[820] The Report of the Drafting Committee on article 23 recognises that at present it would be difficult to mention any articles which could under article 23 be declared absolute contraband, but since future contingencies cannot be foreseen, it was considered necessary to stipulate the possibility of increasing the list of absolute contraband. That only such additional articles could be declared absolute contraband as by their very character are destined to be made use of in war, is a matter of course.
It is apparent that this list embodies a compromise, for it includes several articles—such as saddle, draught, and pack animals suitable for use in war—which Great Britain and other Powers formerly only considered as conditional contraband.
Articles conditionally Contraband.
§ 394. There are many articles which are not by their character destined to be made use of in war, but which are nevertheless of great value to belligerents for the continuance of war. Such articles are conditionally contraband, which means that they are contraband when it is clearly apparent—see below, § [395]—that they are intended to be made use of for military or naval purposes. This intention becomes apparent on considering either the destination of the vessel carrying the articles concerned, or the consignee of the articles.
Before the Declaration of London neither the practice of States nor the opinion of writers agreed upon the matter, and it was in especial controversial[821] whether or no foodstuffs, horses and other beasts of burden, coal and other fuel, money and the like, and cotton could conditionally be declared contraband.
(1) That foodstuffs should not under ordinary circumstances be declared contraband there ought to be no doubt. There are even several[822] writers who emphatically deny that foodstuffs could ever be conditional contraband. But the majority of writers has always admitted that foodstuffs destined for the use of the enemy army or navy might be declared contraband. This has been the practice of Great Britain,[823] the United States of America, and Japan. But in 1885, during her hostilities against China, France declared rice in general as contraband, on the ground of the importance of this article to the Chinese population. And Russia in 1904, during the Russo-Japanese war, declared rice and provisions in general as contraband; on the protest of Great Britain and the United States of America, however, she altered her decision and declared these articles conditional contraband only.
(2) The importance of horses and other beasts of burden for cavalry, artillery, and military transport explains their frequently being declared as contraband by belligerents. No argument against their character as conditional contraband can have any basis. But they were frequently declared absolute contraband, as, for instance, by article 36 of the United States Naval War Code of 1900. Russia, which during the Russo-Japanese War altered the standpoint taken up at first by her, and recognised the distinction between absolute and conditional contraband, nevertheless maintained her declaration of horses and beasts of burden as absolute contraband. The Declaration of London, by article 22, No. 7, declares them as absolute contraband.
(3) Since men-of-war are nowadays propelled by steam power, the importance of coal, and eventually other fuel for waging war at sea is obvious. For this reason, Great Britain has ever since 1854 maintained that coal, if destined for belligerent men-of-war or belligerent naval ports, is contraband. But in 1859 France and Italy did not take up the same standpoint. Russia, although in 1885 she declared that she would never consent to coal being regarded as contraband, in 1904 declared coal, naphtha, alcohol, and every other kind of fuel, absolute contraband. And she adhered to this standpoint, although she was made to recognise the distinction between absolute and conditional contraband.
(4) As regards money, unwrought precious metals which may be coined into money, bonds and the like, the mere fact that a neutral is prohibited by his duty of impartiality from granting a loan to a belligerent ought to bring conviction that these articles are contraband if destined for the enemy State or its forces. However, the case seldom happens that these articles are brought by neutral vessels to belligerent ports, since under the modern conditions of trade belligerents can be supplied in other ways with the necessary funds.
(5) As regards raw cotton, it is asserted[824] that in 1861, during the Civil War, the United States declared it absolute contraband under quite peculiar circumstances, since it took the place of money sent abroad for the purpose of paying for vessels, arms, and ammunition. But this assertion is erroneous.[825] Be that as it may, raw cotton should not, under ordinary circumstances, be able to be considered absolute contraband. For this reason Great Britain protested when Russia, in 1904 during the Russo-Japanese War, declared cotton in general as contraband; Russia altered her standpoint and declared cotton conditional contraband only.[826]