*This article was submitted in the Prize Essay Contest, 1935.
"Every truth has practical consequences and these are the test of its truth."—Pierce’s Principle
In their relations with each other, civilized states feel bound by certain principles and rules of conduct declaratory thereof to which the term international law is applied. International law is a weaker law than national law because it lacks a central authority with power to make laws, interpret, and enforce them. To be part of international law a principle or rule of conduct must have been accepted by the several states of the family of nations as the law governing their mutual relations. For its enforcement international law depends on the pressure of world opinion and on the fear that a state whose rights have been violated may resort to retaliation or war. Important consequences follow.
The absence of a central authority and the fact that a large part of international law is based on custom rather than on written agreement account for a certain vagueness as to what constitutes an obligatory rule of law. While the main principles of the law are fairly well understood and agreed upon, considerable difference of opinion exists concerning many of the rules of conduct declaratory of these principles. States never admit having violated international law, they justify their actions on the ground that they are in conformity with accepted principles and that the other side errs in its interpretation of the correct rule of conduct declaratory of the principle in question.
An even more serious weakness of the law of nations is the lack of adequate machinery for the adjustment of once established rules of conduct to changed conditions. The industrial revolution and the development of new methods of communication have during the past century brought about profound changes in the relations between states. The possibilities for changing international law by means of international convention or judicial decision have been inadequate to keep pace with these changes. But, as Hyde points out, "rules of conduct, however definitely established, if applied under conditions differing sharply from those prevailing when they were laid down, fail to reflect, and may even oppose, the underlying principles to which their origin was due,"1 and "what the consensus of opinion of enlightened states deems to be essential to the welfare of the international society is ever subject to change."2 However, changes in the law require the consent of all states affected thereby and are, therefore, difficult to effect. Yet, since international law finds its strongest sanction in the conviction of states that its rules accord with international justice, failure to modify a rule of conduct which no longer carries out the fundamental principle to which it owes its origin will inevitably result in general disregard of that rule.
In examining any given question of international law it is, therefore, important to distinguish between basic principles and rules of conduct declaratory thereof. A particular rule of conduct, to receive general compliance, must not only have been firmly established in the practice of states, but must, even under the test of changed conditions, still reflect the underlying principle.
During the war of 1914-18 the laws regulating war at sea were, despite the protests of neutrals, stretched by both sides under the plea of "changed conditions of modern warfare." At the end of the war the laws of naval warfare were left in a state of unprecedented confusion and chaos. In an excellent article, "Troubles of a Neutral," Charles Warren, who was Assistant Attorney-General of the United States during the period of our neutrality, says: "Not a single controversy which arose between our government and the belligerent powers has been settled. Every single contention made by them respectively as to use of submarines and as to neutral rights on the high seas is still made by them."3 No international agreement has been reached concerning the legality or illegality of the various extensions of the laws of naval warfare made during the World War and unless agreement is reached before the outbreak of another war it is to be feared that belligerents will be strongly tempted to follow the practices of the World War, rather than the rules of warfare generally accepted before 1914. The fact must be frankly faced that almost any conceivable practice could be justified by World War precedents.
A restatement of the laws of naval war is, consequently, needed to safeguard against complete lawlessness in a future war. Such a restatement can be made only by a conference of international scope, such as the ones held at The Hague in 1899 and 1907, and at London in 1909. Its task would be to reconsider the laws of naval war and of neutrality with a view to determining rules of conduct which, under the changed conditions of modern warfare, carry out the underlying principles of international law. In reviewing these laws it will be of particular importance that account be taken of the new weapons whose significance had not been fully understood prior to the World War. Obviously naval weapons which are capable of attacking from under water and in the air can hardly be regulated in a satisfactory manner by rules evolved at a time when naval operations were limited to the surface of the sea.
In the meantime, the author feels that a useful purpose will be served by taking up one of these new weapons, the submarine. The object of this study is to examine the rules of naval war which govern this weapon, with a view to ascertaining whether, under the changed conditions of modern war, the rules generally accepted prior to 1914 still reflect underlying principles of international law.
Such an examination appears to be opportune at the present moment because submarines now constitute an important part of practically all navies, and because the imminent denunciation by Japan of the Washington Arms Limitation Treaty has, for the time being at least, eliminated all possibility of abolishing the submarine by international agreement. Moreover, it is to be expected that since the military and naval restrictions imposed upon Germany by the Versailles Treaty will probably soon be terminated, she will again be in a position to build a submarine fleet. Germany has never abandoned the position taken during the World War that her use of submarines was lawful.
The rules of international law which regulate the special relations between states caused by the existence of a state of war are of two kinds: (1) laws of war regulating the relations between belligerents, and (2) laws of neutrality regulating the relations between belligerents and neutrals.
The laws of war are controlled by two basic principles: (1) "That a belligerent should be justified in applying any amount and any kind of force which is necessary for the realization of the purpose of war, namely, the overpowering of the opponent," and (2) the principle of humanity "which says that all such kinds and degrees of violence as are not necessary for the overpowering of the opponent should not be permitted to a belligerent."4 The most significant result of the acceptance of the principle of humanity has been the gradual evolution of a distinction between combatants and noncombatants and the protection of noncombatants against injuries not incidental to military operations against combatants.
