First World War Centennial

CHAPTER XVII

THE UNSATISFACTORINESS OF THE DOCTRINE OF CONTRABAND

THERE is a good deal of nonsense about contraband. This must have occurred to the sages whose treatises gravely rehearse the undoubted facts as to usage. If so, they have felt the restraint of the period in which they have written, and have abstained from critical comment lest confusion follow. Thus from Grotius to Oppenheim the student is furnished with possible, but not positive, lists of neutral goods and chattels that are viewed askance by belligerents. These are classified variously but most satisfactorily as:

Articles that can only be made use of in time of war, which include arms, munitions, military accoutrements, etc., referred to by the London Convention as absolute contra­band; articles that can never be made use of in times of war, characterized under the London Convention as free goods—articles of luxury are supposed to be of this nature; articles that may or may not be used in war—these are referred to as having ancipitis usus by Grotius. They include provisions, money, ships, and articles of naval equipment which have a double use and which may or may not be contraband.

International lawyers are agreed as to the character of these lists as they are in their broad statements regarding the doctrine of contraband. Further than this, however, they did not dare to go until the London Convention, when steps were taken partly based upon precedents, partly on compromise. Some will say the reason for this lay in the fact that the doctrine of contraband is an arbitrary one, resting upon usage, not upon principle; others, because from its very nature the law of contraband shifts with the necessities of the belligerents. Meantime the Supreme Court of the United States has not hesitated to affirm (the Peterhoff): "The classification of goods as contraband or not contraband has much perplexed text writers and jurists. A strictly accurate and satis­factory classification is perhaps imprac­ticable."

To illustrate this, one publicist recom­mends that things which enter into the manufacture of arms and ammunition, of military supplies and of absolute contraband, be regarded as themselves absolute contra­band, to which the response is made—That as almost every commodity known to com­merce enters into the manufacture of various things having a military use, it may be as well to make everything contraband.

There is enough virile sense in the sugges­tion thus made to encourage independent thinking. It is manifestly absurd to cut off from a belligerent weapons of war, and at the same time permit all the ingredients which enter into the manufacture of such weapons to be freely shipped. The only difference to the enemy would lie in the cost of manufacture and the time taken for construction. The weapons would ultimately be provided. Yet departments of state in­terchange notes regarding the status of this and the other product, as if there were some kind of cleavage by which the Almighty had differentiated contraband from noncontra­band.

To the untrammeled intelligence this must all appear like a very roundabout and un­reasonable way of dealing with a great problem. To such a mind the facts indicate that neither belligerent wishes trade of any sort carried on with the other. This embraces the free list of articles positively not used in war as well as military supplies. The whole matter is relative. Neutral shipping of cannon to an enemy is one hundred per cent. abominable to the belligerent, but toilet articles may convey some sense of comfort, and therefore are objectionable if only one per cent. Why dicker and fuss over lists of crude and manufactured goods that may or may not be carried in neutral bottoms?

There is no possibility, as witness the experience of the schedules volunteered by the London Conference, that there will ever be such unanimity among the nations as to crystallize into two different groups the prohibited and the unprohibited. It were better, therefore, for a belligerent either to permit trade between neutrals and the enemy or to block the same entirely. Either course would be less confusing than the present method of procedure.

For the purpose of studying the matter further let us imagine a belligerent as giving notice that all articles of commerce would be considered contraband. What would follow? If the belligerent was a powerful nation, able to impose its will upon a neutral trading people, it would undoubtedly have its way. If it were not, its requests, representations, and prayers would go unheeded. Satisfied that it was able to keep the objecting belliger­ent off with one hand, and turn over its goods with the other, the neutral would continue to follow the course best suited to its interests. Why should it not? It has sovereignty. The quarrel (mayhap across seas) does not interest it. Is there any reason why it should indefinitely affect the resources of its own citizens, and refuse trade with a friendly Power because warned that this did not please a third party?

The result of facing difficulties in this frank, if embarrassing, manner would stimu­late statesmen to do some original thinking. Thus far they have been content to abide by the rulings of doctrinaires, or to work out some such petty subterfuge as is the resource of the opportunist. If, under pressure, trained minds were content not only to eliminate that which is superficial in the law of contraband, but to frame proposals sufficiently akin to natural law to be de­fensible, it is not unlikely that their overtures by pushing the law of blockade to a reason­able limit would leave the combatant that which it appears to be entitled to, as far as neutrals are concerned, and relieve the lat­ter from a thousand embarrassments which may readily be the cause of extending the war.

It cannot be denied that such a suggestion has a visionary element when viewed from the standpoint of the past. This is because the world has been content to proceed along lines laid by academic thinkers (who have not infrequently adopted wrong premises) and by far from disinterested treaty makers.

If, however, the astounding changes that have come about with the elimination of time and space by scientific and commercial activity should ever throw the remodeling of international law into the hands not only of professors and jurists, who are indis­pensable, but of men of affairs, who have promoted large enterprises by straightfor­wardness and simplicity, and of officers trained in a large way by army and navy ser­vice, the law of contraband, as it now exists, will be roughly handled. Why should it not be? Can any system more ridiculous than that which is now law be shaped up?

Under the prevailing doctrine a belligerent nation of one million inhabitants, with an insignificant navy, is automatically in posi­tion after hostilities are joined, and with proper advertisement, to seize and confiscate all the articles of a certain nature that its warships find in the vessels of a nation whose population is from fifty to a hundred times greater, and to do this in the broad water­ways of the world over which it has no jurisdiction.

This is not all: by proper announcement it may add to the lists of contraband about every product that it pleases and put itself in a position to do thrice the harm to neutrals that it can ever do to the enemy, all with the apparent seal of unquestioned authority. Such is a possible, if hypothetical, instance. Innumerable others will occur to anyone who cares to give the matter thought. For our present purpose one case is sufficient—let us bear it in mind as we more particularly review the law of contraband as it stands, and should be observed until such time as amendment can be made.