International Law. A Treatise Volume Ii Part 56

pp. 214-217 (1894)--Bar in _R.I._ XXVI. (1894), pp. 401-414--Brocher de la Flechere, in _R.I._ 2nd Ser. I. (1899), pp. 337-353--Fauchille in _R.G._ IV. (1897), pp. 297-323--Kleen in _R.G._ XI. (1904), pp.

353-362--Gover in _The Journal of the Society of Comparative Legislation_, new series, II. (1900), pp. 118-130--Kennedy and Randall in _The Law Quarterly Review_, XXIV (1908), pp. 59-75, 316-327, and 449-464--General Report presented to the Naval Conference of London by its Drafting Committee, articles 22-44.

[Sidenote: Definition of Contraband of War.]

-- 391. The term contraband is derived from the Italian "contrabbando,"

which, itself deriving from the Latin "contra" and "bannum" or "bandum,"

means "in defiance of an injunction." Contraband of war[813] is the designation of such goods as by either belligerent are forbidden to be carried to the enemy on the ground that they enable the latter to carry on the war with greater vigour. But this definition is only a formal one, as it does not state what kinds of goods belong to the cla.s.s of contraband. This point was much controverted before the Declaration of London. Throughout the seventeenth, eighteenth, and nineteenth centuries the matter stood as Grotius had explained it. Although he does not employ the term contraband, he treats of the matter. He[814]

distinguishes three different kinds of articles. Firstly, those which, as arms for instance, can only be made use of in war, and which are, therefore, always contraband. Secondly, those, as for example articles of luxury, which can never be made use of in war and which, therefore, are never contraband. Thirdly, those which, as money, provisions, ships, and articles of naval equipment, can be made use of in war as well as in peace, and which are on account of their ancipitous use contraband or not according to the circ.u.mstances of the case. In spite of Bynkershoek's decided opposition[815] to this distinction by Grotius, the practice of most belligerents until the beginning of the twentieth century has been in conformity with it. A great many treaties have from the beginning of the sixteenth century been concluded between many States for the purpose of fixing what articles belonging to the cla.s.s of ancipitous use should, and what should not, be regarded between the parties as contraband, but these treaties disagree with one another.

And, so far as they were not bound by a treaty, belligerents formerly exercised their discretion in every war according to the special circ.u.mstances and conditions in regarding or not regarding certain articles of ancipitous use as contraband. The endeavour of the First and the Second Armed Neutrality of 1780 and 1800 to restrict the number and kinds of articles that could be regarded as contraband failed, and the Declaration of Paris of 1856 uses the term contraband without any attempt to define it.

[Footnote 813: Although--see above, ---- 173-174--prevention of carriage of contraband is a means of sea warfare against the enemy, it chiefly concerns neutral commerce and is, therefore, more conveniently treated with neutrality.]

[Footnote 814: See Grotius, III. c. I, -- 5:--"Sunt res quae in bello tantum usum habent, ut arma: sunt quae in bello nullum habent usum, ut quae voluptati inserviunt: sunt quae et in bello et extra bellum usum habent, ut pecuniae, commeatus, naves, et quae navibus adsunt.... In tertio illo genere usus ancipitis, distinguendus erit belli status...."]

[Footnote 815: See Bynkershoek, _Quaest. jur. publici._ I. c. X.]

It is by the Declaration of London that the Powers have, for the first time in history, come to an agreement concerning what articles are contraband. The distinction which Grotius made between three cla.s.ses of goods, while still recognised, has been merged by the Declaration of London into the distinction between articles of absolute contraband, articles of conditional contraband, and such articles as may under no circ.u.mstances or conditions be considered contraband. This Declaration, moreover, has put the whole matter of contraband upon a new basis, since the Powers have by articles 22 to 44 agreed upon a common code of rules concerning contraband.

[Sidenote: Absolute and conditional Contraband, and free Articles.]

-- 392. Apart from the distinction between articles which can be made use of only in war and those of ancipitous use, two different cla.s.ses of contraband must be distinguished.

There are, firstly, articles which by their very character are destined to be made use of in war. In this cla.s.s are to be reckoned not only arms and ammunition, but also such articles of ancipitous use as military stores, naval stores, and the like. They are termed absolute contraband.