The fundamental principles of the laws of neutrality, so far as they refer to the rights and duties of neutral states, became generally recognized towards the end of the eighteenth century. They are, briefly, that neutral governments must maintain an attitude of strict impartiality and that belligerent governments must respect neutral territory. In particular, it became the established duty of neutral states to prevent belligerents from making use of their territories and of their resources for military and naval purposes during the war. This applied not only to actual fighting on neutral soil, but also to the transport of troops, war material, and provisions for troops across neutral territory, the fitting out of men-of-war and privateers, and the establishment of prize courts in neutral ports.5
While the above principles have become firmly established and are on the whole well observed, states were slow to reach agreement concerning the status of neutral vessels in time of war. The area of naval operations is the high seas, open to neutrals as well as to belligerents and belonging to no state. Hence the need in naval wars to regulate the use of these waters by belligerents and neutrals; the special laws of neutrality applicable in naval wars have no analogy in land warfare where belligerent operations take place on the soil of the parties to the conflict.
These special laws of neutrality represent a compromise between the claims made by belligerents to conduct war-like operations on the high seas and to prevent interference by neutrals with these operations, and the resistance to these claims made by neutrals, who asserted that the existence of war did not annul their right to use the high seas for the purpose of carrying on commercial intercourse with each other and with the belligerents. Out of these conflicting interests there were gradually evolved the laws of contraband, blockade, and unneutral service.
Each one of them was the product of a long historical evolution based upon precedents, which represented in each case a compromise between what the belligerent wished to exact and what his consideration for his own future neutral position, or the possibility of irritating the neutral, inclined him to accept.6
The conflicting interests of neutrals and belligerents in the use of the high seas in time of war had reached a fairly well-defined, if somewhat precarious, balance in the laws of neutrality generally accepted prior to the outbreak of the World War. Belligerents conceded the right of neutral traders to continue maritime commerce, subject to the prohibition of trade in contraband, breach of blockade, and unneutral service. Neutral governments were held to be under the duty not to assist either belligerent, but to maintain an attitude of strict impartiality in the conflict; they were not, however, bound to prevent or punish their nationals for engaging in contraband trading, breach of blockade, or unneutral service, such prevention and punishment being left to the belligerents themselves. The duty of the neutral extended no farther than its acquiescence in allowing belligerents to punish its nationals for such illegal practices.
The existence of a state of war duly proclaimed confers upon a belligerent the right to attack seaborne commerce of his enemy by seizing his merchant ships and further by preventing neutral merchant ships from affording him such assistance in the war as comes under the designation of contraband trading, breach of blockade and the rendering of unneutral service.7
For the purpose of exercising this right, international law permits belligerent warships to visit, search, capture, and in exceptional circumstances, even to destroy enemy and neutral merchantmen. All merchant vessels are subject to visit and search. The procedure in which visit and search shall be carried out, while not embodied in any written agreement, is nevertheless well established by the practice of states. "Before summoning a vessel to lie to, a ship of war must hoist her own national flag. The summons shall be made by firing a blank charge, by other international signal, or by both."8 "When the summoned vessel has brought to, the ship of war shall send a boat with an officer to conduct the visit and search."9 The purpose of visit and search is to ascertain—by examining the ship's papers, questioning the personnel, or searching the ship and cargo—the nationality, ports of departure and destination, character of cargo, and other facts deemed necessary to establish whether she is subject to capture. If found to be innocent, the vessel must be allowed to proceed, after the appropriate entry has been made in her log book.
"The summoned vessel, if a neutral, is bound to stop and lie to. . . if an enemy vessel, she is not so bound, and may legally even resist by force, but she thereby assumes all risks of resulting damage."10
If the vessel is found to be of enemy character, or, if neutral to be engaged in contraband trade, breach of blockade, or unneutral service, the warship may capture her. Ordinarily the commander of the warship will send a prize crew on board the merchant vessel which will take her into port for adjudication by a prize court. It is, however, permissible if, for any reason, this is impracticable, for the captor to order the captured vessel to lower her flag and to steer according to his orders.11
As regards the right of a belligerent warship to destroy an enemy merchantman, Hyde, after careful examination of state practice concludes that the provision in the United States Naval Instructions of June, 1917, according to which such destruction is permissible "in case of military necessity, when the vessel cannot be sent or brought in for adjudication,"12 is in substantial harmony with the present practice of maritime states.13 He points out that
the exigencies of a naval commander now tend to make of common occurrence acts which in wars of the last century were less frequently committed, not because they were deemed essentially illegal, but rather for the reason that destruction was usually regarded as unnecessary and undesirable.14
The destruction of a neutral merchant man differs in essential points from the destruction of an enemy merchantman. In the former case the bare fact of capture does not, as in the latter case, effect a change of ownership.
Such a change is only brought about by an investigation showing illegal conduct, and resulting in the formal imposition of a penalty which takes the form of forfeiture. To bring about such a result the ship is sent in and subjected, with its cargo, to the jurisdiction of a prize court.15
Until the beginning of this century there were scarcely any cases in which neutral vessels were sunk, and up to the time of the conference of London of 1909, the British government maintained that the practice was illegal.16 During the Spanish- American War the American government issued orders to its warships to destroy captured merchantmen in case of unseaworthiness, the existence of infectious disease, or the lack of a prize crew, as well as danger of recapture.17 No distinction was made between neutral and belligerent vessels. During the Russo-Japanese War of 1904-5 several neutral vessels were sunk by Russian warships.
