In the case of conditional contraband there is a presumption of innocent use when it is destined to neutral territory; yet the British authorities had seized and detained cargoes without
being in possession of facts which warranted a reasonable belief that the shipments had in reality a belligerent destination as that term is used in international law. Mere suspicion is not evidence, and doubts should be resolved in favour of neutral commerce, not against it.
Cargoes had, in fact, been seized ‘because of a belief that, though not originally so intended by the shippers, they will ultimately reach’ the enemy. A consignment of conditional contraband shipped to a neutral port does not raise a presumption of enemy destination; such a presumption is directly opposed to Lord Salisbury’s statement, made during the South African war, as to foodstuffs (equally applicable to all conditional contraband) which, ‘though having a hostile destination, can be considered as contraband only if they are for the enemy forces. It is not sufficient that they are capable of being so used. It must be shown that was in fact their destination at the time of their seizure.’ As to concealed contraband, it is conceded that there is a right to detain neutral ships when there is sufficient evidence to justify belief that contraband articles are in their cargoes; but the ships cannot be taken into port and there detained ‘for the purpose of searching generally for contraband, or upon presumptions created by special municipal enactment which are clearly at variance with international law and practice.’ Many of the industries of the United States are suffering ‘because their products are denied long-established markets in European countries which, though neutral, are contiguous to the nations at war.’ The effect on trade is not entirely cured by reimbursements for damages suffered when an enemy destination has not been established; ‘the injury is to American commerce as a whole through the hazard of the enterprise and the repeated diversion of goods from established markets.’
Resolved into its simplest expression, the complaint is a criticism of the way in which the doctrine of ‘continuous voyages’ has been applied by the British Government; but there is also a veiled criticism of the doctrine itself; and, by way of further complaint, it is pointed out that the embargoes which have been declared in certain countries have proved insufficient to prevent the doctrine being applied. As to the principle asserted that doubts are to be resolved in favour of neutral commerce, it has no warrant in common sense, for it puts a premium on the neutral merchant’s ingenuity, an ingenuity which has itself given rise to the doctrine of ‘continuous voyages.’ Seeing that commerce is in the balance against a nation’s existence, the doubt must obviously be resolved in favour of the more important consideration. The Note is also open to the general criticism that it is based on the position of the vendor and ignores the purchaser. But the true criterion of destination must often be found in the intentions of the neutral purchaser of which the neutral vendor may be ignorant.
An interim reply was sent by the British Government on the 7th of January. It begins with a cordial concurrence in the general principle that a belligerent should not interfere with trade between neutrals unless such interference is necessary to protect the belligerent’s national safety, and then only to the extent to which this is necessary; with this qualification, however, that
we shall endeavour to keep our action within the limits of this principle, on the understanding that it admits our right to interfere when such interference is, not with bona-fide trade between the United States and another neutral country, but with trade in contraband destined for the enemy’s country, and we are ready, whenever our action may unintentionally exceed this principle to make redress.
The figures showing the export of copper from the United States in 1913 and 1914 to Italy, Sweden, Denmark, and Switzerland (‘countries which, though neutral, are contiguous to the nations at war’) are then compared, and their astonishing increases duly noted. The conclusion is very clear.
With such figures the presumption is very strong that the bulk of the copper consigned to these countries has recently been intended not for their own use, but for that of a belligerent who cannot import it direct.
Granted the soundness of the American proposition, the British case falls within it; the ‘imperative necessity for the safety of the country’ has arisen. As to concealed contraband the case is even clearer. Cotton is not on the list of contraband. But information has reached the Government that ‘precisely because we have declared our intention of not interfering with cotton, ships carrying cotton will be specially selected to carry concealed contraband; and we have been warned that copper will be concealed in bales of cotton.’ For this there is only one remedy: the cargo must be examined and the bales weighed; further, this cannot be done at sea, therefore the ship must be brought into port. The general justification of the action of the British Government is couched in these weighty words, which go to the foundations of the whole law of contraband and the right of search: ‘We are confronted with the growing danger that neutral countries contiguous to the enemy will become, on a scale hitherto unprecedented, a base of supplies for the armed forces of our enemies and for materials for manufacturing armament.... We endeavour, in the interest of our own national safety, to prevent this danger by intercepting goods really destined for the enemy, without interfering with those which are bona-fide neutral.’
The extraordinary procedure adopted by the United States Government of prohibiting the publication of manifests within thirty days after the departure of vessels from American ports, obviously increased the difficulties of the British Government in exercising its right of search even in the most ordinary circumstances. If I am right in my view that the duty of neutrals is to do nothing, for the simple reason that any action may be of assistance to one of the belligerents, it must be confessed that this order comes perilously near to a breach of neutrality.