There are, secondly, articles which by their very character are not destined to be made use of in war, but which under certain circ.u.mstances and conditions can be of the greatest use to a belligerent for the continuation of the war. To this cla.s.s belong, for instance, provisions, coal, gold, and silver. These articles are termed conditional or relative contraband.

Although hitherto not all the States have made this distinction, nevertheless they did make a distinction in so far as they varied the list of articles which they declared contraband in their different wars; certain articles, as arms and ammunition, have always been on the list, whilst other articles were only considered contraband when the circ.u.mstances of a particular war made it necessary. The majority of writers have always approved of the distinction between absolute and conditional contraband, although several insisted that arms and ammunition only and exclusively could be recognised as contraband, and that conditional contraband did not exist.[816] The distinction would seem to have been important not only regarding the question whether or no an article was contraband, but also regarding the consequences of carrying contraband.[817]

[Footnote 816: See, for instance, Hautefeuille, II. p. 157, and Kleen, I. -- 90.]

[Footnote 817: See below, -- 405, p. 510.]

The Declaration of London has adopted (articles 22 and 24) the distinction between absolute and conditional contraband, but it distinguishes, besides these two cla.s.ses of articles, a third cla.s.s (article 27). To this cla.s.s belong all articles which are either not susceptible of use in war, or the possibility of the use of which in war is so remote as practically to make them not susceptible of use in war.

These articles are termed _free articles_.[818]

[Footnote 818: But there are a number of other free articles, although they do not belong to the articles characterised above; see below, -- 396_a_.]

[Sidenote: Articles absolutely Contraband.]

-- 393. That absolute contraband cannot and need not be restricted to arms and ammunition only and exclusively becomes obvious, if the fact is taken into consideration that other articles, although of ancipitous use, can be as valuable and essential to a belligerent for the continuance of the war as arms and ammunition. The necessary machinery and material for the manufacture of arms and ammunition are almost as valuable as the latter themselves, and warfare on sea can as little be waged without vessels and articles of naval equipment as without arms and ammunition. But formerly no unanimity existed with regard to such articles of ancipitous use as had to be considered as absolute contraband, and States, when they went to war, increased or restricted, according to the circ.u.mstances of the particular war, the list of articles they considered absolute contraband.

According to the British practice[819] which has. .h.i.therto prevailed--subject, however, to the prerogative of the Crown to order alterations of the list during a war--the following articles were considered absolute contraband:--

Arms of all kinds, and machinery for manufacturing arms; ammunition, and materials for ammunition, including lead, sulphate of potash, muriate of potash (chloride of pota.s.sium), chlorate of potash, and nitrate of soda; gunpowder and its materials, saltpetre and brimstone, also guncotton; military equipments and clothing; military stores; naval stores, such as masts, spars, rudders, ship timbers, hemp and cordage, sail-cloth, pitch and tar, copper for sheathing vessels, marine engines and the component parts thereof (including screw propellers, paddle-wheels, cylinders, cranks, shafts, boilers, tubes for boilers, boiler-plates and fire bars), maritime cement and the materials used for its manufacture (as blue lias and Portland cement), iron in any of the following forms: anchors, rivet-iron, angle-iron, round bars of from 3/4 to 5/8 of an inch diameter, rivets, strips of iron, sheet plate-iron exceeding 1/4 of an inch, and Low Moor and Bowling plates.

[Footnote 819: See Holland, _Prize Law_, -- 62.]

By articles 22 and 23 of the Declaration of London an agreement has been reached according to which two cla.s.ses of absolute contraband must be distinguished. Article 22 enumerates eleven groups of articles which may _always_, without special declaration and notice, be treated as absolute contraband. These const.i.tute the first cla.s.s. The second--see article 23--consists of such articles exclusively used for war as are not enumerated[820] amongst the eleven groups of the first cla.s.s; these may be treated as absolute contraband also, but only _after special declaration and notification_. Such declaration may be published during time of peace, and notification thereof must then be addressed to all other Powers; but if the declaration is published after the outbreak of hostilities, a notification need only be addressed to the neutral Powers. Should a Power--see article 26--waive, so far as itself is concerned, the right to treat as absolute contraband an article comprised in the first cla.s.s, notification thereof must be made to the other Powers. The following are the groups of articles comprised in the first cla.s.s:--

(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 waggons, 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.