The question was thoroughly discussed at the London naval conference in 1909 where the prevailing opinion was that all prizes, belligerent or neutral, might be destroyed if their preservation compromised the security of the capturing warship or the success of the operations in which she was engaged.18 Although Great Britain and Japan at first objected to this view, both finally signed the Declaration of London. The provisions of the declaration are, as Hyde says,
indicative of the opinion of the leading maritime Powers in 1909, that the destruction of neutral Prizes under the exceptional circumstances specified is far from wrongful.19
In case a merchant vessel was destroyed, international law, as it stood before the World War, imposed a clear duty on the warship to first place all persons on board in safety and to take on board all the ship's papers and other documents which were relevant for the purpose of deciding the validity of the capture.20 The only exception to this rule was the case of a vessel which, after having been summoned, took to flight or resisted visit and search. In such a case, the belligerent warship was permitted to employ force to stop her and the merchant vessel, if damaged or sunk in the process, had no right to complain.21 However, once the merchant vessel had been overcome by the warship, the latter was under obligation to save persons and papers on board.
The above outlines the rights and duties of belligerent warships in commerce war. The question arises whether these are also obligatory on submarines.
The submarine was first used in the World War. International conferences held before 1914 had not considered the employment of this special war vessel as a commerce destroyer; consequently, at the outbreak of the war there existed no international rules designed especially for the regulation of submarine warfare.
The position taken by the allied and neutral governments during the World War was that the submarine was a man-of-war and bound by all existing rules of naval warfare.22 In its official correspondence with the government of the United States the German government appears not to have questioned the American contention that the rules of international law governing surface men-of-war applied also to the submarine. Germany defended her practices as measures of retaliation against alleged allied violations of international law.23 However, there occurs one doubtful passage in a memorandum from the German Embassy, filed with the State Department March 8, 1916: ". . . Germany was compelled to resort, in February 1915, to reprisals in order to fight her opponents' measures, which were absolutely contrary to international law. She chose for this purpose a new weapon, the use of which had not yet been regulated by international law and, in doing so, could and did not violate any existing rules but only took into account the peculiarity of this new weapon, the submarine boat."24
This passage does not make it dear whether the German government claimed that its submarine practices were lawful because: (a) they were in the nature of reprisals for allied violations of international law, or (b) the use of the submarine had not been regulated by international law prior to the World War and her practices merely took into account the peculiar characteristics of this new weapon.
The general view, however, seems to be that during the World War Germany did not claim exemption from the established rules of international law for the sub marine, but that she justified her submarine practices as reprisals. 25 Since the war the German government has made no official statement concerning the use of submarines in commerce war.
Nor has any international agreement been reached conceding to the submarine exemption from the rules of international law binding surface vessels. The status of the submarine in international law was examined in 1926 by the United States Naval War College which came to the following conclusion:
A belligerent submarine lawfully commissioned as a vessel of war may exercise the rights of a vessel of war, but its nature gives it no special rights or privileges.26
Let us see whether the submarine is capable of conducting commerce warfare in accordance with established rules of international law.
The submarine usually lacks a suitable boat to send a boarding party for the purpose of visiting and searching a merchant vessel which has been ordered to stop. The sending of a search party would, moreover, deprive the submarine of the needed services of those sent on board the merchantman, should the sighting of a suspicious vessel compel her to submerge instantly. The submarine will, therefore, usually be compelled to require the captain of the vessel to come on board and bring his papers with him. The submarine commander is dependent on the information contained in the papers, whose correctness he cannot test. By use of false papers the effectiveness of the submarine can be seriously hindered.
Even if it is possible to send a search party, the fact that modern merchant vessels are often very large and can be loaded so as to hide contraband articles effectively renders it extremely difficult for a small boarding party, such as a sub marine can spare, to determine with any degree of certainty whether or not contraband is actually carried.
What has been said so far is based on the assumption that the merchantman is unarmed. Since the submarine is practically defenseless on the surface it can conduct visit and search only if it is assured that the merchantmen of the enemy are not armed. However, under existing rules of international law it is not unlawful for a belligerent merchant vessel to arm defensively and to resist visit and search by force27; furthermore, the use of false flags is still permissible in naval war, although unlawful in land warfare. Consequently, if the enemy authorizes his merchant marine to arm defensively and to fly false flags, the submarine is no longer assured of being able to exercise its right of visit and search without incurring grave danger of being attacked and sunk while it is on the surface attempting to ascertain the character of a merchant vessel.
But let it be supposed that the submarine has stopped a vessel and has established that the vessel is liable to capture. Because of its small complement, the submarine is unable to furnish a prize crew. It must, therefore, sink the captured vessel. However, it lacks room to accommodate the crew and passengers. Thus the submarine is faced with the alternative of permitting a guilty vessel to proceed unmolested, in other words, it is incapable of engaging in war against commerce, or of forcing crew and passengers to take to their boats. The boats can be regarded as a "place of safety" only in exceptional circumstances when sea and weather conditions are favorable and the distance to the coast is not great. At times the submarine may be able to tow the boats towards the coast.28
It may be argued that the submarine could be accompanied by a surface vessel to receive crews and passengers of captured vessels, or that the first captured vessel should be used for this purpose, or that the submarine could order a captured merchantman to lower its flag and steer according to orders, thus taking it into a home port. All of these are impracticable solutions. The very fact that a belligerent must resort to the use of the submarine in commerce warfare indicates that the enemy is in control of the area of operations.
The conclusion is inevitable that, except in rare circumstances, it is impossible for the submarine to carry on commerce warfare in accordance with international law as it stands today. Consequently, states must either renounce this weapon as a commerce destroyer or undertake a revision of the laws governing naval warfare, taking into account the changed conditions of modern war and the appearance of new weapons capable of operating under water and in the air. Let us see what has been done.
