Page:The Green Bag (1889–1914), Volume 16.pdf/804

 Some Questions of International Law. to the writer) vainly denied or denounced by many Continental publicists.1 'The English and American doctrine of condi tional or occasional (sometimes also called acci dental) contraband is based upon the Grotian di vision of commodities into three classes: (i) Ar ticles of direct and immediate use in war, such as arms and ammunition which are always con traband when they have a belligerent destination; (2) things absolutely useless in warfare, such as millinery and pianos, which are never contraband under any circumstances; (3) res ancipitis usus—• things of double or dual use, >'. e., equally useful in war or peace, such as coal, horses, provisions, cloth, (tc. It is to this latter class that the Eng lish and American doctrine of conditional or oc casional contraband has been applied, •'. e., they are only to be considered contraband, and, there fore, as subject to preemption or confiscation, when destined to a port under blockade, a place besieged, or when clearly intended for the direct and immediate use of the army or navy of one of the belligerents. In any case, whether in the case of absolute or conditional contraband, a belliger ent destination, either immediate or ultimate, is essential. It need not necessarily be a belliger ent port. (See The Commercen, i Wheaton Rep. 382.) For leading cases on the doctrine of con ditional or occasional contraband, see The Staat Embaen, 1798, iC. Robinson, 26 (masts); The Endraught, 1798, iC. Rob. 22 (timber); The longe Margaretha, 1799, iC. Rob. 189 (cheese); The Jonge Tobias. 1799, iC. Rob. 329 (tar); The Sarah Chris tina, 1799, iC. Rob. 237, 241 (tar and pitch); The Ringende Jacob, 1798, 36. Rob. 86 (hemp and iron liars); The Neptunus, 1800, зС. Rob. 108 (sail cloth); The Commercen, 1816, i Wheaton 382 (pro visions), and The Peterhoff, 1866, 5 Wallace 28, 58. The doctrine of conditional or occasional con traband is strongly opposed or denounced by many Continental publicists. Hautefcuille (Droits des Neutres, Tit. VIII., sect. II, 3), who relies upon an imaginary loi primitive to prove his case, claims that contraband is confined to arms and munitions' of war or to articles expressly and uniquely destined for warlike use. (See also his Histoire du Droit Maritime International p. 433.) Ortolan (Dip. de la Mer, IL, pp. igof) is of the "opinion of those who think that the freedom of neutral commerce ought to furnish the general principle, to which only such restrictions should be applied as are an immediate and necessary consequence of the state of war between the bel ligerents;" but he is willing, by way of exception, to make certain concessions to belligerents, "in view of some special circumstances affecting their military operations." Kliiber (§288) also admits the existence of doubtful cases which must be governed by surrounding circumstances. Bluntschli (§805) admits that such objects as "clothing, money, horses, timber fur naval con struction, sail-cloth, iron plates, engines, coal, and merchant vessels" (he does not include food stuffs in this list) may "exceptionally be regarded as contraband of war expressly sanctioned by treaty, or if, in a particn'ar case, it can be

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Russia, on the other hand, published on February 28, 1904, an extensive list of con traband in which the distinction between arshown that they are destined to be used in an existing war, and that they are carried to one of the belligerents with the intention of rendering him aid." (For criticism of the doctrine of the intent of the owner as applied to contraband, see Kleen, Contrebande de guerre, pp. 37-43.) Heffter (§ 160) admits the existence of articles of occasional or conditional contraband ''in trea ties and in the special regulations of several countries," and adds that "a belligerent can only interfere with them when neutral trade, in con veying them to the enemy, affords to the latter, succour of a manifestly hostile nature." The Russian De Martens (Traite, III., p. 351), who defines contraband as "objects which a neutral vessel is attempting to deliver (cherche à faire entrer) upon the territory of one of the belliger ent States" (which objects, he declares, may al ways be seized), admits that "those (objects') which are not of direct service in war may also be seized in exceptional cases according to the character and destination of the cargo and, in general, under certain determinate circum stances." Kleen (Contrebande de guerre, pp. 19 and 29) would limit the seizure and confiscation of articles as contraband of war to "munitions of war properly so called, i. e., objects expressly made for war or immediately and specially ser viceable for warlike use in their actual state," and to "things which enter into the composition of such objects, if it be sufficient to re-unite them or to place them into juxtaposition without any other labor, transformation, or improvement." It will thus be seen that all of the Continental publicists cited above, with the exception of Hautefeuille and Kleen (the latter of whom seems to be the only thoroughly logical and consistent op ponent of the doctrine of conditional and occa sional contraband), practically concede the prin ciple underlying the British and American con tention, vie., that articles of dual or double use may, under certain circumstances (c. g., if des tined for military use), be seized and confiscated as contraband of war. Their criticism seems in reality to be directed against some of the ways in which the doctrine has been applied by Eng lish and American prize courts rather than against the principle or doctrine in itself. It should be noted that the Institute of Inter national Law, in its session at Vienna in 1896, at tempted to abolish what it called relative and ac cidental contraband as applied to articles ancipitis usus. and limited contraband of war to (i) arms of every kind, (2) munitions of war and explo sives, (3) military material such as objects of equipment, uniforms, gun-carriages, etc., (4) ves sels equipped for war, (5) instruments especially made for the immediate manufacture of muni tions of war. But the belligerent is permitted, at the risk of having to pay indemnity, to pre empt or sequester objects which, taken on their way to an enemy port, may serve equally for war like or pacific usage. See Annuaire, XVI., p. 205.