CHAPTER IV

CONTRABAND

I

CONCEPTION OF CONTRABAND

Grotius, III. c. 1, § 5-Bynkershoek, Quaest. jur. publ. I. cc. IX-XII -Vattel, III. §§ 111-113-Hall, §§ 236-247-Lawrence, §§ 277-281 -Maine, pp. 96-122-Manning, pp. 352-399-Phillimore, III SS 226-284-Twiss, II. §§ 121-151-Halleck, II. pp. 214-238Taylor, §§ 653-666--Walker, §§ 73-75-Wharton, III. §§ 368–375Wheaton, §§ 476-508-Bluntschli, $$ 801-814-Heffter, §§ 158-161 ---Geffcken in Holtzendorff, IV. pp. 713-731-Gareis, § 89—Liszt, § 42—Ullmann, § 166—Bonfils, Nos. 1537-1587-Despagnet, Nos. 687-690-Rivier, II. pp. 416-423-Calvo, V. §§ 2708-2795-Fiore, III. Nos. 1591-1601-Martens, II. § 136-Kleen, I. §§ 70–102— Boeck, Nos. 606-659-Pillet, pp. 315-330-Gessner, pp. 70-144— Perels, $$ 44-46-Testa, pp. 201-220-Lawrence, War, pp. 140174-Ortolan, II. pp. 165-213-Hautefeuille, II. pp. 69-172— Dupuis, Nos. 199-230-Holland, Prize Law, §§ 57-87-U.S. Naval War Code, articles 34-36-Heineccius, "De navibus ob vecturam vetitarum mercium commissis dissertatio " (1740)—Huebner, "De la saisie des bâtiments neutres," 2 vols. (1759)—Valin, “Traité des prises,” 2 vols. (1763)—Martens, "Essai sur les armateurs, les prises, et surtout les reprises" (1795)-Lampredi, “Del commercio dei populi neutrali in tempo di guerra" (1801)—Tetens, "Considérations sur les droits réciproques des puissances belligérantes et des puissances neutres sur mer (1805)-Pistoye et Duverdy, “Traité des prises maritimes," 2 vols. (1855)—Moseley, "What is Contraband and what is not ?" (1861)-Upton," The Law of Nations affecting Commerce during War" (1863)-Lehmann, “Die Zufuhr von Kriegscontrebandewaren, etc." (1877)—Kleen, "De contrebande de guerre et des transports interdits aux neutres ' (1893)-Vossen, "Die Kontrebande des Krieges" (1896)-Manceaux, "De la contrebande de guerre" (1899)-Brochet," De Is contrebande de guerre" (1900)-Hirsch, "Kriegscontrebande und verbotene Transporte in Kriegszeiten" (1901)-Pincitore, “Il contrabbando di guerra "(1902)—Knight, "Des états neutres au point de vue de la contrebande de guerre (1903)-Wiegner, "Die Kriegskontrebande " (1904)-Westlake in R.I., II. (1870), pp. 614

655-Kleen in R.I., XXV. (1893), pp. 7, 124, 209, 389, and XXVI. pp. 214-217 (1894)-Bar in R.I., XXVI. (1894), pp. 401-414— Brocher de la Fléchère in R.I., 2nd ser. I. (1899), pp. 337-353Fauchille in R.G., IV. (1897), pp. 297-323-Kleen in R.G., XI. (1904), pp. 353-362-Gover in the "Journal of the Society of Comparative Legislation," new series, II. (1900) pp. 118–130.

of Contra

War.

§ 391. The term contraband derives from the Definition Italian "contrabbando," which, itself deriving from the band of Latin "contra" and "bannum " or "bandum," means "in defiance of an injunction." Contraband of war is the designation of such goods as are interdicted by either belligerent to be carried to the enemy on the ground that they enable the latter to carry on the war with greater vigour. But this definition is only a formal one, as it does not say what kinds of goods belong to the class of contraband. This point is indeed, and always was, much controverted. The matter still stands as Grotius explained it. Although he does not employ the term contraband, he treats of the matter. He1 distinguishes three different kinds of articles. Firstly, those which, as arms for instance, can only be made use of in war, and which are, therefore, always contraband. Secondly, those, as articles of luxury, which can never be made use of in war and which, therefore, are never contraband. Thirdly, those which, as money, provisions, ships, and articles of naval equipment, may be made use of in war as well as in peace, and which are on account of their ancipitous use contraband or not according to the circumstances of the case. In spite of Bynkershoek's decided opposition to this

