CONTRABAND (Fr. contrebande, from contra, against, and bannum, Low Lat. for “proclamation”), a term given generally to illegal traffic; and particularly, as “contraband of war,” to goods, &c., which subjects of neutral states are forbidden by international law to supply to a belligerent.
According to current practice contraband of war is of two kinds: (1) absolute or unconditional contraband, i.e. materials of direct application in naval or military armaments; and (2) conditional contraband, consisting of articles which are fit for, but not necessarily of direct application to, hostile uses. There is much difference of opinion among international jurists and states, however, as to the specific materials and articles which may rightfully be declared by belligerents to belong to either class. There is also disagreement as to the belligerent right where the immediate destination is a neutral but the ultimate an enemy port.
An attempt was made at the Second Hague Conference to come to an agreement on the chief points of difference. The British delegates were instructed even to abandon the principle of contraband of war altogether, subject only to the exclusion by blockade of neutral trade from enemy ports. In the alternative they were to do their utmost to restrict the definition of contraband within the narrowest possible limits, and to obtain exemption of food-stuffs destined for places other than beleaguered fortresses and of raw materials required for peaceful industry. Though the discussions at the conference did not result in any convention, except on the subject of mails, it was agreed among the leading maritime states that an early attempt should be made to codify the law of naval war generally, in connexion with the establishment of an international prize court (see Prize).
Meanwhile, on the subject of mails, important articles were adopted which figure in the “Convention on restrictions in the right of capture” (No. 11 of the series Mails. as set out in the General Act, see Peace Conference). They are as follows:—
Art. I.—The postal correspondence of neutrals or belligerents, whatever its official or private character may be, found on the high seas on board a neutral or enemy ship is inviolable. If the ship is detained, the correspondence is forwarded by the captor with the least possible delay.
The provisions of the preceding paragraph do not apply, in case of violation of blockade, to correspondence destined for, or proceeding from, a blockaded port.
Art. II.—The inviolability of postal correspondence does not exempt a neutral mail ship from the laws and customs of maritime war as to neutral merchant ships in general. The ship, however, may not be searched except when absolutely necessary, and then only with as much consideration and expedition as possible.
As regards food-stuffs Great Britain has long and consistently held that provisions and liquors fit for the consumption of the enemy’s naval or military forces are contraband. Her Prize Act, however, provides a palliative, in the Food-stuffs and pre-emption. case of “naval or victualling stores,” for the penalty attaching to absolute contraband, the lords of the admiralty being entitled to exercise a right of pre-emption over such stores, i.e. to purchase them without condemnation in a prize court. In practice, purchases are made at the market value of the goods, with an additional 10% for loss of profit.
On the continent of Europe no such palliative has yet been adopted; but moved by the same desire to distinguish unmistakable from, so to speak, constructive contraband, and to protect trade against the vexation of uncertainty, many continental jurists have come to argue conditional contraband away altogether. This change of opinion has especially manifested itself in the discussions on the subject in the Institute of International Law, a body composed exclusively of recognized international jurists. The rules this body adopted in 1896, though they do not represent the unanimous feeling of its members, may be taken as the view of a large proportion of them. The majority comprised German, Danish, Italian, Dutch and French specialists. The rules adopted contain a clause, which, after declaring conditional contraband abolished, states that: “Nevertheless the belligerent has, at his option and on condition of paying an equitable indemnity, a right of sequestration or pre-emption as to articles (objets) which, on their way to a port of the enemy, may serve equally in war or in peace.” This rule, it is seen, is of wider application than the above-mentioned provision of the British Prize Act. To become binding in its existing form, either an alteration of the text of the Declaration of Paris or a modification in the wording of the clause would be necessary, seeing that under the Declaration of Paris “the neutral flag covers enemy goods, except contraband of war.” It may be said that, in so far as the continent is concerned, expert opinion is, on the whole, favourable to the recognition of conditional contraband in the form of a right of sequestration or pre-emption and within the limits Great Britain has shown a disposition to set to it as against herself.