At the Washington Arms Limitation Conference, Great Britain made a strong plea for the abolition of the submarine since "it was a weapon of murder and piracy, involving the drowning of noncombatants."29 The British argument was that the submarine was only to a limited extent useful as a weapon of defense and that for offense it was really valuable only when used against merchant ships. The four other powers represented at the conference were, however, not willing VI abolish the submarine, although they expressed strong disapproval of the manner in which submarines had conducted commerce warfare in the World War. Elihu Root, one of the American delegates, introduced a resolution designed to pre vent the recurrence of the submarine practices of the World War.
The resolution consisted of three parts. In Part I the signatory powers laid down certain rules which "are deemed an established part of international law" and from which "belligerent submarines are not under any circumstances exempt." These were: (1) That before a merchantman can be captured it must be ordered to stop for visit and search; (2) that it may not be attacked unless it refuse to stop for visit and search after warning; and (3) that it may not be destroyed unless the crew and passengers have first been placed in safety. The signatory states invited all other civilized powers to adhere to the above statement of existing law. Part II of the resolution stated that the signatory states
recognize the practical impossibility of using submarines as commerce destroyers without violating the requirements universally accepted by civilized nations for the protection of the lives of neutrals and noncombatants and to the end that the prohibition of such use shall be universally accepted as part of the law of nations they declare their assent to such prohibition and invite all other nations to adhere thereto.
Part III embodied an important change in existing law. It provided that
any person in the service of any of the powers adopting these rules who shall violate any of the rules thus adopted . . . shall be liable to trial and punishment as if for an act of piracy, and may be brought to trial before the civil or military authorities of any such powers within the jurisdiction of which he may be found.
The French, Italian, and Japanese delegates expressed their entire agreement with the aims of the resolution but doubted its legal correctness and clarity on several points. These doubts were received with a trace of impatience. Mr. Root admitted that the resolution would be ineffective "if made between diplomats or foreign offices or governments," but he thought that if it "were adopted by the conference and met with the approval (as would surely be the case) of the great mass of the people, the power of the public opinion of the world would enforce them."30
On reading the minutes of the conference, so far as they relate to the Root Resolution, it is difficult to escape the conviction that the delegates were still influenced by the "spirit of Versailles." No attempt was made to consider the submarine problem calmly and realistically. Everyone denounced the horror of the practices of the late enemy with becoming fervor; questions concerning the legality or practicality of the rules of the resolution were swept aside. The only alterations made in the resolution served to make the prohibition of submarines as commerce destroyers still more stringent.31 The resolution was then embodied in a separate treaty and signed by all five powers.
This is not the place to discuss the Washington submarine treaty in detail. An excellent critique of this treaty will be found in an article in this journal by Captain W. S. Anderson, U. S. Navy.32 He says:
The most comprehensive rights of life and death over their naval personnel are conceded by the signatories to the officials of any country, in the heat of war, under the authority of a treaty containing inconsistent and ambiguous articles, and defying interpretation even by the eminent statesmen who signed it.
The treaty has not been ratified by France and is therefore not in force. It is doubtful whether it will ever be generally accepted, since it represents a solution of the submarine problem which is chiefly emotional and far too simple in view of the complexity of the considerations involved.
Eight years later, at the London naval conference, another attempt to abolish the submarine was made and failed, although the United States now supported the British plea for abolition. However, the five powers came to an agreement concerning the employment of submarines in commerce warfare; this was embodied in art. 22 of the London treaty and is to remain in force indefinitely. Article 22 reads as follows:
Part 1: In their action with regard to merchant ships, submarines must conform to the rules of international law to which surface vessels are subject.
Part 2: In particular, except in case of persistent refusal to stop on being duly summoned, or of active resistance to visit and search, a warship, whether surface vessel or submarine boat, may not sink or render incapable of navigation a merchant vessel without having first placed her passengers, crew, and ship's papers in a place of safety. For this purpose the ship's boats are not regarded as a place of safety unless the safety of the passengers and crew is assured, in the existing sea and weather conditions, by the proximity of land or the presence of another vessel which is in a position to take them on board.
The High Contracting Parties invite all other powers to express their assent to the above rules.
There was a marked difference in the spirit in which the submarine question was discussed at London as compared to that at the Washington conference. The passage of time since the World War made a calmer and more realistic approach possible. The new agreement is far less ambitious than the Washington treaty; the piracy clause is omitted, the tone of moral disapproval is wanting, and no attempt is made to lay down detailed rules of conduct. There is an implied recognition of the lawfulness of sinking vessels after placing passengers and crew in lifeboats, provided sea and weather conditions make the latter a "place of safety." The article applies both to submarines and surface vessels, thus expressing the sound principle that no particular type of warship should be singled out and subjected to special rules of warfare."33
The principal defect both of the Washington submarine treaty and of art. 22 of the London treaty is that they attempt a regulation of submarine warfare without at the same time considering the question of the armed merchantman; yet the two problems are intimately connected.
The custom of arming merchantmen for defense originated in times when pirates and privateers infested the seas. As these were gradually eliminated, one reason for defensive armament disappeared, and with the development of the modern warship, which is both in offensive and in defensive strength far superior to any merchantman, howsoever armed, another reason for arming merchantmen disappeared. Nevertheless, while the placing of armament on merchant vessels became less and less frequent, states did not formally renounce the right to arm their merchant marines defensively.
The question became acute again after the Second Hague Conference. It had been found impossible at that conference to reach agreement concerning the place where merchant vessels could be converted into warships in time of war. Such conversion must be distinguished from the placing of defensive armament on merchantmen. In the former case the vessel becomes part of the navy and is placed under the command of a duly commissioned officer; it is regarded as a warship. In the latter case the vessel retains its private character and remains under the command of its master.
