First World War Centennial

CHAPTER XI

BLOCKADE

PHILLIMORE states—volume iii., page 473—that "Among the rights of bel­ligerents there is none more clear and incon­trovertible, or more just and necessary in the application, than the one which gives rise to the right of blockade."

While that eminent lawyer in arriving at this conclusion unquestionably places great weight upon precedents and the opinions of courts and commentators, quoting Grotius, Bynkershoeck, and Vattel at length, and di­rectly stating that there is no subject of maritime or international law upon which jurists of all nations are so unanimous and precise in their opinions as upon the right and law of blockade, he yet does not hesitate

to affirm—volume iii., page 474—"that a dec­laration of blockade is a high act of sovereign power."

There is no doubt that a neutral, whether or not it choose to consider itself as released from all obligations to observe the positive law of nations because of the derelictions of others, should regard all declarations of blockade as such, viz., high acts of sovereign power. It will then, if the acts are warrant-able (within the rightful province of the belligerent), give them the same considera­tion that it accords, as a matter of course, to all the legitimate performances of a sover­eign state. Thus concluding and thus acting by the exercise of reasoning faculties, and without necessary reference to precedent, it recognizes the fact—1. That when other states are unable to peaceably settle difficulties arising between themselves they will go to war.

2. That as a consequence of war each of the belligerents will endeavor to impose its sovereignty upon such possessions of the other as it may control. 3. That when such enemy sovereignty is extended over conquered enemy territory or over the waters which wash enemy coast line or flood enemy harbors, it is a valid exercise of dominion to which the neutral as a neutral must show the same consideration as it requires for itself in the field of its own sover­eignty.

This discussion regarding the righteous­ness or rightfulness of blockade, and the controlling characteristic which makes it authoritative to neutrals, whether they are released from precedent or not, naturally follows certain propositions already advanced for the use of a neutral Power whose rights under the law of nations have been ignored. At the same time it properly antecedes a more formal consideration of a subject which never was of greater importance than at present.

Referring now to the text writers, we find that blockade, which as a belligerent right is hardly second to belligerency itself, is defined by Oppenheim (the latest authority), in the second edition of his valuable treatise, as "the blocking by men-of-war of the ap­proach to the enemy coast or a part of it for the purpose of preventing ingress or egress of vessels of all nations." It will be noted that Oppenheim's book was published by Long­mans, Green and Company in London in 1912, three years prior to the British Orders in Council which have caused some Englishmen as well as many neutrals much apprehension, and that it fairly sets out the consensus of authority up to the date of its appearance. In so doing it specifically and necessarily limits blockade to the investment of "enemy coast or a part of it," and is in line with Article I. of the Declaration of London, "Le blocus doit être limité aux ports et aux côtes de l'ennemi ou occupés par lui," which, ratified or unratified, has the standing which James Brown Scott gives to those clauses of the Hague Conference to which nations attached reservations. Dr. Scott says—see Introduction to The Hague Conventions and Declarations, published by the Carnegie Endowment—"Failure to ratify is merely to be regarded as the rejection of a codified text, not as the rejection of principles of interna­tional law, which no Power can reject without excluding itself from the society of nations."

If the definition is a correct one the rul­ings of the Conference are authoritative, and we are right in our claims set out in the last paper, that any act of dominion by a belligerent on the high seas nearly adjacent to its coast must by the reason of the thing yield to the prior and controlling right which lies in the body of neutral states it excludes, to traffic with each other; and the act of the British Government, as far as it is interpreted as authorizing the blockade of neutral ports, (however amicable its intention,) must have been taken without serious expectation that it could be defended if challenged, and can­not be cited as a valid extension of any existing principle.

This reference is made to a special act of Great Britain, which is claimed to be nothing more than an adaptation of an existing and reasonable rule to present conditions, in order to emphasize the necessity of a neutrals discouraging all such innovations if it wishes to avoid pitfalls that may be its undoing.

Bearing in mind, then, the necessity of excluding any unnatural interpretations of the given definition of blockade, and espe­cially such as directly contradict its obvious meaning, the student can advantageously review certain aspects of the doctrine.

The Declaration of London of 1909 sum­marized conclusions generally admitted at the time of that conference in twenty-one articles. These include the definition already given and statements which are suggested by the following recapitulation:

Art. 2—Blockade must be effective.

Art. 3—It is a question of fact whether or not blockade is effective.

Art. 4—Blockade is not raised by the temporary dispersion of a fleet owing to stress of weather.

Art. 5—Blockade must be impartially exercised.

Arts. 6, 7—Exception ought to be and is made in the case of neutral ships-of-war and vessels in distress.

Arts. 8, 9, 10, 11, 12, 13, 16—To be obliga­tory a blockade should be declared and noti­fied by a competent authority, fixing the date of commencement and indicating the geographical limits. If the required for­malities are not observed in the original declaration a new announcement must follow, and in any case neutral ships in port at the time of notification are to have special consideration.

All neutral Powers, as well as the local authorities, must be notified by the blockad­ing Power or the commander of its squadron.

There must be distinct announcement in case blockade is extended or renewed after suspension.

Special treatment is to be accorded ships not informed of the existing blockade, and neutrals must be notified that a blockade is discontinued in case it is voluntarily relin­quished. Arts. 14, 15, 17, 19, 20, 21—A neutral ship with actual or presumed notice of blockade may be seized and confiscated.

Right of seizure should be limited to the field occupied by the blockading squadron. Exceptions to the right of seizure favor the neutral vessel in case the latter passes through a blockading squadron on its way to an un-blockaded port, and favor the blockading ship in cases where the chase of an outward bound neutral ship is continuous.

Art. 18—A blockading force must not bar access to a neutral port.

It will be noticed that these articles, pre­pared after exhaustive study, naturally divide themselves under comparatively few headings, which call attention to the requirements of blockade, such as effectiveness, limit in time and space, notice and declaration, the penalty of breaking blockade, and belligerent rights and duties prior to and in connection with the imposition of the same; the attitude of a blockading squadron toward neutral coun­tries and vessels not directly chargeable with breaking into an enemy port through the cordon it has established.

These probably comprehend all ordinary phases of the subject, and if given separate and sufficient attention should advise a neu­tral of its rights and duties in the premises.