I. A neutral State is bound to prevent its territory from becoming, in any way, a "base of operations" for either belligerent. Of the various obligations thus arising, the following letters deal with the duty of the State (1) to prevent the departure from its ports of vessels carrying coal intended to supply directly the needs of a belligerent fleet; and (2) to prevent the reception accorded in its ports to belligerent warships from being such as will unduly facilitate their subsequent operations. It is pointed out that the rule adopted by the United States and this country, as well as by some others, when neutral, by which the stay of belligerent warships is limited to twenty-four hours, has not been adopted by the nations of the European continent. The attempt made at The Hague Conference of 1907 to secure the general acceptance of this rule was unsuccessful; and Convention No. xiii. of that year, not yet ratified by Great Britain, which deals with this subject, merely lays down, in Art. 12, that "In the absence of special provisions to the contrary in the legislation of a neutral Power, belligerent warships are not permitted to remain in the ports, roadsteads, or territorial waters of the said Power for more than twenty-four hours, except in the cases covered by this Convention." Art. 27 obliges the contracting Powers to "communicate to each other in due course all laws, proclamations, and other enactments, regulating in their [130]respective countries the Status of belligerent warships in their ports laid waters."
II. A neutral State is not bound to prevent such assistance being rendered by its subjects to either belligerent as is involved in, e.g. blockade-running or carriage of contraband; but merely to acquiesce in the loss and inconvenience which may in consequence be inflicted by the belligerents upon persons so acting. In order to explain this statement, it became necessary to say much as to the true character of "carriage of contraband" (although this topic is more specifically dealt with in the letters contained in Section 5), and to point out that such carriage is neither a breach of international law nor forbidden by the law of England. For the same reason, it seemed desirable to criticise some of the clauses now usually inserted in British Proclamations of Neutrality.
The view here maintained commended itself to the Institut de Droit International, at its Cambridge and Venice sessions, 1895, 1896, as against the efforts of MM Kleen and Brusa to impose on States a duty of preventing carriage of contraband by its subjects (Annuaire, t. xiv. p. 191, t. xv. p. 205). It has now received formal expression in The Hague Convention No. x. of 1907, Art. 7 of which lays down that "a neutral Power is not bound to prevent the export or transit, for the use of either belligerent, of arms, ammunition, or, in general, of anything which could be of use to an army or fleet."
Sir,—As a good deal of discussion is evidently about to take place as to the articles which may be properly treated as contraband of war, and, in particular, as to coal being properly so treated, I venture to think that it may be desirable to reduce this topic (a sufficiently large one) to its true dimensions by distinguishing it from other topics with which it is too liable to be confused.
Articles are "contraband of war" which a belligerent is justified in intercepting while in course of carriage to his enemy, although such carriage is being effected by a neutral vessel. Whether any given article should be treated as contraband is, in the first instance, entirely a question for the belligerent Government and its Prize Court. A neutral Government has no right to complain, of hardships which may thus be incurred by vessels sailing under its flag, but [131]is bound to acquiesce in the views maintained by the belligerent Government and its Courts, unless these views involve, in the language employed by Lord Granville in 1861, "a flagrant violation of international law." This is the beginning and end of the doctrine of contraband. A neutral Government has none other than this passive duty of acquiescence. Its neutrality would not be compromised by the shipment from its shores, and the carriage by its merchantmen, of any quantity of cannon, rifles, and gunpowder.
Widely different from the above are the following three topics, into the consideration of which discussions upon contraband occasionally diverge:—
1. The international duty of the neutral Government not to allow its territory to become a base of belligerent operations: e.g. by the organisation on its shores of an expedition, such as that which in 1828 sailed from Plymouth in the interest of Dona Maria; by the despatch from its harbours for belligerent use of anything so closely resembling an expedition as a fully equipped ship of war (as was argued in the case of the Alabama); by the use of its ports by belligerent ships of war for the reception of munitions of war, or, except under strict limitations, for the renewal of their stock of coal; or by such an employment of its colliers as was alleged during the Franco-Prussian war to have implicated British merchantmen in the hostile operations of the French fleet in the North Sea. The use of the term "contraband" with reference to the failure of a neutral State to prevent occurrences of this kind is purely misleading.
2. The powers conferred upon a Government by legislation of restraining its subjects from intermeddling in a war in which the Government takes no part. Of such legislation our Foreign Enlistment Act is a striking example. The large powers conferred by it have no commensurable relation to the duties which attach to the position of neutrality. Its effect is to enable the Government to pro[132]hibit and punish, from abundant caution, many acts on the part of its subjects for which it would incur no international liability. It does empower the Government to prevent the use of its territory as a base: e.g. by aid directly rendered thence to a belligerent fleet; but it, of course, gives no right of interference with the export or carriage of articles which may be treated as contraband.
3. The powers conferred upon a Government by such legislation as section 150 of the Customs Consolidation Act; 1853, now reproduced in a later enactment, of forbidding at any time, by Order in Council, the export of articles useful in war. The power thus given has no relation to international duty, and is mainly intended to be exercised, in the way of self-protection, when Great Britain is, or is likely to be, engaged in war. The object of the enactment is to enable the Government to retain in the country articles of which we may ourselves be in need, or to prevent them from reaching the hands of our enemies. The articles enumerated—e.g. arms, ammunition, marine engines, &c.—are, neither in the Act of 1853 nor in the Order in Council of the following year, described as "contraband of war."