It is all the more remarkable that the afore-mentioned American draft of the convention of 1939, which concerns the rights and duties of neutrals, provides for a considerable expansion of the operational area. Such an area, which is termed “blockade zone” in the draft, was to include the waters up to a distance of 50 sea miles from the blockaded coast.
THE PRESIDENT: Dr. Kranzbühler, the Tribunal would like to know what that American draft of 1939 is, to which you refer.
FLOTTENRICHTER KRANZBÜHLER: It is the draft set up by the American Professors Jessup Borchard and Charles Warren, dealing with the rights and duties of neutrals in sea warfare. It was published in the American Journal of International Law of July 1939.
THE PRESIDENT: Jessup and Warren, you say?
FLOTTENRICHTER KRANZBÜHLER: Jessup Borchard and Charles Warren.
THE PRESIDENT: Thank you.
FLOTTENRICHTER KRANZBÜHLER: This would correspond roughly to the area of waters in which attacks without warning were authorized until 17 August 1940; it covers approximately 200,000 square sea miles.
However, it seems to me almost impossible to approach from a juridical angle such an eminently practical question as that of the extent of an operational area. As long as this question is not settled by an agreement the actual determination will always be a compromise between what is desirable from a military point of view and what is politically possible. It seems to me that the law is only violated when a belligerent misuses his power against neutrals. The question as to whether such misuse takes place should be made dependent both upon the attitude of the enemy toward the neutrals and upon the measures taken by the neutrals themselves.
THE PRESIDENT: One minute. Dr. Kranzbühler, does not the right to declare a certain zone as an operational zone depend upon the power to enforce it?
FLOTTENRICHTER KRANZBÜHLER: I do not quite follow the point of your question.