Neutral Rights and Obligations in the Anglo-Boer War

by Robert Granville Campbell

[Footnote 28: Sessional Papers, Africa, No. I (1900), C. 33, p. 6.]

The only reply that Lord Salisbury could make was that the manual cited was only a general statement of the principles by which British officers were to be guided in the exercise of their duties, but that it had never been asserted and could not be admitted to be an exhaustive or authoritative statement of the views of the British Government. He further contended that the preface stated that it did not treat of questions which would ultimately have to be settled by English prize courts. The assertion was then made that while the directions of the manual were sufficient for practical purposes in the case of wars such as had been waged by Great Britain in the past, they were quite inapplicable to the case which had arisen of war with an inland State whose only communication with the sea was over a few miles of railway to a neutral port. The opinion of the British Government was that the passage cited to the effect "that the destination of the vessel is conclusive as to the destination of the goods on board" had no application. "It cannot apply to contraband of war on board a neutral vessel if such contraband was at the time of seizure consigned or intended to be delivered to an agent of the enemy at a neutral port, or, in fact, destined for the enemy's country."[29]

[Footnote 29: Ibid., pp. 18-19. Salisbury to Lascelles, Jan. 10, 1900.]

Lord Salisbury then cited Bluntschli as stating what in the opinion of the British Government was the correct view in regard to goods captured under such circumstances: "If the ships or goods are sent to the destination of a neutral port only the better to come to the aid of the enemy, there will be contraband of war and confiscation will be justified."[30] And, basing his argument upon this authority, he insisted that his Government could not admit that there was sufficient reason for ordering the release of the Bundesrath "without examination by the Prize Court as to whether she was carrying contraband of war belonging to, or destined for, the South African Republic." It was admitted, however, that the British Government fully recognized how desirable it was that the examination should be carried through at the earliest possible moment, and that "all proper consideration should be shown for the owners and for innocent passengers and all merchandise on board of her."[31] It was intimated that explicit instructions had been issued for this purpose and that arrangements had been made for the speedy transmission of the mails.

[Footnote 30: "Si les navires ou marchandises ne sont expédiés à destination d'un port neutre que pour mieux venir en aide à l'ennemi, il y aura contrebande de guerre, et la confiscation sera justifiée." Droit Int. Codifié, French translation by Lardy, 1880, 3d Ed., § 813. One of the two cases cited in support of this opinion is that of the Springbok, but in §835, Rem. 5, the following statement is made: "Une théorie fort dangereuse a été formulé par le juge Chase: 'Lorsqu'un port bloqué est le lieu de destination du navire, le neutre doit être condamné, même lorsqu'il se rend préalablement dans un port neutre, peu importe qu'il ait ou non de la contrebande de guerre à bord.'">[

[Footnote 31: Sessional Papers, Africa, No. I (1900), C. 33, p. 19;
Salisbury to Lascelles, Jan. 10, 1900.]

The German Government, agreeing for the moment to put to one side the disputed question of trade between neutral ports in general, nevertheless insisted that since a preliminary search of the Bundesrath had not disclosed contraband of war on board there was no justification for delivering the vessel to a prize court. The suggestion was made that future difficulty might be avoided by an agreement upon a parallel of latitude down to which all ships should be exempt from search. And although it was not found possible to reach an exact agreement upon this point, orders were issued by Great Britain that the right of search should not in future be exercised at Aden or at any place at an equal distance from the seat of war and that no mail steamers should be arrested on suspicion alone. Only mail steamers of subsidized lines were to be included, but in all cases of steamers carrying the mails the right of search was to be exercised with all possible consideration and only resorted to when the circumstances were clearly such as to justify the gravest suspicion.[32]

[Footnote 32: Ibid., pp. 19-22.]

It is interesting to note in the positions taken by the German and English Governments with regard to the theory of ultimate destination and continuous voyages a wide divergence of opinion. The British Government apparently based its contention upon the decision of the United States Supreme Court in the case of the Springbok in 1863, namely, that a continuous voyage may be presumed from an intended ultimate hostile destination in the case of a breach of blockade, the contraband character of the goods only tending to show the ultimate hostile intention of the ship. But the English contention went further than this and attempted to apply the doctrine to contraband goods ultimately intended for the enemy or the enemy's country by way of a neutral port which, however, was not and could not be blockaded. The German Government contended on the other hand that this position was not tenable and apparently repudiated the extension of the continuous voyage doctrine as attempted by England.

In the end the immediate dispute was settled upon the following principles: (1) The British Government admitted, in principle at any rate, the obligation to make compensation for the loss incurred by the owners of the ships which had been detained, and expressed a readiness to arbitrate claims which could not be arranged by other methods. (2) Instructions were issued that vessels should not be stopped and searched at Aden or at any point equally or more distant from the seat of war. (3) It was agreed provisionally, till another arrangement should be reached, that German mail steamers should not be searched in future on suspicion only. This agreement was obviously a mere arrangement dictated by the necessity of the moment, and was not such as would settle the question of the extent to which the doctrine of continuous voyages might be extended in dealing with contraband trade or with alleged traffic of this character.