First World War Centennial

CHAPTER IX

TOUCHING NEUTRAL ATTITUDE TOWARD CERTAIN BELLIGERENT INNOVATIONS

I O feature of the war which has enveloped 1 ™ the Eastern Hemisphere in such an extraordinary fashion is so fraught with interest to the international lawyer as that which has to do with blockade, and incident­ally with contraband. Much has been done in both fields that is plainly illegitimate and barbarous. Of such episodes little can be said except in severe condemnation. No color of right is behind them, and none but the disingenuous or prejudiced will excuse them. Meantime it is to be regretted that the critically disposed have not always been just in their animadversions. As has been emphatically suggested in these pages, new conditions not infrequently so alter the status as to force a change of rules. If this were not done, the latter, instead of being useful and adapted to ameliorate a trying situation, would become not only difficult, but dangerous.

That the neutral should be keenly alive both to the breach of law and to attempted changes in practice is apparent to a superficial observer. Its immediate interests and its future policies are so frequently concerned that any other attitude would be mensurable. At the same time the function of its govern­ment is quite opposite to that of a belligerent state. The latter, because of immediate needs which are vital, poses as a reformer, or, better, innovator. For the moment it is inclined to forget all else, even its duties to humanity, and concentrate upon the burning issue which has caused it to grapple with its adversary. In so doing it impatiently dis­cards whatever threatens its integrity, and takes advantage of every means that con­tributes to its end (only restricting itself, if it appreciates the danger to itself of a relapse into barbarism, to such novelties as are defensible).

To the neutral, on the other hand, the outlook is quite different. Affected by the war both in the matter of trade and in such friendly intercourse with sister states as is mutually beneficial, it is far from being privy to the issue; resembling the huckster who fears that his apple cart will be overturned during a street brawl which has come about without his connivance, and is apprehensive and alarmed.

As a consequence, the neutral is solicitous that the conventional law, with which both it and the belligerents are acquainted, and which has the sanction of an earlier genera­tion, shall remain intact. This will give it a standard of action. It can imagine no other way of ordering its affairs and views a departure from the tried way with perplex­ity. To it via trita is indeed via tuta, and any other course means a thousand embar­rassments.

With its interests thus widely divergent from those of the belligerent, the neutral is bound to remember two things:

1 . That while its protecting arm must be outstretched to safeguard all that is good in existing positive law;

2. It must acquire the habit of putting itself in the place of the nation at war, and seek to understand the difficulties it is trying to overcome—its motives—and the argu­ments by which it has convinced itself of the propriety of its action. A private counselor at law is bound in justice to his client to make careful study of the opponent's case. No less diligence should be expected from a state department which, in attempting to look after neutral rights, joins issue with the ministry of a belligerent.

In attempting to protect any invasion of existing positive law which has to do with blockade and contraband, the task of the neutral as in other questions affecting in­ternational relations, is clearly defined, if difficult. There are the decisions of national courts adjudicating matters of international import—treaties, conventions, reports from the prize courts, and other sources from which to draw.

The endeavor to estimate the validity of novel belligerent intentions or practice will be found more perplexing. If they bear some approximation to natural law, as understood and already defined by philosophers and thinkers, there will be less trouble than otherwise. If they are founded on theories that have thus far proved too evasive or destructive to receive human recognition, they can only safely be rejected. In either case fair-minded neutrals will often be placed in a quandary. At such times and in cases where positive law has failed to become coherent, or is altogether silent, the neutral may well set up standards which meet the test of an un­prejudiced mind and apply them to the par­ticular cases which come to its attention, not necessarily for the purpose of reaching a final conclusion, but in an endeavor to clear the air. That there can be no impropriety in a neutral's so doing, especially when dis­cussing contraband and blockade, is suggested by the action of a most eminent international lawyer, who assigns his treatment of this subject to that section of his authoritative book which treats upon the law of neutrality—"on account of the practical importance of blockade for the interests of neutrals,"

Such a standard has already been suggested in these pages. It is that of justifiable Dominion or Sovereignty. Does the belliger­ent base its departure from accepted ways upon a defensible extension of that supreme authority which all states accorded each other within their own bounds in the days when the law of nations had its beginnings? Squaring with "the reason of the thing," the query is particularly adapted to the discussion of belligerent interference with neutral well­being through shutting off trade with a given coast or the seizure of supplies destined to enemy use.

While lexicographers define Dominion in different ways, the leading definitions make the word indicate—

"Sovereign lordship or supreme authority";

"The power of governing or controlling";

"The right of uncontrolled possession";

And, in law, "An act tantamount to an exercise of ownership."

Dominion sometimes exists by virtue of Right alone. Generally, however, it is ex­ercised by Might. If this Might is without Right, and is consistent and constant, it must be conceived of as holding its dominant position by force. If, however. Might is coupled with Right, it presents an infinitely better ground for recognition, even if selfish interests block immediate endorsement. It is this sort of justifiable or vindicable Domin­ion which a neutral Power may well have in mind when drawing conclusions as to the decrees and performances of a belligerent.

Let us suppose that the belligerent under remonstrance has broken the positive law of nations; claims that the latter is obsolete; or alleges that it is above the law. What is the neutral to do? Its protests are without weight as far as any juridical system is concerned. It is equally useless to appeal to the law of nature, to ethics or economics. If the belligerent makes humanity synony­mous with natural law, it will claim that its aggressive acts are humane, because they conserve the interests of its people. If, on the contrary, it recognizes Might as one and the same with law, it will continue to work out its own ends, just as long as it is per­mitted so to do. In neither case, therefore, does the neutral get a hearing. Thus thwarted, is there any better course for the neutral to follow than to apply the gauge it has selected and consider the "reason of the thing" in somewhat the following manner:

The offending belligerent claims Dominion, rightfully or wrongfully, in some specific matter pertaining to blockade or contra­band. Two questions are presented:

I. Is the belligerent correct in its con­clusions? Does it control (have dominion over) the mouth of a given harbor, a given coast, a given zone, a given area of sea in which its war-ships happen to be operating in a manner that is without precedent? If it does not, it is acting without any authority, unless in certain contraband cases it may be that authority which comes from the law of nations which it refuses to obey.

2. If the belligerent does control or domi­nate the aforesaid section, does it do so by right or by sufficient color of right to enable it to defend its course on the ground of fair conquest or such occupation as is sometimes permitted by all nations in areas dominated by no one of them? If so, it deserves con­sideration. If it does not, it is without standing in court, and need only be consulted by the neutral as far as the latter's conven­ience permits. No matter how formal the pronunciamentoes of the belligerent, or vicious its engines of war, it is in no position to object to an aggressive neutral policy, and as long as human reason plays a potent part in human affairs will incur the present condemnation of mankind and occupy an unenviable place in world history.