In view of the fact that several great Continental European powers reserved to themselves the right to convert merchant steamers into cruisers not merely in national harbors but also on the high seas, Great Britain, fearing that if British ships had no armament they would be at the mercy of any foreign liner carrying one effective gun and a few rounds of ammunition, made preparation in 1913 to place defensive armament on certain vessels of its merchant marine. In reply to a question asked in Parliament as to whether such vessels were "equipped for defense only and not for attack," Mr. Churchill said on June 11, 1913:
Surely these ships will be quite valueless for the purposes of attacking armed vessels of any kind. What they are serviceable for is to defend themselves against the attack of other vessels of their own standing.34
And on March 17, 1914, he stated in the House of Commons that these vessels "are not allowed to fight with any ships of war."35 The same position was taken by Great Britain at the beginning of the 'World War in its correspondence with the American government concerning the status of British armed merchantmen in American ports. Sir Cecil Spring-Rice stated on August 25, 1914: "They will never under any circumstances attack any vessel."36
However, in 1916, the German foreign office communicated to the American ambassador in Berlin what purported to be copies of instructions to British merchant vessels, found on board the British steamer Woodfield. These required the vessel to "open fire in self-defense" as soon as she sighted a submarine, "notwithstanding the submarine may not have committed a definite hostile act."37 On March 2, 1916, the British government made public instructions issued in regard to armed merchant ships which were stated to be an affirmation of a policy which had remained unchanged throughout the war. These contained the provision that if a merchant vessel sighted a submarine or aircraft which was deliberately approaching it, "fire may be opened in self-defense."38
The German government took the position that the British practice of arming merchantmen and instructing them to fire on pursuing submarines, and the fact that on January 31, 1915, Great Britain expressly authorized the use of neutral flags by her merchant vessels, made it impossible for German submarines to conduct commerce warfare in accordance with the rules of international law. The reasonableness of the German argument was finally recognized by the American government and on January 18, 1916, Secretary of State Lansing addressed a note to the allied governments suggesting that "in order to bring submarine warfare within the general rules of international law and the principles of humanity without destroying its efficiency in the destruction of commerce" they agree not to arm their merchant vessels. The proposal was not accepted. However, this note contains probably the best analysis of the principles upon which the immunity of defensively armed merchant vessels is based.
Secretary Lansing said:
Prior to the year 1915 belligerent operations against enemy commerce on the high seas had been conducted with cruisers carrying heavy armaments. Under these conditions international law appeared to permit a merchant vessel to carry an armament for defensive purposes without losing its character as a private commercial vessel. This right seems to have been predicated on the superior defensive strength of ships of war, and the limitation of armament to have been dependent on the fact that it could not be used effectively in offense against enemy naval vessels, while it could defend the merchantman against the generally inferior armament of piratical ships and privateers.
He then pointed out that the use of the submarine "has changed these relations" and that a comparison of the defensive strength of the submarine and the cruiser shows that the former, relying for protection on its power to submerge, is almost defenseless in point of construction. He remarked that since pirates and privateers have been swept from the seas "the placing of guns on merchantmen at the present day of submarine warfare can be explained only on the ground of a purpose to render merchantmen superior in force to submarines" and that "any armament on a merchant vessel would seem to have the character of an offensive armament." Finally he stated that
my government is impressed with the reasonableness of the argument that a merchant vessel carrying an armament of any sort, in view of the character of submarine warfare and the defensive weakness of undersea craft, should be held to be an auxiliary cruiser and so treated by a neutral as well as by a belligerent government and is seriously considering instructing its officials accordingly.39
The case against arming merchantmen could not be stated more clearly. It cannot be required of the submarine to carry on visit and search in accordance with the rules of international law, if it thereby exposes itself to almost certain destruction by the guns of a belligerent merchantman which has received instructions to attack submarines on sight and which, under international law, is entirely justified in resisting visit and search. If, in addition, the belligerent merchantman flies the neutral flag,40 it becomes suicidal for the submarine to visit and search any merchant vessel.
The Advisory Committee to aid the American delegation at the Washington conference of 1921-22 submitted a report in which it examined the effect of the arming of merchantmen on the conduct of submarine warfare; it arrived at the conclusion that "defensive armament was al most sure to be used offensively in an attempt to strike a first blow. The next step was for each to endeavor to sink the other on sight." It proposed that "laws should be made prohibiting the arming of merchant vessels as well as the use of false flags by them."41
Unfortunately the conference did not take up the question of the armed merchantman. The Italian and Japanese delegates did indeed express doubts whether an armed merchant vessel could be called a private vessel and whether it was not really a warship,42 but the matter was left undecided. The treaty defining the laws governing submarine warfare was adopted without prohibiting simultaneously the arming of merchantmen. Nor was such a prohibition included in the Treaty of London.
It is doubtful whether any convention requiring submarines to comply with the existing rules of international law governing commerce warfare will receive general recognition unless it is also agreed that under the "changed conditions of modern warfare" armed merchantmen are no longer entitled to the immunities of private vessels.
The controversy over the employment of submarines as commerce destroyers is now twenty years old and no agreement has been reached. Failing such agreement it is almost certain that the submarine practices of the World War will be repeated in a future war. It is believed that a satisfactory solution of the submarine problem can only be effected in connection with a general revision of the laws of naval warfare, for the submarine problem is not an isolated one, but is intimately connected with the confused status of the laws of war in general. Of course, only an international conference is competent to undertake this task. Nevertheless, it is permissible to indicate briefly in this article some of the principal problems which must be faced and to suggest possible solutions.
