the commencement of prize proceedings, and " the effect of this new procedure was to subject traders to risk of loss, delay, and expense so great as practically to destroy much of the export trade of the United States to neutral countries of Europe."
The interest of neutrals is necessarily different from that of belligerents, and their standpoints are influenced accord- ingly. It is possible that there will be other wars long before there is again one in which the belligerents will form the bulk of the world power. The precedents of the World War are, therefore, subject to the qualification that neutral states, with one exception, were not in a position to assert their rights by force, and that the one great neutral Power in question, which had the power to assert neutral right, came to have an interest which was practically identical with that of one of the parties in the struggle till it became entirely so.
We may, therefore, regard the principles and rules of inter- national law respecting neutrality at the end of the World War as in no essential particular different from those which civilized mankind before the war had come to regard as binding.
3. The Declaration of London. This convention (Feb. 26 1909) had not been ratified at the outbreak of the war by any of the Governments concerned. In the Italo-Turkish War, Turkey and Italy as belligerents had given effect to it as a whole, and Russia as neutral in part. 1 Great Britain had gone the length of giving effect to it by passing an Act through the House of Commons which the House of Lords had thrown out. The U.S. Senate (April 24 1912) " advised and consented " to the ratification of the declaration, but the ratification had not been deposited in London. 2
The U.S. Government early in the war (Aug. 6 1914) made a suggestion that the belligerent Powers should adopt the declaration in its entirety as a code of international law. Its acceptance by the belligerents, the Secretary of State urged, might prevent the grave misunderstandings between bellig- erents and neutrals to which different views on the maritime law of war would expose their relations. The German and Austro-Hungarian Governments declared their readiness to give effect to the declaration subject to reciprocity. The British Government declared, however, that it could only observe the provisions of the declaration in so far as this did not conflict with the " efficient conduct " of naval operations. The French Government took the same line as that of Great Britain. The Italian Government in due course followed their example. The U.S. Government, meanwhile (Oct. 22 1914), in view of the little response made to its proposal withdrew it. A British Order in Council of Aug. 20 1914, however, had given effect to the declaration subject to modifications and additions. But the modifications grew with the progress of the war, and with the " manifest developments of naval and military science, the invention of new engines of war, the concentration by the Germanic Power of the whole body of their resources on mili- tary ends." 3 In view of these conditions, altogether different from those prevailing in previous naval wars, by Order in Council of July 7 1916 the declaration was finally withdrawn.
4. Contraband of War, Blockade and Prize. International law forbids neutrals to do certain things for the benefit of a belligerent. Among these are the supply of articles of direct or indirect help to him in the prosecution of the war. As Grotius says:
" There are still disputes as to what may lawfully be done to those who are not our enemies, nor are willing to be thought so, and yet furnish our enemies with supplies. This is a point which has been sharply contested, both in ancient and modern times, some maintaining the extreme right of war, others the freedom of commerce. In the first place, we must distinguish between the things themselves, for there are some things which are of use only in war, as arms, others which are no use in war, but serve only for pleasure; others which are useful both in war and peace, provisions, ships, and their appurtenances. 1 '
1 See Sir Thomas Barclay, Turco-Italian War and its Problems (London 1912, p. 99).
1 See Garner, International Law and the World War (London 1920, vol. i., p. 31).
- Note by British Government to neutral Governments.
Grotius approves of forbidding neutrals to supply the enemy with articles of the first kind, and of permitting traffic in articles of the second kind. As regards the third kind, those which are of use, both in time of war and in time of peace (usus ancipitis), he makes a distinction:
" For if I cannot protect myself unless I intercept what is sent, necessity will give me a right to intercept it, but under the obliga- tion of restitution, except there be cause to the contrary. But if the supplying of the articles will impede the execution of my design, and he who transports them might have known this fact as, for . instance, if I am besieging a town or blockading a port, and a sur- render or a peace is daily expected, he will be liable to me for dam- ages, and his property may be taken to satisfy them. If he has not done the damage, but is only attempting to do it, his property may . be detained until he gives security for the future; but if the injustice of my enemy be very clear, and the supplies conveyed to him sup- port him in his unjust war, then shall the party who conveys them to my enemy be not only liable to repair my loss, but he may be treated as a criminal, as one who is rescuing a notorious offender from impending judgment ; and for this reason it will be lawful for me to deal with him according to his offence, and for the purpose of punishment I may deprive him of his merchandise " (" De Jure Belli et Pads," lib. iii., c. i., s. 5).
International law at the outbreak of the war still recognized the distinctions laid down by Grotius, the first kind being known as " absolute contraband," and third as " conditional contraband." And, as usual, Governments at the outbreak of war issued lists of absolute and conditional contraband. The Declaration of London (1909), following Grotius' distinctions, adopted a third list of articles, corresponding to his second kind, which are never to be declared contraband. Among them, rather inconsistently, figured " raw cotton," which had been a concession to England. The drafting committee stated, however, that this free list was not exclusive, but merely indicative.
There had been a strong movement on the European conti- nent before the war in favour of abolishing conditional contra- band. Moved by the desire to distinguish unmistakably from, so to speak, constructive contraband, and to protect trade against the vexation of uncertainty, many continental jurists had come to argue it away altogether. There were, however, signs of a change of opinion, judging by the discussions on the subject in the Institute of International Law, a body exclusively composed of recognized international jurists. The rules this body adopted in 1896, though they did not represent the unani- mous feeling of its members, may be taken as the opinion of a large proportion of them. In any case the majority comprised German, Danish, Italian, Dutch and French specialists. The rules contain a clause which, after declaring conditional con- traband abolished, stated that " nevertheless, the belligerent has, at his option and -on condition of paying an equitable in- demnity, a right of sequestration or preemption as to articles (objects) which, on their way to a port of the enemy, may serve equally in war or in peace." 4
Thus, by the established classification goods are divided into three classes: (i) Goods primarily used for warlike purposes; (2) goods which may be equally used for either warlike or peace- ful purposes; (3) goods exclusively used for peaceful purposes.
Under the law of contraband as it stood at the outbreak of war, goods in the first class might be seized if proved to be going to the enemy country; goods in the second class might be seized if proved to be going to the enemy Government or its armed forces; goods in the third class passed free. Attempts of bellig- erents to enlarge the first class at the expense of the second, and the second at the expense of the third, had only been frus- trated at the expense of considerable friction with neutrals.
Under the rules of prize law, as laid down a century ago, goods were not regarded as destined for an enemy country unless they were to be discharged in a port in that country; but the American prize courts in the Civil War found themselves compelled by the then existing conditions of commerce to apply and develop the doctrine of continuous voyage, under which goods which could be proved to be ultimately intended for an enemy country were not exempt from seizure on the ground
4 See Barclay, Law and Usage of War (London 1914, p. 24 et seq.).
