Let me now try to make things a little clearer. We are so accustomed to the grooves in which our thoughts have been trained to run that we are apt to overlook the intimate connexion which exists between the law of contraband of war and the law of blockade. They are treated as isolated doctrines, as independent branches of the law. The American Protest declares them to be separate ‘concessions’ by neutrals to belligerents. Discussed, as they are, in terms which have no common denomination of language, comparison between them has become, if not impossible, certainly unusual.[39] Let us then reduce them to a common denominator. If we talk of both in terms of belligerent action we find in the law of contraband the right of search as a preliminary to seizure, in the law of blockade the right of seizure without search. In terms of the cargo seized, we find the first limited to contraband of war, the second unlimited. But this is not very satisfactory; it does not explain why, if the neutral merchant has any rights in regard to non-contraband, the belligerent may destroy them by declaring a blockade. It appears to lead to some such general principle as this: when neutral vessels come within a certain distance from the enemy’s coasts (the offing) a belligerent may seize anything and everything, but until they come within that distance he can only seize contraband of war: which is not an accurate statement of the law. ‘Belligerent right’ is clearly the common factor; a belligerent has the right to declare what shall be contraband of war; he has the right to declare a blockade. The variant is the position and number of ships he makes use of, the exhibition of sea-power by which both rights are enforced. So we get to this result: that when there is a cordon of cruisers the belligerent may seize anything, but when there are only isolated ships he may only seize contraband of war.
This test ceases to be rudimentary when we introduce another factor common to the two subjects—effectiveness. That the belligerent’s naval dispositions must be capable of doing what he proposes to do—in other words, must be effective to that end—is no less a feature of the law of contraband than it is of blockade. Carrying contraband of war and blockade-running are not offences; the evil consequences, which authors insist on calling ‘penalty,’ result from capture. Therefore in both cases what the belligerent may do is only qualified by what he can do. That sub-conscious recognition of the possibility that a belligerent may put far greater impediments in the way of neutral communications with his enemy than is implied in the law of contraband, becomes now the conscious principle which I gave in outline in the first article: that ‘contraband of war’ and ‘blockade’ are identical in principle; that they are merely convenient names given to varying exhibitions of sea-power against the enemy, and the consequences, to enemy and neutral merchant alike, do in fact depend on and vary with the force exhibited—that is, with the number and position of the ships employed upon the service, which, if effectively performed, results in both cases in seizure and condemnation.
Blockade in principle is, therefore, nothing more than an indefinite extension of the list of contraband of war, subject only to the requirement that a sufficient number of ships should be placed in such a position as to make this extended threat of seizure effective. This then is practically what the Order in Council does; and even if it insisted on condemnation in all cases it would be justified, for it satisfies the test which this analysis shows to be the true test, and the only test, that the ships employed upon the service, both as regards number and position, shall be effective for its due performance.
Now, seeing that the Order pays so great regard to the pocket of the neutral merchant that it does not condemn his non-contraband cargoes, it is very difficult to discover any justification for protest. Shorn of superfluity of words, the complaint is that we have not declared a blockade; and it resolves itself into this: that we ought to seize and condemn neutral cargoes and not rest satisfied with what may be termed an interim seizure, which may not become absolute. The answer is that the existence and extent of a right does not depend on the nature of the procedure by which it is enforced. It is true that international law has invented a fiction to assist the belligerent who decides to declare a blockade; it preserves, as against the neutral merchant, the ‘evident danger of seizure’ even when owing to stress of weather it has ceased not merely to be evident, but to exist altogether. What can this fiction have to do with the nature of the right to which it is a mere adjunct? The right to stop all supplies going to the enemy. It is preposterous to say that a belligerent cannot exercise this right unless he avails himself of the adventitious assistance which the law offers him; that although he can do without it yet he may not.
What is true of the deep sea must also be true of the high air. When the lorries and cargo-carriers of the air have come into being, and the war in the air becomes even more of a grim reality than it is to-day, neutrals carrying supplies to the enemy will, I imagine, receive short shrift, contraband or no contraband, siege or no siege, blockade or no blockade.
The Sovereignty over Neutral Ships
But the United States Government rests its protest on an alternative ground. The Order in Council, it declares,
would constitute, were its provisions to be actually carried into effect as they stand, a practical assertion of unlimited belligerent rights over neutral commerce within the whole European area, and an almost unqualified denial of the sovereign rights of the nations now at peace.
This Government takes it for granted that there can be no question what those rights are. A nation’s sovereignty over its own ships and citizens under its own flag on the high seas in time of peace is, of course, unlimited. And that sovereignty suffers no diminution in times of war except in so far as the practice and consent of civilised nations have limited it by the recognition of certain now clearly determined rights which it is conceded may be exercised by nations which are at war.