The submarine is the weapon par excellence of the weak naval power. Control of the seas can never be obtained through possession of a submarine fleet, no matter how large. But control of the seas can be effectively challenged and its exercise rendered hazardous by submarine operations. The average number of German submarines operating at any one time on the Atlantic approaches to France and Great Britain during the World War was not more than nine or ten, but Great Britain was forced to maintain an average of no less than 3,000 anti-submarine surface craft in order to deal with these.43
Now, as a matter of practical politics, is it not improbable that the smaller naval powers will agree to abolish a weapon which can be so effectively used against the state or states in control of the sea? They might perhaps be willing to renounce the submarine if the strong naval powers in their turn consented to a limitation on the belligerent right to interfere with maritime trade. We thus arrive at the perennial question of whether private property should not enjoy at sea the same immunity which it now enjoys on land. The United States has long advocated this principle. The chief objection would seem to be that property is not really "owned" on the high seas, but is merely "transported." Immunity of private property at sea would thus actually be "immunity of trading operations." And it must be pointed out that a trading operation between neutrals and belligerents is as much a belligerent as a neutral trading operation. It is doubtful whether the strong naval powers will be ready to concede immunity of enemy trading operations on the high seas, even if the principle were limited to articles not contraband.
Having mentioned the word "contraband" we arrive at the crux of the whole problem. John Bassett Moore has said that the keynote to the question of neutral rights is to be found in the doctrine of contraband;44 it may be added that it is also the keynote to the submarine problem.
As the law stands at present, a belligerent may seize neutral property if it is contraband. If all goods are declared contraband by a belligerent in control of the sea, all neutral property going directly or indirectly to the enemy may be seized.
Before the World War it was generally held that goods fell into three classes:
Of these classes, the first consists of articles manufactured and primarily and ordinarily used for military purposes in time of war; the second, of articles which may be and are used for purposes of war or peace, according to circumstances; and the third, of articles exclusively used for peaceful purposes. Merchandise of the first class, destined to a belligerent country. . . is always contraband; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade.45
Before the war, arms and ammunition belonged in the first or absolute class; fuel, foodstuffs, grain, etc., in the second.46 During the World War, however, more and more articles, formerly regarded as non-contraband or as conditional contraband, were placed on the absolute contraband list by Great Britain. This was done under the plea of "changed conditions." Thus, as regards foodstuffs, Sir Edward Grey, in a communication to the American government on February 10, 1915, admit ted that no country had in modern times maintained more stoutly than Great Britain the principle that a belligerent should abstain from interference with the shipment of foodstuffs intended for the civil population of the enemy; however, he doubted whether the principle was still applicable in view of the fact that the German government had taken control of the food supplies of the country.47 Great Britain finally abolished the distinction between absolute and conditional contraband on April 13, 1916. On that day the British Foreign Office announced that the circumstances of the war were so peculiar that His Majesty's Government considered that for practical purposes the distinction between absolute and conditional contraband had ceased to have any value. So large a portion of the inhabitants of the enemy country were taking part, it was said, directly or indirectly, in the war that no real distinction could be drawn between the armed forces and the civilian population.48
The argument that under "changed conditions of modern war" the distinction between combatants and noncombatants ceases to have any practical value represents the most serious attack on the laws of war in general. We need only point to its implications with regard to poison gas and aerial bombardment to see that, if it were logically applied, the relations between belligerents during war would no longer be subject to any legal restraint at all.
As has been stated at the beginning of this article, the distinction between combatants and noncombatants was gradually evolved under the influence of principles of humanity. It should be added that it was largely due to the institution of standing armies.49 This century is witnessing a retrogressive movement, owing to the magnitude of modern wars and the manner in which belligerent governments draft their civilian populations into indirect war service and the control exercised by them over the entire economic resources, and particularly over the food supply of their countries.50
The law of contraband, as it stood prior to the World War, was based on the distinction between combatants and noncombatants. Neutrals were permitted to trade with citizens of belligerent states except in articles manufactured and primarily used for war (absolute contraband).51 Through an extension of the law of contraband and by disregarding the distinction between combatants and noncombatants all neutral commerce with the enemy, even if it is routed via a neighboring neutral country52 can be confiscated by the dominant sea power. However, it must be remembered that the humanitarian rule that enemy merchant vessels shall be immune from attack without warning is also a direct consequence of the principle that a distinction should be made between armed forces and private enemy individuals and that war-like operations should only be undertaken against the former. It can readily be seen that if, under the plea of "changed conditions," this distinction is abandoned by the belligerent in control of the sea so far as it applies to the right of neutrals to trade with enemy individuals, the same plea is likely to be made by the weaker belligerent as regards the immunity of enemy merchant vessels against unwarned submarine attack. Legally this may be wrong, but to the layman the argument will probably appear to have some justification. In the memorial accompanying her first war-zone declaration of February 4, 1915, Germany referred expressly to the measures taken by Great Britain in restraint of neutral trade with Germany which she claimed were,
Part of a plan to strike not only the German military operations but also the economic system of Germany, and in the end to deliver the whole German people to reduction by famine, by intercepting legitimate neutral commerce by methods contrary to international law.53
This is not the place to consider the respective merits of the British and German viewpoints; it must, however, be pointed out that both in effect maintained that "changed conditions" made it impossible to further distinguish between enemy armed forces and civil populations.