As regards coal there is no essential difference between the position of coal to feed ships and that of provisions to feed men. Neither is per se contraband. At the West African Conference in 1884 the Russian representative protested Coal. against its inclusion among contraband articles, but the Russian government included it in their declaration as to contraband on the outbreak of the Russo-Japanese War. In 1898 the British foreign office replied to an inquiry of the Newport Chamber of Commerce on the position of coal that: “Whether in any particular case coal is or is not contraband of war, is a matter prima facie for the determination of the Prize Court of the captor’s nationality, and so long as such decision, when given, does not conflict with well-established principles of international law, H.M.’s government will not be prepared to take exception thereto.” The practical applications of the law and usage of contraband in the Russo-Japanese War of 1904–5, however, brought out vividly the need of reform in these “well-established principles.”
The Japanese regulations gave rise to no serious difficulties. Those issued by Russia, on the other hand, led to much controversy between the British government and that of Russia, in connexion with the latter’s Controversy with Russia in Russo-Japanese War. pretension to class coal, rice, provisions, forage, horses and cotton with arms, ammunition, explosives, &c., as absolute contraband. On June 1, 1904, Lord Lansdowne expressed the surprise with which the British government learnt that rice and provisions were to be treated as unconditionally contraband—“a step which they regarded as inconsistent with the law and practice of nations.” They furthermore “felt themselves bound to reserve their rights by also protesting against the doctrine that it is for the belligerent to decide what articles are as a matter of course, and without reference to other considerations, to be dealt with as contraband of war, regardless of the well-established rights of neutrals”; nor would the British government consider itself bound to recognize as valid the decision of any prize court which violated those rights. It did not dispute the right of a belligerent to take adequate precautions for the purpose of preventing contraband of war, in the hitherto accepted sense of the words, from reaching the enemy; but it objected to the introduction of a new doctrine under which “the well-understood distinction between conditional and unconditional contraband was altogether ignored, and under which, moreover, on the discovery of articles alleged to be contraband, the ship carrying them was, without trial and in spite of her neutrality, subjected to penalties which are reluctantly enforced even against an enemy’s ship.” (See section 40 of Russian Instructions on Procedure in Stopping, Examining and Seizing Merchant Vessels, published in London Gazette of March 18, 1904.) In particular circumstances provisions might acquire a contraband character, as, for instance, if they should be consigned direct to the army or fleet of a belligerent, or to a port where such fleet might be lying, and if facts should exist raising the presumption that they were about to be employed in victualling the fleet of the enemy. In such cases it was not denied that the other belligerent would be entitled to seize the provisions as contraband of war, on the ground that they would afford material assistance towards the carrying on of warlike operations. But it could not be admitted that if such provisions were consigned to the port of a belligerent (even though it should be a port of naval equipment) they should therefore be necessarily regarded as contraband of war. The test was whether there were circumstances relating to any particular cargo to show that it was destined for military or naval use.
The Russian government replied that they could not admit that articles of dual use when addressed to private individuals in the enemy’s country should be necessarily free from seizure and condemnation, since provisions and such articles of dual use, though intended for the military or naval forces of the enemy, would obviously, under such circumstances, be addressed to private individuals, possibly agents or contractors for the naval or military authorities.
Lord Lansdowne in answer stated that while H.M. government did not contend that the mere fact that the consignee was a private person should necessarily give immunity from capture, they held that to take vessels for adjudication merely because their destination was the enemy’s country would be vexatious, and constitute an unwarrantable interference with neutral commerce. To render a vessel liable to such treatment there should be circumstances giving rise to a reasonable suspicion that the provisions were destined for the enemy’s forces, and it was in such a case for the captor “to establish the fact of destination for the enemy’s forces before attempting to procure their condemnation” (September 30, 1904).
