international agreement which sets limits to the severity which may be used in repressing his noxious acts.' It is said that the powers with which belligerents are invested are not conferred directly by international law, but are taken and given in conformity with it. When neutral individuals suffer under the rules of maritime capture, this happens because international law requires that the states to which they belong shall not protect them from the consequences of such serious misdeeds when imposed by other states in accordance with accepted practice '.1

3

Similarly, Professor Holland objects to the seizure of Holland. a contraband carrier being regarded as an exercise of authority by a belligerent state over a neutral subject; and he contends that a direct relation between a belligerent state and individual subjects of a neutral state should never be recognized by international law, which ought to be regarded as occupied exclusively with rights and duties subsisting between state and state'. 'International law', he says, 'always deals with the relations between states, and has nothing to do with the contraband trader, except in so far as it deprives him of the protection of his government.' He accordingly supports the doctrine that carriage of contraband is not a breach of international law, and on that ground criticizes some of the clauses usually inserted in British Proclamations of Neutrality.1 In the same way, Dr. Higgins says that contraband Higgins. trade is not internationally unlawful,5 and Dr. Pawley Bate contends that the neutral merchant involved in the Bate. carriage of contraband does not offend against international law, but only against the ordinance and interests

1 Lawr. Prin. 72-3.

3 Letters, 124.

5 Hague Peace Conf. 464.

2 Jurisprudence, 371, 384.

4 Neutral Duties, 8; Letters, 113.