It is, therefore, apparent that a satisfactory solution of the submarine problem involves a reconsideration of the question whether under the "changed conditions of modern war" noncombatants should continue to enjoy immunity from war-like operations.54
Elsewhere in this article it has been shown that submarines find it difficult to conduct visit and search in accordance with established rules of law. It is interesting to note that, while it is true that the submarine is, by reason of its construction, peculiarly handicapped in conducting the above operations, changes in the size and speed of merchantmen and in the conduct of maritime war have rendered these operations more difficult for surface warcraft also. Great Britain pleaded "changed conditions" and the inability of her cruisers to conduct a proper search of large vessels on the high seas amid the constant danger of enemy attack as justification for her practice of diverting neutral merchantmen into British ports for visit and search. The lawfulness of this novel procedure was constantly denied by the United States and other neutrals; nevertheless diversion became the regular practice. Furthermore, in consequence of a number of British orders in council every merchant ship was finally required to touch at an English port for visit and search before proceeding to a northern enemy port or to a neutral nation proximate thereto.55
While Great Britain thus avoided the difficulties of visit and search on the high seas by the institution of the "Kirkwall practice," Germany declared certain areas of the sea to be "war zones" and forbidden to neutral vessels who must expect to be torpedoed by her submarines on sight. It would seem that both violations of existing law—while differing greatly in the kind of interference with neutral rights—proceed from the fact that under modern conditions of war belligerents are no longer able to control neutral trade through the exercise of visit and search at sea.
During the World War both sides laid extensive mine fields on the high seas. Large areas of the ocean were declared to be "war zones" or "danger zones" and neutrals were warned that navigation therein was dangerous. On January 31, 1917, Germany notified neutral governments that in certain areas proximate to the English coast all vessels—including neutral vessels—would be sunk on sight. It would seem that in substance there is little difference between the laying of a mine field and the declaration that within a certain area submarines will sink all vessels on sight. Both are serious violations of the right of neutrals to navigate the high seas. Evidently the question whether belligerents may render parts of the ocean dangerous to all navigation by sowing mines ought to be considered together with the rules governing submarine warfare.56
A solution of many of the difficulties which have been mentioned, and these are by no means all existing difficulties as regards the laws of naval warfare, may be found in establishing a new balance between the conflicting interests of neutrals and belligerents in the use of the high seas during war. Evidently the balance embodied in the laws of neutrality as they existed prior to the World War has been upset by the appearance of new weapons of war—the submarine, the mine, and also the airplane, which has not even been touched upon in this article, but which is destined to play an important part in the next war—together with the speed and volume of international trade and the increased dependence of all states upon over-seas supplies to carry on a war. It would be impracticable as well as unfair to place the whole burden of these changes upon the belligerents, and such a solution of the problem would simply be disregarded by them. It would seem that in order to retain the right to carry on legitimate neutral trade in war time, neutral states may have to shoulder greater responsibilities.57 In particular, they may find it necessary themselves to prevent and punish their nationals for contraband trading, breach of blockade, or unneutral service, in order to avoid controversies with belligerents concerning the procedures used by these to effect such prevention and punishment. Recently there have been reports that the United States is contemplating a reversal of her policies as to neutral rights along the lines indicated above.58
It may also be possible for neutral states in a future war to get together, to agree on a common program of neutral rights and to assert these collectively, if necessary through economic pressure on the belligerents. A significant statement, foreshadowing such a possibility, is contained in the Argentine Anti-War Treaty which has been signed—but not yet ratified—by the United States on April 27, 1934. In art. III of this treaty the signatory powers agree that if a state fails to comply with the obligations for pacific settlement of disputes, contained in arts. I and II of the treaty, "they will adopt in their character as neutrals a common and solidary attitude."
In any event, it would seem to be clear that the submarine problem cannot be treated as an isolated question, but must be considered as part of the larger problem of the effect of "changed conditions of modern warfare" on the laws of war in general.
1 C. C. Hyde, International Law, vol. i, p. 2.
2 Ibid., p.3.
3 Foreign Affairs, vol. xii, No. 3. April, 1934.
4 L. Oppenheim, International Law, vol.ii, p. 135.
5 Ibid., p. 476.
6 E. C. Stowell, International Law, p. 543.
7 J. A. Hall, The Law of Naval Warfare, p.262.
8 Instructions for the Navy of the United Stales Governing Maritime Warfare, June 1917, art. 44.
9 Ibid., art. 46.
10 Ibid., art44.
11 L. Oppenheim, op. cit., pp. 325,699.
12 Art. 94.
13 C. C. Hyde, International Law, vol. ii, p.497.
14 Ibid., pp. 497-98. See also article by J. W. Garner in American Journal of International Law, 1915, p. 615.
15 C. C. Hyde, op. cit., p.498.
16 J. A. Hall, op. cit., p.287.
17 Article 28, General Orders, No. 492, June 20, 1898, Foreign Relations, 1898, pp. 780, 782; see also J. B. Moore, International Law Digest, vol. vii, pp. 525-26.
18 Declaration of London, art. 49.
19 Op. cit., p. 503. The Declaration of London was, however, never ratified. The Instructions for the Navy of the United States of 1917 specify that neutral vessels engaged in unneutral service may be destroyed "in the case of military necessity, when the vessel cannot be sent or brought in for adjudication" (art. 95), and that neutral vessels guilty of contraband trading or breach of blockade may be sunk only "in case of the greatest military emergency which would not justify . . . releasing the vessel or sending it in for adjudication" (art. 96).