[Footnote 820: The Report of the Drafting Committee on article 23 recognises that at present it would be difficult to mention any articles which could under article 23 be declared absolute contraband, but since future contingencies cannot be foreseen, it was considered necessary to stipulate the possibility of increasing the list of absolute contraband.

That only such additional articles could be declared absolute contraband as by their very character are destined to be made use of in war, is a matter of course.]

It is apparent that this list embodies a compromise, for it includes several articles--such as saddle, draught, and pack animals suitable for use in war--which Great Britain and other Powers formerly only considered as conditional contraband.

[Sidenote: Articles conditionally Contraband.]

-- 394. There are many articles which are not by their character destined to be made use of in war, but which are nevertheless of great value to belligerents for the continuance of war. Such articles are conditionally contraband, which means that they are contraband when it is clearly apparent--see below, -- 395--that they are intended to be made use of for military or naval purposes. This intention becomes apparent on considering either the destination of the vessel carrying the articles concerned, or the consignee of the articles.

Before the Declaration of London neither the practice of States nor the opinion of writers agreed upon the matter, and it was in especial controversial[821] whether or no foodstuffs, horses and other beasts of burden, coal and other fuel, money and the like, and cotton could conditionally be declared contraband.

(1) That _foodstuffs_ should not under ordinary circ.u.mstances be declared contraband there ought to be no doubt. There are even several[822] writers who emphatically deny that foodstuffs could ever be conditional contraband. But the majority of writers has always admitted that foodstuffs destined for the use of the enemy army or navy might be declared contraband. This has been the practice of Great Britain,[823]

the United States of America, and j.a.pan. But in 1885, during her hostilities against China, France declared rice in general as contraband, on the ground of the importance of this article to the Chinese population. And Russia in 1904, during the Russo-j.a.panese war, declared rice and provisions in general as contraband; on the protest of Great Britain and the United States of America, however, she altered her decision and declared these articles conditional contraband only.

(2) The importance of _horses and other beasts of burden_ for cavalry, artillery, and military transport explains their frequently being declared as contraband by belligerents. No argument against their character as conditional contraband can have any basis. But they were frequently declared absolute contraband, as, for instance, by article 36 of the United States Naval War Code of 1900. Russia, which during the Russo-j.a.panese War altered the standpoint taken up at first by her, and recognised the distinction between absolute and conditional contraband, nevertheless maintained her declaration of horses and beasts of burden as absolute contraband. The Declaration of London, by article 22, No. 7, declares them as absolute contraband.

(3) Since men-of-war are nowadays propelled by steam power, the importance of _coal_, and eventually other fuel for waging war at sea is obvious. For this reason, Great Britain has ever since 1854 maintained that coal, if destined for belligerent men-of-war or belligerent naval ports, is contraband. But in 1859 France and Italy did not take up the same standpoint. Russia, although in 1885 she declared that she would never consent to coal being regarded as contraband, in 1904 declared coal, naphtha, alcohol, and every other kind of fuel, absolute contraband. And she adhered to this standpoint, although she was made to recognise the distinction between absolute and conditional contraband.

(4) As regards _money_, unwrought precious metals which may be coined into money, bonds and the like, the mere fact that a neutral is prohibited by his duty of impartiality from granting a loan to a belligerent ought to bring conviction that these articles are contraband if destined for the enemy State or its forces. However, the case seldom happens that these articles are brought by neutral vessels to belligerent ports, since under the modern conditions of trade belligerents can be supplied in other ways with the necessary funds.

(5) As regards _raw cotton_, it is a.s.serted[824] that in 1861, during the Civil War, the United States declared it absolute contraband under quite peculiar circ.u.mstances, since it took the place of money sent abroad for the purpose of paying for vessels, arms, and ammunition. But this a.s.sertion is erroneous.[825] Be that as it may, raw cotton should not, under ordinary circ.u.mstances, be able to be considered absolute contraband. For this reason Great Britain protested when Russia, in 1904 during the Russo-j.a.panese War, declared cotton in general as contraband; Russia altered her standpoint and declared cotton conditional contraband only.[826]

[Footnote 821: See Perels, -- 45, and Hall, ---- 242-246, who give bird's-eye views of the controversy.]

[Footnote 822: See, for instance, Bluntschli, -- 807.]

[Footnote 823: The _Jonge Margaretha_ (1799), 1 C. Rob. 189.]