International Law. A Treatise. Volume 2 (of 2) / War and Neutrality. Second Edition

by L. Oppenheim

(14) Field glasses, telescopes, chronometers, and all kinds of nautical instruments.

This list represents a compromise, just as does the list of absolute contraband of article 22. Those opponents of the Declaration of London who object to foodstuffs being on the list of conditional contraband forget that several times in the past—see above, p. [486] (1)—belligerents have declared foodstuffs absolute contraband.

Hostile Destination essential to Contraband.

§ 395. Whatever may be the nature of articles, they are never contraband unless they are destined for the use of a belligerent in war. Arms and ammunition destined for a neutral are as little contraband as other goods with the same destination. As this hostile destination is essential even for articles which are obviously used in war, such hostile destination is all the more important for such articles of ancipitous use as are only conditionally contraband. Thus, for instance, provisions and coal are perfectly innocent and not at all contraband if they are not purposely destined for enemy troops and naval forces, but are destined for use by a neutral. However, the destination of the articles must not be confounded with the destination of the vessel which carries them. For, on the one hand, certain articles with a hostile destination are considered contraband although the carrying vessel is destined for a neutral port, and, on the other hand, certain articles, although they are without a hostile destination, are considered contraband because the carrying vessel is to touch at an intermediate enemy port and is, therefore, destined for such port, although her ultimate destination is a neutral port.

The Declaration of London, by articles 30 to 36, enacts very detailed rules with regard to hostile destination, distinguishing clearly between the characteristics of hostile destination of absolute contraband and those of hostile destination of conditional contraband.

(1) The destination of articles of absolute contraband is, according to article 30, to be considered hostile if it be shown that they are being sent either to enemy territory, or to territory occupied by the enemy, or, further, to the armed forces of the enemy. And, according to article 31, hostile destination of absolute contraband is considered to be completely proved, firstly, when the goods are consigned to an enemy port or to the armed forces of the enemy, and, secondly, when the vessel is to call either at enemy ports only, or when she is to touch at an enemy port or meet the armed forces of the enemy before reaching the neutral port to which the cargo concerned is consigned.

(2) The destination of articles of conditional contraband, on the other hand, is, according to article 33, considered to be hostile if they are intended for the use of the armed forces or of a government department of the enemy State, unless in this latter case the circumstances show that the articles concerned cannot in fact be used for warlike purposes. Gold and silver in coin or bullion and paper money, however, are in every case considered to have a hostile destination if intended for a government department of the enemy State. And, according to article 34, hostile destination of articles of conditional contraband is, if the contrary be not proved, presumed when the articles are consigned, firstly, to enemy authorities or to an enemy contractor[827] established in the enemy country, who as a matter of common knowledge supplies articles of this kind to the enemy, or, secondly, to a fortified place of the enemy or to another place serving as a base[828]—whether of operations or supply—for the armed forces of the enemy. On the other hand, if the articles are not so consigned and if the contrary be not proved, their destination is presumed to be non-hostile. And in the case of a merchantman which can herself be conditional contraband if bound to a fortified place of the enemy or to another place serving as a base for the armed forces of the enemy, there is no presumption of a hostile destination, but a direct proof is necessary that she is destined for the use of the armed forces or of a government department of the enemy State.

[827] The French text of article 34 contains the words à un commerçant établi en pays ennemi et lorsqu'il est notoire que ce commerçant fournit à l'ennemi des objets et materiaux de cette nature. The translation to an enemy contractor has been objected to by opponents of the Declaration of London, but it is absolutely correct because it meets the meaning of the French text.

[828] The Report of the Drafting Committee on article 34 states that the base concerned may be one of operations or supply. Opponents of the Declaration of London object to article 34 on account of the alleged ambiguity of the words place serving as a base for the armed forces of the enemy, and assert that all seaports of Great Britain might be treated as bases of supply for the armed forces because railways connect them with other places which actually serve as bases of supply or operations. This is surely erroneous, because the doctrine of continuous voyages is not—see article 35 in contradistinction to article 30, and below, § [403a]—to be applied to conditional contraband.

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