The protests of Great Britain led to the reference of the subject by the Russian government to a departmental committee, with the result that on October 22, 1904, a rectifying notice was issued declaring that articles capable of serving for a warlike object, including rice and food-stuffs, should be considered as contraband of war, if they are destined for the government of the belligerent power or its administration or its army or its navy or its fortresses or its naval ports; or for the purveyors thereof; and that in cases where they were addressed to private individuals these articles should not be considered as contraband of war; but that in all cases horses and beasts of burden were to be considered as contraband. As regards cotton, explanations were given by the Russian government (May 11, 1904) that the prohibition of cotton applied only to raw cotton suitable for the manufacture of explosives, and not to yarn or tissues.
The carriage of belligerent despatches connected with the conduct
of a war or of persons in the service of a belligerent state
falls within the prohibition of contraband traffic,
Analogues
of contra-
band.
but to distinguish such traffic from that of contraband,
properly so called, the term applied to it in international
law is “analogues of contraband.” The penalty
attaching to such carriage necessarily varies according to the
degree of the analogy.
Trade between neutrals has a prima facie right to go on, in spite of war, without molestation. But if the ultimate destination of goods, though shipped first to a neutral port, Continuous voyages. is enemy’s territory, then, according to the doctrine of “continuous voyages,” the goods may be treated as if they had been shipped to the enemy’s territory direct. The doctrine is entirely Anglo-Saxon in its origin[1] and development. Only in one case does it seem ever to have been actually put in force by a foreign prize court, namely, in the case of the “Doelwijk,” a Dutch vessel which was adjudged good prize by an Italian court on the ground that, although bound for Djibouti, a French port, it was laden with a provision of arms of a model which had gone out of use in Europe, and could only be destined for the Abyssinians, with whom Italy was at war.
The Institute of International Law in 1896 adopted the following rule on the subject:—
“Destination to the enemy is presumed, where the shipment is to one of the enemy ports, or to a neutral port, if it is unquestionably proved by the facts that the neutral port was only a state (étape) towards the enemy as the final destination of a single commercial operation.”
During the South African War (1899–1902) Great Britain was involved in controversy with Germany, who at first declined to recognize the existence of any rule which could interfere with trade between neutrals, the German vessels in question having been stopped on their way to a neutral port.
As stated above, the Second Hague Conference failed to come to any understanding on contraband, but the subject was exhaustively dealt with by the Conference of London (1908–1909) on the laws and customs of naval war, in the following articles:—
Art. 22.—The following articles may, without notice, be treated as contraband of war, under the name of absolute contraband: (1) Arms of all kinds, including arms for sporting purposes, and their distinctive component parts; (2) projectiles, charges and cartridges of all kinds, and their distinctive component parts; (3) powder and explosives specially prepared for use in war; (4) gun-mountings, limber boxes, limbers, military wagons, field forges and their distinctive component parts; (5) clothing and equipment of a distinctively military character; (6) all kinds of harness of a distinctively military character; (7) saddle, draught and pack animals suitable for use in war; (8) articles of camp equipment and their distinctive component parts; (9) armour plates; (10) warships, including boats, and their distinctive component parts of such a nature that they can only be used on a vessel of war; (11) implements and apparatus designed exclusively for the manufacture of munitions of war, for the manufacture or repair of arms, or war material for use on land or sea.
Art. 23.—Articles exclusively used for war may be added to the list of absolute contraband by a declaration, which must be notified. Such notification must be addressed to the governments of other powers, or to their representatives accredited to the power making the declaration. A notification made after the outbreak of hostilities is addressed only to neutral powers.
