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.
- ↑ 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.
