First World War Centennial

CHAPTER X

A FURTHER WORD AS TO JUSTIFIABLE DOMINION

AS suggested in the last chapter the neutral may well rest back upon rational stand­ards in times when positive law is in abeyance and natural law so diversely interpreted as to fail to be of use. In so doing it is like an unshackled person. On the one hand those bonds of positive international law which do not accord with reason and which were imposed upon it during the dark period of belligerent dictation are cast off. On the other—it is free as a sovereign state to follow the dictates of conscience as indorsed and supplemented by its best reasoning faculties. Such part of the positive law of nations as is based upon the eternal principles of natural

law remains to it, whether recognized or not. Meantime it is in a position with other neu­trals to insist upon its cardinal rights.

The results ought to be fortunate in the extreme. Many have fallen into the habit (and among them learned professors) of saying that international law has been shattered by the existing turmoil, and in a sense they are correct, but if as a result a revised law of nations which more nearly accords with divine justice is to take the place of an arbitrary code drafted by war barons, the world will have cause to rejoice. It is only in this way that it can bring about con­ditions resembling those desired by the pacificist.

These preliminary observations have been made in the hope that such as are relevant may help in the examination of problems that are exceedingly difficult to solve. Hereto­fore we have had mostly to do with the open sea, on which the lawmakers have said all nations, except for the adoption of trammeling custom, are on a par. Now we are approach­ing the sphere of normal belligerent activities and are to consider the right of a fighting nation to guard its own coast and possessions and to capture or control those of the enemy. In this field which embraces the doctrine of blockade, and what may be claimed to be a corollary of that doctrine, contraband of war, the belligerent looms large, and the neutral becomes a less compelling figure. A man may take himself very seriously when requir­ing his contentious neighbors to keep off his domain and to avoid blocking the avenues thereto. It is quite another matter for him to play the autocrat in an adjoining and quarrelsome bailiwick. Why? Presumably because in the one he possesses the attributes of lordship, which he lacks in the other. This lordship, whether it arise through possession which has been acquiesced in or by record title, is generally accepted among men, whether by intuition or an exercise of pure reason, as sufficient to justify a citizen's atti­tude in one case and to impugn it in the other. Is there any reason why there should be other standards for nations? It is on the presumption that there is not that the sug­gestion has already been made that a neutral which is impressed by the apparent exercise of efficient dominion by a belligerent, should heed such of the latter's warnings not to approach certain coasts or perform certain acts as are, to its mind, based upon rightful authority. In deciding upon the lawfulness of these commands the neutral will not be troubled when it comes to the consideration of belligerent acts of dominion within the latter's land boundaries; in such conquered territory as is securely held and administered by its armed forces; or on the ocean-going ships which rightfully fly its flag.

Thus far, as has been shown in discussing the rights of neutrals on the high seas, bel­ligerent supremacy is conceded. Difficulties will arise, however, when the great water­ways of the world are in question. The test is the same, but there has been such looseness in its exercise and such irrational adherence to a practice which no longer satisfies the principle that introduced it, that the air is entirely befogged. A fog is frequently dis­pelled by a fresh westerly wind. What appears to be murky and unsatisfactory in the matter of controlled waters ought equally to disappear by a new application of the principle of absolute and justifiable dominion on the sea, which was bound in swaddling clothes in the days when muzzle-loading cannon defended harbor forts and wooden ships-of-war enforced respect for the state they represented.

With an absolute revolution in the matter of ships and guns the time has certainly come to dispense with the aforesaid swaddling clothes even if it takes a surgical operation, or else seek out a new principle. The mo­ment is fortunate because the necessity of belligerents has led them to so neglect rules uniformly acknowledged by civilized states as to partly enfranchise neutrals. These latter are as a consequence freer to adapt their own policies so that the latter will square with any defensible regulations that war powers may enact.

In doing this, with full conviction that justifiable dominion is the only ground upon which any nation may arrogate to itself the sovereignty of waters about its own or enemy coasts, we may perhaps expect that one broad, if arbitrary, exception will be made to any nation's claim—that is, the right of unimpeded passage by neutrals in their inter­course with each other through any such broad spaces of sea as are the avenues of world trade, and may be fairly viewed as part of the great sheet of water which encircles the globe, even though such spaces are subject to con­trol. When this is allowed why should not the neutral, not as a neutral but as a sover­eign state, affirm one of two things: (i) That inasmuch as it is in a position with its ships and fortresses to absolutely command much larger spaces of water about its coast­line than was practicable a generation ago, it proposes so to do; (2) that it is prepared in an international convention to waive such rights as unquestionably belong to it and accept an arbitrary sphere of control which shall also define and limit the sovereignty of all states.

If it chooses the former course, it is bound to accord to others what it claims for itself, and will at once find its relations to belliger­ents, both in the matter of blockade and authoritative zone, so modified and changed as to bear no resemblance to what they were under the positive law of nations as under­stood by the members of the Hague Confer­ences. If it chooses the latter, pending such time as will again bring the nations in con­vention, it will either have to champion and perhaps fight for part of a code that Powers in the stress of events claim to be outworn and ineffective, or submit to various and trying interim experiences.

Are there fallacies in these suggestions? It would not be surprising if there were. When one endeavors to think constructively, elements which should have attention fre­quently escape notice. Meanwhile let us hope that a frank discussion of the limitations of state sovereignty may prove at least helpful to a better understanding of questions appertaining to blockade and later to con­traband.

Whatever the shortcomings of the present argument, it may be confidently affirmed that, except on the ground of common consent, present-day belligerents cannot long be held down to an observance of the rules of block­ade as defined and practiced since the American Civil War, nor neutrals be required to submit to certain features in the existing law of contraband.