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in council rest upon the order of Germany declaring a submarine warfare, and that order rests upon the declaration of England that grain and flour destined for Germany would be seized because they were contraband—a resting place which would not have existed if the principle of contraband had been abolished at The Hague Conference.
The result is the same if Great Britain's attempt to, prevent grain and flour from reaching Germany was not the real cause for the latter's submarine warfare, and Germany was in fact much more concerned about the danger of being cut off from copper, petrol, rubber and numerous other things necessary for military arms and operations; for it was by the application of the principle of contraband that Great Britain seized such shipments to neutral ports where the ultimate destination was for Germany.
In preventing goods from reaching Germany through Rotterdam or other neutral ports on the ground that they were contraband, England was not only doing what she had claimed in the Boer War she had the right to do, and what Italy had done in the war with Tripoli; but what she had an exact precedent for in the decision of our Supreme Court in “The Springbok” case and what Germany and the United States knew she claimed the right to do when they voted against her proposal to abolish the principle of contraband. But if in 1907 those nations had accepted the proposal and by their united efforts the law of contraband had been abolished, then in case she had attempted at the outbreak of the war to exercise under the law of blockade the right to seize goods destined for Germany through the neutral ports of Holland, Denmark and Italy, she would have had to face the fact that it was the opinion of the great majority of international jurists not only of the Continent but of Great Britain that there was no such right; that her great admiralty Judge, Sir William Scott, had denied that right; that in the United States the decision of the Supreme Court, which was precisely in point in her favor under the law of contraband, was precisely in point against her under
the law of blockade; and she would have had to face the technical claim that as she could not blockade the Baltic ports of Germany against Sweden and Norway and Denmark, the blockade would not be an effective or impartial one. Above all, she would have had to face the charge that after having solemnly made at The Hague Conference a proposal which had been accepted as a reality, she had, at the first opportunity, treated it as a sham.
All the arguments which she makes today to justify the orders in council she might, to be sure, have made then to justify the application of the doctrine of continuous voyage to the law of blockade. She might have said to us then as she says in substance today:
"You say that Great Britain has no right to arrest neutral ships sailing between neutral ports on the ground that their cargoes come from or are going to Germany. Why not? In the Civil War you arrested neutral ships on a voyage from one neutral port to another and condemned them and their cargoes even when the cargoes were non-contraband. You answer, 'Yes, but we did it only when the goods were to go on from the neutral port to the South by sea, and not when they were to go on from the neutral port by land. But what difference in principle is there? Why should you be allowed to blockade Bermuda, and we not be allowed to blockade Rotterdam? Great Britain is an island. The only communication between it and neutral ports is, therefore, by sea. Every other country in Europe has communication with neutral ports by land.
"Under your distinction nearly all the neutral ports on the Continent of Europe may be open to non-contraband goods destined to our enemies and every one of them closed to such goods destined to us; our enemies may blockade all the neutral countries in Europe and we may not blockade any, except, perhaps, Sweden and Norway. There is no justice in a distinction that works so unfairly. If any case in the United States or in Great Britain has made such a distinction it should be disregarded in international law just as in municipal law a case is overruled which cannot be sustained on principle. There is one principle and one alone on which can be supported what you did in your Civil War under the law of blockade. That principle, 'which is fundamental and which has obtained universal recognition, is that by means of blockade a belliger. ent is entitled to cut off by effective means the sea-borne commerce of his enemy.'c And on that principle can be supported likewise everything we have done or intend to do."
But to make today such an argument, whether it be sound
6 Letter of Sir Edward Grey, published in American newspapers
August 4, 1915.
or unsound, is far easier than it would have been if the world on Great Britain's motion had abolished contraband. It would, in that case, have met with a far different reception from the not unsympathetic reception it is meeting with now, when it is widely felt that Great Britain is entitled to all the righs that the vague and indefinite ideas of contraband, blockade and continuous voyage can, by the broadest interpretation, be construed to give
On the whole, I do not think it fanciful to conceive that, if at the second Hague Conference any of Great Britain's proposals as to the principle of contraband had been accepted, so that when the war broke out that principle no longer existed or had been so limited as not to cover foodstuffs and raw materials, Great Britain would not have hindered the importation to Germany through Holland, Denmark and other neutral countries of grain, flour, cotton, copper, rubber and oil; there would have been no Gěrman submarine warfare against merchant shipping, no British orders in council, and consequently no controversies based on such warfare or orders between the United States and Germany or the United States and Great Britain.
