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A further Imperial Order on April 21, 1904, added cotton to the list of absolute contraband.1

The protests of Great Britain led to the reference of the subject by the Russian Government to a Departmental Committee, the result of whose deliberations was the issue on October 22, 1904, of the following rectifying notice:

In consequence of doubts which have arisen as to the interpretation of Art. VI., section 10, of the Regulations respecting Contraband of War, it has been resolved by the Imperial Government that the articles capable of serving for a warlike object, in regard to which no decision has been taken, including rice and foodstuffs, shall be considered as contraband of war, if they are destined for

The Government of the belligerent Power; for its administration; for its army; for its navy; for its fortresses; for its naval ports; or for its purveyors.

In cases where they are addressed to private individuals, these articles shall not be considered as contraband of war.

In all cases horses and beasts of burden shall be considered as contraband

of war.

The original Order went far beyond what had been hitherto accepted as the description of contraband.

The British view is that the term "contraband of war includes only articles having a belligerent destination and purpose. Such articles, in the Instructions to British officers, are classed under two heads:

1. Those primarily and ordinarily used for military purposes in time of war, e.g. arms and munitions of war, military material, etc.-described as "absolutely contraband."

2. Those used for peaceful or warlike purposes according to circumstances, and described as conditionally contraband.

Articles of the first class destined for ports of the enemy or places occupied by his forces are always contraband of war. Articles of the second class are contraband of war only when destined for the military or naval forces of the enemy. Coal and provisions are among the articles which are only conditionally contraband.

In his despatch to St. Petersburg of June 1st, 1904, Lord Lansdowne expressed the surprise with which the British Government learnt that rice and provisions were to be treated as unconditionally contraband-"a step which they regarded as inconsistent with the law and practice of nations." While thus protesting in regard to this particular category of so-called contraband of war, the British Government "felt themselves bound to reserve their rights by also protesting against the doctrine that it is for the belligerent to decide what articles are as a matter of course, and without reference to other considerations, to be dealt with as contraband of war, regardless of the well-established rights of neutrals"; nor would the British Government consider itself bound to recognise as valid the decision of any Prize Court which violated those rights. It did not dispute the right of a belligerent to take adequate precautions for the purpose of preventing contraband of war, in the hitherto accepted sense of the words, from reaching the enemy; but it objected to the introduction of a new doctrine under which "the well-understood distinction between conditional and unconditional contraband was altogether ignored, and under which, moreover, on the

1 On remonstrance by the British Ambassador, Count Lamsdorff remarked that, in the absence of any international decision as to what was or was not contraband of war, it appeared to be within the power of a belligerent to arbitrarily decide what articles were to be so considered (June 13, 1904).

discovery of articles alleged to be contraband, the ship carrying them was, without trial and in spite of her neutrality, subjected to penalties which are reluctantly enforced even against an enemy's ship." 1

Lord Lansdowne stated the British Government's attitude more fully as regards the inclusion of rice and provisions as absolute contraband, "a step which they regard as inconsistent with the law and practice of nations," in the following terms:

"His Majesty's Government do not contest that, in particular circumstances, provisions may acquire a contraband character, as, for instance, if they should be consigned direct to the army or fleet of a belligerent, or to a port where such fleet may be lying, and if facts should exist raising the presumption that they are about to be employed in victualling the fleet of the enemy. In such cases it is not denied that the other belligerent would be entitled to seize the provisions as contraband of war, on the ground that they would afford material assistance towards the carrying on of warlike operations. His Majesty's Government could not, however, admit that if such provisions were consigned to the port of a belligerent (even though it should be a port of naval equipment) they should therefore be necessarily regarded as contraband of war. In the view of His Majesty's Government the test appears to be whether there are circumstances relating to any particular cargo to show that it is destined for military or naval use. His Majesty's Government desire to point out that the decision of the Prize Court of the captor in such matters, in order to be binding on neutral States, must be in accordance with recognized rules and principles of international law. His Majesty's Government feel themselves bound to reserve their rights by protesting against the doctrine that it is for the belligerent to decide that certain articles, or classes of articles, are as a matter of course, and without reference to the considerations referred to in the earlier portion of this despatch, to be dealt with as contraband of war regardless of the well-established rights of neutrals; and His Majesty's Government could not consider themselves bound to recognise as valid the decision of any Prize Court which violated those rights, or was otherwise not in conformity with the recognised principles of international law" (June 1, 1904).

The British Ambassador (Sir C. Hardinge) in reply wrote. (September 16, 1904) that, owing to the decision of the abovementioned Commission, which had been formed under the Presidency of Professor F. de Martens to study the question of contraband, supplementary instructions had been issued to the Naval Commanders and to the Naval Prize Courts defining the interpretation of section 10 of Article VI. of the Russian rules which, the Commission were of opinion, had in some cases been misinterpreted. According to the instructions now issued, the conditionally contraband nature of articles used for peaceful or warlike purposes, according to circumstances and included under section 10 of Art. VI., was admitted, but the Russian Government could not admit that articles of dual use when addressed to private individuals in the enemy's country should be necessarily free from seizure and condemnation, since provisions and such articles of dual use, though intended for the military or naval forces of the enemy, would obviously under such circumstances be addressed to private individuals (possibly agents or contractors for the naval or military authorities) and not to the Government, thus defeating the object of the regulations.