See Grotius, III. c. 1, § 5:"Sunt res quae in bello tantum usum habent, ut arma: sunt quae in bello nullum habent usum, ut quae voluptati inserviunt: sunt quae et in bello et extra bellum usum habent, ut pecuniae, com

distinction of Grotius, the

Absolute

and con. ditional Contraband.

practice of most belligerents has down to the present day been in conformity with it. A great many treaties have from the beginning of the sixteenth century been concluded between different States for the purpose of fixing what articles belonging to the class of ancipitous use should and what should not be regarded as contraband between the parties, but all these treaties disagree with one another. And, as far as they are not bound by a treaty, belligerents always have exercised, and still exercise, their discretion in every war according to the special circumstances and conditions in regarding or not regarding certain articles of ancipitous use as contraband. The endeavour of the First and the Second Armed Neutrality of 1780 and 1800 to restrict once for all the number and kinds of articles that could be regarded as contraband failed, and the Declaration of Paris of 1856 uses the term contraband without any attempt to define it.1

§ 392. Apart from the distinction between articles which can be made use of only in war and those of ancipitous use, two different classes of contraband must be distinguished.

There are, first, articles which by their very character are primarily and ordinarily destined to be made use of in war. In this class are to be reckoned not only arms and ammunition, but also such articles of ancipitous use as military stores, naval stores, and the like. They are termed absolute contraband.

There are, secondly, articles which by their very character are primarily and ordinarily not destined to be made use of in war, but which under certain

1 Although-see above, §§ 173174-prevention of carriage of contraband is a means of sea warfare against the enemy, it chiefly

concerns neutral commerce and is, therefore, more conveniently treated together with neutrality.

circumstances and conditions may be of the greatest use for a belligerent for the continuation of the war. To this class belong, for instance, horses, provisions, and coal. These articles are termed conditional or relative contraband.

Although all States do not make this distinction, they distinguish nevertheless, in so far as they vary in their different wars, the list of articles which they declare contraband: certain articles, as arms and ammunition, being always on the list, other articles being considered contraband only then when the circumstances of a particular war make it necessary. The majority of writers approve of the distinction between absolute and conditional contraband, although there are several who insist that arms and ammunition only and exclusively can be recognised as contraband, and that conditional contraband does not exist. The distinction would seem to be important not only regarding the question whether or not an article is contraband, but also regarding the consequences of carrying contraband.2

§ 393. That absolute contraband cannot and need Articles not be restricted to arms and ammunition only and Contra absolutely exclusively becomes obvious, if the fact is taken into band. consideration that other articles, although of ancipitous use, may be as valuable and essential to a belligerent for the continuance of the war as arms and ammunition. The necessary machinery and material for the manufacture of arms and ammunition are almost as valuable as the latter themselves, and warfare on sea can as little be waged without vessels and articles of naval equipment as without arms and ammunition. But no unanimity exists with

1 See, for instance, Hautefeuille, II. p. 157, and Kleen, I. § 90. 2 See below, § 406.

regard to such articles of ancipitous use as have to be considered as absolute contraband, and States, when they go to war, increase or restrict, according to the circumstances of the particular war, the list of articles they consider absolute contraband.

According to British practice 1-subject, however, to the prerogative of the Crown to order alterations of the list during a war-the following articles are considered absolute contraband: Arms of all kinds, and machinery for manufacturing arms; ammunition and materials for ammunition, including lead, sulphate of potash, muriate of potash (chloride of potassium), chlorate of potash, and nitrate of soda; gunpowder and its materials, saltpetre and brimstone, also guncotton; military equipments and clothing; military stores; naval stores, such as masts, spars, rudders, ship timbers, hemp and cordage, sailcloth, pitch and tar, copper for sheathing vessels, marine engines and the component parts thereof (including screw propellers, paddle-wheels, cylinders, cranks, shafts, boilers, tubes for boilers, boiler-plates and fire bars), maritime cement and the materials used for its manufacture (as blue lias and Portland cement), iron in any of the following forms: anchors, rivet-iron, angle-iron, round bars of from to § of an inch diameter, rivets, strips of iron, sheet plate-iron exceeding of an inch, and Low Moor and Bowling plates.

It must be specially observed that, although belligerents must have a free hand in increasing or restricting, according to the circumstances of the particular war, the list of articles of absolute contraband, it ought not altogether to be left to the discretion of belligerents to declare any articles they like as absolute contraband. The test to be applied

1 Sec Holland, Prize Law, § 62.