I shall now touch very briefly on the subjects of the use of asphyxiating gas, the use of air machines for throwing projectiles and explosives, and the destruction of merchant ships.
At the first Hague Conference, a Russian delegate proposed to prohibit the use of projectiles charged with explosives which diffused asphyxiating or deleterious gases.
The delegates of Russia, Denmark, France, Austria-Hungary and Great Britain supported the proposal, arguing that “death from asphyxiation is more cruel than death from bullets;" and that the use of such gases is barbarous and treacherous like the poisoning of drinking water.
The subcommittee by whom the subject was being considered voted for the prohibition unanimously with the exception of Captain Mahan, the delegate from the United
States. He opposed the resolution in subcommittee, committee and conference. His argument was that everything that had been said as to the cruelty and perfidy of using asphyxiating shells had been said about using firearms and torpedoes when they were introduced; that it was illogical to permit the bottom of an ironclad to be blown out and all the people on board choked with water and to be tender about asphyxiating men with gas; that no one could tell until the shell emitting the asphyxiating gas was in practical use whether it would be merciful or the reverse; and that not until such a shell had been successfully produced would men be able to vote intelligently on the subject.
When the question was finally passed upon, Great Britain joined with the United States in voting "No," and all • the other countries voted for the prohibition. But at the opening of the Conference of 1907, Sir Edward Frye announced for Great Britain that he had been instructed to accept the declaration against the use of asphxiating gases, and the United States was left alone in opposition to the prohibition of their use.
At the Conference of 1899 hurling projectiles or explosives from balloons was prohibited for a period of five years. The representative of The Netherlands in supporting the proposal said:
"We can foresee the use of projectiles or other things filled with deleterious gases or soporifics, which hurled from balloons into the midst of troops would disable them at once. Since such attacks cannot be guarded against, they resemble treachery, and all that resembles treachery should be scrupulously eliminated. Let us be chivalrous even in the manner of making war.”
The subcommittee voted almost unanimously for the prohibition. One week later Captain Crozier, one of the representatitves of the United States, moved that the prohibition be limited to five years. It was difficult, he said, to justify the prohibition by humanitarian motives. It was possible that practical means might be invented by which at a critical moment and in a critical place on the field of battle, the balloon might decide the victory, “thus localizing
... the destruction of life and property” and sparing the sufferings of all who were not at the precise spot. “Such use,” he says, “tends to diminish the evils of war and to suport the humanitarian considerations which we have in view.”
He did not know of any machines thus efficient and humanitarian; “but is it,” he asks, "desirable to shut the door to their possible introduction among the permitted arms?”
These arguments won over the representatives of various nations, and after Russia had failed in a motion to make the prohibition ten years, the Commission adopted Captain Crozier's motion limiting the prohibition to five years.
When the Conference of 1907 came together, a great advance had been made in dirigibles, and although the Convention adopted a declaration extending the prohibition until the end of the Third Peace Conference, most of the great nations never accepted it.
At the second Hague Conference the question of the destruction of neutral ships which had been seized on the ground that they were violating blockade or carrying contraband or otherwise justifying capture was the subject of much consideration. Great Britain had always maintained that no military necessity could justify such destruction. All or nearly all other nations had considered it allowable under certain circumstances. The United States, for instance, in the War of 1812 and the Spanish-American War had given instructions that for lack of a prize crew the captor might destroy a neutral prize. During the Japanese War Russia sank neutral merchantmen captured by her. At the conference Russia proposed that captured neutral ships might be destroyed when it was necessary to the security of the captor or the success of its operations, the captor first to transship the passengers and crew. Absolutely to forbid such destruction, she said, would put at a disadvantage States with few ports. Germany supported the proposal and it was carried. Great Britain, Japan