20 C. C. Hyde, op. cit., p. 497; Instructions for the Navy of the United States, 1917, art. 97; Oxford Manual of Naval War, art. 114; Declaration of London, art. 50.
21 See General Report presented to the Naval Conference (of London) on behalf of its Draughting Committee, chapter viii; printed in C. Stockton, Outlines of International Law, P. 590; also C. C. Hyde, op. cit., p. 451.
22 See discussion of this question by Hyde, ibid., pp. 481-484.
23 See, for example, German memorandum of Feb. 4, 1915, enclosed in communication of Mr. Gerard, Ambassador to Germany, to Mr. Bryan, Secy. of State, Feb. 6, 1915, American White Book, European War, vol. i, p. 53; Herr v. Jagow, German secy. for Foreign Affairs to Mr. Gerard, July 8, 1915, id., vol. ii, p. 175.
24 Ibid., vol. iii, pp. 184, 185.
25 For a criticism of this attitude, see Bauer, Das Unterseeboot, pp. 57, 103.
26 International Law Situations, 1926, p. 39.
27 C. C. Hyde, op. cit., pp. 451-52. A neutral merchantman may not resist visit and search by force.
28 This was frequently done by German submarines prior to the commencement of unrestricted submarine warfare; see Bauer, op.cit., p. 59.
29 Lord Lee, Conference on the Limitation of Armaments, Senate Doc., No. 126, 67th Cong., 2d. Sess., p.484.
30 Ibid., p.596.
31 Thus the second part of the resolution was made immediately binding on the signatory states, and the piracy clause was altered so as to make "any person in the service of any power" who violated the above stated rules liable to punishment as if for an act of piracy.
32"Submarines and Disarmament Conferences," Naval Institute PROCEEDINGS, Jan. 1927, p. 50.
33 The London treaty has been ratified by Great Britain, the United States, and Japan, but not by France and Italy.
34 Parl. Debates, Commons, 1913, vol. 53, p. 1599.
35 Ibid., 1914, vol. 59, p. 1925.
36 Naval War College, International Law Situations, 1927, p. 81.
37 Ibid., 1930, p.23.
38 Ibid., 1930, pp. 12-13.
39 American White Book, European War, vol. iii, pp. 162 et seq. It may be mentioned that the Netherlands government took the stand that armed merchantmen were assimilated to warships as regards their right to use Dutch ports; see U.S. Naval War College, International Law Situations, 1930, p. 14.
40 For British-American correspondence concerning the use of neutral flags by British merchant vessels, see letter of Secy. of State to Ambassador W. H. Page, Feb. 10, 1915, and reply thereto by Amb. W. H. Page of Feb. 19, 1915 (printed in "Official Correspondence between the United States and Great Britain," International Conciliation, 1915, pp. 36, 37).
41 Conference on the Limitation of Armament, Senate Doc. No. 126, 67th Cong., 2d sess., p. 274.
42 Ibid., pp. 692, 702.
43 Statement by Lord Lee at the Washington conference, op.cit., 482.
44 International Law and Some Current Illusions, pp. 47-48.
45 Chief Justice Chase, in the Peterhof, 5 Wall., 28,58.
46 As late as the Boer War Lord Salisbury said: "Foodstuffs, with a hostile destination can be considered contraband of war only if they are supplies for the enemy's forces" (J. B. Moore, International Law Digest, vol. vii, p. 685.
47 American White Book, European War, vol. i, pp. 44, 50, 51.
48 British White Paper of April 13, 1916, American White Book, European War, vol. ii, p. 52.
49 "The humanizing of the practices of war would have been impossible without the discipline of standing armies; and without them the important distinction between members of armed forces and private individuals could not have arisen" (L. Oppenheim, op. cit., p. 136).
50 That in a future war food will almost certainly be treated as absolute contraband can be seen from the negative reception accorded President Hoover's suggestion made in 1931 that ships carrying food supplies should be "free of any interference." The fact that since the war many states have devoted themselves to becoming self-sufficient in food, even at the expense of lowering the economic standard of their populations, would appear to indicate that they harbor no illusions as to the treatment food will receive during war.
51 Except that they were not permitted to break a blockade.
52 By applying the doctrine of "continuous voyage" or "continuous transportation."
53 American White Book, European War, vol. i, p. 53.
54 A blockade such as the one maintained by the Allies against the Central Powers during the World War must be regarded as a war-like operation. Admiral Bauer estimates that approximately 800,000 noncombatants in Germany died as a result of the allied blockade, while 30,000 lost their lives in consequence of the German submarine blockade (op. cit., p. 82).
55 See in particular the Order in Council of Feb. 16, 1917, 111, Brit. and For. State Papers, p. 14.
56 Mine fields were laid during the Russo-Japanese War of 1904-5, and certain parts of the ocean were declared by Japan to be "defense sea areas," reserved for naval operations and forbidden neutral vessels. The Second Hague Conference regulated the laying of mines in Convention VIII which was, however, not in force in the World War since it had not been ratified by Russia.
57 See the interesting proposals made by former Assistant Attorney-General Charles Warren in an article "Troubles of a Neutral," in Foreign Affairs, vol. xii, No. 3, April 1934.
58 The New York Times reported on Dec. 17, 1934, that plans were being considered by the State Department that in case of war "we would seek. . . so to restrict the activities of our people, particularly in supplying munitions to belligerents and in traversing the war zones, as to eliminate practically all problems of neutrality for us." See also the Burton and Capper Arms Embargo Resolutions of 1928.