Neutral Rights and Obligations in the Anglo-Boer War

by Robert Granville Campbell

Possibly Mr. Lawrence does not do full justice to the points taken by the German Government as enunciated in the speech of Count Von Bülow, although he clearly indicates what he thinks the general tendency of the proposed German system of law would be. It would seem that he does not give a clear statement of the German doctrine. When he asserts that "Count Von Bülow committed himself to the crude doctrine that neutral ships plying between neutral ports would not be liable to interference," the inference is not a necessary result of the German position. Nor does it necessarily follow according to the German standard that, "to constitute the offense of carrying contraband a belligerent destination" is "essential, and therefore there" can "be no contraband when the voyage" is "from neutral port to neutral port,"[39] Mr. Lawrence possibly has reference only to the position taken arguendo by the German Government during the correspondence immediately following the seizure of the German ships and not to the general rules formulated by the German Chancellor on January 19, 1900, in his speech before the Reichstag.[40] There is no indication that Mr. Lawrence had this speech before him when he passed judgment upon the German doctrine, although the preface to the third edition of his Principles of International Law is dated August 1, 1900.

[Footnote 39: Principles of Int. Law, p. 679.]

[Footnote 40: The German argument was that according to English expression in the past, notably in 1863, and expressly in her own naval guide, there could not be contraband of war between neutral ports.]

It is possibly true that the German rules were advanced because of their expediency in view of the geographical position of Germany. But the English writer apparently admits a similar motive in opposing the proposed German system, when he says, "Great Britain is the only European state which could not obtain," in time of war, "all the supplies she wished for by land carriage from neighboring neutral ports, with which according to the doctrine in question, neutrals would be free to trade in contraband without the slightest hindrance from the other belligerent."[41]

[Footnote 41: Principles of Int. Law, p. 680.]

The view taken by Mr. Lawrence would seem unfair to the proposed rules in a number of points. Count Von Bülow clearly pointed out that belligerent vessels might capture a neutral vessel if the latter resisted the order to stop, or if irregularities were discovered in her papers, or if the presence of contraband were revealed. Under the term "contraband of war" he admitted that articles and persons suited for war might be included, provided they were at the same time destined for the use of one of the belligerents, and he was ready to admit that discovered contraband should be confiscable. It is true the caution was added that should the seizure prove to be unjustifiable the belligerent State should be bound to order immediate release and make full compensation, and that the right of visit and search should be exercised with as much consideration as possible and without undue molestation to neutral commerce. It was understood that neutral merchant vessels on the high seas or in the territorial waters of the belligerent powers should be liable to visit and search, but again with the necessary caution that the right should not be exercised in waters too remote from the seat of war, and that additional consideration be conceded to mail steamers.[42]

[Footnote 42: Sessional Papers, Africa, No. I (1900), C. 33, p. 24.
Speech in Reichstag, Jan. 19, 1900.]

There would seem to be no necessary opposition between the German position in 1900 and that taken by the Supreme Court of the United States in 1863 with reference to the ships Springbok and Peterhof. In the latter case the cargo of the ship was condemned on the ground that the goods, not necessarily contraband in character, were being carried into the neutral Mexican port of Matamoras. It was believed, however, that the goods were not intended to be sold there as a matter of trade, but were destined for the use of the forces of the Southern Confederacy across the Rio Grande River. To these belligerent forces it was presumed the goods were to be conveyed as the final stage of their voyage, but the decision of the court was distinctly upon the guilt of a breach of blockade.[43] The character of the goods did not give just ground for seizure provided they were intended in good faith for a neutral market, but the character of the goods showed that they were not so intended, and the simulated papers of the ship substantiated this suspicion. But it is to be repeated, condemnation was declared upon the ground of an intended breach of an established blockade as the final stage of the voyage. Had there been no blockade of the Southern States these decisions could not have been upheld. No contraband of war was possible between the neutral ports in the course of bona fide neutral trade, but the character of the goods and the dishonest character of the ships made possible the conclusive presumption that the goods were ultimately intended for the blockaded enemy.

[Footnote 43: Sessional Papers, Miscl., No. I (1900), C. 34, p. 60.]

In the seizure of the German ships, on the other hand, the British Government was not able to show that the ships were really carrying contraband or that there was any irregularity in their papers. The protest of the German Government and its later announcement of certain rules which should govern such cases merely cautioned Great Britain against an undue exercise of the recognized right of visit and search. The attempt was not made to lay down a new system of principles which would render the carrying of contraband by neutrals unhampered by the belligerents, for Count Von Bülow in setting forth the tentative system which in the opinion of his Government would protect neutral commerce in time of war laid stress upon the fact that there are as yet no legal principles fixed and binding on all the maritime Powers, respecting the rights of neutrals to trade with a belligerent, or the rights of belligerents in respect to neutral commerce. He pointed out that, although proposals had been repeatedly made to regulate this subject all attempts had failed owing to the obstacles created by the conflicting views of the different Powers.