In answer to a question by the British Ambassador, the Russian Foreign Minister (Count Lamsdorff) agreed that in the event of the seizure of articles of a conditionally contraband

1 See section 40 of Russian Instructions on Procedure in Stopping, Examining, and Seizing Merchant Vessels, published in London Gazette of March 18, 1904.

nature addressed to private individuals in the enemy's country, the burden of proof would necessarily rest with the captor, observing, however, "that it would be equally to the advantage of the owner of the articles in question to disprove the charge that they were destined for the military or naval forces of the enemy."

Lord Lansdowne in answer stated that

While H.M. Government do not contend that the mere fact that the consignee is a private person should necessarily give immunity from capture, they hold, on the other hand, that to take vessels for adjudication merely because their destination is the enemy's country would be vexatious, and constitute an unwarrantable interference with neutral commerce. To render a vessel liable to such treatment there should, in the opinion of His Majesty's Government, be circumstances giving rise to a reasonable suspicion that the provisions are for the enemy's forces, and it is in such a case for the captor to show that the grounds of suspicion are adequate, and to establish the fact of destination for the enemy's forces before attempting to procure their condemnation (September 30, 1904).

As regards cotton, explanations were given (May 18, 1904) that the prohibition of cotton as contraband of war applied only to raw cotton suitable for the manufacture of explosives, and not to yarn or tissues. "The object of the prohibition was to prevent the importation of an article which could be used for the manufacture of munitions of war, and as it was impossible to distinguish between the cotton imported for innocent purposes and cotton imported for use as munitions of war, it had been found necessary to issue the proclamation in question. There was no intention of introducing a new doctrine of contraband of war.

" 1

1 Sir C. Hardinge in this connection pointed out to Count Lamsdorff (St. Petersburg, October 9, 1904) that British India is by far the largest importer of raw cotton into Japan, the quantities imported in 1901 and 1902 being more than double those imported from the United States of America or from any other country, while the value of raw cotton sent to Japan from India in each of the above-mentioned years amounted to nearly 40,000,000 roubles, and one-half of the total value of all the cotton imported into Japan. The quantity of raw cotton that might be utilised for explosives would be infinitesimal in comparison with the bulk of the cotton exported from India to Japan for peaceful purposes, and to treat harmless cargoes of this latter description as unconditionally contraband would be to subject a branch of innocent commerce, which is specially important in the Far East, to a most unwarrantable interference.

XIV

DESTRUCTION OF PRIZES

THE destruction by the Russian Fleet in the Far East of a number of captured neutral vessels without trial by a Prize Court, gave rise to a serious controversy between the British and

Russian Governments.

The Russian contention was that "the captor of a neutral ship is within his rights if he sinks it, for the reason that it is difficult, or impossible, for him to convey it to a national port for adjudication by a Prize Court," or even inconvenient to do so, “because of the distance of the port to which the vessel should be brought," or because "her conveyance to such a port would take too much time or entail too great a consumption of coal," or because the "captor has not at his disposal a sufficient number of men from whom to provide a crew for the captured vessel." "The effects of a consistent application of these principles," Lord Lansdowne pointed out, "would justify the wholesale destruction of neutral ships taken by a vessel of war at a distance from her own base, upon the ground that such prizes had not on board a sufficient amount of coal to carry them to a remote foreign port,-an amount of coal with which such ships would probably in no circumstances have been supplied. They would similarly justify the destruction of every neutral ship taken by a belligerent vessel which started on her voyage with a crew sufficient for her own requirements only, and was therefore unable to furnish prize crews for her captures." "The adoption of such measures by the Russian Government could not fail to occasion a complete paralysis of all neutral commerce" (Foreign Office, Aug. 10, 1904).

During the Chino-Japanese War a somewhat similar controversy arose out of the sinking by a Japanese commander of the Kow-Shing, a British vessel carrying Chinese troops to the (or the prospective) seat of war. The issue was complicated in the Kow-Shing case by a doubt as to whether a state of war existed, warranting the arrest or capture of a neutral vessel on the High Sea. Assuming, however, that a state of war did exist, the circumstances were that the neutral vessel was carrying enemy troops to the seat of war. The Japanese commander ordered the vessel to follow her to Japan; but "it was found after long negotiations that the ship was not able to proceed to Japan, because the Chinese on board resisted the Japanese orders, which the captain himself wished to obey. . . . The Kow-Shing was thus," says Professor Takahashi, "rendered unnavigable by a cause more potent than winds or waves. Moreover, considering the position of the enemy's fleet at the time, the recapture of the Kow-Shing was very probable." The case was exceptional, owing to the material fact that the Chinese troops on board prevented the commander of the captured vessel from carrying out the captor's orders, and the captor was placed between the alternatives of sinking the ship or allowing the enemy troops to continue their journey.

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1 Cases on International Law during the Chino-Japanese War, Cambridge, 1899, p. 47

In the case of the British vessels sunk by their Russian captors, there was no resistance. They were sunk on grounds of convenience, the strongest being that the alternative would have been to release them, and to release them would have been to allow their contraband cargoes to reach their destination.

In principle, there is no difference between ships carrying. absolute contraband and ships carrying enemy troops.

The subject was dealt with by the Institute of International Law in 1887, when, after long and repeated discussions, the

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