Art. 24.—The following articles, susceptible of use in war as well as for purposes of peace, may, without notice, be treated as contraband of war, under the name of conditional contraband: (1) Foodstuffs; (2) forage and grain, suitable for feeding animals; (3) clothing, fabrics for clothing, and boots and shoes, suitable for use in war; (4) gold and silver in coin or bullion; paper money; (5) vehicles of all kinds available for use in war, and their component parts; (6) vessels, craft and boats of all kinds; floating docks, parts of docks and their component parts; (7) railway material, both fixed and rolling-stock, and material for telegraphs, wireless telegraphs and telephones; (8) balloons and flying machines and their distinctive component parts, together with accessories and articles recognizable as intended for use in connexion with balloons and flying machines; (9) fuel; lubricants; (10) powder and explosives not specially prepared for use in war; (11) barbed wire and implements for fixing and cutting the same; (12) horseshoes and shoeing materials; (13) harness and saddlery; (14) field glasses, telescopes, chronometers and all kinds of nautical instruments.
Art. 25.—Articles susceptible of use in war as well as for purposes of peace, other than those enumerated in Articles 22 and 24, may be added to the list of conditional contraband by a declaration, which must be notified in the manner provided for in the second paragraph of Article 23.
Art. 26.—If a power waives, so far as it is concerned, the right to treat as contraband of war an article comprised in any of the classes enumerated in Articles 22 and 24, such intention shall be announced by a declaration, which must be notified in the manner provided for in the second paragraph of Article 23.
Art. 27.—Articles which are not susceptible of use in war may not be declared contraband of war.
Art. 28.—The following may not be declared contraband of war: (1) Raw cotton, wool, silk, jute, flax, hemp and other raw materials of the textile industries, and yarns of the same; (2) oil seeds and nuts; copra; (3) rubber, resins, gums and lacs; hops; (4) raw hides and horns, bones and ivory; (5) natural and artificial manures, including nitrates and phosphates for agricultural purposes; (6) metallic ores; (7) earths, clays, lime, chalk, stone, including marble, bricks, slates and tiles; (8) Chinaware and glass; (9) paper and paper-making materials; (10) soap, paint and colours, including articles exclusively used in their manufacture, and varnish; (11) bleaching powder, soda ash, caustic soda, salt cake, ammonia, sulphate of ammonia and sulphate of copper; (12) agricultural, mining, textile and printing machinery; (13) precious and semiprecious stones, pearls, mother-of-pearl and coral; (14) clocks and watches, other than chronometers; (15) fashion and fancy goods; (16) feathers of all kinds, hairs and bristles; (17) articles of household furniture and decoration; office furniture and requisites.
Art. 29.—Likewise the following may not be treated as contraband of war: (1) Articles serving exclusively to aid the sick and wounded. They can, however, in case of urgent military necessity and subject to the payment of compensation, be requisitioned, if their destination is that specified in Article 30; (2) articles intended for the use of the vessel in which they are found, as well as those intended for the use of her crew and passengers during the voyage.
Art. 30.—Absolute contraband is liable to capture if it is shown to be destined to territory belonging to or occupied by the enemy, or to the armed forces of the enemy. It is immaterial whether the carriage of the goods is direct or entails transhipment or a subsequent transport by land.
Art. 31.—Proof of the destination specified in Article 30 is complete in the following cases: (1) When the goods are documented for discharge in an enemy port, or for delivery to the armed forces of the enemy; (2) when the vessel is to call at enemy ports only, or when she is to touch at an enemy port or meet the armed forces of the enemy before reaching the neutral port for which the goods in question are documented.
Art. 32.—Where a vessel is carrying absolute contraband, her papers are conclusive proof as to the voyage on which she is engaged, unless she is found clearly out of the course indicated by her papers and unable to give adequate reasons to justify such deviation.
Art. 33.—Conditional contraband is liable to capture if it is shown to be destined for the use of the armed forces or of a government department of the enemy state, unless in this latter case the circumstances show that the goods cannot in fact be used for the purposes of the war in progress. This latter exception does not apply to a consignment coming under Article 24 (4).
Art. 34.—The destination referred to in Article 33 is presumed to exist if the goods are consigned to enemy authorities, or to a contractor established in the enemy country who, as a matter of common knowledge, supplies articles of this kind to the enemy. A similar presumption arises if the goods are consigned to a fortified place belonging to the enemy, or other place serving as a base for the armed forces of the enemy. No such presumption, however, arises in the case of a merchant vessel bound for one of these places if it is sought to prove that she herself is contraband. In cases where the above presumptions do not arise, the destination is presumed to be innocent. The presumptions set up by this article may be rebutted.
Art. 35.—Conditional contraband is not liable to capture, except when found on board a vessel bound for territory belonging to or occupied by the enemy, or for the armed forces of the enemy, and when it is not to be discharged in an intervening neutral port. The ship’s papers are conclusive proof both as to the voyage on which the vessel is engaged and as to the port of discharge of the goods, unless she is found clearly out of the course indicated by her papers, and unable to give adequate reasons to justify such deviation.
Art. 36.—Notwithstanding the provisions of Article 35, conditional contraband, if shown to have the destination referred to in Article 33, is liable to capture in cases where the enemy country has no seaboard.
Art. 37.—A vessel carrying goods liable to capture as absolute or conditional contraband may be captured on the high seas or in the territorial waters of the belligerents throughout the whole of her voyage, even if she is to touch at a port of call before reaching the hostile destination.
Art. 38.—A vessel may not be captured on the ground that she has carried contraband on a previous occasion if such carriage is in point of fact at an end.
Art. 39.—Contraband goods are liable to condemnation.
Art. 40.—A vessel carrying contraband may be condemned if the contraband, reckoned either by value, weight, volume or freight, forms more than half the cargo.
Art. 41.—If a vessel carrying contraband is released, she may be condemned to pay the costs and expenses incurred by the captor in respect of the proceedings in the national prize court and the custody of the ship and cargo during the proceedings.
Art. 42.—Goods which belong to the owner of the contraband and are on board the same vessel are liable to condemnation.
Art. 43.—If a vessel is encountered at sea while unaware of the outbreak of hostilities or of the declaration of contraband which applies to her cargo, the contraband cannot be condemned except on payment of compensation; the vessel herself and the remainder of the cargo are not liable to condemnation or to the costs and expenses referred to in Article 41. The same rule applies if the master, after becoming aware of the outbreak of hostilities, or of the declaration of contraband, has had no opportunity of discharging the contraband. A vessel is deemed to be aware of the existence of a state of war, or of a declaration of contraband, if she left a neutral port subsequently to the notification to the power to which such port belongs of the outbreak of hostilities or of the declaration of contraband respectively, provided that such notification was made in sufficient time. A vessel is also deemed to be aware of the existence of a state of war if she left an enemy port after the outbreak of hostilities.
Art. 44.—A vessel which has been stopped on the ground that she is carrying contraband, and which is not liable to condemnation on account of the proportion of contraband on board, may, when the circumstances permit, be allowed to continue her voyage if the master is willing to hand over the contraband to the belligerent warship. The delivery of the contraband must be entered by the captor on the log-book of the vessel stopped, and the master must give the captor duly certified copies of all relevant papers. The captor is at liberty to destroy the contraband that has been handed over to him under these conditions.
See Hautefeuille, Des droits et devoirs des nations neutres (2nd ed., 1858); Perels, Droit maritime international, traduit par Arendt (Paris, 1884); Moore, Digest of International Law (1906); L. Oppenheim, International Law (1907); Barclay, Problems of International Practice and Diplomacy (1907). See also Hall, International Law on Analogues of Contraband; Smith and Sibley, International Law as interpreted during the Russo-Japanese War, 1905, on “Malacca” and “Prinz Heinrich” cases (mails). (T. Ba.)
- ↑ See Springbok case, 1866, 5 Wallace I.; on Doelwijk case see Brusa, Rev. gén. de droit international public (1897); Fauchille id. (1897), p. 291, also The Times, April 15, May 25, June 1, 1897.